Court File and Parties

COURT FILE NO.: CR-22-715-0000 (Guelph) DATE: 20240319 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – ADNAN ALEX REFAEH Defendant

Counsel: Peter Keen, for the Crown Robert Wulkan, for the Defendant

HEARD: February 8, 2024

Reasons for Sentence

(delivered orally)

NOTICE: A Court Order prohibits the publication of any information that could identify the victim in this case.

PETERSEN J.

Introduction

[1] Mr. Refaeh was convicted of the following offences by a jury:

i. operating a motor vehicle in a manner that was dangerous to the public and that caused bodily harm to T.K. (s.320.13(b) of the Criminal Code); and

ii. failing to remain at the scene of an accident where bodily harm was caused (s.320.16(2) of the Criminal Code).

[2] I heard submissions with respect to sentence on February 8, 2024.

[3] I have read and considered the victim impact statement submitted by T.K., the pre-sentence report regarding Mr. Refaeh, and the many positive character letters written in support of Mr. Refaeh by his neighbours, friends, and family members.

[4] I am here today to deliver my ruling on sentence and to provide the reasons for my ruling. I will do so orally, but a written transcript of my reasons will follow.

Parties' Positions

[5] The parties are far apart in their submissions as to what would be an appropriate global sentence in this case. The Crown asks the court to sentence Mr. Refaeh to a penitentiary term of imprisonment. Mr. Keen submits that an appropriate sentence (for both offences combined) would be 30 to 36 months' imprisonment, followed by a 3-year prohibition on driving.

[6] The Defence is seeking a conditional sentence, meaning a sentence to be served in the community rather than in a jail. This would mean that Mr. Refaeh would be under a form of house arrest in his parents' home, with restrictions on his liberty. The Defence requests that he be permitted to leave home for the purposes of education, employment, and religious observance. If he breached any of the terms of the conditional sentence, he would be taken into custody to serve the remainder of his sentence in jail. Mr. Wulkan submits that an appropriate conditional sentence (for both offences combined) would be 12 to 18 months duration, followed by an 18-month driving prohibition and a probationary period during which Mr. Refaeh would be required to complete community service hours.

[7] In the alternative, if the court determines that a jail term is required, then the Defence submits that it should be a short term of imprisonment (no more than 90 days) for the dangerous driving offence, to be served intermittently on weekends, followed by a conditional sentence for the fail to remain offence (meaning that the remainder of the sentence would be served in the community).

[8] The reason why the parties are so far apart in their submissions on sentencing is that they are basing their positions on different theories of liability for the offences. The Crown maintains that Mr. Refaeh engaged in a street race with a stranger named Mitchell Nodwell, for an extended distance on a busy downtown street in Guelph, which culminated in a serious head-on collision between Mr. Nodwell's vehicle and the vehicle in which T.K. was travelling. Furthermore, the Crown maintains that Mr. Refaeh left the scene after the accident occurred, knowing that people had likely been injured, because he wanted to avoid detection by police and escape liability for his dangerous driving.

[9] The Defence maintains that Mr. Refaeh was not racing, but rather was being chased by Mr. Nodwell, and that his dangerous operation of the motor vehicle, as well as his subsequent failure to remain at the scene of the accident, amounted to serious but fleeting errors in judgment when confronted with extraordinary circumstances in which he was being run off the road and threatened by Mr. Nodwell. The Defence argues that Mr. Refaeh genuinely believed it was unsafe for him to return to the accident scene. On the Defence theory, Mr. Refaeh's guilt would be based on the fact that a reasonable person would have made a different choice than to leave.

[10] The Crown concedes that, if Mr. Refaeh were guilty only of such errors in judgment, given his youth and absence of any criminal record, a conditional sentence of less than 2 years would be appropriate. But the Crown asks the court to reject the Defence theory of liability and sentence Mr. Refaeh on the basis that he engaged in a street race. The Crown also asks the court to find that Mr. Refaeh not only left the accident scene to escape liability, but thereafter also made concerted efforts to try to avoid being identified as the second driver by the police.

[11] The jury was instructed that there were different ways in which they could arrive at a guilty verdict, and because juries do not provide reasons for their decisions, we do not know which path they took. They may not have all taken the same path. They were not required to agree on all their factual findings, provided that they were unanimous in their ultimate verdicts.

[12] Section 724(2)(a) of the Criminal Code requires me to accept as proven all facts that are essential to the jury's guilty verdicts. However, when the factual implications of a jury's verdicts are ambiguous, then I must come to my own independent determination of the relevant facts, without trying to reconstruct the jury's logic. Section 724(2)(b) of the Criminal Code permits me to make findings of fact to supplement the jury's necessary findings, based on the evidence adduced at trial.

[13] Consequently, I will begin my reasons for sentence with a summary of my factual findings. I will outline the circumstances of the offences for which Mr. Refaeh is being sentenced.

Circumstances of the Offences

[14] Based on the evidence at trial, I find that Mr. Refaeh was engaged in a street race with Mr. Nodwell. The race was not planned. It started spontaneously at the intersection of Wellington and Gordon in downtown Guelph. It continued for many blocks, beyond where Gordon Street changes names to Norfolk Street, and beyond the "Five Points" intersection where Norfolk Street becomes Woolwich Street. The race did not abate (except perhaps momentarily at a set of traffic lights) until Mr. Nodwell's vehicle collided head on with the vehicle in which T.K. was travelling as a rear seat passenger, just passed the intersection with Powell Street. Based on the maps adduced as evidence during the trial, I have calculated that the cars crossed 22 intersections from the start of the race until the point of collision. Other vehicles were also collaterally damaged as a result of the collision, but the only person who suffered bodily harm was T.K., who was 13 years old at the time.

[15] During his testimony, Mr. Refaeh denied street racing, but his own account of his encounter with Mr. Nodwell amounts to an admission that he engaged in a race, at least initially. He said they stopped their vehicles beside each other at a red light on Gordon, at the intersection with Wellington. They each had one passenger in their vehicle. None of the occupants were known to each other. Mr. Refaeh recalled that the two male occupants of the other car were looking over at him and the driver was revving his engine, showing off his vehicle. He said he revved his engine back, to show them that his car was just as nice as theirs. The drivers made eye contact. Mr. Refaeh stated that he was not surprised when the driver of the white Cadillac "gunned it and sped off" as soon as the light turned green. He wanted to show them that his car was just as good as theirs, so he took off as fast as he could and tried to keep up with Mr. Nodwell.

[16] The passenger in Mr. Refaeh's vehicle, Beth Hancock -- who was his girlfriend at the time -- gave a similar description of how the events began. I do not see how this could be characterized as anything other than the beginning of a street race. Mr. Refaeh testified that he never tried to pass Mr. Nodwell, that he simply tried "to keep up" with him. In my view, driving in tandem at excessive speed and trying to maintain the same speed is as much of a street race as trying to overtake the other vehicle.

[17] Mr. Refaeh testified that he "decided to let off" about halfway between the bridge overpass and the Guelph library, near the intersection with Cork Street, which is seven blocks from the traffic lights at Wellington, where the two cars had stopped. He said he slowed down because he would have been required to drive dangerously fast if he continued to keep up with Mr. Nodwell. He effectively testified that he disengaged from the race long before the accident occurred. Those were not his words, because he never admitted to racing, but that was the gist of what he said.

[18] I reject Mr. Refaeh's evidence on that point. It was contradicted by Ms. Hancock, who testified that she thought the race had ended at one point because both vehicles stopped at a light, but then the race was on again. She remembered feeling relief, and then feeling terrified again when the race resumed.

[19] Ms. Hancock contradicted herself about the names of intersections and seemed confused about the placement of landmarks along the road, so her evidence about geographic locations is not reliable, but she gave a consistent and compelling account of the stages of the road race, which she appeared to recall clearly and was able to articulate coherently. I found her testimony to be credible and reliable in that regard. It was corroborated by the testimony of multiple independent eyewitnesses who described two cars racing at high speed at various points between the Guelph library and Powell Street.

[20] Mr. Refaeh testified that he never tried to overtake Mr. Nodwell. However, video recordings show that his car was trailing behind Mr. Nodwell's car as they passed the Guelph library but was later ahead of Mr. Nodwell's car as they approached the intersection with Tiffany Street. Mr. Refaeh's explanation for this at trial was that Mr. Nodwell had stopped at a red light at the "Five Points" intersection, where the road widens briefly to two lanes, and the light turned green just as he approached the intersection, so he passed Mr. Nodwell with the momentum he had.

[21] Mr. Refaeh testified that, although he was not speeding or racing at the point, Mr. Nodwell and his passenger seemed to get very upset about him passing them. According to his description, they became unhinged. He said Mr. Nodwell tried to run his vehicle off the road. Ms. Hancock corroborated his evidence regarding the maniacal behaviour of the other car's occupants, particularly that of the passenger. She said he was shouting, banging his fist on the ceiling of the car, and reaching out to try to touch Mr. Refaeh's vehicle at high speed. She and other eyewitnesses also corroborated the fact that Mr. Nodwell was driving very aggressively (i.e., speeding, tailgating Mr. Refaeh, weaving in and out of the oncoming lane, pulling up beside Mr. Refaeh and driving so close that the two cars touched). However, Ms. Hancock denied ever thinking that Mr. Nodwell was trying to run Mr. Refaeh's car off the road. She said she did not have the impression that was his intention. She thought he was just being irresponsible, trying to touch Mr. Refaeh's car while travelling at high speed, and she felt that Mr. Refaeh was participating.

[22] Mr. Refaeh testified that he accelerated at that point out of fear, to try to escape the occupants of the other vehicle. He explained that he did not pull over and stop because he did not want Mr. Nodwell and his passenger to catch up to him and harm or kill him or his girlfriend. Similarly, he said he left the accident scene after the head-on collision occurred because he feared that Mr. Nodwell and his passenger would harm or kill him if he approached the scene to provide his information and offer assistance to anyone in need.

[23] There are serious problems with Mr. Refaeh's credibility. He lied to the police multiple times when they interviewed him in connection with the incident. For example, he told the police that he was "really off the gas" as he approached his friend Allie's house, which is on Woolwich Street near the intersection with Kerr. He said he was slowing down because he was getting ready to turn left into Allie's house. In court, he admitted that was a lie. He testified that he was speeding up at that point to try to get away from Mr. Nodwell's white Cadillac. I note that his original account to the police was contradicted by doorbell-camera video evidence adduced by the Crown during the trial, so he pretty much had to change his story about slowing down to turn left around a block before he reached Tiffany Street.

[24] Another example of a lie he told police is that he said he did not notice that the white Cadillac hit the side of his car; in court, he admitted that was false. He testified that he felt the two cars touch. Given the testimony of Mr. Pagnan about the extent of the damage he observed on Mr. Refaeh's BMW immediately after the accident, and Beth Hancock's testimony about the sound it made and about Mr. Refaeh's reaction when the two cars touched (she said he muttered "what the fuck?"), Mr. Refaeh pretty much had to resile from his earlier statement to the police on this issue as well.

[25] Mr. Refaeh told many other lies to the police. I am not going to list them all. They were all told with the goal of downplaying the dangerousness of his driving, minimizing his involvement in the accident, and excusing his behaviour in leaving the scene after the accident. The most far-fetched lie that he told the police was that he did not realize Mr. Nodwell's white Cadillac crashed into an oncoming vehicle. He testified in court that he saw the head-on collision happen right beside him. Given the evidence of all the other witnesses at the trial, he simply could not credibly maintain his earlier false version of the events.

[26] Mr. Refaeh told some truths at trial. His narrative had to shift because the Crown had overwhelming evidence to contradict the falsehoods, he had previously told the police. Some events were captured on video recordings, or were witnessed by a half dozen independent witnesses, so Mr. Refaeh had no option but to admit those undeniable facts. But I do not accept the entirety of the evidence he gave at trial. In particular, I reject his evidence that he was speeding only because he was trying to escape the other driver who he feared was trying to harm or kill him and his girlfriend Beth.

[27] Mr. Refaeh could have been convicted of dangerous driving on the basis that the care he exercised in operating his vehicle was objectively dangerous and constituted a marked departure from the standard of care of a reasonably prudent driver in the same unusual circumstances of being chased by another lunatic driver. Defence counsel asks me to accept that Mr. Refaeh genuinely perceived an imminent threat to his life and is guilty of dangerous driving only because he exercised poor judgment in not realizing that he had other lawful and more prudent options available to him rather than speeding up to try to escape the other driver.

[28] I accept that Mr. Nodwell was the more aggressive of the two drivers. Independent witnesses observed Mr. Nodwell's car tailgating Mr. Refaeh's car way too closely, dangerously weaving in and out of the left lane (which was either a temporary turning lane or lane for oncoming traffic), and side-swiping Mr. Refaeh's vehicle at one point. But I reject Mr. Refaeh's evidence that he was not racing and was simply trying to escape the situation.

[29] Mr. Refaeh may have been surprised by the increasing aggressiveness of Mr. Nodwell's driving as the race progressed. He may also have been shocked by the frenzied behaviour of the passenger in Mr. Nodwell's vehicle. But it is simply not believable, in the circumstances, that Mr. Refaeh accelerated out of fear of these individuals. Mr. Nodwell's car was tailgating Mr. Refaeh very closely at times, but by all accounts, (including Mr. Refaeh's own account), there were multiple opportunities to disengage, to decelerate, to pull over to the curb and stop, or to turn off the road onto a side street. This was not some winding mountain road with a cliff and no shoulder, with nowhere for Mr. Refaeh to go to let an aggressive tailgating driver pass.

[30] On Mr. Refaeh's own evidence, Mr. Nodwell's car pulled up beside him 3 times between the "Five Points" intersection and Powell Street. Each time, Mr. Refaeh could have taken his foot off the gas and hit the brakes. If he was not racing, if he was truly concerned about his own safety and the safety of his girlfriend, then all he had to do was slow down. He sped up because he did not want Mr. Nodwell to overtake him. He sped up because he was racing, not because he was being chased.

[31] I do not believe his testimony that he was too scared to pull over because he thought the driver of the other vehicle might return, catch up to him, and harm or kill him or his girlfriend. There was no rational basis to expect that to happen, but even if he thought it might occur, he and Ms. Hancock were safety inside a vehicle. If they stopped at the side of the road and the driver of the other car came back to attack them, they could remain inside, lock the doors, and call the police on their cell phones. Mr. Refaeh also could have turned off onto a side street and quickly disappeared out of view of the other driver. His testimony about needing to accelerate out of fear for his life is simply not plausible. Given the dishonesty he exhibited during his interview with the police, I find him to be untrustworthy, and I reject his testimonial account of the events that day as not credible.

[32] I note that Ms. Hancock's evidence about Mr. Refaeh's conduct and demeanour that day is not consistent with Mr. Refaeh's claim that he was terrified of the other driver. Furthermore, the evidence of his after-the-fact conduct, including conversations he had with his family members both verbally and through text messages in the minutes, hours, and days after the accident, is not consistent with his having acted out of fear of the occupants of the other vehicle.

[33] Mr. Refaeh's driving was extremely dangerous. He was racing with the driver of another vehicle at high speed on a downtown street at a busy time of day. There was a bike lane for a stretch of the road, so cyclists could be expected to be present. The road bends and has a slight grade, so distant visibility is somewhat obscured. And there were many intersecting residential roads and driveway entrances to businesses, which meant that there were many other vehicles and pedestrians around. Mr. Refaeh endangered the life and safety of not only himself and his girlfriend, but of everyone in the vicinity. That was the impression independently formed by many eyewitnesses.

[34] Gordon-Norfolk-Woolwich Street, where the race occurred, is predominantly a single lane in each direction, with occasional turning lanes or short through lanes at various intersections. The configuration of the lanes made the road race even more dangerous. The risk of harm to the public is highlighted on one of the video clips from the Tiffany Street doorbell camera. As the vehicles approach, Mr. Refaeh is ahead of Mr. Nodwell, who has pulled out into the lane on his left. Mr. Refaeh admitted during his cross-examination that, rather than slowing down at that point to let Mr. Nodwell pass him, he accelerated. The video recording shows that another car was travelling in the oncoming lane and the driver of that car was forced to make an evasive manoeuvre to avoid a head on collision with Mr. Nodwell's car. That near miss was as much Mr. Refaeh's fault as Mr. Nodwell's. I find that Mr. Refaeh was, as the Crown suggested, playing a "game of chicken" with Mr. Nodwell, to see which one of them would "blink first" and slow down to prevent the collision.

[35] The ultimate collision with T.K.’s vehicle happened just seconds later and was a predictable consequence of both men's dangerous driving. The collision caused other drivers in the vicinity take evasive action and caused a mini van driven by Aleesha Thompson to collide with parked cars, which was also predictable.

[36] Mr. Refaeh's driving was less erratic than Mr. Nodwell's, but his continued engagement in the race provoked increasingly dangerous driving manoeuvres by Mr. Nodwell, which were foreseeable in the circumstances. Mr. Refaeh's dangerous driving therefore contributed significantly to the collisions and to the cause of T.K.'s injuries, even though his vehicle was not directly involved in the multi-car accident.

[37] I do not think that Mr. Refaeh intended for T.K. to be harmed, or for anyone to be harmed, but he was aware of the risk he was creating by participating in this dangerous street race. He engaged in risky behaviour and showed indifference as to whether a collision occurred and whether harm resulted. That is the basis upon which his guilt has been established beyond a reasonable doubt.

[38] I do not believe that the reason he left the scene of the accident without fulfilling his statutory obligations is because he was fearful for his safety. That is simply not plausible in the circumstances. He admitted at trial that he had witnessed the head-on collision at high speed. He knew the occupants of Mr. Nodwell's vehicle were likely seriously injured (if not dead). He knew there was a crowd gathering at the scene. In the circumstances, it would not be rational for him to fear that Mr. Nodwell might harm him or kill him, and I do not believe that he had that thought. It is certainly not what he told the police when given his first opportunity to explain why he left the scene.

[39] Mr. Refaeh's conduct in the aftermath of the accident, as observed by Ms. Hancock, by a female bystander named Laura Lee Campbell, then by Frank Pagnan when Mr. Refaeh returned to his parents' home, and finally as demonstrated by his actions in the hours and days thereafter (including hiding his vehicle, changing its appearance, and ultimately making false statements to the police) - all this conduct is consistent with an individual who was trying to evade criminal liability for his actions, and not consistent with a person who acted out of fear. His communications with his family members reveal his intention to evade detection by law enforcement. There is no mention of his purported fear of the other driver or passenger. The evidence does not support his narrative and I reject it as not credible.

[40] I will therefore sentence Mr. Refaeh on the basis that he engaged in a prolonged high-speed street race, one that was particularly dangerous, given the time of day and the configuration of the street in question, as well as the proximity of other cars and pedestrians. His dangerous driving imperiled the safety of many people and ultimately caused serious bodily harm to T.K.

[41] T.K.'s Victim Impact Statement details how her life has changed. Prior to the accident, she was an active teenager. She had to stop playing sports for a year, which set her back relative to her peers. She was hospitalized for two months after the accident, underwent multiple surgeries, including one on her spine, lost a kidney, and had to undertake physiotherapy. She has not made a full recovery. She experiences chronic back pain and low energy, and she is not able to move the way she used to. She has scars on her body, about which she feels self-conscious. She states that she "does not feel normal" anymore. The accident also adversely impacted her mental health. She is now required to take medication for anxiety. The seriousness of her injuries, while not catastrophic in nature, enhances the gravity of the dangerous driving offence for which Mr. Refaeh has been convicted.

[42] The gravity of his second offence is less serious. Even though Mr. Refaeh knew, when he drove away from the accident scene, that people had likely been injured, he was also aware that other people were responding to the accident scene. This was not a case where a driver abandoned an injured party in a ditch or on a deserted road with little or no hope of rescue. When Mr. Refaeh left the accident scene, he knew that anyone who may have been injured was receiving first aid care from others, so his failure to render assistance was less serious than it otherwise could have been. I do not mean to trivialize his conduct in any way, but I am simply noting that this offence is at the less serious end of the spectrum of fail to stop offences involving bodily harm.

[43] Having summarized the circumstances of the offences, I will now turn to a review of Mr. Refaeh's personal circumstances.

Circumstances of the Offender

[44] Mr. Refaeh is 22 years old. He was 19 when he committed these offences. His pre-sentence report describes an ordinary upbringing in a loving family with no indicators of any anti-social behaviour.

[45] He was born and raised in Guelph, the youngest of three children. His family moved to Puslinch about eight years ago. His sister has married and moved out, but he and his brother still reside with their parents. They have a cohesive and loving family unit.

[46] Mr. Refaeh has close relationships and frequent contact with extended family members, including his grandparents, aunts, and uncles, some of whom wrote character letters for him. He also has strong friendships with a close circle of friends, some of whom also wrote supportive letters. He has made a positive impression on members of his community, including neighbours, some of whom wrote letters to support him. All of the authors of the letters pleaded with the court for leniency in sentencing.

[47] After completing high school, Mr. Refaeh studied for one year in a policing program at a local college. He did not complete the program. He is now planning to pursue plumbing as a trade and hopes to attend college in a related program this fall. A family friend has offered him an apprenticeship after he completes his educational requirements.

[48] He has done some volunteer work in the past. He is currently employed at his father's equipment rental company and has been working six days a week in a labourer position for the past two years. It is seasonal work from March through October. He previously worked for five months as a forklift operator for a Guelph company but lost that job following his arrest.

[49] He uses alcohol and cannabis occasionally but there is no evidence of any substance dependency or abuse. He has no history of mental health issues, apart from some anxiety, which he manages with marijuana. There is no evidence that he had consumed any alcohol or cannabis on the date of the offences.

[50] Mr. Refaeh is actively involved in a youth group at his place of worship in Cambridge, Ontario. He attends the group weekly and has spoken there about his charges before the Court. He has also disclosed his charges to his Imam, and he receives support and guidance from the Imam.

[51] Mr. Refaeh is admired and loved by friends and relatives. The Court received 16 character letters from individuals who described him as polite, courteous, respectful, kind, thoughtful, compassionate, generous, helpful, caring, thoughtful, sensitive, considerate, loyal, and committed. Although most of the authors of the letters appear to be aware of his convictions, and of the nature of the charges against him, it appears that they have been provided with Mr. Refaeh's version of the events and do not seem to be aware of the street racing aspect of the case.

[52] People who know him well describe him as intelligent, ambitious, and hardworking. They say he is eager to learn and develop, and to contribute to his community. I accept that he aims to be a productive member of society, has much to offer and has great potential for a bright future, despite the commission of these offences at a young age.

[53] Several of the authors of the character letters describe Mr. Refaeh as "mature" and "responsible," and as a person of "moral integrity." To that extent, his conduct on the date of the offences was out of character. He did not behave with maturity or moral integrity, and he was acting irresponsibly when he decided to engage in a street race, and again when he chose to leave the scene of the accident and take steps to evade detection by police.

[54] The Defence argues that Mr. Refaeh is not a dangerous individual. There is, however, evidence that he can be dangerous when he gets behind the wheel of a car. He has no record of prior criminal convictions, but his driving abstract from the Ministry of Transportation includes 7 convictions for Highway Traffic Act infractions, including 6 speeding tickets ranging from 10km/hr to 66 km/hr over the speed limit, and one failure to stop at a stop sign. All these offences occurred between the ages of 17 and 19 years old. For such a young man, that is a troubling driving history.

Legal Parameters and Framework

[55] My task is to impose a sentence that is guided by the provisions of the Criminal Code and the principles set out in the caselaw.

[56] The parties agree that the offences committed by Mr. Refaeh are discrete offences involving separate conduct and should therefore attract consecutive rather than concurrent sentences, meaning sentences that must be served one after the other, not at the same time. The case law supports this approach: [R. v. Gill, 2010 BCCA 338], at para. 116, and [R. v. Van Puyenbroek, [2007] O.J. No. 4687 (ONCA)], at para. 63. The totality principle in s. 718.2(b) of the Criminal Code requires me to ensure that the global sentence imposed for both offences is not unduly long or harsh.

[57] Section 320.2 of the Criminal Code stipulates that, for each of Mr. Refaeh's offences, the minimum sentence for a first offence is a $1,000 fine and the maximum sentence is 14 years imprisonment. I have discretion, pursuant to s. 320.24(4)(5) of the Criminal Code, to make an order prohibiting Mr. Refaeh from operating a motor vehicle for up to 10 years, in addition to any period of incarceration that I may impose.

[58] At the time of the commission of these offences, there was a statutory prohibition on conditional sentences for dangerous driving causing bodily harm, but it is no longer in effect due to amendments to the Criminal Code enacted in November 2022. When the punishment for an offence is varied between the date the offence was committed and the time of sentencing, the accused has the right to the benefit of the lesser punishment: [R. v. Khan, [2023] O.J. No. 5300 (ONSC)], at paras. 27-28. Accordingly, Mr. Refaeh is eligible for a community-based sentence in this case. It is something that I will need to consider if I conclude that a sentence of less than 2 years is appropriate for his offences.

[59] Sentencing requires me to consider and balance a multiplicity of factors, but proportionality is the organizing principle. I must fix a sentence that is proportionate to the gravity of Mr. Refaeh's specific offences and to his particular degree of responsibility and moral culpability: Criminal Code, s. 718.1; [R. v. Lacasse, 2015 SCC 64], at para. 53.

[60] Subsection 718.2(a) of the Criminal Code stipulates that I must increase or reduce the sentence to account for any aggravating and mitigating circumstances relating to the offence or the offender. In addition, I must calibrate the demands of proportionality by reference to the sentences imposed in other cases. Subsection 718.2(b) of the Criminal Code requires that I impose a sentence on Mr. Refaeh that is comparable to those imposed on similar offenders for similar offences committed in similar circumstances. This is referred to as the principle of parity in sentencing.

[61] The statutory minimum and maximum penalties for these offences have changed over time, and the availability of a conditional sentence for dangerous driving causing bodily harm has not been consistent, so I must be mindful of the statutory provisions that were in effect when I consider decisions in other cases for the purposes of applying the principle of parity.

[62] The sentence imposed must be a just sanction that serves one or more of the objectives set out in s. 718 of the Criminal Code, which include denouncing Mr. Refaeh's unlawful conduct, deterring him from committed similar offences in the future, deterring others who might be inclined to commit similar offences, assisting Mr. Refaeh in his rehabilitation, and promoting a sense of responsibility in Mr. Refaeh and an acknowledgement by him of the harm he caused to T.K.

[63] The principle of restraint articulated in s.718.2(e) of the Criminal Code requires me to consider all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to any victims. This principle is critically important when sentencing a young person, like Mr. Refaeh, who has no criminal antecedents. The Ontario Court of Appeal has repeatedly stated that trial judges have a duty to explore dispositions other than a custodial sentence before imposing any term of incarceration on a youthful first-time offender: [R. v. Priest], at paras. 20 and 22; [R. v. Francis, 2022 ONCA 729], at para. 80.

[64] If I conclude that incarceration is necessary, the restraint principle dictates that the term of imprisonment be as short as possible and be tailored to Mr. Refaeh's individual circumstances: [Priest], at para. 23; [Francis], at para. 80. However, like all principles of sentencing, restraint operates in conjunction with other principles that often pull in a different direction: [Khan], para. 113; [R. v. Reesor, 2019 ONCA 901], at para. 8. For an offence involving street racing, the restraint principle must yield, to some extent, to concerns associated with denunciation and general deterrence.

[65] The objectives of general deterrence and denunciation apply in most cases, but they are particularly relevant to offences commonly committed by individuals who are ordinarily law-abiding people, as opposed to chronic offenders: [Lacasse], at para. 73. Dangerous driving in the context of street racing is such an offence. It is typically committed by young men who are not routinely in conflict with the law, and who may therefore be more likely to be deterred by the threat of a severe penalty. As the Court of Appeal for Ontario stated in [R. v. Rawn, 2012 ONCA 487], at para. 33, "Other like-minded people need to know that irresponsible use of a motor vehicle … will not be countenanced."

[66] However, because Mr. Refaeh is a youthful first-time offender, the objectives of individual deterrence and rehabilitation are also important. The objectives of general deterrence and denunciation must be given adequate weight, but they should not be the sole determinants of sentence: [Priest], at paras. 22 and 24; [Francis], at para. 80.

Analysis

Mitigating Factors

[67] There are several mitigating factors in this case. First and foremost, as I have already mentioned, Mr. Refaeh is a youthful first-time offender.

[68] In addition, Mr. Refaeh has been a productive contributing member of his community. His pre-sentence report is very positive. He has done volunteer work, has been a good neighbour and a devoted grandson, and has been gainfully employed. He has realistic occupational goals and good educational and employment prospects. All these factors suggest that he has excellent potential for rehabilitation and a bright future.

[69] He also has a supportive family, but I am not treating his family support as a strong mitigating factor that bodes well for his rehabilitation because his family members were complicit in his efforts to avoid detection by police after the accident. Indeed, they advised him to alter the appearance of his vehicle, remove the physical evidence of its collision with Mr. Nodwell's vehicle, delete photos of his car from his social media account, and hide the vehicle from public view. This type of family support is not conducive to and does not encourage pro-social behaviour. I was pleased to learn, at the sentencing hearing, that Mr. Refaeh has turned to his Imam for advice more recently, rather than relying on the advice of his family members, whose moral compass is questionable.

[70] Mr. Refaeh's remorse is a mitigating factor. I accept that he deeply regrets the fact that a young girl was seriously injured in the accident. He expressed that remorse in a letter to the victim when he was interviewed by the police, to the probation officer who interviewed him for the pre-sentence report, and through his counsel during the sentencing hearing. I believe it is sincere.

Aggravating Factors

[71] There are many aggravating factors in this case. The following circumstances enhance both the gravity of the offences and Mr. Refaeh's moral culpability.

(a) Mr. Refaeh's driving record includes 7 Highway Traffic Act convictions, including 6 for speeding.

(b) Mr. Refaeh was engaged in a street race. This is a statutory aggravating factor listed at s.320.22(b) of the Criminal Code. There are sound policy reasons for making this a statutory aggravating factor. As the Alberta Court of Appeal stated in [R. v. Field, 2011 ABCA 48], at para. 23:

[S]treet racing has a high degree of moral blameworthiness both on the side of gravity of the offence and degree of responsibility of the offender. The driver demonstrates not merely gross negligence but a willingness and intention to subject his passengers, the other competitor racer, and the public at large to great hazards. Driving a ton of glass and metal through spaces where people can be expected to be present and at a speed where it is likely to be impossible to stop the vehicle in time to avoid calamity cannot be treated as youthful indiscretion.

(c) The race between Mr. Refaeh and Mr. Nodwell lasted for more than 20 city blocks. Mr. Refaeh's dangerous driving did not result from a momentary lapse in judgement. It involved prolonged intentional risk taking.

(d) The road race took place on a busy downtown street. Mr. Refaeh therefore exposed a multitude of other people - his passenger, other drivers and passengers, and many pedestrians - to grave danger.

(e) Mr. Refaeh's dangerous driving resulted in an accident that caused serious damage to multiple vehicles. It impacted multiple drivers and passengers, including not only T.K., her brother and cousin, who were in the car with T.K., but also Ms. Thompson, who was eight months pregnant at the time and had her young daughter with her in her mini van. She was forced to veer off the road to avoid a high impact collision and ended up colliding with a parked car.

(f) One of the vehicles' occupants, T.K., suffered serious injuries. The fact that bodily harm was caused is not itself an aggravating factor, because it is one of the elements of the dangerous driving offence: [Lacasse], para. 83. However, the severity and long-lasting nature of T.K.'s injuries are aggravating circumstances that render the gravity of Mr. Refaeh's offence more serious.

(g) In the hours and days following his offences, Mr. Refaeh took active steps to cover up his criminal activities and avoid detection by police. He hid his car, altered its appearance, removed evidence of its involvement in the race with Mr. Nodwell, refrained from driving it, and deleted a photo of it from his Instagram account.

(h) Mr. Refaeh did not turn himself into the police after he learned that a young girl had been seriously injured in the accident, nor even after the police called for information from the public. The police were required to expend resources to identify and locate him.

[72] In addition to the above aggravating factors, the parties advised me that, since his arrest on these charges, Mr. Refaeh received two additional charges for breaches of the undertaking he gave not to drive a motor vehicle, as part of the conditions of his interim release pending trial. The Crown has agreed to withdraw the outstanding charges in provincial court because the Defence has agreed to have the facts underlying the new charges considered as part of this sentencing.

[73] The following facts were agreed upon:

(i) April 30, 2023, the police were conducting a random sobriety check in Guelph, and they stopped a white BMW that was being operated by Mr. Refaeh. Mr. Refaeh had been driven to a local establishment by a friend. He remained sober but his friend became intoxicated. Rather than leave the friend's car behind, he decided to serve as a designated driver, despite the fact that he was prohibited from operating a motor vehicle as a condition of his interim release.

(ii) On July 16, 2023, the police stopped a motorcycle on Bridle Path Road south of Guelph because it was un-plated. Mr. Rafaeh was the driver. He was cooperative with the police but was unable to produce a driver's licence or insurance for the motorcycle. The bike had been purchased by him as a mechanical project. He intended to sell it after fixing it up. He had changed the oil and decided to take it around the block for a test drive, despite his undertaking not to operate a motor vehicle during his interim release, pending his trial.

Factors that are Neither Mitigating nor Aggravating

[74] There is in this case a notable absence of some aggravating and mitigating factors that often apply in dangerous driving and failure to stop cases. Their absence has no aggravating or mitigating effect, but it is informative when comparing other cases for the purpose of applying the principle of parity. In that regard, I note the following.

(a) Mr. Refaeh did not plead guilty. This is not an aggravating factor, but it reflects the absence of a mitigating factor present in many of the sentencing cases submitted by the parties.

(b) Similarly, Mr. Refaeh's failure to accept responsibility for street racing is not an aggravating factor, but it constitutes the absence of mitigating factor present in other cases.

(c) That there was no alcohol involved in Mr. Refaeh's dangerous driving is not mitigating, but it marks the absence of a statutory aggravating factor mentioned in other cases (s. 320.22(e) of the Criminal Code);

(d) The fact that only one person suffered bodily harm is not a mitigating factor, but it marks the absence of a statutory aggravating factor present in some other cases (s. 320.22(a) of the Criminal Code); and

(e) The fact that Mr. Refaeh's passenger was not a child is not a mitigating factor, but it marks the absence of a statutory aggravating factor present in some other cases (s. 320.22(c) of the Criminal Code).

Applicable Sentencing Range

[75] To my knowledge, there is no recent appellate authority setting out a sentencing range for these offences. In the 2007 decision of [R. v. Van Puyenbroek], at para. 59, the Court of Appeal for Ontario identified the range for dangerous driving causing bodily harm, when it involves impaired driving, as between a conditional sentence and two years less a day imprisonment. However, the Court upheld a 3-year sentence in that case. Notably, the case did not involve a street race.

[76] For many years thereafter, conditional sentences were not available to the courts for dangerous driving offences causing serious personal injuries. I have kept this in mind when reviewing the sentencing cases submitted by counsel.

[77] The parties provided me with voluminous jurisprudence, including a total of 20 sentencing cases in which one or both of the same offences as Mr. Refaeh's offences was committed (sometimes with multiple counts, and sometimes accompanied by other offences). The Defence also provided 4 sentencing cases involving failure to stop after an accident causing death, and cases involving dangerous driving causing death, fail to stop simpliciter, impaired driving causing bodily harm, criminal negligence causing death, criminal negligence causing bodily harm, and dangerous driving simpliciter. The Crown provided me with one additional case involving criminal negligence causing death while street racing.

[78] The sentences imposed in these cases vary widely. At the lowest end, they include a suspended sentence, which is not currently permissible under the Criminal Code, and was not permissible at the time these offences were committed. The low end of the range also includes monetary fines with lengthy probationary periods, and short conditional sentences ranging from 3 to 9 months. In the mid range, the sentences include longer conditional sentences of between 12 months and 2 years less a day, typically combined with a year-long or two-year driving prohibition. The mid-range sentences also include brief periods of incarceration from 60 to 90 days, to be served intermittently, usually accompanied by a lengthy probationary period and multi-year driving prohibition, and a few cases with short reformatory custodial sentences up to 12 months. At the high end of the range, the sentences include terms of imprisonment of between 18 months and 3 years (usually for two offences with consecutive sentences), as well as driving prohibitions. Both the Crown's position and the Defence position in this case fall within the range of sentences reflected by the jurisprudence.

[79] Previous cases and ranges of sentence are tools used to help judges at the start of the process of fixing an appropriate sentence: [R. v. Parranto, 2021 SCC 46], at paras. 3-4. They are not rigid rules, nor are they minimum and maximum sentences. They are simply helpful guidelines to assist judges in achieving parity and proportionality in sentencing.

[80] The cases submitted by counsel are more useful in their aggregate than individually because none of them is directly on point. Each has its own unique facts and circumstances that are materially different from those in the case before me. Most notably, not all the cases involve street racing. In some cases, the dangerous driving was momentary, such as falling asleep at the wheel. In some cases, the offenders were impaired by drugs or alcohol, or were driving with a suspended licence. In some cases, the victims died, or suffered catastrophic injuries resulting in permanent disabilities. In other cases, the victims recovered fully. In some cases, there were multiple injured victims, or the offenders were driving with a minor as a passenger in their vehicle, both of which are statutory aggravating features. Some of the offenders in the other cases had prior criminal records. Some had clean driving records. Some plead guilty and accepted responsibility for their actions.

[81] I have read and considered all the cases submitted, as well as the cases cited in them. I will neither list nor summarize every decision, but I will provide a brief synopsis of those cases that involve sentencing offenders who engaged in street races.

[82] The first two relevant cases are decisions of the Ontario Court of Justice from 2005: [R. v. Freiburger, [2005] O.J. No. 1996 (Ont. C.J.)] and [R. v. Fischer, [2005] O.J. No. 1997 (Ont. C.J.)]. In [Freiburger], the offender pleaded guilty to dangerous driving causing bodily harm. He was involved in a street race during which both vehicles veered off the road and struck an 80-year-old pedestrian. Mr. Freiburger's car was not principally responsible for the injuries to the victim. Notably, the victim made a full recovery. The street race was not an organized or pre-planned activity. The sentencing judge characterized the race as "short lived, both in distance and in time." Mr. Freiburger was youthful and had no prior record. The Crown did not seek a custodial sentence. The judge imposed a $750 fine, 18 months probation with 80 hours of community service, and a one-year driving prohibition. The community service requirements included at least 40 hours giving presentations to young audiences about the dangers and evils of street racing.

[83] [Fischer] is the companion case to [Freiburger]. It is the sentencing decision for the other driver involved in that street race. Mr. Fischer also pleaded guilty to dangerous driving causing bodily harm. He was similarly a youthful first-time offender. The same sentencing judge imposed the same penalties on him as Mr. Freiburger.

[84] These two cases are distinguishable from the case at bar by the facts that Mr. Freiburger and Mr. Fischer's race was short lived, the victim did not sustain long lasting or life-altering injuries, and the offenders pleaded guilty and accepted responsibility for their conduct. These are all factors that favour leniency in sentencing.

[85] The next two street racing decisions are [R. v. Nusrat, 2009 ONCA 31], and [R. v. Rawn], a 2012 case mentioned earlier. Both are decisions of the Ontario Court of Appeal. [Nusrat] is a sentencing case involving an offender who pleaded guilty to criminal negligence causing death. This is a different offence than Mr. Refaeh's offence of dangerous driving causing bodily harm, but it is nevertheless a useful decision to consider because the facts underlying the offence involved a street race.

[86] Mr. Nusrat was racing with two other men on highway 400. All three cars were travelling at excessive speed and were weaving in and out of traffic. The court found that they terrorized other drivers on the highway for a distance of about 40 km. Mr. Nusrat eventually cut off and collided with a tractor trailer, which caused the truck to strike another car, then spin off the highway and roll into a ditch. The truck driver was killed instantly. Mr. Nusrat stopped his vehicle and remained at the scene. He was only 19 years old, had no criminal record, but had two prior Highway Traffic Act convictions for speeding. The trial judge sentenced him to a conditional sentence of 2 years less a day, followed by two years probation with 140 hours of community service and a lifetime driving prohibition.

[87] The Crown successfully appealed the sentence. The Court of Appeal held that the sentencing judge erred by failing to decide upon the appropriate range of sentence before considering the possibility of a conditional sentence, and by treating pre-sentence custody as a mitigating factor rather than as a credit against the appropriate sentence. It further held that, having regard to the seriousness of the offence and its catastrophic consequences, the objectives of general deterrence and denunciation had to be paramount in sentencing. The Court stated, at para. 68, that where persons such as Mr. Nusrat "engage in intentional risk taking of this nature and duration, and with such horrific consequences, they should expect to face a substantial period of incarceration." The Court substituted a sentence of 30 months imprisonment and upheld the 2-year probation order and lifetime driving prohibition.

[88] In [Rawn], the Court of Appeal for Ontario heard an appeal from the sentence imposed on an offender following a trial that resulted in convictions on 7 counts of dangerous driving causing bodily harm. Ms. Rawn had engaged in a spontaneous street race with a friend, whose vehicle contained five passengers. She also had a passenger in her car. The two cars eventually collided, and seven occupants were severely injured, suffering broken bones and concussions. One of them had to be resuscitated after her heart stopped. That passenger was hospitalized for two months, and bed ridden for a year.

[89] Ms. Rawn was 40 years old and had no prior convictions. The trial judge suspended the passing of her sentence and imposed a 2-year probationary period with a 2-year driving prohibition. This sentence was overturned on appeal, due to the absence of factors favouring leniency, particularly the mature age of the offender and the fact that she did not accept responsibility for the accident and continued to blame the other driver. The Court of Appeal substituted a 9-month custodial term and 5-year driving prohibition. I am mindful that a conditional sentence was not available to the Court in [Rawn].

[90] The next sentencing case is the recent decision of this court in [R. v. Khan], from February 2023. The offender in that case pleaded guilty to dangerous driving, criminal negligence causing death, and criminal negligence causing bodily harm. He had engaged in a street race with a friend on residential streets in Mississauga for a distance of about 1 km, which formed the basis of the dangerous driving charge. No one was harmed during the race. Later, after the race ended, Mr. Khan attempted to overtake another vehicle at an intersection, but was required to swerve to avoid hitting a median. He ended up colliding with another car, lost control of his vehicle, mounted a curb, and struck a hydro pole. His girlfriend, who was a rear seat passenger, was ejected from the car and died instantly. Another passenger was seriously injured.

[91] For the dangerous driving offence, Justice Durno sentenced Mr. Khan to a 12-month conditional sentence and 3-year driving prohibition. He imposed concurrent sentences for the other criminal negligence offences. Globally, he imposed a conditional sentence of two years less a day, under strict house arrest with GPS monitoring, the only exceptions being for medical appointments, religious observance, and to obtain the daily necessities of living. He ordered 240 hours of community service. He also ordered 3 years probation, with a requirement to attend counselling.

[92] Justice Durno expressly stated (at para. 162) that he regarded Mr. Khan's case as a "close call" in deciding whether a conditional sentence with restrictive terms would meet the primary objectives of denunciation and deterrence. Mr. Khan was 20 years old at the time of the offences, 24 years old at the time of sentencing. The five years that elapsed between the date of his charges and the sentencing were a significant factor in Justice Durno's decision. Mr. Khan was prohibited from driving during those five years and was on house arrest for part of the time. He respected his bail conditions.

[93] Mr. Khan was a good student, hard working, youthful, and had no prior interactions with the criminal justice system. He also had no driving record. He was deeply remorseful for his actions, had apologized to the injured victim, and expressed his condolences to the deceased's family. He fully accepted responsibility for his actions and was devastated by the loss of his girlfriend.

[94] The sentencing decision details medical evidence establishing that Mr. Khan suffered emotionally due to the guilt and anguish he felt. There were records showing that he made frequent hospital visits for panic attacks. A psychologist conducted a risk assessment and opined that he was at low risk of reoffending. He had been traumatized by the accident and suffered significant psychological impairment, including overwhelming anxiety, severe depression, and somatic symptoms. He had become withdrawn and reclusive, and he had been suicidal for a period. However, he enjoyed the support of family and friends, who rallied around him. He had commenced counselling on his own initiative but was still experiencing hopelessness, feelings of worthlessness, guilt, and thoughts of self-harm. He remained in a fragile state but was motivated to improve his mental and emotional health. He required ongoing counselling to stabilize his mental health and prevent deterioration. Justice Durno found that, in the circumstances of the case, a conditional sentence would achieve important restorative justice objectives, while at the same time satisfying the objectives of denunciation and deterrence.

[95] The next two sentencing decisions involving street races are companion cases from the province of Alberta. In [R. v. Gould, [2011] ABPC 284], the Alberta Provincial Court sentenced an offender convicted on two charges of dangerous driving causing bodily harm. Mr. Gould and a friend engaged in an unplanned street race. His friend's car jumped the median and drove head-on into an oncoming Jeep, which flipped over and struck two other vehicles. Passengers in both the friend's vehicle and the oncoming Jeep suffered serious long-lasting injuries.

[96] Mr. Gould expressed remorse for his actions. The judge found that his dangerous driving consisted of driving in tandem with the other vehicle at excessive speeds. It did not include abrupt or unsafe lane changes, bold manoeuvres in and out of traffic, jockeying for position or other high-risk passing manoeuvres. Mr. Gould was 18 years old at the time and had no criminal record, but he had 6 convictions under the Highway Traffic Act, including 4 for speeding. There was no evidence of intoxication by alcohol or drugs while he was driving. He had completed high school and was gainfully employed. There was nothing remarkable about his upbringing. He had a strong bond with his family. He did not appear to have any mental health or substance abuse problems. Mr. Gould was sentenced to 9 months' imprisonment, concurrent for each of the two charges, and a 2-year driving prohibition. I am mindful that a conditional sentence was not considered by the sentencing judge because it was not legally available to the court at that time.

[97] The main differences between [Gould] and this case are that Mr. Gould had the benefit of two mitigating factors that are not present in this case. First, he did not flee from the crash scene. He stopped his vehicle and offered assistance to those involved in the collision. The sentencing judge considered this to be a mitigating factor. The sentencing judge also noted that Mr. Gould accepted responsibility for his actions and appeared to have insight into the seriousness of the offences he committed. I cannot say the same for Mr. Refaeh, who continues to blame Mr. Nodwell for the crash in this case, deny his participation in a race, and generally minimize his unlawful conduct. Another distinguishing factor is that Mr. Refaeh took measures after the fact to conceal his involvement in the race from the police.

[98] [Field] was the companion case to [Gould], involving the driver of the other racing vehicle that crossed the median and collided head-on with the jeep. Mr. Field was also charged with two counts of dangerous driving causing bodily harm. He pleaded guilty. He was 18 years old. He had a relatively positive pre-sentencing report that described him as hard-working and a solid wage earner. He'd had some truancy problems as a youth, but no significant social adjustment difficulties. The sentencing judge found that he was a typical young adult with good prospects, who was not in need of constrictive social control. He was considered a good candidate for community supervision. The judge sentenced him to 90 days' imprisonment to be served intermittently, plus 2 years' probation with 200 hours of community service, and a 2-year driving prohibition.

[99] The Crown successfully appealed Mr. Field's sentence. The Alberta Court of Appeal substituted a sentence of 15 months' imprisonment, set aside the probation order, and affirmed the driving prohibition. The appellate court found that the trial judge had overemphasized Mr. Field's youth in sentencing him and had failed to give primacy to the objectives of denunciation and deterrence. While recognizing that an offender's youthfulness is a significant mitigating factor in most cases, the Court of Appeal noted that the class of offenders typically involved in street racing is largely young males in their late teens and early twenties. Thus the target audience for deterrence in such cases are people just like Mr. Field, and the Court of Appeal found that it was important not to send them a mixed message. The Court held, at paras. 22-23:

Driving motor vehicles is a privilege, not a right, as it is governed by a vast array of licensing requirements and limitations reflective of universal public awareness that even largely safe motoring is perilous to the users of the road. There is a wide public consensus as to the need for the highest degree of social responsibility when driving. The public has a right to expect that when using public thoroughfares according to the law, their lives and security will not be threatened by unexpected reckless conduct by other thrill seeking drivers. …

Street racing is entirely avoidable. There is no need for it to ever happen. A driver thus has plenty of choice not to start this crime and plenty of chance to stop it. Nothing impels his behaviour. Accordingly, what has been called the controlling emotion of fear must be enlisted by the law to deter such a choice. Since awareness of the risk of catastrophe seems insufficient to discourage it, then the tool of stern punishment must remain. As to denunciation, it is necessary for the law's face to be set against such conduct with no ambiguity.

[100] The final case I want to discuss is [R. v. Nodwell], an unpublished decision of Judge Stanley in the Ontario Court of Justice. It is the sentencing decision for the co-accused driver who was racing Mr. Refaeh.

[101] Mr. Nodwell pleaded guilty to dangerous driving causing bodily harm, as well as to possession of illicit drugs for the purpose of trafficking. He admitted to street racing. There was no evidence that he was impaired by drugs at the time of the offences. Like Mr. Refaeh, Mr. Nodwell had a healthy upbringing and enjoys the ongoing support of his family. However, his personal circumstances differ from those of Mr. Refaeh. He is youthful, but he has a limited criminal record. At the time of sentencing, he was unemployed. He did not finish high school. He has been diagnosed with attention deficit hyperactive disorder and has experienced some mental health struggles with depression.

[102] Judge Stanley considered but rejected the possibility of a conditional sentence for Mr. Nodwell. He held that a custodial sentence in a traditional jail setting was required to adequately denounce Mr. Nodwell's conduct and to deter others from driving in the manner that he did, and also to denounce and deter the possession of drugs for the purpose of trafficking.

[103] The gravity of the driving offence committed by Mr. Nodwell is comparable in many respects to that of Mr. Refaeh, since they jointly initiated the race, were racing each other through the same busy city streets, and jointly caused the multi-car accident that resulted in serious injuries to T.K. However, the evidence establishes that Mr. Nodwell's dangerous driving was more egregious than Mr. Refaeh's. In addition to travelling at excessive speed, multiple witnesses described Mr. Nodwell's vehicle repeatedly tailgating Mr. Refaeh's vehicle and driving alongside Mr. Refaeh's vehicle at a dangerously close distance. Witnesses also observed him weaving, pulling in and out of the oncoming lane of traffic, and attempting to make a dangerous passing manoeuvre at the intersection where the crash occurred. Mr. Refaeh travelled at an excessive speed, and he accelerated to block Mr. Nodwell from passing (before they reached Tiffany Street), but he remained in his own lane throughout the race.

Decision

[104] Taking all the relevant factors and sentencing principles into account, I have concluded that a penitentiary sentence of imprisonment, meaning a sentence of two years or more, would not be a fit sentence in this case. The Crown is asking me to impose a jail term of 2.5 to 3 years on Mr. Refaeh. In my view, such a sentence would not give adequate weight to the mitigating factors of his youth and lack of criminal record. It would fail to reflect the important principle of restraint and would not serve to assist Mr. Refaeh in his rehabilitation. Mr. Refaeh is a young man with excellent prospects for rehabilitation, but a lengthy penitentiary term of imprisonment could seriously derail his plans and set him back in ways from which he may not recover.

[105] A proportionate sentence, in my view, that accounts for the mitigating factors as well as the aggravating factors in this case, and that gives due weight to the principles of parity and restraint, is a global sentence of 15 months: 12 months for the dangerous driving causing bodily harm, and 3 months consecutive for the offence of failing to remain at the scene of the accident.

[106] I have given serious consideration to whether this should be a conditional sentence. As I mentioned earlier, a conditional sentence is one that is served in the community, subject to the offender's continuing good behaviour. Terms are imposed on the offender that can include house arrest and mandatory community service as a component of restorative justice: Criminal Code, s.742.3.

[107] Defence counsel is seeking a conditional sentence and has proposed community service but asks the court to impose rather liberal conditions that would allow Mr. Refaeh to leave his parents' house for schooling, work, and religious observance. Those proposed terms would not, in my view, constitute a sentence proportionate to the gravity of Mr. Refaeh's offences and his degree of moral culpability. However, a conditional sentence with stricter conditions of house arrest that significantly limit his liberty, with GPS monitoring, is something that I must consider as an alternative to a jail sentence, pursuant to s. 718.2(d)(e) of the Criminal Code.

[108] Before imposing a conditional sentence, I must be satisfied that it would not endanger the safety of the community and would be consistent with the fundamental purposes and principles of sentencing that are applicable in the circumstances of this case: Criminal Code, s. 742.1(a). For the reasons that follow, I am not persuaded that these statutory pre-conditions are met.

[109] Community safety is a concern. Mr. Refaeh is not, in general, a dangerous individual. But he can be and has been dangerous to the public when he gets behind the wheel of a motor vehicle. He has a terrible driving record predating the events that gave rise to the charges in this case. Moreover, there is evidence that he twice breached his undertaking to the court not to operate a motor vehicle as a condition of his interim release pending trial. This suggests that he does not take conditions seriously and it gives me no confidence that he would abide by terms of a conditional sentence, even with the threat of incarceration if he breached. His family's demonstrated lax attitude toward taking responsibility for unlawful conduct also does not inspire me with confidence that they would provide motivation for him to comply with any terms imposed by the court.

[110] I am left with a concern about the risk of him re-offending. If he were to serve his sentence in the community, the risk of him operating a motor vehicle while prohibited from doing so is high in the circumstances. The risk of him doing so in a manner that is dangerous to the public, or that involves street racing, is lower, but it cannot be discounted. Moreover, even a minimal risk is offset by the gravity of the damage that could potentially ensue if Mr. Refaeh were to engage in another street race: [R. v. Proulx, 2000 SCC 5], at paras. 69 and 74.

[111] The other reason why I have concluded that a conditional sentence is not appropriate in this case is that it would not adequately serve the applicable objectives of sentencing. It would help to promote Mr. Refaeh's rehabilitation and sense of responsibility, and it may also contribute to specific deterrence, but it would not achieve the purposes of general deterrence and denunciation.

[112] The Supreme Court of Canada has recognized that a conditional sentence may be reasonable even in cases where deterrence and denunciation are paramount considerations: [R. v. Wells, 2000 SCC 10], at para. 35. Although its primary focus is restorative justice, it can constitute a punitive sanction capable of achieving those objectives: [Proulx], at para. 22. The amount of denunciation achieved by a conditional sentence depends heavily on the circumstances of the offender, the nature and severity of the conditions imposed, and the community in which the sentence is to be served.

[113] Members of Mr. Refaeh's community are already aware of his convictions, as demonstrated by the many letters of support that he received. In the circumstances, I do not believe that living in the community under conditions of house arrest would be particularly stigmatizing. Only a period of incarceration would provide the requisite degree of denunciation in this case.

[114] Given the gravity of the offences in this case, a strong denunciatory message needs to be sent to Mr. Refaeh, and to others like him, who would engage in street racing as thrill-seeking behaviour, that it amounts to serious criminal conduct and will not be tolerated by the courts. The court needs to be unambiguous in its messaging that street racing will not be trivialized as youthful indiscretion. A conditional sentence would amount to mixed messaging. It would signal that the gravity of the offence was not so serious as to attract a custodial sentence. It would fail to recognize not only the serious harm done to T.K., and serious danger in which Mr. Refaeh placed his then girlfriend Beth Hancock, but also the grave danger in which he placed dozens of other people unknown to him, and about whose wellbeing he cared not.

[115] Mr. Refaeh, I know that you did not intend to cause harm to T.K., or to anyone else that day. But you conducted yourself in a manner that created a grave risk of tragedy and that predictably, if not inevitably, resulted in serious injuries to innocent bystander. Witnesses who saw you racing your BMW that day testified that it was "only a matter of time" before something terrible happened and someone got hurt. Based on some adrenaline-fueled thrill-seeking mentality, and maybe also a desire to show off your prized vehicle and your supposed driving talents, you deliberately engaged in this extremely high risk behaviour that deprived the residents of this city of their right to go about their day using public roads and sidewalks without fear for their safety.

[116] You had many opportunities to stop what you were doing. Shawn Nydam, one of the pedestrians who observed the race early on, near the Guelph library, testified that he raised his arms to gesture to you, "what are you doing?!" He recalled that you gave him a look of bewildered entitlement, as though you had the right to drive well above the posted speed limit, and to use the roads in downtown Guelph as your personal playground. I know that you deny this allegation, but I found Mr. Nydam to be a credible witness.

[117] I do not believe that you fully appreciate how fortunate you are that you did not catastrophically injure or kill anyone that day. At the speed at which you were travelling, you would not have been able to stop if a pedestrian stepped off the curb in front of you, or if a car pulled out from a driveway, or a cyclist decided to cross the street. It is only by sheer good fortune that Ms. Thompson, her unborn child, and her daughter who was in her mini van with her, were not seriously injured or worse when she was required to veer away to avoid colliding with your race partner. It is only by sheer good fortune that R.K., his cousin and sister, T.K., who were passengers in his vehicle, were not all killed that day when their vehicle collided with your race partner. It is only by sheer good fortune that your racing partner, Mr. Nodwell and his passenger, and your own passenger, Beth Hancock, were not seriously injured or killed that day. You could be facing much more serious charges and a much longer sentence of imprisonment, but for the intervention of luck that saved all these people from greater disaster.

[118] Indeed, it is only by sheer good fortune that you are here today, because you also could have been catastrophically injured, or killed that day, had you lost control of your vehicle.

[119] Street racing is a serious criminal offence. As the Ontario Court of Appeal stated in [Nusrat], at para. 69, "Like every drunk driver, every street racer is a potential killer." Courts should not have to wait until members of the public are killed before repudiation of the conduct that led to the killing is made clear. The only way to achieve appropriate denunciation in this case is to impose a custodial sentence. I am therefore sentencing you to a jail sentence of one year for dangerous driving causing bodily harm, in addition to 3 months for failing to remain at the scene.

[120] With respect to the driving prohibition, which both parties acknowledge is appropriate, I would ordinarily take into consideration the length of the prohibition to which you have already subjected prior to trial in determining the length of the prohibition to impose as part of your sentence. But given that you breached your undertaking not to operate a motor vehicle on two occasions while awaiting trial, it would not be appropriate to give you that credit. In my view, the 3-year prohibition sought by the Crown is warranted in the circumstances of this case.

Sentence

[121] Mr. Refaeh, please stand.

[122] For the reasons I have articulated I sentence you as follows.

[123] For the offence of dangerous driving causing bodily harm, you are sentenced to imprisonment for one year, and a driving prohibition of 3 years in addition to the term of imprisonment.

[124] For the offence of failure to remain at the accident scene, I sentence you to a consecutive term of 3 months' imprisonment.

[125] Your total sentence of imprisonment is therefore 15 months. You will be given credit for the two days that you spent in custody before your trial. Enhanced at the rate of 1.5, you will be credited with 3 days served.

[126] I hope, Mr. Refaeh, that you learn from this experience and that you change your ways. You have a bright future within your grasp. Whether or not you realize your potential will depend on whether you use this experience to mature and grow into a responsible adult. A criminal record and a jail sentence do not have to define your life. You are young and you can turn things around. But you must be held accountable for what you did.

[127] I sincerely wish you well. I hope never to see you in court again.

Justice Cynthia Petersen Released: March 19, 2024