Court File and Parties

Court File No.: St. Catharines - 2111-998-14-SR2961-00 and 2111-998-15-T2961-00

Date: 2015-12-09

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Pirasat Aiyathurai

Before: Justice P.H. Wilkie

Heard on: August 6, 2015 and October 28, 2015

Written Reasons for Sentence: December 9, 2015

Counsel:

Ms. H. Nickel, for the Crown

Mr. R. Burke, for the defendant, Pirasat Aiyathurai

Reasons for Sentence

WILKIE J.:

The Offence and Plea

[1] Pirasat Aiyathurai is before the court today to be sentenced for the crime of Criminal Negligence Causing Death. In the early morning hours of July 5, 2014 he took the life of Betty Taylor, as he drove a truck at high speeds through the streets of St. Catharines while fleeing the police. He ran down this 69 year old mother of three as she walked along Welland Avenue.

[2] He pled guilty to this offence on August 6, 2015, and later to an additional unrelated charge of Driving while Prohibited for which he was on bail at the time.

[3] The Crown seeks a sentence of eight years less pretrial custody, while the defence submits that five would be more appropriate in the particular circumstances of the case.

Circumstances of the Offence

[4] The details surrounding the sequence of events leading to the senseless and tragic death of Ms. Taylor are troubling. A review of them reveals a number of features of the offender's reckless and selfish conduct which in my view serve to aggravate what is intrinsically of course a very serious offence.

[5] The matter began with a citizen who saw a Dodge truck being driven so erratically on the QEW that they were moved to call the police. The Ontario Provincial Police responded and located the vehicle as it exited and went south on the 406. The officer saw the truck to be weaving and drifting out of its lane and pulled it over north of the Fourth Avenue exit.

[6] The police car stopped behind the truck and the officer got out to investigate the driver, later determined to be the offender. When he got to the rear of the truck on the driver's side Mr. Aiyathurai suddenly put the vehicle back in gear and accelerated away at a high speed. The officer raced back to his car and gave chase down the 406.

[7] The vehicles reached speeds of 140 kilometres per hour at which point the officer backed off. He wisely aborted the pursuit due to safety concerns as the offender exited the highway to proceed east on Fourth Avenue towards the downtown core of St. Catharines.

[8] Mr. Aiyathurai continued eastbound along Welland Avenue, a road with one lane of traffic in each direction running through a mixed use residential and light commercial neighbourhood. He was still travelling at a high rate of speed, in excess of 100 kilometres per hour.

[9] As indicated the OPP officer had abandoned the pursuit but in what can only be described as a tragic coincidence, what confronted Mr. Aiyathurai as he fled away were several Niagara Regional Police cruisers stopped up ahead on the roadway with their emergency lights activated. As it turned out they were responding to a completely unrelated domestic matter, but Mr. Aiyathurai, no doubt trying to evade what he perceived to be a form of roadblock, tried to make a sudden hard right-hand turn onto Queen Street. He was going far too fast. He mounted the sidewalk, violently striking Betty Taylor as she was walking home from her son's house. The truck kept going and crashed through the plate glass front window of a butcher shop taking Ms. Taylor with it.

[10] As if that was not enough the offender then reversed the truck out of the building and tried to flee down Queen Street. As he accelerated away the damage to the truck, which by now included a broken axle and partially detached wheel, caused it to veer across to the other side of the street over another sidewalk and into a tree on the boulevard.

[11] Undeterred, Mr. Aiyathurai then got out of the car and fled on foot. He ran down Queen Street and disappeared into the backyards of the neighbourhood. Of course by this point the collisions had drawn the attention of local residents as well as the Niagara Regional Police officers who were in the vicinity for the unrelated matter. The area was surrounded, the canine unit was brought in and a full hour and twenty minutes after Betty Taylor was struck, Mr. Aiyathurai was arrested, still running between backyards in the general area.

[12] A search of his cell phone records confirmed that a taxi that the police had seen circling the neighbourhood had been called by Mr. Aiyathurai in order to try to make good his escape.

The Victim and Her Family

[13] The loss of Betty Taylor in these circumstances is rendered all the more heartbreaking if that's possible by the fact that at the very time she was struck and killed she was talking on her cell phone to her son William. She had left his home a few minutes before and was walking back to her house. On the way she saw the police cars that had gathered on Welland Avenue and called to tell him about it. Through the telephone he could hear the roar of the truck's engine and the screeching of the tires. Understanding that she must have been hit he immediately raced to the scene on his bicycle to be at her side.

[14] A surveillance camera operated by the butcher shop captured the incident and its immediate aftermath. There is no doubt that Betty Taylor would have seen the vehicle coming at her before she was struck. The impact propelled her through the plate glass window ahead of the truck. She suffered massive internal injuries including a lacerated heart. A civilian on the street at the time, immediately went to her aid as did the police in the vicinity moments later, but there was nothing to be done to save her.

Evidence Regarding the Offender

[15] After his arrest police detected a smell of alcohol on Mr. Aiyathurai's breath. A breath demand was made which resulted in readings of 35 and 19 milligrams of alcohol in 100 millilitres of blood, the second one recorded just short of four hours after the incident.

[16] To this day the police have been unable to determine how or under what circumstances Mr. Aiyathurai came into possession of the truck he was driving. He was not the owner and afterwards no one came forth to claim what was a $25,000.00 vehicle. It was registered to a numbered company but police investigation left them uncertain that the company was valid or that the named officers are real people.

[17] A search of the vehicle produced some credit cards and bank card, in the name of the offender and his brother, and fraudulent identification and a credit card in the name of another individual.

[18] At the time Mr. Aiyathurai was a prohibited driver stemming from a prior conviction for Drive Disqualified in 2011. He was also awaiting trial in Toronto on a further charge of Drive Disqualified arising in 2013.

Impact on the Victim's Family

[19] Betty Taylor was a mother of three, a grandmother of four and great grandmother of four. Her family including her sister, cousins, nieces and nephews continue to suffer terribly due to her death. To have the life of a loved one taken so suddenly, so needlessly, so randomly and so violently must indeed be difficult to bear. This was poignantly illustrated by the moving victim impact statements read in court by her two daughters Patricia and Kyla, by her son William and her granddaughter Shannon. Listening to them helps me appreciate what a vibrant loving person she was and how heavily invested she was in the day to day lives of her family. I speak for this community in extending our heartfelt sympathies to all those for whom the loss of Betty Taylor has caused such pain and anguish.

[20] If I may take a moment and speak directly to the family members and particularly the children of Betty Taylor who are here in court today. You are here to support your mother and to see that justice is done. But I hope you understand and I suspect you do, that it would be wrong to think that the sentence and punishment imposed here should be taken as a measure of the value that is placed on your mother's life. Nor should the sentence be assessed as to whether it is equal to or balanced against the magnitude of the loss you have all suffered. We all know there is no sentence that can make this right, undo the wrong or fill the void that has been created.

Sentencing Principles

[21] My duty is to impose a sentence in accordance with various legal principles which I will take a moment here to review.

[22] Under our system of justice in Canada, courts in most instances have a wide latitude in determining the form and length of any sentence. This is certainly the case with the crime of Criminal Negligence Causing Death which carries a maximum punishment of life in prison but save for the requirement that a conviction be imposed, no minimum. The wide sentencing options are necessary to give expression to the fact that sentencing of offenders is a very individualized, case specific exercise. The same offence committed by different persons or in different circumstances can result in vastly different sentences.

[23] The court's discretion however is not unfettered. In attempting to craft a sentence a court must be guided by and apply certain principles some of which are established by Parliament and enacted in the Criminal Code and others which are the product of decision making by our appellate courts.

[24] The most fundamental principle, the one at the heart of every sentencing decision, is that of proportionality, which dictates that the sentence must be proportionate to the gravity of the offence, including the circumstances under which it was committed, and the degree of responsibility of the particular offender. In assessing these factors the court must have regard to both aggravating and mitigating features of the particular case which may emerge from the circumstances of the offence itself or from those of the offender.

[25] The overarching goal of every sentence must be to protect the public by curtailing the criminal activity. To this end a sentence strives to promote certain objectives set out in section 718 of the Criminal Code. These include denouncing the conduct and expressing the community's disapproval of it, deterring the particular offender and others from repeating it, separating the offender from society where necessary, rehabilitating the offender, promoting in him or her a sense of responsibility and an acknowledgement of harm done to victims.

[26] In trying to craft a sentence a court is often called upon to balance competing objectives and determine which of them needs to be emphasized to best promote the public interest.

Circumstances of the Offender

[27] The particulars of this offence have been set out above. I turn now to the circumstances of this offender.

[28] Mr. Aiyathurai is a 31 year old single man who at the time of the offence was living in Brampton in his parents' home together with two younger brothers. Born in Sri Lanka he came to Canada with his family when he was four years old. He is a Canadian citizen. He has no dependants.

[29] After graduating from high school he attended York University to study Business Administration but did not complete the program. He told the author of the pre-sentence report that he left in order to work and has no intention of returning to school.

[30] He appears to have had a sporadic and intermittent history of part-time work. He provided no details to the probation officer except that he sometimes works in his father's real estate business. His counsel did provide the court with copies of tax returns for the years 2010 to 2014 confirming some employment.

[31] He described his upbringing as stable and his family being close-knit and supportive. This court has noted that both parents have been present at court during these proceedings and according to the offender, have visited regularly during his pretrial incarceration. For reasons that are not clear, however, the offender did not provide the probation service with contact information for family members so the pre-sentence report contains no input from them.

Criminal Record

[32] Mr. Aiyathurai has a serious and related criminal record which includes a history of driving offences where he attempted to avoid responsibility by either falsely identifying himself to police or taking flight.

[33] His first convictions were in 2009 for Possession of Drugs and Possession of Drugs for the Purpose of Trafficking for which he received a 12 month conditional sentence.

[34] A year later he was convicted of Failing to Provide a Breath Sample which of course resulted in a one year driving prohibition. Five months later however in March of 2011 he was stopped by police for an HTA infraction. In a scenario not dissimilar to the present case he sped off just as the officer approached his car on foot. In the ensuing pursuit he lost control of the car and disabled it by running over a curb. In this instance as well, he abandoned the car and fled on foot only to be chased down by the officers. He pled guilty to Dangerous Driving and received a 75 day sentence and a further two year driving prohibition.

[35] He has remained a prohibited driver ever since.

[36] In February 2013 he was charged again with Drive Disqualified and Obstruct Police. These were the charges which were pending when the present offence was committed and to which he has pled guilty before this court and is to be sentenced today.

[37] In that case when stopped by police he had no documents and verbally identified himself with a false name, date of birth and address. The police challenged him on it but he persisted in the lie even after being arrested. It was only when the police searched his phone and called a family member that his true identity was revealed.

[38] In addition in 2011 he was convicted of a series of offences which again resulted in a 12 month conditional sentence. They included the offences of Obstruct Police, Possession of Stolen Credit Cards and Unauthorized Use of Credit Card Data. It will be recalled that in the truck he was driving during the current offence the police found fraudulent identification and a forged credit card.

Offender's Attitude and Remorse

[39] Mr. Aiyathurai told the probation officer that apart from the very occasional use of marijuana he no longer uses illicit drugs of any kind. He also acknowledged regular alcohol use but denied that he had an alcohol problem. It was also reported that he thought he would benefit from a period of community supervision to get his life back on track, suggesting to this court that he did not at least at that point, grasp the severity of the crime he has committed.

[40] While it was the opinion of the probation officer that the offender did not present as being remorseful, prior to sentence he read a statement in court apologizing to the victim's family for his conduct. In the court's view it was a sincere expression of remorse.

Aggravating Factors

[41] There are a number of aggravating factors that arise from the circumstances of this offence and this offender, factors in my view which elevate his moral blameworthiness and increase the seriousness of the offence.

[42] First and foremost in my view is the fact that this crime was committed in the context of a police pursuit. His criminally negligent driving was a deliberate act, consciously taken, with the goal of avoiding direct police interaction. Unlike situations where the driving is the unintended, albeit in some cases inevitable by-product of excessive consumption of alcohol, the offender's conduct here represented an intentional course of action carried out with the objective of avoiding apprehension for other criminal conduct, most likely his prohibited driving status but possibly also related to the possession of the truck, the consumption of alcohol or the fraudulent identification and credit card that was found.

[43] Secondly, this offence is aggravated in my view by the calculated way in which the offender triggered the police pursuit. His tactic, of initially pulling over in response to the police directive, and then accelerating away suddenly and quickly when the officer was on foot and close to or beside his vehicle, is a deception designed to get a running head start in any pursuit and maximize the chances of escape. It also increases the risk of serious injury to the officer. Indeed as events unfolded, with the officer having to prudently give up the chase, his manoeuvre might have proved successful, had other police not coincidentally got in his way.

[44] A third aggravating factor in my view is that the offender continued to drive in a reckless and criminally negligent manner reaching speeds of 100 kilometres per hour on a two-lane residential street, even after the police had backed off the pursuit to try to de-escalate the danger.

[45] Furthermore, the morally bankrupt way in which he conducted himself after striking and killing Ms. Taylor is especially aggravating. Without any regard whatsoever for her well-being he left the scene, backing out of the store front and taking off down the street, quite prepared it would seem to engage in another police chase and to endanger the lives of more people if that's what it took to make good his escape. There would appear to have been no limits to the reckless, life threatening behaviour he was prepared to engage in to avoid apprehension. It was only the severe damage to the vehicle that stopped him from putting more lives at risk.

[46] But of course that was not all. The entire sordid scenario is capped off by his flight on foot from the scene of the second crash and his cowardly attempt to hide himself in the backyards of the neighbouring houses, evading capture for over an hour, all the while hatching yet another plan of escape by trying to get a taxi to whisk him away from the area.

[47] Finally, it is aggravating of course that he was at the time and had been for some years a prohibited driver and had a history of related conduct. He had no right to be behind the wheel of a vehicle at all and was facing serious penal consequences for that fact alone. Indeed his history demonstrates no respect for the law or any intention of complying with court orders. Previously convicted of Drive Disqualified, he was on bail for yet another charge of the same when all this happened. Worse still this was the second instance where he had driven dangerously, having precipitated a police pursuit to avoid apprehension. This was therefore not an isolated incident. Mr. Aiyathurai's actions that day did not represent a momentary lapse of judgment but the culmination of a continuing course of conduct.

Mitigating Factors

[48] The plea of guilty is the only mitigating factor. It demonstrates remorse and saves court resources. It also spares the victim's family the added trauma of a trial. It did not come at an early opportunity but no trial date was ever set and I accept there were valid reasons having partly to do with disclosure issues that prevented it from occurring sooner.

Case Law and Sentencing Range

[49] I have been referred to considerable case law by both counsel as a guide to the appropriate range of sentence and the principles to apply. As is most often the case, many are helpful and all distinguishable on their facts.

[50] Among the principles that emerge from the cases is that is the difficulty as noted by our Court of Appeal in setting a range for the offence of Criminal Negligence Causing Death, given the almost infinite variety of circumstances under which the offence can be committed: (see R. v. Linden (2000), 147 C.C.C. (3d) 299 at p. 300).

[51] Many of the cases involve examples of this offence which are committed as a result of drunk driving and in a number of these the Ontario Court of Appeal has noted that these sentences have increased over the years so as to tend towards the higher end of the sentencing range (see for example R. v. Mascarenhas, [2002] O.J. No. 2989). There is a helpful discussion of this issue and reference to a number of the relevant cases in the recent sentencing decision by Justice Trotter in R. v. Luskin, 2012 ONSC 1764, [2012] O.J. No. 1239, where eight years was imposed on a youthful offender with no record who killed three and injured two others while drunk driving. In doing so he placed significant reliance on the Court of Appeal's 2011 decision in Kummer, 2011 ONCA 39, [2011] O.J. No. 234 where eight years was upheld where the offender was drunk, killed three people and had no record.

[52] Most recently the Court of Appeal approved of the six year sentence for Criminal Negligence Causing Death for an offender with a good background and no record whose drunk driving resulted in the death of the passenger on his motorcycle. See R. v. Carreira, [2015] O.J. No. 4867 (C.A.).

[53] In the case of Mr. Aiyathurai of course the circumstances are somewhat different. While post-arrest testing confirmed there was alcohol in his system, it was certainly not established that alcohol was a major factor in the incident. Counsel for Mr. Aiyathurai submitted that the absence of serious impairment together with the fact that there were not multiple injuries or death took the case below the eight year range imposed in these and other cases.

[54] In my view while there is no doubt that sentences are increasing in criminal negligence cases where alcohol is a major factor, I cannot accept that the absence of significant intoxication can serve as a factor to mitigate the sentence in this case. It seems to me that the relatively sober, aware driver, who deliberately engages in criminally negligent driving to avoid the police and escape culpability, has at least the same level of moral culpability, if not more, than one who drives with alcohol induced recklessness.

[55] Further, while there will be cases where catastrophic consequences such as multiple deaths can serve to increase the length of a sentence, I am not satisfied that the absence of that necessarily decreases it. The focus in my view ought to be on the conduct of the offender and the degree to which it deliberately endangered the public.

[56] In this regard I would note that the Court of Appeal upheld a nine year sentence for a youthful offender who killed the driver of another vehicle while deliberately driving a stolen car in a criminally negligent manner in the context of a police chase. See R. v. Shore, [2001] O.J. No. 3801 (C.A.), affirming [1999] O.J. No. 1545.

Conclusion on Sentencing

[57] This is therefore an aggravated example of this offence, committed by an offender with an elevated level of moral culpability. Mr. Aiyathurai has proved himself to be a serious danger to the public. He has a history of driving misconduct and flight from police. His conduct on this occasion amounted to deliberate endangerment of the public. It was brazen in its disregard for risks he created. It was shocking in his lack of concern for the well-being of the victim both before and after she was struck and killed. It is conduct which must be emphatically and unambiguously denounced. The sentence must also reflect the very strong need for specific deterrence.

[58] In all the circumstances, taking into account the mitigating effect of the plea, I find that on the count of Criminal Negligence the appropriate sentence is one of eight years less pretrial custody.

[59] The pretrial custody is 17 months for which he gets credit at slightly less than 1.5:1 for 25 months which leaves a balance of 71 months for this offence.

Additional Charges and Driving Prohibition

[60] He is also being sentenced today on his plea of guilty to Drive Disqualified and Obstruct Police arising from the incident in February 2013 the circumstances of which have been set out earlier. Chronologically this was the second instance where he was caught driving while prohibited. The first time resulted in a sentence of 60 days. This incident, which included an attempt to mislead the police about his true identity, calls for a consecutive sentence of at least that length. He will be sentenced to three months on each count concurrent to each other but consecutive to the sentence for Criminal Negligence. The total sentence being served is therefore six years and two months.

[61] I must also impose a driving prohibition. It is an important part of the punishment imposed. In assessing the appropriate length I am of course mindful amongst other things of the age of the offender, his prior record and of course the fact that the prohibition does not commence until his release from custody. On the facts of this case, given the driving history and the fact that he was already prohibited, it seems to me obvious that community safety concerns ought to be at the forefront in considering the length of any prohibition. I have had particular regard to the discussion of this issue and authorities referred to in Justice Durno's decision of R. v. Bakai, [2010] O.J. No. 6076 (S.C.J.).

[62] In respect of the Criminal Negligence count, he will be prohibited from operating a motor vehicle on any street, road or highway anywhere in Canada for 15 years. On the Drive Disqualified count, the prohibition will be three years.

Released: December 9, 2015

Signed: "Justice P.H. Wilkie"

Justice P.H. Wilkie