Court Information

Date: 2016-07-21

Ontario Court of Justice

Her Majesty the Queen

v.

Dilooshan Selvakumar

Reasons for Sentence

Before the Honourable Justice G.R. Wakefield

On July 21, 2016

At Oshawa, Ontario

Appearances

J. Kim – Counsel for the Crown

R. Aitken – Counsel for the Accused

Judgment

WAKEFIELD, J.: (Orally)

This case is yet another example of the carnage caused by drinking and driving. Yet again, a victim's life has been devastatingly damaged. Yet again, I am charged with the duty of reactively assessing a sentence for a crime that could have been easily averted, ideally, by a driver being responsible or society by prioritizing an interlock device capable of being used on every motor vehicle. Whatever the additional cost of an interlock-type device in every vehicle, it would be a pittance compared to the daily suffering by victims and their families.

Yet again, I am confounded by society which once rebelled against seatbelts and then motorcycle helmets, and now not prioritizing the obvious preventative measure which is not reliant on that minority of irresponsible, self-centred drivers who continue to drink and drive and harm.

Now that the damage has been done, the only recourse left to me is structuring a sentence, as the Crown Book of Authorities sets out, which amounts to one sufficiently severe to intimidate members of the public from taking the risk of drinking and driving. Clearly, the sentences to date have not accomplished that purpose.

Facts

Dilooshan Selvakumar on the 12th day of January, 2016, pled guilty on two counts of impaired bodily harm. By way of agreed facts, the defendant admitted that between 5 a.m. and 6 a.m. on the 31st day of January, 2015, he drove a motor vehicle in which his then girlfriend, Ms. Sameena Motara was a passenger with the intent to go to the casino. In transit, the defendant veered into the opposing traffic lane and collided head-on with the vehicle operated by Ms. Wendy Demaio, with life altering consequences to both victims.

An Accident Reconstruction Report estimated the defendant's speed at approximately 91 kilometres per hour in an 80 kilometres per hour zone. The defendant was registered owner of the Acura TSX he was operating. The tires on this vehicle were not only so worn as to fail any safety inspection, they had been installed backwards.

Mr. Selvakumar was also injured in the collision and airlifted to hospital where he was treated for a fractured neck, a punctured lung and pneumonia. Blood samples were taken and analysed for blood alcohol concentration.

Mr. Selvakumar was driving with a B.A.C. of between 189 and 214 milligrams of alcohol in 100 millilitres of blood according to a Centre of Forensic Sciences opinion agreed to by the defendant, which is substantially more than double the legal limit at the low end, and as such statutorily aggravating, and not quite triple the legal limit at the high end.

Victim Impact – Ms. Sameena Motara

Ms. Sameena Motara's injuries were less severe, but included a fractured right hand which is still debilitating over a year later. In her Victim Impact Statement she describes her ongoing emotional struggles that have plagued her since the accident. She is still enduring ongoing rehabilitation therapy and is no longer working, which, despite the minimal percentage of income replacement benefits, she has had to move to a less comfortable, less expensive residence.

She also attests to ongoing pain in her shoulder, neck, legs, torso right side, and finds walking a challenge. The pain in her legs and feet prevent her from the lifestyle choice of wearing heels. While some might scoff at the last complaint, I note that were it not for this defendant, Ms. Motara would have the choice of any footwear with her social life and self-image undiminished.

Victim Impact – Ms. Wendy Demaio

Ms. Wendy Demaio's injuries substantially more severe than those suffered by the defendant, requiring extensive and lengthy life-saving operations, resulting in hospitalization of two-and-a-half months followed by extensive treatment and rehabilitation for injuries which included: shattered ankles, broken left femur, broken pelvis, broken arm, broken neck, torn intestines, lacerated spleen, 26 fractures which required the use of multiple metal plates, rods and screws. A portion of her bowel was removed and then reattached. That procedure, together with all the other injuries, required 350 staples as well as sutures resulting in extensive, pronounced and conspicuous scarring. She will never fully recover and to use Ms. Demaio's words, she has been "served a life sentence of pain and disability".

Her injuries caused Ms. Demaio to suffer the indignity of having family members and friends move her body to prevent bed sores. Her deprivation of dignity included having family and friends feed her, help her drink, bathe her and assist her in her bowel movements and in cleaning her afterwards. She has been stripped of her self-esteem when her sense of self image was destroyed.

Ms. Demaio describes herself, "as a once confident woman. I'm not only scarred for life physically, but the emotional impact is indescribable." Her very realistic fear of becoming addicted to the morphine, Percocets, sleeping pills and laxatives prescribed to her caused her to stop taking them and increasing the daily pain she must endure. The "healthy and loving relationship" she enjoyed with her husband has now been deprived of any physical intimacy.

Ms. Demaio's family have also suffered watching wife and mother suffer with the consequences of this defendant's choice to drink and drive. This family and her support circle have had their lives impacted by the needs of Ms. Demaio. Her Victim Impact Statement should be read in its entirety to fully comprehend the depths into which her life has been transformed. Even today, she is anticipating further surgeries and the family still struggles financially. Her entire future is one of continuous pain and diminution of her enjoyment of life.

There is an almost impossible analysis involved in assessing the severity of a victim's injuries. I do not perceive any answer as to how one determines whether a paraplegic, without the ability to sense anything in the affected area, is better or worse off than a victim who can still move but is in daily pain from those injuries for the balance of the victim's life. In my view, acknowledging how case-specific and occasionally inarticulable the sentencing comparison can be, a judge can only assess the severity of the injury suffered by the victim in each case as a factor in sentencing.

In this case, Ms. Demaio's injuries have left her mobile without any mental incapacity. The injuries, in my view, do not amount to catastrophic but well past the degree of life altering, inasmuch as her injuries, as severe as these, must seem catastrophic to any victim totally innocent in the accident given the impact each and every day left in her life, and is witnessed and shared by her family members.

It should also be noted that neither victim had recovered sufficiently to physically be capable of writing their own Victim Impact Statements. Ms. Demaio was dependent on dictating her statement to her daughter.

Crown and Defence Submissions

The Crown submissions on sentencing were heard on March 24th, 2016. The Crown position was two years less a day and a three-year driving prohibition together with the provision of a DNA sample by the defendant and an order pursuant to section 743.21(1) ordering a non-communication with the victim and her family while the defendant will serve the custodial sentence. The Crown advised that probation was not being requested.

I note that the case of R. v. Muzzo, 2016 ONSC 2068 heard arguments on February 4, 23rd and 24th, 2016, with reasons for sentence released March 29th, 2016.

Defence submissions were made on April 21st, 2016, after Crown Counsel confirmed that this Court was already aware of the Muzzo reasons having been released. The defence position was a custodial sentence of 15 months followed by three years' probation and a three-year driving prohibition, less credit for the one year driving restriction arising from the defendant's Officer-in-Charge Undertaking release terms. Included in those submissions was a tearful apology by the defendant to the victim, which I do accept as a legitimate expression of remorse.

After hearing reply submissions from the Crown, I advised both counsel that I was troubled whether the Crown position was a sufficient community response to both the nature of the charge and severity of the victims' injuries. The matter was further adjourned for both counsel to consider their positions, as well as for the foreshadowed testimony of the defendant's car mechanic respecting the manner of tire installation on the defendant's motor vehicle.

The matter subsequently returned before me when I was advised that the car mechanic would not be called as a witness and, additionally, that the defence was now joining with the Crown position for a joint sentencing position. My difficulty with that subsequent joint submission is that defence was adopting a Crown position with which I had already expressed discomfort as being inadequate. I provided both counsel an opportunity to make further submissions they felt appropriate in support of the joint submission.

Legal Principles on Joint Submissions

The Ontario Court of Appeal has clearly directed trial judges to carefully consider joint submissions with the expectation that trial judges will accede to a joint submission unless the trial Court is able to articulate why the proposed sentence would bring the administration of justice into disrepute, R. v. Cerasuolo (2001), 151 C.C.C. 3rd, 445, with many subsequent judicial reminders. Additionally, I am aware of the expectation that a judge should not lightly exceed a Crown position even if not joint.

I adjourned sentencing to properly consider the joint submission and my obligation to give that joint submission great weight, especially when submitted by two senior, experienced counsel such as the case here. I am also acutely aware of how important it is to the smooth and efficient operation of our justice system that trial judges give the utmost respect to joint submissions to support a sense of certainty to the involved counsel and a defendant, who no doubt, will at least partly base a guilty plea decision on advance notice of that joint submission, subject to the plea comprehension warning that the final decision is indeed in the hands of the sentencing justice.

I have considered counsel's submissions and all case law submitted by both the Crown and defence as well as my obligation to respect and give weight to a joint submission. I have concluded that nothing less than a penitentiary sentence would preserve the public's confidence in our judicial system and preserve the reputation of the administration of justice given the public outrage over the continuing carnage drunk drivers create on our streets and highways. I do acknowledge that the proposed joint submission might very well have been at the low end of what was the appropriate range at some point in the recent past.

Case Law Review

I have reviewed the defence Book of Authorities. The cases set out there are from 2010 through to 2015. The sentences range from a suspended sentence for a disabled defendant up to two years where some defendants are less sympathetic than this defendant and some victims would appear to have comparative injuries to Ms. Demaio. I was obviously not present for all of the sentencing submissions in each of those cases, which are not binding. And with great respect to those Justices on the facts set out in those judgments, I would not necessarily have reached the same decisions.

The Crown Book of Authorities also sets out a series of custodial sentences ranging from 16 months up to three years' incarceration in case law from 2010 through 2015.

Over the years, case law has reflected the changing societal views regarding drinking drivers from one of almost societal acceptance to that of a pariah today. The sea-change, in my view, occurs with R. v. McVeigh, (1985), 22 C.C.C. (3rd) 145 O.N.C.A. in which Justice MacKinnon stated that "every drinking driver is a potential killer", and as well in R. v. Bernshaw, [1994] S.C.J. No. 87 in which that Court noted that, "The gravity of the problem and its impact on Canadian society has been so great that Criminal Code amendments were enacted aimed at eliminating or, at least, reducing the problem", which is at paragraph 19.

The subsequent three decades of judgments have seen a steady escalation in severity of sentences enacted by Parliament and imposed by the Courts in a continuing quest to deter drinking drivers as set out, for example, R. v. Kummer 2011 ONCA 39. As the Court of Appeal observed in R. v. Rawn, 2012 ONCA 487, a dangerous operation causing bodily harm case, when conditional sentences were excluded for serious personal injury offences, "it signalled that Parliament has determined that conduct of this nature will not be tolerated", at paragraph 44. In other words, general deterrence and denunciation as expressed through a real jail setting are paramount sentencing considerations, and in my view that direction from Parliament applies with greater vigour for those defendants who have made the choice to drink and drive.

I have concluded that the sentencing range is once again being raised in response to the continued decisions of some members of the public to drive impaired. The most recent judicial expression of that public outrage being set out in R. v. Muzzo in which the counts of impaired bodily harm received concurrent five year sentences to the 10 year sentences for the impaired causing death counts. In Muzzo, the bodily harm suffered by the two victims who survived the collision seemed somewhat less severe than those suffered by Ms. Demaio, with the exception of one victim having a continuing brain bleed and significant memory loss which would, in my view, be more serious. In Muzzo, the defendant took responsibility and pled guilty as did the defendant before this Court.

Those substantial terms of imprisonment are demonstrative of a recent increase in range of sentence appropriate for impaired causing death as evidenced by the Supreme Court's refusal to reduce a six-and-a-half year sentence for two counts of impaired causing death in R. v. Lacasse 2015 SCC 64. In my view, as the upper end of the range for impaired causing death is increased, so does the upper end for impaired causing bodily harm is increased, and that, in my view, is consistent with the impaired bodily harm sentence in Muzzo.

The Supreme Court also in R. v. Lacasse at paragraphs 73 and 74 noted that, "while it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinarily law-abiding people. It is such people, more than the chronic offenders, who will be sensitive to harsh sentences." The Court goes on to reaffirm R. v. Proulx 2000 SCC 5, [2000] 1 S.C.R.61, paragraph 129, that "dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the ones most likely to be deterred by threat of severe penalties". The Court again states that the objectives of deterrence and denunciation must be emphasized in imposing sentences for this type of offence.

Mitigating Factors

Among the mitigating and neutral factors in support of the defendant, I find that the speed of the defendant's motor vehicle exceeded the speed limit for the roadway and certainly contributed to the extensive damage caused by the collision, but that the excess speed of 11 kilometres per hour was not necessarily unusual for that roadway and time of night, anticipating minimal traffic. I find that the tires were unsafe, both lacking tread and being installed backwards as an indicator as to the defendant's lack of responsibility towards his fellow motorists, but I accept that the Agreed Statement of Facts would not permit concluding those tires as a contributing factor either for the collision or the injuries suffered by all involved parties.

While the beer bottle caps from within the car and the three cases of beer in the car trunk might be suspicious, I accept that there is no acknowledgement of alcohol consumption while driving. I acknowledge that the defendant also suffered extensive injuries in the collision and now has firsthand knowledge of the consequences which flow from drinking and driving.

The defendant has strong family and community support with extended family attending court each date in support of him. Mr. Selvakumar was only 23 years old when he committed these offences and 25 years old at sentencing, and as such a very youthful adult for whom rehabilitation is a very real prospect. He is a comparatively shorter male with a very slight build, which may make him more vulnerable within a penitentiary setting.

The defendant is the recipient of a generally positive Pre-Sentence Report. It sets out a positive family background. He and his sister co-own the residence in which they reside together with the parents. He helps pay the mortgage from full-time employment at which he has positive reviews. His family are supportive of him. They assert that he is, at most, a social drinker and does not have an alcohol problem, an optimism shared by the defendant.

The defendant advised the Pre-Sentence Report author of having attended a house party the night before the accident where he consumed about nine beers between 9 p.m. and 2 a.m., or about five hours duration. He returned, consumed a meal and then subsequently decided to drive to a casino located in Port Perry. They left between 5 a.m. and 6 a.m. I have not been provided with any evidence that would assist in verifying whether the nine beers consumed hours earlier would amount to the calculated blood alcohol content. Without such evidence, I am not prepared to look behind the defendant's assertion in the Pre-Sentence Report of how much alcohol he consumed and restrict my focus only to the calculated blood alcohol content which by itself would be an aggravating factor.

I also note that the defendant has contributed substantially to the Tamil community. Letters filed set out seven hours per week over the previous month with the Canadian Tamil Youth Development Centre, 65 hours with the South Society of Helping Hands in a letter clearly not proofread before submission, 120 hours at the Tamil's Memorial Foundation, and volunteered for the Scarborough–Rouge Liberal Candidate, to support a summary of 253 hours of community service at all those agencies filed on sentencing. The Crown has not contested those numbers, so I accept that the defendant has made a substantial contribution into his community, as had the defendant, by the way, in the McVeigh decision.

Most importantly is the defendant's guilty plea to an Agreed Statement of Fact, which has preserved both victims from having to testify, possibly twice, as well as providing the victims' a degree of finality. Those pleas have saved countless days of judicial resources had the defendant exercised his Charter right to a trial. However, I must also note that, while there may have been some triable issues as to the accident causation due to everybody's injuries impairing memory, this was an otherwise extremely strong Crown case.

Aggravating Factors

The aggravating factors are mostly obvious. Mr. Selvakumar chose to drink and drive, period. On the way to the casino, he caused a collision which severely injured himself, injured his passenger and caused life-altering injuries to Ms. Demaio. No sentence of mine can ever redress the daily challenges Ms. Demaio must endure for the rest of her life, but nor should a criminal sentence ever amount to an eye-for-an-eye philosophy, but must balance the criteria set out by Parliament in section 718 of the Criminal Code as expounded by appellate case law.

Section 718.1 requires a sentence be proportional, however, to the gravity of the offence and the degree of responsibility of the offender. I must also craft a sentence which is similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, which is more challenging during periods in which the Courts are raising the range of appropriate sentence to deter and denounce certain conduct.

Mr. Selvakumar's general lack of responsibility towards the safety of other drivers is demonstrated by negligent care of his automobile tires and installation. As the registered owner and driver, he has the responsibility for the safety of his motor vehicle.

Just days before these offences, the defendant was stopped in a R.I.D.E. program and blew a "warn" on a roadside screening resulting in an administrative suspension of his driving privileges. Being stopped without charge is clearly not an aggravating factor. He is deemed to have been operating his motor vehicle properly and, in my view, the presumption of innocence is an absolute barrier to viewing the purported A.S.D. blood alcohol readings producing a "warn" as a sufficiently reliable and admissible indicator of alcohol consumption in a criminal sentencing.

However, the timing of the roadside stop in relation to this offence date is telling as to lack of insight the defendant has as to the consequences of his choices. I accept the most drivers would take a R.I.D.E. program stop as a reminder of how seriously drinking and driving is viewed by the public. While I am not adding that traffic stop into the column of aggravating factors, it does give me pause when considering his prospects for rehabilitation, given both his and his family's denial of the defendant having a drinking problem, notwithstanding his remarkably high blood alcohol readings in conjunction with the fine motor skills necessary to operate a motor vehicle as far as he did prior to the collision, and the inference I might otherwise have drawn as how inured his body has become to alcohol consumption.

The defendant is neither a first offender nor a stranger to custodial sentences. There is just under a five-year gap between this offence date and a sentencing date of one day presentence custody, a totality of 12 months' conditional sentence followed by 12 months' probation on charges of assault times two, robbery, and possession of a weapon. I note that this offence date occurred a mere 20 months after completing that sentence. Commencing in 2009 are a series of driving offences consistent with someone contemptuous of other drivers' safety, including speeding and driving while using a handheld device.

Sentence

WAKEFIELD, J.: (Orally)

In my view, a proportional sentence for the gravity of these offences, looking at the severity of the injuries and the sole personal responsibility of Mr. Selvakumar, would be one of between four and five years in the penitentiary. That duration should be mitigated by his guilty plea, the prospect of rehabilitation, his small stature as a risk factor while incarcerated, and I find the appropriate sentence to be one of three-and-one-half years' incarceration with respect to count one.

The injuries to Ms. Motara are apparently less severe though still plaguing her. The defendant has a separate duty towards each victim. However, the injuries to the defendant arose from the same actions of the defendant which caused the injuries to Ms. Demaio. Therefore, I impose a concurrent sentence of 18 months' incarceration with respect to count four.

I understand this offence is a primary designated DNA offence and, as such, there will be an order that Mr. Selvakumar provide a sample of his DNA.

Driving a motor vehicle is a privilege for which the prerequisite is a duty of care and responsibility towards all other drivers and passengers on our highways. The defendant failed in that duty. There will be a three-year driving prohibition as requested by the Crown.

And, Mr. Aitken, I believe that he has not been driving because of the release terms, but did he get his driver's license – does he have his driver's license with him today?

MR. AITKEN: No, Your Honour.

THE COURT: Alright. Driving prohibition, pursuant to the Criminal Code, you are prohibited from operating a motor vehicle on any street, road, highway or other place for a period of three years commencing on today's date.

You should be aware that you if you are found guilty of breaching my prohibition order, the circumstances in which the Crown has elected by way of indictment, you will be at risk of up to five years in the penitentiary.

Pursuant to section 743.21(1), there will be an order that you are prohibited from contacting the complainants or victims in this matter. The only exception is that I think there should be an exception, subject to Crown's submissions, through counsel given that there may be civil ongoing proceedings...

MR. KIM: Yes, thank you.

THE COURT: ...so except through counsel. Any other exceptions that you feel are appropriate on his behalf?

MR. AITKEN: No, it's the obvious one, Your Honour. Thank you.

THE COURT: I do not recall the Crown seeking a section 109 order. I believe it is a mandatory order for this offence. Any contrary submissions to that?

MR. KIM: No thank you, Your Honour.

MR. AITKEN: My client doesn't have any weapons, Your Honour.

THE COURT: He does not require a grace period then?

MR. AITKEN: No, Your Honour.

THE COURT: And pursuant to section 109... And is the Crown looking for a period of time for the 109 order?

MR. KIM: Just the 10 years on the optional portion, thank you.

THE COURT: ...prohibited from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for a period beginning today and ending 10 years after release from imprisonment. And you are further prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

There are two counts, indictable. Victim surcharge of $200 on each count, two days incarceration on each count if not paid. Does he require more than the 60 days' order, counsel, provides for victim surcharge to make arrangements?

MR. AITKEN: Sixty days is fine, Your Honour.

THE COURT: Are there any other aspects of sentencing that I have not covered, other than the Crown's pleasure on any other matters not dealt with yet?

MR. KIM: I'm just seeking some clarification, Your Honour, in relation to the driving prohibition order. I understand Your Honour obviously making that effective today, but in terms of when it starts to run....

THE COURT: Are you saying at the completion of imprisonment?

MR. KIM: That was the Crown's request. And given the length of sentence that Your Honour has imposed, to have any effect, obviously, it should start from the conclusion of the jail sentence. I just wanted to seek clarification whether Your Honour had ruled specifically on that or....

THE COURT: I had not made that clear enough. I certainly had concluded that the time under the recognizance should not be taken into account to diminish the period of time and the prohibition actually should start upon completion of sentence, of the custodial portion of the sentence.

MR. KIM: Thank you, Your Honour. And just for the record, with respect to the other counts on the indictment, obviously the Crown would request that that be marked withdrawn at the request of the Crown.

THE COURT: And I appreciate that this is not a sentence that either counsel came into court anticipating.

I really do wish you good luck that you will not put yourself in this position again. I wish the Demaio family good luck and hope that somehow you can get past all this. And that concludes my sentence.

Subsequent Clarification on DNA Order

THE COURT: Mr. Selvakumar, if you could just stand up for a moment? I have just been corrected that the DNA request of the Crown is not a primary but a secondary matter, and on that basis it is a slightly different test. And even though I believe that was not opposed by your counsel, who I did page but may have already left with your family, given the nature of your prior record and the circumstances of this offence and the minimal impact on you, I am still satisfied it is in the best administration of justice to make the order.

And there will be an order that you provide a sample of your DNA. Now, you may have already done that with the last charge.

DILOOSHAN SELVAKUMAR: Yeah.

THE COURT: In which case, they may not want to take another sample, and that is up to the officers, but if they require it then you have to cooperate with them. Do you understand that, sir?

DILOOSHAN SELVAKUMAR: Yeah.

THE COURT: That is it. Thank you very much for coming back up again.

Transcript Ordered: July 21, 2016

Transcript Completed: July 22, 2016

Ordering Party Notified: July 26, 2016