Court File and Parties

Ontario Court of Justice

Date: 2016-08-17

Court File No.: Halton 15-1762

Between:

Her Majesty the Queen

— and —

Ricardo Cabral

Before: Justice D. A. Harris

Heard on: January 11 and June 16, 2016

Reasons for Sentence released on: August 17, 2016

Counsel

Amanda Camara — counsel for the Crown

Carlos Da Cruz — counsel for the defendant Ricardo Cabral

HARRIS J.:

[1] Introduction

Ricardo Cabral pled guilty to criminal negligence causing death to Ryan Powless and criminal negligence causing bodily harm to Brianne Vassallo. These are both indictable offences.

Mr. Cabral is before me today to be sentenced.

Crown counsel suggested that I should sentence him to imprisonment for five to six years. She asked that I prohibit him from driving for 10 years. A firearms prohibition pursuant to section 109 of the Criminal Code is mandatory. Finally Crown counsel requested a DNA order.

Counsel for Mr. Cabral suggested that I impose a sentence of imprisonment for two to three years. He asked that I prohibit Mr. Cabral from driving for five to seven years. He agreed that it was appropriate for me to make a DNA order.

I find that a sentence of imprisonment for five years is the appropriate sentence. That should be followed by a driving prohibition for eight years.

My reasons for this are as follows.

FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING

I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

I must also consider the impact of section 718.2(e) which provides that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community.

The maximum sentence for criminal negligence causing death is life imprisonment. The maximum sentence for criminal negligence causing bodily harm is imprisonment for ten years. A maximum sentence of life imprisonment clearly indicates that Parliament sees the offence of criminal negligence causing death as being extremely serious and warranting the imposition of severe sentences.

For cases such as this one involving drinking and driving results in a death, I am thankful for the excellent review of the law provided recently by Justice Fuerst of the Superior Court of Justice in R. v. Muzzo where she wrote:

In cases of drinking and driving, particularly where death is involved, denunciation and general deterrence are the paramount sentencing objectives. Denunciation refers to the communication of society's condemnation of the conduct. General deterrence refers to the sending of a message to discourage others who might be inclined to engage in similar conduct in the future. General deterrence is particularly important in cases of impaired driving. Drinking and driving offences are often committed by otherwise law-abiding people. Such persons are the ones who are most likely to be deterred by the threat of substantial penalties.

She referred to three relatively recent decisions of the Ontario Court of Appeal which she suggested support the proposition that the offence of impaired driving causing death will attract a substantial penitentiary sentence, even for first offenders of good character.

Further, she found that it was clear that:

…sentences for impaired driving causing death have increased in recent years. This reflects society's abhorrence for the often tragic consequences of drinking and driving, as well as concern that even though the dangers of impaired driving are increasingly evident, the problem of drinking and driving persists. For this reason, sentencing decisions that pre-date Ramage, Junkert, and Kummer have diminished value as guidelines.

In Ramage, Junkert and Kummer, plus other cases cited by Crown counsel, the sentences ranged between imprisonment for four years and imprisonment for eight years. The sentence imposed in R. v. Muzzo, supra was imprisonment for the equivalent of ten years.

Counsel for Mr. Cabral cited a number of decisions where the sentences in similar cases ranged between imprisonment for two years less one day and imprisonment for three years.

One of these was a decision in the Ontario Superior Court of Justice that preceded the three Ontario Court of Appeal cases. Four others were Court of Appeal decisions from other provinces. I find that all of these decisions have "diminished value as guidelines" in light of the recent decisions of the Ontario Court of Appeal.

In the one remaining case cited by counsel for Mr. Cabral, the global sentence was imprisonment for four years, with three years for criminal negligence causing death and three years concurrent for impaired driving causing death and one year consecutive for refusing to provide a breath sample.

I do note that the Ontario Court of Appeal has concluded that, because the offence of impaired driving causing death can be committed in an almost infinite variety of circumstances, there is no identifiable range of sentence that applies to the crime. The Supreme Court of Canada recently cautioned that even where sentencing ranges are identified, they are guidelines and not hard and fast rules.

Before I can apply the applicable principles of sentencing, however, I must look at the facts underlying the offence here, the impact that it had on its victims, and the background of Mr. Cabral.

THE OFFENCE

On May 16, 2015 at 3:29 a.m. Mr. Cabral drove his Ford F150 pickup truck westbound in the eastbound lanes on Highway 403 near Waterdown Road, in the City of Burlington when he was involved in a fatal motor vehicle collision.

The weather was clear and dry.

According to the Highway 407 cameras, at 3:23.14 Mr. Cabral's pickup truck was first observed travelling the wrong direction on Highway 407 - westbound in the eastbound lanes on Highway 407 at Dundas Street.

At 3:24.43 on the Guelph Line camera, Mr. Cabral's pickup truck was observed travelling the wrong direction on Highway 407 and nearly having a collision with another vehicle in lane two of the highway.

At 3:24.50, the pickup truck was observed on the Upper Middle Rd camera continuing westbound in the eastbound lanes on Highway 407. Mr. Cabral passed another vehicle that was travelling in the proper direction on the highway.

The QEW/Fairview Street camera of the Highway 407 recorded the pickup truck slowly travelling westbound in the eastbound lanes as it enters onto Highway 403.

On MTO camera 11, at 3:27.38 Mr. Cabral's pickup truck is observed entering Highway 403 from Highway 407 in the wrong direction, nearly having a head-on collision.

On MTO camera 63, at 3:28.02 the pickup truck is observed travelling westbound in the eastbound lanes on Highway 403 at highway speeds.

Several witnesses were interviewed by police and reported seeing headlights travelling towards them forcing them to swerve to avoid head-on collisions.

At 3:29 am, Ryan Powless was driving his silver Nissan sedan eastbound on the Highway 403 eastbound lanes at Waterdown Road in the city of Burlington with passenger Brianne Vassallo. The pickup truck being operated by Mr. Cabral collided head-on with Mr. Powless' vehicle in lane one of the Highway 403 eastbound lanes, east of Waterdown Road in the City of Burlington.

Mr. Powless was pronounced deceased shortly after the collision.

Ms. Vassallo's injuries included a broken clavicle, compressed disc, two fractured ribs, and a broken finger.

After the collision, David Slade and his passenger Maria Arellano came upon the accident at 3:30 am. Mr. Slade pulled over and heard a female voice calling for help. He observed Mr. Cabral standing beside the passenger side of the truck. Ms. Arellano called 911. When the operator asked if the driver was okay - she called out to Mr. Cabral: "Are you okay". Mr. Cabral responded, "Are you okay". She replied: "No are you okay?"

Mr. Cabral then walked across the highway to Mr. Slade and Ms. Arellano. Mr. Cabral indicated that he had been alone in the truck and that there were two people in the car that had been hit. Ms. Arellano gave Mr. Cabral some water. She noted an odour of alcohol and that Mr. Cabral's words were slurred. Mr. Slade reported Mr. Cabral's speech was slow and not fluid. Mr. Cabral dropped the cap to the water bottle. Then Mr. Cabral asked for gum. Ms. Arellano gave Mr. Cabral gum.

Provincial Constable Schulz of the Ontario Provincial Police was the first officer to arrive on scene. Officers Cunningham and Crossfield assisted Ms. Vassallo. But Mr. Powless was motionless. He was later pronounced dead.

Upon arrival at the scene and having conversation with the accused, Constable Schulz noted an odour of alcohol on Mr. Cabral's breath and that Mr. Cabral's eyes were red and glossy. At 3:40 a.m. Constable Schulz arrested Mr. Cabral for impaired operation of a motor vehicle causing bodily harm. Additionally, a breath demand was made for a sample of Mr. Cabral's breath.

Because of a complaint of a sore foot, Mr. Cabral was transported by ambulance to Joseph Brant Hospital. At the hospital Mr. Cabral spoke with duty counsel. Mr. Cabral did provide two samples of his breath into an approved instrument. The samples were provided at 6:24 a.m. and 6:46 a.m. The results were 110 and 100 milligrams of alcohol in 100 millilitres of blood respectively. A forensic toxicologist has provided an opinion that at the time of driving Mr. Cabral's blood alcohol concentration was 110 milligrams of alcohol in 100 millilitres of blood.

VICTIM IMPACT

I was presented with 25 written Victim Impact Statements.

Eight were from members of the family of Ryan Powless. Six were from co-workers and nine were from friends.

Ms. Vassallo provided a statement and so did her mother.

Six people chose to read their statements in court. Five more asked for their statements to be read out by Crown counsel.

The most significant impact of Mr. Cabral's crime is obvious. Ryan Powless is dead. His life came to a violent end at the age of 29.

If one truly wants to understand the impact on those left behind, it would be necessary to read their statements and hear their voices and look at their faces as they read their statements out. Only that might begin to bring home the range of emotions – the grief, the pain, the anger, and the guilt – that these survivors feel. I cannot even hope to describe these feelings with mere words.

Brianne Vassallo suffered broken fingers, broken ribs, a fractured clavicle and a fractured vertebra. Even after rehabilitation, she suffers from pain and a loss of stamina. She lost her job and has had to change her career path as a result of her injuries. Perhaps more lasting however are the memories. This 20 year old woman thought she was going to die. Then she discovered that while she would not, Ryan Powless did. She still experiences terrible survivor's guilt. She is fearful of riding in motor vehicles.

Her mother shared the anguish that she went through during the hours immediately after she was informed that her daughter had been in a motor vehicle collision and during the days and weeks that followed. Her statement about the effect on her daughter is a powerful statement of the impact that this crime had on all of those who provided Victim Impact Statements:

She also suffers from PTSD, severe depression, anxiety, she self-harms. At times she has appeared suicidal. She has been hospitalized and medicated. She hates herself because she lived and Ryan died. She asks again and again why. She is afraid, and sad, and broken, and she always feels alone. She mourns Ryan and she mourns who she used to be. So do I.

BACKGROUND OF MR. CABRAL

I was provided with a Pre-Sentence Report and seven reference letters written in support of Mr. Cabral. They informed me of the following.

Mr. Cabral is almost 37 years old. He was 35 at the time of this offence.

He has a good relationship with his brother and his two sisters. He is currently residing with his parents in Brampton.

He was born in Toronto and moved to Brampton with his parents when he was six or seven. He had a good childhood, had friends, and played organized sports such as soccer and hockey. The family travelled to his parents' home country, Portugal often.

He was in a common-law relationship for about nine years. That ended four years ago. Their seven year old son lives with his mother. Mr. Cabral has access every weekend and alternate weeks through the summer. He pays $400 per month in child support. He is a good father, dedicated to his son.

After high school, he completed an electrical apprenticeship. He worked for a number of electrical companies for 10 or 11 years. He started his own business in Brampton in 2012 and currently has three employees.

Prior to the offence, he drank one or two beers over a two week period. He also smoked a "joint" to help him sleep after work. He has not done this since. He has been involved instead in substance abuse counselling with two different agencies.

The Pre-Sentence Report stated that he is ashamed. He has failed in his attempt to be a good role model for his son. He understands the impact of his actions on the victims and he feels badly about that. He has to live with this daily as it is something that he cannot forget.

Constable Schulz, the arresting police officer, stated that during the arrest process, Mr. Cabral was "compliant, quiet, remorseful and emotional at times."

The reference letters come from his mother and father, three sisters and a brother-in-law, his former common-law partner, a cousin and a friend. These letters all express surprise that Mr. Cabral could have done what he did. They describe a hardworking, caring person who was more likely to be a designated driver than a drunk driver. He is a dedicated father. All of the writers expressed sympathy for the Powless and Vassallo families and emphasized that Mr. Cabral felt the same way. One stated that Mr. Cabral had "often said that he'd trade places with Ryan if he could".

In court, Mr. Cabral apologized to his victims. He stated that he was not proud of what he had done. He had made a bad decision. He understood their anger but hoped that one day they would forgive him.

Mr. Cabral had a prior criminal record for impaired driving and refuse breath sample in 2001.

He has complied with the terms of his release since being charged with the current offences.

ANALYSIS

Determining the appropriate sentence in a case like this is extremely difficult. First of all, I realize that whatever sentence I impose, at least one side and possibly both will be disappointed. The friends and families of Ryan Powless and Brianne Vassallo may see the sentence as being too lenient while the friends and family of Ricardo Cabral may see it as being too harsh.

Further, no sentence can adequately put a value on a life lost or on someone's serious injuries. It certainly cannot bring Ryan Powless back or undo the harm done to Brianne Vassallo.

Finally, as Justice Fuerst stated in R. v. Muzzo, supra:

Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is, in the words of the Supreme Court of Canada, "a highly individualized exercise that goes beyond a purely mathematical calculation." The gravity of the offence, the offender's degree of responsibility, the specific circumstances of the case, and the circumstances of the offender all must be taken into account by the sentencing judge.

The sentencing principles of denunciation and deterrence are paramount here. Years of public education programs and previous decisions by the court failed to bring home to Mr. Cabral the message that we, as a society, will not tolerate drinking and driving. The sentence that I impose must make that message clear to anyone who might even consider committing such an offence in the future. I must not however lose sight of the possibility of rehabilitation.

I must consider both the aggravating and the mitigating factors present here.

Aggravating Factors

The aggravating factors arise out of the offence itself.

Mr. Cabral chose to drink and then to drive. He did not have to drink that night. Having done so, he could, and should have found some alternative to driving. He could have asked someone else to drive him home. He could have taken a taxi. If necessary he could have slept in his truck. Instead, he chose to drive.

His blood alcohol concentration at the time was 110 milligrams of alcohol in 100 millilitres of blood. Counsel for Mr. Cabral pointed out that this is much lower than that in many other cases that have come before the court. I do not take that to be a mitigating factor, however. It is at best to be seen as the absence of an even more aggravating factor.

In Ontario, the Highway Traffic Act provides for an administrative driver's licence suspension for anyone whose blood alcohol concentration exceeds 50 milligrams of alcohol in 100 millilitres of blood. It is a criminal offence to drive with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood. So while Mr. Cabral's blood alcohol concentration may have been lower than many previous offenders, it was higher than that of anyone who was obeying the law while driving.

Even more telling however is the fact that this amount of alcohol impaired Mr. Cabral's ability to drive so much that he was driving the wrong way on two 400 series highways. Somehow he managed to enter Highway 407, presumably entering by means of an exit lane. He either did not realize what he was doing or he did not care. Neither possibility works to his credit.

He then drove several kilometres in the wrong direction on both Highway 407 and then Highway 403. He passed vehicles that were coming the other way towards him. Several swerved to avoid head-on collisions. Given the time of night, I assume that all vehicles had their headlights on. The oncoming vehicles should have been an obvious sign to Mr. Cabral that something was wrong. Yet he did not pull over onto the shoulder and stop or even slow down. He kept driving at speeds ranging between 80 and 100 kilometres per hour towards these other cars which were travelling just as fast towards him. His failure to act again suggests that he either did not know what was happening or that he did not care.

Counsel for Mr. Cabral pointed out that Mr. Cabral was driving at or below the speed limit. Again, this can be seen at best to be the absence of even more aggravating circumstances. As it was, his driving speed was high enough that he and the oncoming vehicles were approaching each other at a combined rate of between 180 and 200 kilometres per hour. At that rate, the driver of an oncoming car would have 20 seconds or less to react to oncoming headlights one kilometre away.

Mr. Powless apparently failed to react in time and Mr. Cabral's vehicle hit his head-on. Only then did Mr. Cabral stop.

The impact on untold lives has been devastating. Ryan Powless is dead. Brianne Vassallo has yet to recover fully from her injuries. Family and friends will need years to get over their loss, if they ever do.

Mr. Cabral had a prior conviction for impaired driving and refuse breath sample in 2001.

Mitigating Factors

There are also a number of mitigating factors here.

Mr. Cabral pled guilty. I take this to be both an acceptance of responsibility and an expression of remorse. It also made it unnecessary for Ms. Vassallo and others to relive the events of that night while testifying in court.

Mr. Cabral has expressed great remorse throughout the process. He did so with Constable Schulz, with friends and family, with the author of the Pre-Sentence Report and in court. He appears to appreciate fully the enormity of the harm that he has caused.

He has undergone substance abuse counselling since being charged.

This will be his first sentence of imprisonment.

He is otherwise a person of good character. He is a hard worker who has taken on both family and business responsibilities. He has made a positive contribution to the community. Family members all expressed shock that he had committed these offences. Mr. Cabral has very strong support from these people and that bodes well for his reintegration into society on his release from the penitentiary.

After taking all of these factors into account, I find that the appropriate sentence is imprisonment in the penitentiary for five years.

In light of the nature of his driving, it is also appropriate for me to prohibit him from driving for eight years following that.

SENTENCE

I will impose the actual sentences on September 1, 2016 to accommodate Mr. Cabral writing the final exam required for his certification as an electrician. Apparently the timing of this exam was changed at the last minute making it impossible for Mr. Cabral to request this adjournment in a more timely fashion. These Reasons for Sentence were released today in order to avoid inconveniencing those who had made arrangements to attend today from out of town.

For all of the above reasons, I will sentence Mr. Cabral to a sentence of imprisonment in the penitentiary for five years with respect to the offence of criminal negligence causing death. I will sentence him to imprisonment in the penitentiary for two years concurrent with respect to the offence of criminal negligence causing bodily harm.

I will also make the following ancillary orders.

Mr. Cabral will be prohibited from operating a motor vehicle on any street, road highway or other public place for a period of eight years following his release. That prohibition applies to the criminal negligence causing death offence. With respect to the criminal negligence causing bodily harm offence, the prohibition will be for five years, to run concurrently.

Pursuant to section 109 of the Criminal Code, Mr. Cabral will be prohibited from owning, possessing or carrying any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for 10 years. That order will also apply to both offences concurrently.

These are both secondary designated offences. I am satisfied that it is appropriate that I make an order pursuant to s. 487.051 of the Criminal Code, authorizing the taking from Mr. Cabral of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

Mr. Cabral will have six months following his release to pay the victim fine surcharges.

Released: August 17, 2016

Signed: "Justice D.A. Harris"