Court File and Parties

Ontario Court of Justice

Date: 2018-03-21

Court File No.: Newmarket 15-09466

Between:

Her Majesty the Queen

— and —

Ksenia Titova

Sentencing

March 21, 2018

Counsel:

• Mr. Rob DeChellis, counsel for the Crown
• Mr. Brian Brody, counsel for the defendant

KENKEL J.:

Introduction

[1] Ms. Titova drove erratically, swerving "all over the road" until she drove into the back of a car parked at a red light. She hit the car with such force that it was pushed 15 feet into the intersection. There were four people inside the car including a 3 year old child. Two of the occupants suffered back pain requiring some physical therapy, but luckily no one was seriously hurt. Approved instrument tests of Ms. Titova's breath later at the station showed readings of 202 and 206 mgs/100ml. Ms. Titova was convicted at trial of impaired driving and the Over 80 count was stayed.

[2] The Crown submits that a 45 day custodial sentence is required with probation and an extended prohibition. The defence submits that a fine with probation would suffice given the accused's efforts at rehabilitation. The defence agrees probation and an extended prohibition are necessary. In the alternative, if a custodial sentence is necessary, the defence submits that a conditional sentence would best meet the purpose and principles of sentence in this case.

Ms. Titova's Circumstances

[3] Ms. Titova is 27 years old and has no criminal record. She has a BSc in Health Studies and Psychology. She enrolled for further training in the health field but did not complete the program. She's currently working full time at a call centre.

[4] Ms. Titova has been an alcoholic since she was 21. At times her parents have had to call police for assistance given her behaviour in the home after drinking. In March of 2017, just over a year after the collision but prior to trial, she started counselling with the Addiction Services of York Region (ASYR). She attended further sessions with ASYR in November of 2017. She's currently on a wait list for further counselling and residential treatment. Ms. Titova also attended a "Support and Stabilization Group" but left after conflict with others who attended the program but were not sober. She's seeing a psychotherapist arranged privately and is on a waiting list for residential alcohol treatment.

[5] I accept that there is a genuine potential for rehabilitation. It's still a work in progress, and now the community interest requires continued supervision and monitoring of her counselling. It's essential for public safety that until that work is done and some period of stability is achieved, Ms. Titova not operate or have care or control of a motor vehicle. I'm advised that her license was medically suspended in August of 2017.

The Circumstances of the Offence

[6] Ms. Titova made the same mistake that Mr. Muzzo did in 2015. See: R v Muzzo 2016 ONSC 2068. She was driving while significantly impaired with a similar blood alcohol level, she failed to stop at an intersection, she hit another car with several persons inside. Simply by luck, Ms. Titova did not kill or seriously injure anyone in the car she hit. As noted in R v Sivandi 2017 ONSC 5740 at para 20, the seriousness of Ms. Titova's choice to drive while significantly impaired must not be trivialized by the fact that there were no lasting injuries. In Sivandi the accused drove in an erratic manner and then drove through a red light without stopping. A custodial sentence of 30 days was imposed even though there was no collision in that case. That sentence was upheld on appeal given the need for general deterrence. Similar sentences were imposed in cases of significant impairment in R v Patel 2017 ONCJ 728, R v Greavette 2018 ONCJ 10 and R v Pandey [2018] OJ No 1352 (CJ). The Crown's submission is certainly well within the range and takes into account the mitigating factors in this case.

Determining a Fit Sentence

[7] What's different here is that Ms. Titova is genuinely remorseful and has engaged in significant alcohol and psychological counselling since the date of the offence. That's not true of any of the cases cited above. It's been two years since the collision and she's been of good conduct since. She's complied with the terms of her release and is now employed.

[8] The year after the tragic lesson in Muzzo nine more people died in impaired driving incidents in York Region, one of the worst years on record. I agree with the cases cited earlier that there is a need here for sentences that speak to general deterrence, particularly for the significantly impaired driver. These local circumstances are relevant in determining a fit sentence – R v Lacasse 2015 SCC 64. I find the circumstances of the offence including the collision, the danger posed to the community by the significant level of impairment and local circumstances all require a sentence that speaks to general deterrence.

[9] In this case I find a custodial sentence is required, but given Ms. Titova's significant efforts at alcohol and psychological counselling, a conditional sentence to be served in the community sufficiently provides for specific and general deterrence and best provides for the strong public interest in continued rehabilitation. Ms. Titova has proved over two years that she would not be a danger to the community if she served a custodial sentence and I find she is likely to comply with the conditions imposed. I find a conditional sentence would be consistent in this case with the fundamental purpose and principles of sentencing. Given the way in which the sentence is to be served, I find it's necessary to double the custodial period requested by the Crown.

Sentence

[10] Ms. Titova is sentenced to a conditional sentence of 3 months to be followed by probation for a period of two years. She's prohibited from operating a motor vehicle for two years. The mandatory victim fine surcharge applies.

Delivered: March 21, 2018

Justice Joseph F. Kenkel