Court Information

Court: Ontario Court of Justice – Scarborough, Toronto

Date: March 22, 2018

Between: Her Majesty the Queen

And: Joshua Zarecky

For the Crown: L. Vandersteen

For the Defendant: M. Johal

Heard: November 2, 3, 17, 28, 2017 and January 25, 2018

Before: Russell Silverstein, J.

Reasons for Sentence

A. Introduction

[1] This case began as a trial. Mr. Zarecky pleaded not guilty to failing to stop while being pursued by police contrary to s. 249.1 of the Criminal Code, dangerous driving contrary to s. 249 and failing to stop after an accident with intent to escape civil or criminal liability contrary to s. 252(1.1).

[2] These charges arise out of a police chase on January 18, 2016.

[3] Several police officers testified about giving chase to a late model white Ford F150 pickup truck through the residential streets of Scarborough, eventually abandoning the chase as the truck sped off northbound on Pharmacy Avenue just after striking one of the police cars. The police who pursued the fleeing truck were never able to positively identify the driver of the truck nor ascertain the licence number.

[4] Less than 20 minutes later, Mr. Zarecky pulled into a nearby Canadian Tire near Eglinton and Warden to have the front right tire of his white 1998 Ford F150 pickup repaired.

[5] The issue at trial was whether Mr. Zarecky was the driver of the suspect vehicle. Ms. Johal conceded that whoever was the driver of the car, that driver was guilty of the alleged offences.

[6] Various police officers attended at the Canadian Tire within a few days of the incident because they had been told by the manager that Elizabeth Bawn, one of the auto shop employees, had heard from one of her colleagues, Jean-Marc Couffin, that Couffin had overheard a customer say on January 18, 2016, that he had been involved in a police chase. Police officers interviewed the store manager, Bawn, and Couffin. Unfortunately, P.C. Huang, the officer who interviewed Couffin on January 21, 2016, neglected to file his notes of the interview. As a result, the disclosure provided to Ms. Johal did not include P.C. Huang's notes, and the only reference to Couffin in the police notes that were disclosed, was Bawn's reference to him as "Shawn".

[7] As the trial approached, Mr. Vandersteen did not have P.C. Huang's notes (the Couffin statement) either, but he asked the officer-in-charge to see if he could find "Shawn". When Mr. Vandersteen surmised that "Shawn" was probably Jean-Marc Couffin, he instructed the officer-in-charge to subpoena him. No police officer spoke to Couffin after P.C. Huang did on Jan. 21, 2016.

[8] Ms. Johal learned for the first time on the first day of trial that Mr. Couffin had been subpoenaed and was in the courthouse. She spoke to him briefly and ascertained from him that he had made a statement to police. Ms. Johal asked Mr. Vandersteen for a copy of the statement. Mr. Vandersteen reported to her and to me that he had asked the officer-in-charge whether there was a statement from Couffin and that he was told there was not.

[9] Ms. Johal announced that she was bringing a s. 7 Charter application based on the prosecution's loss of the Couffin statement. I decided to continue to hear the evidence and submissions on the trial, and then hear the s. 7 application.

[10] The trial proceeded and Mr. Couffin testified that on January 18, 2016 he overheard Mr. Zarecky tell a friend, while speaking on his cell phone at the Canadian Tire as he waited for his truck to be repaired, that he was freaked out since he had just been involved in a police chase.

[11] Ms. Johal conceded that with Mr. Couffin's evidence, the Crown had succeeded in making out her client's guilt beyond a reasonable doubt but maintained that either the charges should be stayed, or Mr. Couffin's evidence should be excluded as a remedy for the loss of Couffin's statement to police.

[12] While waiting for the case to return to Court on a later date for argument on the s. 7 application, the Crown and police found the Couffin statement. The statement was provided to Ms. Johal and the Court.

[13] I provided Ms. Johal with the opportunity to recall Mr. Couffin for further cross-examination but she conceded that there was nothing to be gained by cross-examining on the recently discovered statement since it was remarkably consistent with Mr. Couffin's testimony. Instead, I heard further evidence as to the circumstances of the failure to file the statement by P.C. Huang.

[14] Based on Ms. Johal's concession I made findings of guilt and heard further submissions on the s.7 application. For the reasons set out more fully below, I found a s.7 Charter breach but dismissed the application for a stay of the proceedings or exclusion of the Couffin testimony.

[15] Ultimately, as explained below, I have ruled that the remedy for the Charter breach is a reduction of sentence. I heard submissions on the quantum of that reduction at the same time as submissions on sentence generally. Ms. Johal also seeks a stay of one or two counts on the information based on the submission that Mr. Zarecky would have pleaded guilty had disclosure been complete and that she would have negotiated a resolution that involved a plea of guilty to only one, or at most two of the three offences.

B. The Charter Issue

[16] There is no doubt that the police had a duty to deliver the Couffin statement to the Crown and the Crown, in turn, had an obligation to disclose it to the defence. The Couffin statement was the most significant evidence as to Mr. Zarecky being the driver. R. v. Dixon, [1998] S.C.J. No. 17; R. v. Stinchcombe, [1991] 3 S.C.R. 326.

[17] Failure to preserve and disclose this statement amounts to a s. 7 Charter breach where "there is a reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision that could have affected the conduct of the defence (emphasis added)". Dixon, supra, at para.22.

[18] In Mr. Zarecky's case, disclosure of the statement would not have assisted in the conduct of the trial, since it was eventually handed over before the trial was over, and there was nothing in it that could have served to undermine the strength of Couffin's testimony. That does not end the inquiry, however. On the basis of the disclosure provided, it was not unreasonable for Mr. Zarecky to choose to go to trial and argue that the Crown's case fell short of proving beyond a reasonable doubt that he was the driver chased by police. Had Mr. Zarecky and his counsel been aware of the existence of Mr. Couffin and what he would say at trial, they might well have decided to plead guilty, given the strength of Couffin's evidence. In other words, the prejudice to Mr. Zarecky occasioned by the failure to disclose the Couffin statement was the loss of opportunity to make a fully informed decision as to whether to plead guilty or not.

C. The Charter Remedy

[19] Having found a Charter breach, the question then becomes: what is the appropriate remedy that will remediate the prejudice to Mr. Zarecky? In my view, the prejudice to Mr. Zarecky, and the behaviour of the police (mere inadvertence) do not rise to the level of seriousness required to support a stay of proceedings, or exclusion of the evidence. R. v. Bjelland, 2009 SCC 38, [2009] S.C.J. No. 38; R. v. Spackman, 2012 ONCA 905, [2012] O.J. No. 6127 (C.A.).

[20] I do find, however, that Mr. Zarecky, with full and proper disclosure, would likely have taken the reasonable course and pleaded guilty well before trial. An early guilty plea would have been seen, in the circumstances of this case, as a mitigating factor on sentence. R. v. Faulds (1994), 20 O.R. (3d) 13 (C.A.); R. v. F.H.L., 2018 ONCA 83. I must also take into account the added tribulation of preparing for and enduring a trial. It is thus a sentence reduction that will best put him in the place he would have been had the breach not occurred. R. v. Nasogaluk, 2010 SCC 6, [2010] S.C.J. No. 6.

[21] Mr. Vandersteen agrees that a sentence reduction is the appropriate remedy for the Charter breach in this case but argues that it would be going too far to reduce the sentence to one that is the equivalent of what would have been imposed if Mr. Zarecky had pleaded guilty at an early opportunity. He argues that the principal reason that guilty pleas are mitigating is because they are a demonstration of remorse, and that if Mr. Zarecky were truly remorseful he would have pleaded guilty early even without disclosure of the Couffin statement. He further points out that Mr. Zarecky could have changed his plea as soon as he heard Mr. Couffin's testimony, yet he did not.

[22] I do not find these arguments persuasive. As far as Mr. Zarecky's remorse is concerned, as I will explain later in these reasons, I find his remorse to be sincere. Furthermore, putting the Crown to the proof of an alleged criminal offence is not always inconsistent with feelings of remorse. As concerns Mr. Zarecky's choice not to plead guilty immediately after hearing Mr. Couffin's evidence, it must be recalled that when confronted with this testimony, the defence still had not received the statement.

[23] I thus intend to sentence Mr. Zarecky as if he had pleaded guilty at an early opportunity, with further consideration paid to his having had to endure standing trial.

D. The Circumstances of the Offence

[24] On January 18, 2016 Mr. Zarecky was driving westbound on St. Clair between Kennedy and Birchmount. He was travelling at speeds up to 100 km/hr and changing lanes aggressively. He only barely avoided collisions with other vehicles.

[25] As he approached Warden Avenue on St. Clair from the east Mr. Zarecky came to realize that police were pursuing him. Rather than stop, he turned right into a residential area and continued to drive quickly in order to evade the police chase. He travelled quickly along Eastgate Crescent, Pharmacy Avenue, Rosita Crescent and Dorine Crescent where he struck an occupied police car that had been placed across Rosita in order to stop him. Without stopping he then escaped north along Pharmacy. Police gave up the chase, concluding that because of the fleeing driver's high speed, it would have been too dangerous to pursue him.

E. The Circumstances of the Offender

[26] Mr. Zarecky is now 27 years old. He has previously been convicted of assault, once in 2012 and again in 2016 (subsequent to the police chase in this case). He is single, and an only child, brought up in a secure and loving environment in Barrie, Ontario. He has a two-year-old child with a former common-law spouse. As a result of his separation from his former spouse he has not seen his child since October, 2017.

[27] Mr. Zarecky is fully employed as a small engine mechanic. He lives with his employer who reports that Mr. Zarecky is an excellent and responsible employee.

[28] Mr. Zarecky does not drink alcohol, but he became addicted to crystal meth not very long ago. As reported in the pre-sentence report, he blames this drug for the deterioration of his relationships and his moral code. He completed a 30-day program at the Addiction Canada Treatment Centre on May 25, 2016 and says he has been drug-free since.

[29] Mr. Zarecky has been on probation since June, 2016 and has been complying well with its terms.

F. The Aggravating and Mitigating Circumstances

[30] The most aggravating circumstance in this case is the dangerousness of Mr. Zarecky's conduct. He drove particularly fast through an icy residential neighbourhood just as one would expect children to be walking home from school. His driving culminated in his striking a police car with two officers inside.

[31] In mitigation is Mr. Zarecky's genuine remorse, his employment record and his family support.

[32] Ms. Johal characterizes the offence as "short-lived". I do not accept this description of the dangerous driving. While Mr. Zarecky didn't drive across the city, the dangerous driving only ended when Mr. Zarecky's truck was damaged and the police wisely abandoned the high speed chase. Mr. Zarecky's behaviour that afternoon supports the proposition that he would have continued his dangerous flight until forcibly apprehended.

G. The Positions of the Parties

[33] Ms. Johal submits that the offence was out of character and, to a great degree, the result of Mr. Zarecky's withdrawal symptoms. Taking into account the Charter breach she asks that I impose a suspended sentence and probation, or a conditional sentence plus probation at most. Mr. Vandersteen takes the position that general deterrence and denunciation require a term of incarceration and, taking into account the Charter issue, a sentence of six months with probation and a one-year driving prohibition is called for.

H. Application of the Principles of Sentencing

[34] The principles of sentencing are set out in Part XXIII of the Criminal Code. The sentence I impose must address denunciation, specific and general deterrence, protection of the public and rehabilitation.

[35] As concerns specific deterrence, I do not think this is a significant issue in this case. I find Mr. Zarecky's expression of remorse to be sincere. I do not think that he poses much of a risk of re-offending. I also find that his successful management of his drug addiction further mitigates this risk.

[36] As concerns Mr. Zarecky's prospects for rehabilitation, regardless of the balance of the sentence, I intend to impose a term of probation that will address this. As for the balance of the sentence, it is critical that I not impose a sentence that is so harsh that it engenders so much bitterness and anger in Mr. Zarecky that he gives up on his attempts to live a law abiding life.

[37] The most important principles of sentencing in cases such as these are general deterrence and denunciation. See R. v. Forestell, [2016] O.J. No. 2810 (Sup. C.J.).

[38] The authorities support Mr. Vandersteen's submission that the sentence imposed for whatever offence preceded the flight from police should be consecutive to the sentence for fleeing. R. v. Sturge, [2001] O.J. No. 3923 (C.A.); R. v. Roberts, 2005 ABCA 11, [2005] A.J. No. 15 (Alta. C.A.).

I. The Caselaw

[39] It is a well settled principle of criminal law that like offenders who commit similar offences should receive similar punishment.

[40] Mr. Vandersteen relies principally on the following cases: R. v. Davidson, [2013] O.J. No. 2394 (O.C.J.); R. v. Abuel, 2014 QCCQ 2487; R. v. Gejdos, 2017 ABCA 227, [2017] A.J. No. 705 (Alta. C.A.); R. v. Murri, 2011 ONCJ 317, [2011] O.J. No. 2885 (O.C.J.); R. v. Head, [2015] A.J. No. 1217 (Alta. Prov. Ct.); R. v. Roberts, supra.

[41] Ms. Johal relies principally on R. v. Myke, [2010] O.J. No. 1825 (O.C.J.).

[42] Most of the authorities provided by Mr. Vandersteen involve dangerous driving and flight from police along with the added aggravation of either impaired driving or bodily harm.

[43] The particularly unfortunate circumstances of Mr. Myke distinguish his case.

[44] Perhaps the most helpful of the cases provided are R. v. Prymak, 2005 ABCA 377, [2005] A.J. No. 1477 (Alta. C.A.), and R. v. Davidson, supra. Prymak involved a sentencing after trial for a 27 year-old accused with a prior impaired driving conviction who, while drinking behind the wheel led the police on a 43 minute chase at speeds up to 155km/hr. Mr. Prymak was sentenced by the trial judge to 90 days. The Alberta Court of Appeal raised the sentence to nine (9) months. Davidson involved a guilty plea to dangerous driving, flight from police, assault with a weapon and criminal negligence causing bodily harm. Mr. Davidson, who had a prior conviction for assault causing bodily harm, became impatient with another motorist and threatened to kill him. He then drove towards the other motorist and struck the rear corner of his car, causing him significant injury. He then fled and was chased by police at high speed. The trial judge did not find that Davidson had intended to injure his victim. Mr. Davidson suffered from a substance abuse problem and was experiencing opioid withdrawal at the time of the offence. He was sentenced to a total of nine (9) months.

[45] While both of these cases involve more dangerous behaviour, they and the other cases referred to convince me that a term of incarceration is required, even after taking into account the Charter remedy I must apply.

J. Should Any of the Charges Be Stayed?

[46] Ms. Johal argues that with full disclosure not only would Mr. Zarecky have decided to plead guilty, but she would have succeeded in convincing the Crown to withdraw at least one of the charges. While she may be right, given the strength of the Crown's case with the Couffin statement available to both parties, there is every likelihood that the Crown would not have felt compelled to be so generous.

[47] Moreover, all three of the charged offences involve somewhat distinct criminal acts. First came the dangerous driving. That prompted the police chase which gave rise to the first episode of flight and more dangerous driving. Then came the collision with the police car which gave rise to Mr. Zarecky's high speed flight to avoid liability for that collision.

[48] As a result, none of the convictions will be stayed.

K. Conclusion

[49] Without taking into account the Charter remedy, I would have sentenced Mr. Zarecky to a term of four (4) months on the dangerous driving and five (5) months consecutive and concurrent on the two flight counts for a total of nine (9) months. Had he pleaded guilty before me at an early opportunity I would have sentenced him to 90 days intermittent on the dangerous driving and concurrent six-month conditional sentences on the flight from police.

[50] As stated above, the Charter breach requires a remedy that addresses both the fact that Mr. Zarecky was deprived of the opportunity to plead guilty and receive a reduced sentence, and that he endured some stress while waiting for his trial. In the result, I sentence Mr. Zarecky as follows:

1. On the dangerous driving (Count 3): 90 days intermittent;

2. On the failing to stop (Count 1): Four (4) months conditional sentence, consecutive, on terms to be addressed by counsel. The conditional sentence will be followed by a term of probation on terms to be addressed by counsel;

3. On the fail to stop with intent to escape liability (Count 4): Four (4) months conditional, consecutive to the sentence on Count 3 and concurrent to the sentence on Count 1;

4. A Criminal Code driving prohibition for 12 months.

Released on March 22, 2018

Justice Russell Silverstein