Court Information

Ontario Court of Justice

Date: 2018-05-15

Court File No.: Newmarket 4911-998-17-07899

Parties

Between:

Her Majesty the Queen

— And —

Dariusz Czajka

Judicial Officer and Counsel

Before: Justice A.A. Ghosh (delivered orally)

Heard on: March 1st, May 2nd, 2018

Reasons for Judgment released on: May 15th, 2018

Counsel:

• I. Denisov – counsel for the Crown
• H. Gonzalez – counsel for the defendant

Reasons for Judgment

Charge and Plea

[1] Dariusz Czajka pleaded guilty before me to impaired operation of a motor vehicle causing bodily harm, contrary to section 255(2) of the Criminal Code. A vehicle driven by the offender veered into oncoming traffic causing a head-on collision. The victim has experienced significant and lasting injuries.

[2] Mr. Czajka suffered injuries as well. He ultimately provided two samples of breath revealing a blood alcohol concentration approximating twice the legal limit. He has no criminal record. The Crown has submitted for an 18 month custodial term, 3 years of probation, a 5 year driving prohibition and a DNA order. The defence has submitted for a 90 day intermittent sentence, 12 months of probation and prohibition, and opposed the imposition of a DNA order.

[3] These are my sentencing reasons.

Circumstances of the Offence

[4] In the early afternoon of September 23rd, 2017, police responded to a motor vehicle collision in King City. A witness observed a vehicle driven by Mr. Czajka to have veered into oncoming traffic causing a head-on collision with another vehicle. Shortly after the collision, another witness observed the offender applying eye drops and placing chewing gum into his mouth.

[5] The investigating officer detected an odour of alcohol from Mr. Czajka's breath and soon arrested him for impaired operation of a motor vehicle. The offender ultimately provided two samples of breath into an approved instrument. The truncated readings reflected a blood alcohol concentration of 170 and 160 milligrams of alcohol in 100 millilitres of blood.

[6] Mr. Czajka was injured as a result of the collision. He underwent surgeries to multiple vertebrae and has been diagnosed with fatigued muscles and joint pain. He has been prescribed an ongoing regimen of physiotherapy, massage therapy, acupuncture and chiropractic intervention.

[7] Enzo Motavo, the 79 year old victim of the collision, suffered significant consequences from the collision and spent four months recovering in a hospital from consequent surgeries and procedures. His hip and femur were "shattered" and he had four titanium rods inserted into his right leg. Four ribs were broken. His shoulder and neck were fractured. He was concussed and the impact of the brain injury continues to be investigated. He has experienced intermittent delirium and now suffers from depression and anxiety. Mr. Motavo is confined to a wheelchair and receives daily care from a Personal Support Worker. His children have moved in with him to provide additional support.

Victim Impact Evidence

[8] Sandra Humfryes, Mr. Motavo's daughter, provided victim impact evidence. Aside from the identified consequences of the collision, her father's quality of life has been dramatically diminished. His is no longer a "young seventy-nine" as he was before the collision.

[9] The results of the brain injury have been significant and diagnosis and treatment have proven challenging. The combined effect of the brain trauma and the variety of physical injuries have caused him to suffer from depression as well. The offender's "decision" to drink and drive has changed the lives of all in their family.

Circumstances of the Offender

[10] Mr. Czajka is a 56 year old first time offender. A presentence report was generated for this hearing. Several letters attesting to the offender's good character were filed by counsel, notably authored by his wife, children, friends and family.

[11] Mr. Czajka was born and raised in Poland where he worked as a physical education teacher before immigrating to Canada in 1989. Here he has worked in roofing, landscaping, and food production. For the last thirteen years he has been a member of a local construction union and worked full-time until the offence. He is presently on short-term disability and cannot work in construction as he once did.

[12] He has a supportive family in his wife, son and daughter and enjoys a great deal of support through extended family, work and the community. His son is a corrections officer and his daughter is completing her PhD in genetics. His wife penned a heartfelt and anguished letter to the court, acknowledging the harm done to the victim and his family while imploring the court to recognize that they too are deeply pained by the incident.

[13] Mr. Czajka has no history of substance or alcohol abuse. He has experienced some physical and mental challenges as he recovered from being struck by a vehicle in Bermuda approximately two years ago. Family members believe that this has informed his recent consumption of alcohol, although by all accounts his drinking has generally been controlled and measured. Almost immediately after the incident he sought and obtained counselling for alcohol dependency and has abstained from the consumption of alcohol altogether since the collision. He has also completed a remedial driving program.

[14] Mr. Czajka is described by those close to him as decent, loving, hardworking and responsible. The offender drafted and submitted a letter of contrition expressing his "sincere remorse" for his "irresponsible and dangerous actions that have caused so much pain for the victim… and his family". When invited to address the court, Mr. Czajka expressed his remorse repeatedly and he acknowledged the harm done to the victim and his family.

Applicable Principles of Sentencing

[15] The principles of sentencing are codified in section 718 of the Criminal Code. For drinking and driving offences involving bodily harm, it has been established that deterrence, both specific and general, and denunciation are the primary sentencing objectives engaged. Rehabilitation must also be considered, although it cedes in the analysis to the primary sentencing objectives identified.

[16] Section 718.1 of the Criminal Code directs that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of parity codified in s. 718.2(b) must also be considered.

Sentencing Jurisprudence

[17] The Supreme Court in R. v. Lacasse confirmed that in sentencing offenders for drinking and driving offences where death or serious bodily harm results, deterrence and denunciation must be the paramount sentencing objectives: 2015 SCC 64, [2015] 3 S.C.R. 1089. For reasons I will expand upon, our jurisdiction has experienced a gradual increase in the duration of custodial terms for such offences, punctuated by Justice Fuerst's well-known ruling in R. v. Muzzo, 2016 ONSC 2068, [2016] O.J. No. 1506 (S.C.J.). I instruct myself to approach dated sentencing jurisprudence with some caution.

[18] There is a substantial gulf between the Crown position of 18 months of custody and the defence submission in support of a 90 day intermittent sentence. The jurisprudence in our province reveals a range of custodial dispositions for similar offences with sentences and appeals often supporting custodial terms in the middle to upper reformatory range: R. v. Clouthier, 2016 ONCA 197, [2016] O.J. No. 1232 (C.A.); R. v. Bouchard, [2002] O.J. No. 5357 (C.A.).

[19] The exceptional sentences where an intermittent sentence has been imposed appear to involve uniquely compelling circumstances, such as relatively minor injuries for the victim or significant ones for the offender: R. v. Lowery, [2013] O.J. No. 6378. In a growing but similarly exceptional number of cases, notably post-Muzzo, supra, penitentiary sentences have been imposed or upheld for impaired driving offences involving bodily harm: R. v. Black, [2014] O.J. No. 2789 (S.C.J.); R. v. Gill, [2017] O.J. No. 5333 (S.C.J.).

Discussion and Sentence

[20] In determining the appropriate sentence for Mr. Czajka, I consider the following mitigating and contextual considerations:

(i) Guilty plea, remorse and specific deterrence – Mr. Czajka is deeply remorseful and his plea of guilt is an extension of that sentiment. Although those close to him are confident that there never has been a concern about his drinking, he has completed counselling for alcohol abuse. There is no discernable reason to believe he will ever offend again.

(ii) Character of the offender – The presentence report and the letters filed in support are overwhelmingly positive. Mr. Czajka appears to be an exemplary family person and community member and has otherwise led an unblemished, pro-social life until the commission of this offence.

(iii) Offender's own injuries and associated recovery – Mr. Czajka experienced some significant injuries of his own from the collision. He has been proactive in pursuing a variety of prescribed therapeutic interventions and this would be impacted by the imposition of a lengthy custodial sentence.

(iv) Single problematic driving manoeuvre identified – The only evidence of poor driving was that Mr. Czajka was observed to have veered into oncoming traffic causing the collision.

[21] I also consider the following aggravating factors:

(i) "Significant impact on the victim" and s.718.2(a)(iii.1) – The effects of the collision on the victim were substantial and life-altering. He is confined to a wheelchair and has undergone several intrusive surgeries. A brain injury has been diagnosed and its after-effects continue. The victim's quality of life has been dramatically diminished and he requires constant care. It appears that he will never be the same.

(ii) Blood alcohol concentration and s.255.1 – The defence resists that the readings "exceeded" twice the legal limit thereby constituting a statutorily aggravating factor as prescribed in section 255.1 of the Criminal Code. The second truncated sample was exactly twice the legal limit. On this point, the Crown recitation of the facts was conceded and no defence evidence was led. I am satisfied that these facts establish beyond a reasonable doubt that Mr. Czajka's blood alcohol concentration at the "time of the offence" was over twice the legal limit and thus statutorily aggravating. If I have erred in that finding, the readings are nonetheless aggravating. The legislated quality of the factor in this case would not affect the sentence.

[22] It is clear that Mr. Czajka recognizes and is saddened by the profound impact this offence has had on all affected, notably the victim and his family. He has suffered too. This offender does not need to be deterred from engaging in this conduct again. The rest of the public, however, does.

[23] Impaired driving has ravaged our jurisdiction for decades. Despite several high profile examples of lengthy prison sentences where death has resulted, nothing appears to stem the seemingly endless tide of impaired driving and its consequent human toll. And yet, general deterrence and denunciation must continue to be the driving sentencing objectives, despite the presence in this case of noteworthy mitigation.

[24] I recognize that a significant term of uninterrupted custody will likely impede Mr. Czajka's physical rehabilitation. Any acute health concerns, however, can be accommodated in the custodial setting. Mr. Czajka consumed an inordinate amount of alcohol before driving his vehicle into oncoming traffic, causing devastating and permanent injuries to the elderly victim. A sentence in the intermittent range is clearly unfit in the circumstances. The contemporary jurisprudence calls for a significant custodial term in the middle to upper reformatory range.

[25] Mr. Czajka, please stand. In balancing the various factors identified, I have determined that you will be sentenced as follows:

(a) 14 months of custody;

(b) 18 months of probation to follow – See Appendix "A" for conditions;

(c) 3 year driving prohibition pursuant to section 259 of the Criminal Code;

(d) Victim Fine Surcharge of $200;

(e) DNA order imposed – Secondary designated offence: The order is in the best interest of the administration of justice given the significant injuries and the blood alcohol concentration.

[26] My thanks to counsel.

Release and Signature

Released: May 15, 2018

Signed: "Justice A.A. Ghosh"

Appendix "A" – Probation Conditions

Standard Conditions

A. Keep the peace and be of good behaviour

B. Appear before the court when required to do so

C. Notify the court or probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation

D. Report in person to a probation officer within 2 working days of your release from custody and after that, at all times and places as directed

E. Live at a place approved by your probation officer and not change that address without the prior consent of your probation officer

Special Conditions

A. You must attend and actively participate in all assessments, counselling or rehabilitative programs as directed and complete them to the satisfaction of your probation officer for alcohol abuse or as directed

B. You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.