ONTARIO COURT OF JUSTICE
CITATION: R. v. Coholic, 2019 ONCJ 42
DATE: 2019 01 28
COURT FILE No.: Brampton 17-1528-00
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
ADAM COHOLIC
Before Justice P.T. O’Marra
Heard on October 30, 2018
Reasons for Sentence released on January 28, 2019
Paul Renwick and Mike Morris........................................................ counsel for the Crown
Ken Byers............................................................ counsel for the accused Adam Coholic
P.T. O’Marra J.:
[1] These are the reasons for sentencing Mr. Adam Coholic after he pled guilty to one count of dangerous driving causing bodily harm, pursuant to section 249(3) of the Criminal Code.
A) The facts that support the guilty plea:
[2] An agreed statement of the facts was filed and marked as Exhibit 1 which stated the following:
On October 22, 2016 at approximately 6:00 pm Frank Roberts was driving his Mercedes-Benz SUV with his wife Rigmor Roberts in the front passenger seat and their friend, Gesine Castrichini, in the back. They were on their way to a birthday party celebration for Ms. Castrichini who was turning 80 years old. Ms. Roberts was 81 years old at the time. They were heading northbound on Mississauga Road in the vicinity of the South Sheridan Way, Mississauga.
Adam Coholic, 19 years old, was driving a black Chevrolet Tahoe. He was observed by two witnesses weaving and trying to pass (Mississauga Road is a two lane street with a solid line at this point). One witness described Coholic travelling very fast. When he approached from behind her she let him pass. Coholic was then weaving side to side, and as he rounded a curve near the Mississauga [sic] Golf and Country Club he crossed over into the northbound lanes and struck the Roberts vehicle head-on.
Coholic exited his vehicle and was observed trying to call someone on his phone. Other bystanders went to assist the occupants of the Roberts vehicle. Frank was able to extricate himself. Rigmor and Gesine were unconscious for a time and bleeding.
Gesine suffered 4 broken ribs, a broken sternum and a broken finger. She had lacerations and bruising to her entire body. She was hospitalized until October 24.
Rigmor had multiple rib fractures, a small pneumothorax (pocket of air in the lungs leading to collapse) and a forehead laceration that required sutures. She required a chest tube and was hospitalized until October 29 requiring significant pain control for her injuries.
Constable Singh and Lacy attended the scene. He found a bag in the vicinity of where Coholic was seen throwing a bag. It contained a small amount of marijuana. Lacy also smelled marijuana from the Coholic vehicle. Along with other observations Singh formed reasonable and probable grounds to make a DRE demand of Coholic. Ultimately the DRE to whom Coholic was to be presented did not agree, at that later time, that grounds existed and did not carry out the examination.
[3] Four photographs that depicted the extensive front end damage to both vehicles were filed and marked at Exhibit 2.
B) The circumstances of Mr. Coholic:
[4] Although canvassed, a pre-sentence report was not requested in this matter.
[5] Mr. Coholic is now 21 years old. He has no criminal or Highway Traffic Act record. Currently, he lives with his parents who are very supportive. When Mr. Coholic was 15 years old he witnessed his best friend stabbed to death at a “Friday Nights” football game. He has not fully recovered from the trauma. Dr. Britney Binkowski, a registered psychotherapist, wrote a letter dated on April 27, 2018 on Mr. Coholic’s behalf which confirmed that “his rising feelings” were in line with anxiety, depression and PTSD. The historic trauma combined with the matter before the court has compounded his symptoms and reactions. Dr. Binkowski indicated that Mr. Coholic agreed to regular therapy and continued counselling.
[6] His father testified at the sentencing hearing. Mr. Coholic Sr. testified that since the motor vehicle collision, his son has been working with him for approximately a year. He has seen a marked improvement in his son’s mood and outlook on life in general. When he was not working, Mr. Coholic Sr. stated that his son was lost “Monday to Friday” but his employment “has helped him move forward”. Mr. Coholic Sr. feared that if his son was sentenced to a lengthy period of incarceration that he would lose his employment, and spiral downward into a deep depression.
[7] Mr. Coholic indicated that he wished to write his allocation in order to demonstrate to the court his profound remorse for his reckless and dangerous driving.
[8] Mr. Coholic is facing a multimillion dollar civil lawsuit as a result of this matter.
C) The victim impact:
[9] Ms. Roberts and Ms. Castrichini provided written victim impact statements that were filed as Exhibits 4 and 5. The impact of this collision has caused both elderly women significant physical injuries, emotional and psychological trauma which also has had a profound effect on their families’ as well.
(i) Ms. Roberts:
[10] Ms. Roberts stated that before the collision she was “a very healthy, happy, active and independent person”. However, currently she requires assistance for any of her day to day activities. She has lost most of her mobility. She can only walk a short distance and often is restricted to a wheelchair. Ms. Roberts cannot sit in a vehicle as a passenger without anxiety. She cannot sleep well and experiences nightmares regarding the collision. Ms. Roberts claims that she has suffered memory loss as a result of the accident and often forgets to do the simplest tasks.
[11] Ms. Roberts continues to suffer from the pain from her broken ribs and collapsed lung. She has been prescribed pain medication and regularly attends a pain management clinic. She requires ongoing physiotherapy. The accident has left her with scarring to her face and legs. She feels numbness on the top of her head.
[12] The economic impact on Ms. Roberts has been enormous. All of her treatments, therapy sessions, travel costs, ongoing assistance and caregiving are not covered by insurance.
(ii) Ms. Castrichini:
[13] Ms. Castrichini was profoundly impacted by the collision. As a result of recovering from her serious injuries, Ms. Castrichini has missed her granddaughter’s 4th birthday celebration, Halloween and other milestone moments.
[14] Ms. Castrichini can no longer take care of herself and relies on her daughter, a mother of four children. She has been diagnosed with PTSD. Since the accident she has given up her vehicle and her driver’s licence. She has to sleep on a couch due to the nightmares of police and ambulance sirens and the constant flashbacks of the accident.
D) The positions of the parties:
[15] The Crown takes the position that the appropriate range for this offence and this offender is six (6) to nine (9) months incarceration followed by a lengthy driving prohibition.
[16] On the other hand, counsel for Mr. Coholic submits that a ninety (90) day jail sentence served on an intermittent basis followed by a twelve (12) month period of probation and an elevated driving prohibition would be a fit and appropriate sentence in this case.
E) Analysis:
(i) The principles of sentencing:
[17] Section 718 of the Criminal Code defines the principles and purpose of sentencing as follows:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(i) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(ii) to deter the offender and other persons from committing offences;
(iii) to separate offenders from society, where necessary;
(iv) to assist in rehabilitating offenders;
(v) to provide reparations for harm done to victims or to the community; and
(vi) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[18] Also section 718.1 sets out and recognizes the fundamental principle of proportionality in sentencing. Any sentence must be in keeping with the gravity of the offence and the degree of the offender’s responsibility.
[19] The most important factors for consideration in determining a fit sentence in a case such as this involving a finding of guilt for dangerous driving causing bodily harm are general deterrence and denunciation. (See: R v. Rawn, 2012 ONCA 487 para. 33, and R. v. Ally, [2015] O.J. No. 867 (S.C.J.))
[20] In terms of sentencing for the offence of dangerous driving causing bodily harm, the Ontario Court of Appeal stated in R. v. Van Puyenbroek, 2007 ONCA 827 at paras. 59-61, that the range was between incarceration for a period of two years less a day and a conditional sentence. However, the amendments to the Criminal Code in 2012 has restricted the availability of conditional sentences to offences that were prosecuted by indictment for which the maximum term of imprisonment is ten (10) years that caused bodily harm. The removal of the conditional sentence for this offence has signaled that Parliament has “determined that conduct of this nature will not be tolerated”. (See: Rawn, supra para. 44).
[21] In my view, I must choose between incarceration and a probationary disposition. Although this must be done in accordance with the principles of sentencing, I have observed that factors such as the nature of the injuries and the manner of driving are important factors to note.
[22] The defence referred to several sentencing decisions with respect to the offence of dangerous driving causing bodily harm and in support of its position that Mr. Coholic is deserving of a sentence in the intermittent range.
[23] In the decision of R. v. Ferguson, 2014 ONCA 673, [2014] O.J. No. 4608, the Court of Appeal dismissed the Crown appeal from the 90 day intermittent imprisonment, one year’s probation and a two year driving prohibition. The accused was in the midst of a relationship break up and was feeling suicidal. He drove his vehicle across the center median without warning and struck the oncoming vehicle, injured his two passengers. Immediately after the collision, the accused attempted to slash his wrists. After trial he was convicted of dangerous driving causing bodily harm, but acquitted of criminal negligence causing bodily harm. The court stated in its endorsement that the sentence was nonetheless fit given the serious consequences of the accident, particularly those experienced by a child victim.
[24] In R. v. Ryazanov, 2008 ONCA 667, [2008] O.J. No. 3816, the Crown appealed the conditional sentences that were imposed on two men that had pled guilty to dangerous driving causing death. The accused were travelling on a road at an excessive speed. One of the vehicles crashed into a taxi driver that was attempting to make a left turn. At the time of the accidents both accused were 18 years old and just completed high school. Neither had criminal records. Both had supportive families. Each received a conditional sentence of two years less a day, followed by two years’ probation and a concurrent four (4) year driving prohibition. This was a unique case. The other ground of appeal was whether the appeal itself was barred due to the Crown’s undertaking not to appeal the sentence. Regardless, this case is not particularly helpful as the court did not examine the appropriateness of the imposition of a conditional sentence but whether the conditions fell short of communicating denunciation and general deterrence in sufficiently strong and clear terms. The court allowed the appeal to the extent that a term of house arrest was imposed and the driving prohibition was lengthened to seven (7) years.
[25] In the recent decision of R. v. Whalen, [2018] O.J. No. 2061, the accused was found guilty of two counts of dangerous driving causing bodily harm and two counts of failing to remain at the scene of an accident knowing that bodily harm had been caused. The accused was operating his vehicle at 2:30 am when he passed the victim motorist at a high rate of speed and the victim lost control of his vehicle when the accused cut in front of him in an attempt to make a sudden left hand turn. The victim lost control of his car, slid, rotated and smashed into a cement pillar. The victim sustained life threatening and life altering injuries and was in a coma for ten (10) days. The victim was charged criminally due to his blood alcohol concentration and the fact he was speeding. The injuries were much worse in this case. The court imposed a ninety (90) day intermittent jail sentence on both counts, and a two year driving prohibition on the dangerous driving causing bodily harm charges. Additionally, a further 90 day intermittent jail sentence consecutive to the fail to remain counts was imposed.
[26] In the decision of R. v. Smith, [2015] O.J. No. 134, the accused was sentenced for impaired operation causing bodily harm, dangerous driving causing bodily harm and failing to remain at the scene of the accident. The accused, 21, drove his vehicle after he consumed ten (10) drinks. He drove at a high rate of speed through a residential neighborhood, lost control of his vehicle and collided with two trees and a light post. The passenger was injured. He fled to his residence with his passenger. He lied to the police about the accident. He had no record and supportive parents. A significant distinguishing feature in sentencing this offender was that he was a victim in a brutal assault that resulted in brain damage, which left him with cognitive impairment that had affected his daily life. Justice De Filippis suspended the passing of sentence and placed the accused on probation for two years. This was an unusual case that did require imprisonment to address public denunciation and general deterrence, however his view was that the correct balance could be achieved by suspending the sentence as this appropriately reflected the accused’s cognitive difficulties as a contributing factor in the crimes, and its impact on a jail sentence for the accused.
[27] In Ally, supra the accused was sentenced to nine (9) months in jail and a three (3) year driving prohibition. While the victim was making a left turn at an intersection, the accused struck her vehicle. The accused was travelling at 100 kph in a 50-60 kph zone. The victim suffered a traumatic brain injury and a skull fracture. The victim could not live independently. The accused was a 25 year old first time offender, but did have eight (8) driving convictions. He completed a two year diploma course. The crown sought a three (3) year penitentiary sentence, a five year driving prohibition and other corollary orders. The defence sought a twelve (12) month sentence. Given that the accused was a youthful first time offender, who had been steadily employed and was advancing himself through additional education since being charged and otherwise was of good character, Justice Daley imposed a nine (9) month custodial sentence, three (3) year driving prohibition.
[28] The endorsement from the Court of Appeal in R. v. Markozashvili, 2010 ONCA 52, [2010] O.J. No. 209, upheld a sentence of 90 days custody intermittent and a two year driving prohibition. The appellant ran two red lights at well-travelled intersections and two people suffered significant injuries. The court ruled that “given the conduct, the sentence was not outside the acceptable range”. Furthermore, the court found that the trial judge quite properly took into consideration that the appellant was a first time offender when he rejected the Crown’s submission for a straight custodial term.
(i) The aggravating and mitigating factors:
[29] The Crown has properly set out the following aggravating factors in this case. I find that it was particularly troubling that after the accident, Mr. Coholic showed little regard for the victims at the scene. Mr. Coholic immediately divested himself of the small bag of marijuana and was observed trying to call someone on his cellphone rather than coming to the aid of the victims. There were significant injuries and impact to both victims. The impact of this collision has affected the lives of family members as well. The driving conduct endangered the lives of many others in the community. I agree with the Crown that this was not a momentary lapse in judgment or a sudden marked departure. The dangerous driving was prolonged. Mr. Coholic’s was described by one witness as driving “very fast”. He was observed to be weaving from “side to side” and trying to pass other vehicles. It was particularly aggravating that he put everyone at risk as he rounded a curve in the road when he collided head-on with the other vehicle. The photographs of the damaged vehicles is evidence of the fact that this was a violent and powerful near fatal collision.
[30] On the other hand, I accept the following mitigating factors emphasized by the Defence. Mr. Coholic is a first time youthful offender. He does not have any previous Highway Traffic Act convictions. He pled guilty which demonstrated his profound remorse and contrition for his criminal conduct. Several years ago he witnessed the horrific event of his best friend being stabbed to death at a high school football game. This has had an enormous effect on his life. He has sought counselling to overcome his depression and anxiety. The events of the vehicle collision has exacerbated and compounded his symptoms. Mr. Coholic has a very supportive family. Finally, since the accident Mr. Coholic has found employment with his father. According to his father, his employment has “helped him move forward”.
F) Conclusion:
[31] In establishing a proper and fit sentence regarding this offence requires an assessment of many factors. I have concluded that a period of custody must be imposed in respect of this offender and that the requirements of general deterrence and denunciation would be satisfied by a custodial sentence of 90 days jail to be served on an intermittent basis. Starting today for administrative purposes you will step into custody and be processed and then on Friday, February 1, 2019 at 7:00 pm until the following Monday at 6:00 am. After that on each consecutive weekends until your sentence is served. While you are not in custody and until your custodial sentence served you will be bound by a probation order.
• You must appear at the jail on time, in a sober condition, with a blood alcohol concentration of zero, and not be under the influence of or in possession of any controlled substance unless you are taking that controlled substance pursuant to a lawfully obtained prescription.
[32] As was noted in Rawn, supra paras. 49-50 driving a vehicle is a privilege and not a right. With that privilege comes responsibility. Members of the public should not be threatened by the unexpected and reckless conduct by impulsive drivers. A message must be sent to Mr. Coholic and others that if they “choose to use the roads to satisfy their own thrill-seeking interests” there will be an extended loss of their driving privileges. I note that It is also permissible to exercise judicial restraint and lower an otherwise appropriate jail sentence by increasing the driving prohibition. (See: R v. Frickey, [2017] ONCA 1024 para. 10, and Rawn, supra para. 36) Therefore, I have concluded that Mr. Coholic should be deprived of his right to drive a vehicle for a significant period of time, and as such, a driving prohibition order for a period of four (4) years, concurrent with the mandatory license suspension under the Highway Traffic Act is imposed.
[33] I have decided to exercise my discretion with respect to the Crown’s request that Mr. Coholic provide a DNA sample, and have concluded that it is not necessary in the circumstances of this case. Although Mr. Coholic was not attentive to the victims, he did not flee the accident scene and cooperated with the police during their investigation.
[34] I have also concluded that Mr. Coholic is not in need of probation given his previous positive antecedents. He is working and already involved in counselling.
Released: January 28, 2019
Signed: Justice P.T. O’Marra