Court Information

Date: October 14, 2020

Ontario Court of Justice Old City Hall - Toronto

Between: Her Majesty the Queen And: Joshua Brighton

For the Crown: E. Winocur For the Defendant: D. Finlay

Heard: February 24, 2020

Reasons for Sentence

RUSSELL SILVERSTEIN, J.:

A. Introduction

[1] On January 9, 2020, after trial, Mr. Brighton was convicted of dangerous driving causing bodily harm and leaving the scene of an accident knowing he had caused bodily harm. He had pleaded guilty to the charge of dangerous driving causing bodily harm and guilty to the included offence of leaving the scene simpliciter. He had also pleaded not guilty to the charge of refusing to provide a breath sample and was acquitted of that charge.

[2] Submissions on sentence were heard on February 24, 2020. The imposition of sentence has been delayed as a result of the Covid-19 pandemic.

B. The Circumstances of the Offence

[3] Mr. Brighton was travelling northbound in his car on University Avenue in the late afternoon of July 12, 2018. The light turned yellow for northbound University Avenue traffic at King Street when the accused was still south of Wellington, one large city block south of King Street. The light for northbound University traffic at King Street turned red even before the accused had cleared the Wellington intersection.

[4] Mr. Brighton then entered the passing lane and accelerated to an undetermined, yet somewhat rapid speed, never slowing down as he entered the King/University intersection approximately 7-8 seconds after the light had turned red.

[5] Just as he was about to clear the intersection he collided with the victim, Alexandre Vdooukhine, who was riding his bicycle westbound, with his green light, along King Street.

[6] Mr. Brighton did not slow down. He did not stop until he was caught up to three blocks north by a police officer who gave chase.

C. The Consequences of the Offender's Crimes

[7] The eloquent 17-page victim impact statement prepared by Mr. Vdooukhine sets out in detail the seriousness of the injuries to Mr. Vdooukhine, and the devastating impact of those injuries on his professional and personal life, and the lives of his family. Mr. Vdooukhine suffered significant bodily harm, including a spinal fracture and a brain injury that have left him permanently disabled and dependent on continuing physical therapy, medication and rehabilitation. He has been diagnosed as suffering from post-traumatic stress disorder.

[8] Mr. Vdooukhine went from being physically active and independent to requiring physical, psychological and emotional support in all his drastically reduced endeavours. His wife has gone from pursuing her own goals to devoting most of her free time to his care and the maintenance of their household, a task he once took pride in sharing with her.

[9] After months of trying to return to the work he loved, he finally lost his job in January of 2019.

D. The Circumstances of the Offender

[10] Mr. Brighton is 35 years old. His childhood was violent and neglectful, leading to anxiety, depression and alcohol abuse. He has nonetheless established a supportive family comprised of his fiancée of 12 years and her 14-year-old son. He is fully employed in the construction industry. His employer speaks very highly of him.

E. The Positions of the Parties

[11] Ms. Winocur, for the Crown, seeks a global sentence of two years less a day and a three-year driving prohibition.

[12] Mr. Finlay, for Mr. Brighton, urges me to impose a sentence of six months, a three-year driving prohibition and a two-year term of probation that includes a community service order.

F. The Principles of Sentencing

[13] The principles of sentencing are set out in Part XXIII of the Criminal Code.

[14] According to s. 718 of the Criminal Code, the "fundamental purpose" of sentencing is to contribute 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, namely: (a) to denounce unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.

[15] Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[16] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also take into account a number of principles including the following:

• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,

• All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

G. The Aggravating Circumstances

[17] The most significant of the aggravating circumstances is the serious injury to Mr. Vdooukhine, and the ongoing impact of those injuries.

[18] Mr. Brighton's criminal record is also aggravating, but not to a great extent. He was convicted of a drinking and driving offence in 2007. The aggravating nature of this conviction is attenuated by how old it is and the fact that Mr. Brighton has no other moving violations on his driving record.

[19] I believe that it is more likely that Mr. Brighton intended to drive through the red light than it is that he did so through mere inadvertence. As the law in Canada makes clear, I cannot increase Mr. Brighton's punishment based on such a belief, absent proof beyond a reasonable doubt, which is absent here. Mr. Brighton's failure to remain at the scene of the accident was, however, intentional. He knew he had struck and injured either a cyclist or a pedestrian yet kept on driving. It was an accumulation of traffic that brought him to a stop two blocks north. This is also a significantly aggravating feature to Mr. Brighton's conduct which I believe is best dealt with by imposing consecutive sentences for the driving and the failure to remain.

[20] Ms. Winocur submits that it is open to me to find that the Crown has proved that Mr. Brighton was under the influence of alcohol when he committed these offences. While I certainly suspect as much, given his attitude towards the breath sample request, I am not satisfied beyond a reasonable doubt that he was under the influence of alcohol and do not consider this an aggravated circumstance. R. v. Gardiner, [1982] 2 S.C.R. 368.

H. The Mitigating Circumstances

[21] There are several circumstances that I find mitigate the length of sentence to be imposed.

[22] Mr. Brighton has expressed what I find to be genuine remorse for his actions. This remorse is manifested first in his guilty pleas. Even though a trial took place on some charges, Mr. Brighton was acquitted of one of the charges he faced and his argument on the bodily harm aspect of the fail to remain was not without merit.

[23] Mr. Brighton has also demonstrated what I find to be genuine remorse in a letter to Mr. Vdooukhine.

[24] Mr. Brighton has undertaken counselling and his approach to therapy has been described by his therapist as thoughtful and responsible.

[25] Part of his counselling is aimed at overcoming his alcohol addiction. I give him credit for that initiative, and it does not change my view that there is not sufficient reliable evidence of alcohol consumption to raise it to an aggravating factor.

[26] In further mitigation is the fact that Mr. Brighton's trial was delayed by the failure of the police to charge him with the dangerous driving and the fail to remain until almost a full year after the incident, at which time he was charged only with refusing to provide a breath sample. Although there is no specific evidence of hardship to Mr. Brighton as a result of this delay, he was subjected to the ongoing anxiety and uncertainty associated with outstanding charges for longer than he should have been. This mitigates sentence to some degree. R. v. T.M.B., 2013 ONSC 4019 at para. 74.

[27] Mr. Brighton will be serving his sentence during the Covid-19 pandemic. This increases Mr. Brighton's risk of infection to some degree and is a collateral consequence of his sentence that must be considered as shortening the length of the sentence that would otherwise be imposed in the absence of the pandemic: R. v. Hearns, 2020 ONSC 2365.

[28] Finally, as Mr. Finlay points out, Mr. Brighton's dangerous driving lasted approximately 20 seconds, unlike cases often seen in our court where offenders engage in protracted periods of dangerous driving.

I. The Caselaw

[29] It is a well settled principle of criminal law that similar sentences should be imposed on similar offenders for similar offences in similar circumstances. Criminal Code, s. 718.2(b); R. v. Lacasse, 2015 SCC 64 at para 2.

[30] Ms. Winocur and Mr. Finlay both provided me with relevant caselaw to support their respective positions.

[31] Ms. Winocur relies on R. v. Lacasse in support of her argument that in driving offences, i.e. offences that might be committed by ordinary law-abiding people, deterrence and denunciation are particularly relevant considerations. Lacasse, supra at para. 73.

[32] She also points to a recent decision from our Court of Appeal, R. v. Markos, 2019 ONCA 80, where the Court upheld a 12-month sentence for dangerous driving causing bodily harm. The Court notes at paragraph 26:

This court has identified sentences for dangerous driving causing bodily injury as normally ranging up to two years less a day, with more substantial sentences available in certain cases: R. v. Rawn, 2012 ONCA 487, 294 O.A.C. 261, at para. 43. In the present case, as depicted in the dash-cam video, Mr. Markos drove his motorcycle in a dangerous manner, in heavy traffic, in a dense urban area, where the street was lined with retail outlets that generate pedestrian traffic. His dangerous driving caused Ms. Sears very serious injuries. We see nothing harsh or excessive with the 12-month custodial sentence, followed by two years' probation, imposed by the trial judge. The sentence was fit.

[33] Mr. Markos had not pleaded guilty and the trial judge found as aggravating the fact that Mr. Markos lacked insight into the danger associated with his behaviour.

[34] Ms. Winocur also relies on R. v. Berto, 2018 ONSC 6747. In this trial decision, Rasaiah J. imposed a total sentence of two years after the jury had convicted the youthful first offender of dangerous driving causing bodily harm and failing to remain knowing he had caused bodily harm. It is important to note that the offender in that case had intentionally driven his truck at a group of people. The victim in that case was rendered tetraplegic and the offender drove to his parents' house and hid his vehicle before turning himself in 11 hours after the collision.

[35] Mr. Finlay principally relies on Justice Doody's table of cases set out in his decision in R. v. Stewart, 2018 ONCJ 678. This table canvases a range of sentences meted out for a variety of fact patterns, none of which is exactly on point with Mr. Brighton's case, but together augment the dicta in Markos as to the range of sentences imposed for offences of this nature.

J. Conclusion

[36] In order to address the principles of general deterrence and denunciation I am of the view that a significant reformatory sentence is called for, especially considering the very serious consequences of Mr. Brighton's criminal behaviour.

[37] As concerns Mr. Brighton's prospects for rehabilitation, he is a young man with family obligations and good family support, which bode well for his future rehabilitation. He has also demonstrated insight and determination as concerns those aspects of his current condition that may have contributed to this offence.

[38] Considering the aggravating and mitigating factors and applying the principles of sentencing set out above, I sentence Mr. Brighton to a term of incarceration of 14 months – 9 months on the dangerous driving, and 5 months consecutive on the fail to remain. I also impose a three-year driving prohibition and a two-year period of probation that includes a requirement that Mr. Brighton take counselling as directed by the probation officer, and that he perform 100 hours of community service.

Released on October 14, 2020

Justice Russell Silverstein