R. v. Kalejaiye, 2021 ONCJ 236

ONTARIO COURT OF JUSTICE

DATE: April 1, 2021 COURT FILE No.: 19-00692

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ISAAC KALEJAIYE

Before: Justice B. Green

Reasons for Sentence

April 1, 2021

Counsel: Ms. K. Myge................................................................... Counsel for the Crown Mr. J. Naresh..................................... Counsel for the defendant Mr. Kalejaiye

Green J.:

A. Introduction:

[1] Mr. Kalejaiye was charged with offences arising out of a serious chain reaction collision that he caused on Highway 401 on May 13th, 2019. He was found guilty after trial of dangerous operation of a conveyance contrary to section 320.13 of the Criminal Code on September 10th, 2020. He was acquitted of failing to remain at the scene of the accident. However, the crown proved, beyond a reasonable doubt, aggravating facts with respect to Mr. Kalejaiye’s driving before and after the collision.

[2] The matter was adjourned for the preparation of a presentence report and for the crown to obtain victim impact evidence. There were additional delays because Mr. Kalejaiye discharged his trial counsel and hired a new lawyer for the sentence hearing. Considering the delays and scarce court time due to COVID-19, I asked counsel and the crown to prepare written sentencing submissions.

[3] During the trial and in the victim impact statements, the victims detailed how they and their family members suffered significant, lasting injuries and trauma. Their injuries would have been evident to the police who responded to the chaotic scene after the collision. For some incomprehensible reason, Mr. Kalejaiye was not charged with dangerous operation causing bodily harm. Nevertheless, I am entitled to consider all the mitigating and aggravating factors when arriving at a just and appropriate sentence. The aggravating facts include the consequences of Mr. Kalejaiye’s callous disregard for the lives and safety of anyone who was driving behind him on a busy highway when he chose to slam on his brakes. He is morally and legally culpable for the consequences of his actions.

[4] In the written submissions, counsel urged me to consider a sentence of an absolute discharge. He emphasized the “brevity” of the offence, the ramifications of the current health crisis caused by COVID-19 and the steps that Mr. Kalejaiye has taken towards rehabilitation on his own initiative. Considering the defendant’s criminal antecedents, his driving record and the injuries suffered by the victims of this offence, the sentence advocated by counsel would be completely contrary to the public interest. Granting any kind of discharge, in the circumstances of this offence with this offender, would be an affront to the repute of the administration of justice. The sentence proposed by counsel was manifestly unfit.

[5] The crown advocated for a 12-month conditional sentence to be followed by 1 year of probation, a driving prohibition of 18 months and a restitution order to the benefit of one of the victims in the amount of $600. She explained that because of the “accused’s mitigating circumstances and the current situation with COVID-19” this position was appropriate. The crown indicated that, were it not for these factors, she would have sought a sentence in the range of 9 months incarceration. The crown’s position was also unjustifiably lenient.

[6] In response to the written submissions from counsel and the crown, I e-mailed them three sentencing precedents with similar facts which resulted in custodial sentences and lengthier driving prohibitions. The matter was brought forward for further submissions. On the return date, the materials referred to by counsel and the crown in their written submissions were filed as exhibits and the email correspondence was attached to the information to form part of the record.

[7] Since I was considering exceeding the sentence proposed by the crown, in compliance with the Ontario Court of Appeal’s recently released decision of R. v. Blake-Samuels, 2021 ONCA 77, I invited counsel and the crown to make further oral submissions, present any cases that supported their respective positions and asked for submissions with respect to the cases that I sent to them. These cases set out the sentence ranges for this type of offence. In addition, I asked counsel to address some material misstatements of fact in the written submissions.

[8] Even though counsel conceded that there are no sentencing precedents that support an absolute discharge, he persisted with this position based on his client’s ongoing efforts at rehabilitation. Similarly, even though the crown agreed that her position was not informed by the defendant’s driving record (she did not have it at the time that she drafted the written submissions) or sentencing precedents, she was apprehensive about altering her position on sentence. Neither one of them provided any other precedents or distinguished the sentence ranges set out in the case law that I provided to them.

[9] This is a sentencing after a full trial. There were no concessions or admissions made by counsel in exchange for the mitigated sentence proposed by the crown. The sentences proposed were not a joint submission in any respect.

[10] I find that both sentences advocated for by counsel and the crown, in the circumstances of this offence with this offender, would undermine the public’s confidence in the administration of justice. A conditional sentence would not be consistent with the fundamental purposes and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code. A period of incarceration and a significant driving prohibition is essential to address the predominant sentencing objectives while still acknowledging the mitigating factors and Mr. Kalejaiye’s potential for rehabilitation.

[11] I will review the aggravating facts of the offence that were proven beyond a reasonable doubt during the trial and the mitigating facts of this offender as well as the applicable sentencing principles and comparable sentencing precedents. The sentence will reflect a balancing of competing considerations to arrive at a just result.

B. Summary of the Facts:

i. The dangerous driving:

[12] On May 13th, 2019, three vehicles were driving in succession on the 401 east bound entering Durham Region. Mr. Kalejaiye was driving the lead vehicle. Ms. Rosta was driving behind Mr. Kalejaiye. There were four people in Ms. Rosta’s vehicle. Ms. Rosta’s aunt was in the front passenger seat and her mother was in the rear seat along with Ms. Rosta’s young son. Ms. Rosta found out after the accident that she was pregnant at the time of the collision. A third vehicle occupied by Ms. Stacey was travelling behind or adjacent to Ms. Rosta’s vehicle. There were also two truckers, Mr. Muraki and Mr. Millar, driving separate transport trucks near these three vehicles. One of the big rigs was carrying a heavy load while the other had recently unloaded.

[13] It was around 10:30 p.m., there was moderate traffic on the highway and this incident occurred in a construction zone, so each side of the highway had cement barriers. The speed limit in the area was 100 km/hr. Mr. Kalejaiye, Ms. Rosta and Ms. Stacey were all travelling at or below the speed limit.

[14] The trial took place more than a year after the crash. The victims were very traumatized by their experiences and each civilian witness, understandably, had different perspectives of the events. As a result, there were some external inconsistencies between the evidence of the four civilian witnesses who testified during the trial.

[15] Despite some conflicting evidence, I found that the crown proved the following facts beyond a reasonable doubt:

• Mr. Kalejaiye was driving the lead vehicle, a silver Acura, on the highway. Ms. Rosta was driving a Honda behind him and Ms. Stacey was driving a Buick behind her;
• Two truck drivers were driving near these three vehicles and they both observed aggressive driving by Mr. Kalejaiye;
• Ms. Rosta was so alarmed by Mr. Kalejaiye’s aggressive driving that she phoned 911 because she feared for her safety and the safety of other users of the roadway. A 911 tape was played during the trial and it was evident that she was very frightened by how Mr. Kalejaiye was driving;
• Immediately before the accident, Ms. Rosta was travelling at least a car length behind Mr. Kalejaiye. Mr. Kalejaiye, Ms. Rosta and Ms. Stacey were travelling between 65 to 105 kilometres an hour when Mr. Kalejaiye suddenly and without warning jammed or slammed on his brakes hard. All the witnesses described this event as an unexpected dramatic stop on the highway;
• There was nothing in front of Mr. Kalejaiye’s vehicle when he braked, the road was straight, traffic was flowing and he was in a live lane of moderate traffic during the late evening;
• The area of the highway where Mr. Kalejaiye slammed on his brakes with significant force was under construction at that time. Concrete barriers had been erected on both sides of the highway so there were no shoulders on either side, and it was narrow. These facts made Mr. Kalejaiye’s choice to brake in that area even more perilous;
• I find that that the crown has proven beyond a reasonable doubt the aggravating fact that Mr. Kalejaiye had been driving aggressively in relation to vehicles that were close to him before he slammed on his brakes. The act of jamming his brakes was the culmination of that aggressive driving as opposed to an isolated incident.
• I also find that the crown has proven beyond a reasonable doubt the aggravating fact that the only reasonable inference from all the evidence presented during the trial is that Mr. Kalejaiye intentionally and purposefully jammed on his brakes despite being aware that there were vehicles travelling behind him in a narrow construction zone and that there was other traffic in the area, including two big rig trucks;
• Considering the speed that they were travelling and the erected barriers in that area and the proximity of the other vehicles, it would have been obvious to Mr. Kalejaiye that his choice to slam on the brakes would almost certainly cause a collision in which people could be seriously injured or killed;
• Not surprisingly, the drivers behind him tried to avoid a vehicle that suddenly stopped on a highway. Whether Ms. Rosta swerved into Ms. Stacey to avoid Mr. Kalejaiye’s vehicle or Ms. Stacey was unable to stop in time and rear-ended Ms. Rosta, the ensuing collision would not have happened but for Mr. Kalejaiye slamming on his brakes;
• Ms. Rosta collided with Mr. Kalejaiye’s Acura, but she became involved in a much more dramatic collision with Ms. Stacey’s vehicle which resulted in both of their vehicles losing control;
• I found as a fact that Ms. Rosta struck the rear end of Mr. Kalejaiye’s Acura before she collided with Ms. Stacey’s vehicle. Accordingly, Mr. Kalejaiye was fully aware that, when he stopped his vehicle, it resulted in a chain reaction accident. Nevertheless, he accelerated away from the scene. I accepted that Mr. Kalejaiye continued to drive because he was “scared”, but he pulled over on the shoulder of the 401 within minutes of the accident;
• I found that there was some evidence that raised a doubt about whether Mr. Kalejaiye could safely pull over at the accident scene due to the construction and the traffic on the 401 so he was acquitted of failing to remain. Mr. Kalejaiye pulled over on the shoulder of the 401, 4 kilometers away from the accident scene. Somehow, he encountered a tow truck driver who contacted the police within less than 11 minutes of the accident. The tow truck driver advised police that he was with the driver who was involved in the collision; and
• Mr. Kalejaiye remained on the shoulder of the 401 until the police arrived at his location. He was calmly sitting in the passenger seat of the tow truck when Sgt. Simpson arrived on scene. He was sober, cooperative and identified himself with his licence.

[16] I could not find that the initial aggressive driving amounted to dangerous operation because there were too many discrepancies in the descriptions of that driving to make any conclusive findings of fact. However, I found that Mr. Kalejaiye was driving so aggressively that it alarmed three other drivers. In summary, the crown has proven beyond a reasonable doubt that Mr. Kalejaiye’s aggressive driving culminated in his choice to intentionally slam on the brakes knowing that there were a number of vehicles travelling in relatively close proximity behind him on Highway 401. The only reasonable inference from the proven facts is that this was an incident of road rage.

[17] After Ms. Rosta’s and Ms. Stacy’s vehicles came to rest, one of their vehicles was still in a live lane on the highway. Both truckers used their vehicles to shield the victims from oncoming traffic. They immediately assisted everyone at the scene by directing traffic around the crash and offered shelter to some of the victims in the cab of a truck. These two men were heroes that evening. Their bravery and compassion are laudable.

[18] In addition to offering comfort and a safe place for the victims, I was thoroughly impressed with the defensive driving tactics of both truckers before the crash. They were observant and alert. They both slowed down and backed off in response to Mr. Kalejaiye’s aggressive driving. If they had not be so cautious, the consequences of Mr. Kalejaiye’s choice to slam on his brakes could have been catastrophic.

[19] The scene of the crash was chaotic. It was a miracle that no one was killed that night, but four people suffered terribly and continue to struggle with the aftereffects of the crash. Both Ms. Rosta and Ms. Stacey suffered lasting injuries. Ms. Rosta’s aunt was so severely injured that she was having seizures at the scene and later at the hospital. Ms. Rosta’s mother was also injured. Thankfully, Ms. Rosta’s son was not physically hurt. Both vehicles involved in the crash were irreparably damaged by the violent force of the impacts. Words cannot adequately describe the damage shown in the pictures tendered in evidence of their vehicles. There was extensive damage to the back-driver’s end of Ms. Rosta’s vehicle and the front passenger side of Ms. Stacy’s vehicle.

[20] This was a tragic, senseless collision that was completely avoidable. Mr. Kalejaiye is responsible for the carnage that followed as a result of his irresponsible choice to endanger the lives and safety of the other innocent users of the highway.

ii. The victim impact:

[21] Both truckers vividly described the mayhem after the crash. Mr. Muraki related that Ms. Stacey and Ms. Rosta were in a state of shock. The crown did not obtain victim impact statements from either one of the truckers, but they were both clearly shaken up by what they witnessed that night.

[22] Ms. Rosta testified that she could not recall the actual collision. There is a gap in her memory because she blacked out for a period of time. When Ms. Rosta regained consciousness, her first memory was of her aunt having a seizure in the front passenger seat. Her mother was unconscious in the back seat and her son was screaming (p. 69). She was so worried about her mother’s well-being, she started “screaming her name” but then she had to step away from her vehicle (p. 71).

[23] Everyone in her vehicle was taken to hospital and her aunt continued to have seizures at the hospital (p. 71). Ms. Rosta suffered a concussion (p. 88). In addition to her head injury, Ms. Rosta’s left shoulder and right wrist were injured and she had glass in her eye (p. 72). Since the accident, she has been experiencing “a lot of lower back pain”. She was in the early stages of a pregnancy that night. She related that due to her ongoing pain since the accident, she has been “barely able to hold” her newborn child. She suffers from headaches that are so bad that she experiences blurred vision. Her mother had “fractured ribs on both sides, head injury, leg and lower back” injuries (p. 74). Her aunt suffered a fractured shoulder. Although Ms. Rosta’s aunt had a pre-existing condition that caused seizures, they “multiplied after the accident” because of the head injuries she suffered that night.

[24] Ms. Rosta provided a compelling victim impact statement that detailed some of the lasting effects of Mr. Kalejaiye’s crime:

That night, when the accident occurred - we were driving back from a Mother’s Day dinner I had promised both my aunt and mom. Still to this moment, as a write this, I’m overwhelmed by many different emotions and tears that maybe if I had not insisted on that dinner — that night — that maybe they wouldn’t cross paths with this driver on the road and endure all the physical pain and trauma that occurred because of the accident. Maybe my 4-year-old son would not be afraid of someone driving him when it’s dark, or afraid of sirens and fire trucks.

That Mother’s Day dinner ended up with my mom having fractured ribs on both sides, my aunt having a fractured shoulder and me and my son traumatized for the rest of our lives. Then I find out, I’m also pregnant. I am terrified of driving - especially driving at night. I will never forget a night that I attempted to drive while it was dark. I had to pull over - and call my dad to meet me at my location along with my sister to drive the car.

I felt and still feel so useless. I am so dependent on friends and family for tasks I could easily do myself before. For me now everything revolves around day light hours. I have to make sure we’re not in a car while it’s dark because me and my son cannot handle the anxiety. I had to stop working due to all the injuries I had suffered. Besides the physical and mental distress caused by this accident — me and my husband are still financially suffering. Our credit cards are maxed out because I am no longer helping our household financially.

This pandemic is happening now, but for me, I feel like I’ve been isolating myself since the accident. I don’t attend any social gatherings or see anyone because simply I can’t drive to them or drive back. I don’t see my parents as much as I used because they live 2 hours away — and the thought of being on the road for that long scares both me and my mom. My mom refuses to be driven to my house and stay on the road for that long because her PTSD will not allow her. So I lose either way. Simply put - this accident has impacted my life in ways I could not imagine before. Physically, mentally, emotionally and financially - it has taken a great toll. I hope Mr. Kalejaiye realizes what has been done here and learns from this mistake.

[25] During the trial, the crown introduced Ms. Rosta’s 911 call. She broke down crying more than once during her evidence. It was obvious that it was traumatizing and very painful for her to relive the moments before the crash.

[26] Ms. Stacey testified that she was alone in her car other than her dog. She “blacked out” for a little bit after the collision (p. 46). She was forcibly struck by the air bag and she had an open wound on her head (p. 49). She remembered being helped out of her car. She was escorted to the safety of one of the trucker’s cab where she stayed with Ms. Rosta and her son until emergency personnel arrived on scene. She was taken to the hospital along with the other victims. She suffered injuries to her left knee, her neck and her back.

[27] Ms. Stacey also provided a victim impact statement that detailed her lasting trauma and injuries as a result of Mr. Kalejaiye’s actions. Some excerpts from her statement are:

My one and only thought is please Lord don’t let me die tonight. The next thing I remember is the airbags going off and blood running down my face. I started to look for my dog who had been travelling beside me. I find her cowering at my feet on the driver’s side.

This accident has cost me and changed my life completely. I went from a happy active person to one who has to take one day at a time.

I had suffered a mild concussion, an injury to my left knee, a bruised sternum and nightmares.

My left side of my upper body has been slow to heal from slamming against the driver’s door.

The injury, pain and stress has been hard on my heart.

The stress and anxiety I feel now when driving never existed before the accident. I’ve had to give up driving long distances… The stress on my family, my children and their families has been unbearable for all involved.

My everyday life has changed enormously. Caring for my home is impossible. I no longer have the stamina to do everyday tasks. I still suffer from the pain from that day.

You cost me my freedom of living every day to the fullest.

You cost me money I had to use for rental vehicles in excess of $600 so I could go to doctor’s appointments.

You cost me my life as it should have been.

I live with pain every day. I live with the sound of the crash in my head. I live with the fact my life could have ended that night.

My life will never be the same because of your actions on that night.

I cannot work and am now dependent on disability thru social services.

[28] Mr. Kalejaiye’s conduct impacted the lives of four adults, a small child and all their families. He caused them needless suffering, lasting pain and significant trauma.

iii. Mistaken statements of fact in counsel’s written submissions:

[29] Mr. Kalejaiye was represented by two lawyers during the trial. They agreed that the crown could introduce statements that Mr. Kalejaiye made at the roadside in response to questions asked by the investigating officer when he was detained and before he exercised his rights to counsel. I raised this issue with counsel and the crown during the trial. I queried the propriety of the crown eliciting what appeared to be statements against interest that may have been obtained in violation of Mr. Kalejaiye’s Charter protected rights. Nevertheless, counsel and the crown agreed that the statements should be admitted for the truth of their contents as res gestae.

[30] The only evidence that was tendered to explain Mr. Kalejaiye’s conduct that night was the statement at the roadside. There was a reference in his statement to high beams behind him. Counsel suggested to every witness during the trial that one of the drivers had their high beams on, but none of them had any recollection of someone driving with high beams.

[31] Trial counsel was discharged, and new counsel was hired for the sentencing submissions. However, counsel advised that he could not obtain transcripts or an audio recording of the trial because of cost issues. Nevertheless, he had access to my written judgement outlining the findings of facts. In the written sentencing submissions, counsel misstated some facts and sought to introduce Mr. Kalejaiye’s version of events even though he made an informed choice to exercise his right to silence during the trial. I note the following:

• Counsel emphasized the “brevity of the offence”, however I found that Mr. Kalejaiye had been engaged in aggressive driving for some time prior to slamming on his brakes. This was not a brief incident rather, slamming on the brakes was the culmination of a period of aggressive driving;
• Counsel tendered evidence about Mr. Kalejaiye’s version of events that night. If Mr. Kalejaiye wanted to provide an exculpatory or mitigated explanation for his driving that night, the time to do so was during the trial when he could provide evidence under oath or affirmation and his account would have been subject to cross-examination. My findings of fact and the inferences from those facts with respect to the circumstances of the offence will be based on the evidence that I accepted during the trial. In these circumstances, I will not consider the statements of fact about the offence in the sentencing materials. In particular, I will not consider the statements in Mr. Kalejaiye’s letter of apology that he was distracted while driving because he “had a lot on my mind that day and just wanted to get back to my daughter” and that he was “very sleep deprived” that night. Moreover, slamming on his brakes on a highway was completely inconsistent with any claims that he just wanted to get home to his baby and his claims of driving while distracted are inconsistent with my findings of fact that the crown proved beyond a reasonable doubt that his conduct was an intentional action as a result of road rage.
• Counsel stated that Mr. Kalejaiye did not leave the scene of the accident, “in fact, he stayed behind and assisted by flagging down the tow truck driver to report the accident and the tow truck driver called the police”. There is no evidence to support this assertion. Quite the contrary. While Mr. Kalejaiye was acquitted of failing to remain, I found that the crown had proven beyond a reasonable doubt the aggravating facts that he sped away from the scene and he did not stop for at least a couple of minutes. The evidence that was called during the trial was that Mr. Kalejaiye told the officer at the roadside that he left the scene because he was “scared”. The tow truck driver was not called as a witness by the crown or counsel. There was no evidence introduced during the trial that Mr. Kalejaiye sought assistance for any of the victims of the crash at any point;
• Counsel referred to Mr. Kalejaiye’s prior record as “dated”. It is not dated; he was last convicted in 2016 and he was also convicted of another offence in 2020 while this matter was outstanding;
• Counsel referred to Mr. Kalejaiye’s record as unrelated, but he has a long-standing anger management problem that exhibits itself in outbursts of violence. I find that this incident was a manifestation of his inability to control his emotions and his anger or frustration impaired his ability to operate a vehicle responsibly or safely; and
• Counsel asserted that Mr. Kalejaiye “had an impeccable driving record” and the letter of support from Mr. Kalejaiye’s brother also stated that he “does not have a history of traffic offences”. Mr. Kalejaiye understood that these statements were patently false because he knows that he has a lengthy driving record.

[32] In addition to the aggravating features of this offence, I must consider the mitigating circumstances of this offender and his potential for rehabilitation.

iv. The circumstances of the offender:

[33] Mr. Kalejaiye struggled as a child with attention deficit disorder and bipolar disorder. These disabilities impacted his experience and performance in school.

[34] When he was younger, Mr. Kalejaiye’s mother was a single parent who worked hard to support her children. Although he expressed love and appreciation for his mother in the presentence report, he attributed his choice to get involved with a bad crowd as a teen, in part, to his mother’s busy work schedule. Mr. Kalejaiye had other options. He was a talented soccer player, but he chose to associate with a negative peer group instead of continuing with a sport that he enjoyed and excelled at.

[35] Counsel indicated that Mr. Kalejaiye left school in grade 11 “due to his learning disability”. While his learning disability and mental health issues may have played a part in leaving school, he also had “behavioural issues that manifested in both the classroom and playground, he received suspensions in some of those instances” (p. 5 of the PSR). His mother confirmed that he struggled with anger management deficits from a young age (p. 7 of the PSR). His criminal record commenced when he was a youth and quickly escalated to “robbery with violence” for which he received a custodial sentence and probation. Mr. Kalejaiye related to the probation officer that he “did not return to school following a lengthy period of incarceration” and he was unsuccessful with on-line courses.

[36] As an adult, Mr. Kalejaiye continued down the wrong path and accumulated more criminal convictions. He has a sporadic work history. The presentence report indicated that he secured a new job in June of 2020, however, “for several years prior to his present job, the subject was financially supported by the Ontario Disability Support Program due to physical and mental challenges”. Mr. Kalejaiye has his own painting company and he is working as a general labourer. I recognize that any period of incarceration will unfortunately jeopardize the job that he secured after years of unemployment.

[37] Until recently, Mr. Kalejaiye was in a long-term relationship. The termination of that relationship coincides with a recent conviction for domestic violence. Mr. Kalejaiye also disclosed to the probation officer that violence has been an issue in past intimate relationships. He takes full responsibility for the “breakdown of many of his past unions due to his failure to control his anger”. “This failure to compose himself led to violent acts inflicted on his partners” (p. 5 of the PSR). Despite his history of violence towards his partners, he believes that can thrive with therapy and enjoy healthy relationships.

[38] He has two little children, a 3-year-old and a 1-year-old, with his estranged partner. He also has two older children, a 9-year-old and an 11-year-old, with another woman. Mr. Kalejaiye advised the probation officer that he financially supports his former partner and all four of his children. He advised that he sees his children on a regular basis and he recently completed a parenting program to become a better father. Hopefully, he will set a better example for his children in the future than he has in the past.

[39] After the breakup of his most recent relationship, Mr. Kalejaiye returned to reside with his mother and siblings. He stated that he has a very positive relationship with his siblings, but the probation officer noted that he was convicted of assaulting his brother with a weapon in 2016 by spraying him with pepper spray. One of Mr. Kalejaiye’s brothers provided a very positive letter of support. It is evident that he enjoys significant familial support which will also assist with his goals of more effectively managing his anger and mental health issues.

[40] Counsel submitted that Mr. Kalejaiye’s mother and father “rely on him for the necessities of life”. I found this statement difficult to reconcile with the facts set out in the presentence report. At page 4 of the presentence report, Mr. Kalejaiye informed the probation officer that his father returned to Nigeria when he was a child, so he only had irregular contact with him. His parents have been separated for many years and “he has never experienced a close relationship with his father though the relationship is now improving”. The presentence report was written in September of 2020.

[41] Mr. Kalejaiye’s mother was described as a hard-working woman and Mr. Kalejaiye’s brother also resides with her. Mr. Kalejaiye only returned home after his relationship with his partner broke up within the last year and he only secured full-time employment in June of 2020. He already has four children and he stated that he financially supports them despite his limited income. After reviewing these facts with counsel, he conceded that Mr. Kalejaiye’s mother and father are not economically dependent on him. He clarified that Mr. Kalejaiye’s parents rely on him to assist them with their daily tasks because of the challenges presented by COVID-19 and they are elderly. As noted, they have another son living in their home who can assist them and there are other siblings.

[42] It is apparent that Mr. Kalejaiye has longstanding mental health issues. Mr. Kalejaiye’s mother believes that he has been consistently taking his medication for his bipolar disorder. However, Mr. Kalejaiye told the probation officer that when his psychiatrist died years ago, he stopped taking his medication. He indicated that the significant gap in his criminal record from 2003 to 2012 was because he was more stable with the treatment he was receiving from his psychiatrist and he was consistently taking his medication. He recently sought a referral to another psychiatrist from his family doctor and he resumed taking medication. In addition to his bi-polar disorder, he indicated that his current legal situation has brought on symptoms of depression, anxiety and stress. He is confidant that with more counseling and psychiatric intervention, he can once again achieve “positive outcomes”.

[43] It was evident throughout the presentence report that Mr. Kalejaiye has significant anger management issues that started from a young age. After his psychiatrist died 10 years ago, he explained that his coping mechanism was to “bottle thing up” instead of managing his frustrations. This approach led to “explosive situations”. His issues with controlling his anger are reflected in his adult criminal record:

Nov. 2000: Robbery x 2, Assault causing bodily harm, and use imitation firearm x 2 2 years jail + 3 years of probation + weapons prohibition

Jan. 2003: Assault peace officer, fail to comply with probation. Assault 7 days PSC + 30 days conditional sentence + 12 months of probation + weapons prohibition

June 2012: Assault with a weapon 60 days jail + 2 years of probation + weapons prohibition

July 2013: Assault and uttering death threats 4 days PSC + 5 months jail + 12 months of probation + weapons prohibition

July 2016: Assault with a weapon Suspended sentence with 12 months of probation

March 2020: Assault Suspended sentence with 24 months of probation

[44] After he began reoffending in 2012 and he was sentenced to jail, that should have been a wake-up call for Mr. Kalejaiye that he needed help to manage his anger and to take medication for his bipolar disorder. Instead, he continued to reoffend even though he was on a probation order. This offence should have been a wake-up call that he needed to do better. However, while these charges were outstanding, he was convicted of another violent offence. Finally, the adult ministry records indicate that:

The subject’s response to probation has been mixed. While he was reliable and consistent in his reporting, and for the most part completed programs as directed, he re-offended in several instances while under community supervision, and as per ministry records, he was less cooperative and less engaged with his probation officer during his last term of probation supervision ending in July 2017.

[45] In addition to his criminal record, Mr. Kalejaiye has a horrible driving record. He has a total of 18 prior convictions between 2003 and 2019. The most relevant convictions are as follows:

2009-02-26 speeding 97 km/hr in a 60 km/hr zone Offence date 2009-01-12 = 4 demerit points

2010-06-25 speeding 74 km/hr in a 50 km/hr zone Offence date 2010-05-11 = 3 demerit points

2010-08-10 fail to come to a stop at an intersection Offence date 2010-04-23 = 3 demerit points

2010-09-27 speeding 78 km/hr in a 50 km/hr zone Offence date 2010-08-13 = 3 demerit points

2011-10-05 speeding 84 km/hr in a 60 km/hr zone Offence date 2011-09-11 = 3 demerit points

2015-05-12 speeding 70 km/hr in a 60 km/hr zone Offence date 2015-05-07

2019-07-19 speeding 89 km/hr in a 60 km/hr zone Offence date 2019-06-04 = 3 demerit points

[46] Mr. Kalejaiye has a longstanding history of abusing his driving privileges. What is particularly shocking is that, within 3 weeks of causing this incredibly serious collision, he was back on the road and speeding at 29 km/hr in excess of the speed limit. It seems that he did not learn anything from the consequences of his dangerous driving on May 13th, 2019.

[47] While Mr. Kalejaiye must not be penalized in any way for the criminal or driving convictions that occurred after this offence, these additional facts inform my judgement about his potential for rehabilitation and whether the safety of the community would be endangered by him serving a conditional sentence in the community.

[48] Mr. Kalejaiye’s driving record, his criminal record and the presentence report provided additional context to this offence. He is an irresponsible driver with a significant anger management problem. I disagree with the crown’s and counsel’s submissions that his criminal record is unrelated to this offence.

[49] Mr. Kalejaiye has multiple convictions as a result of violent outbursts. As Mr. Kalejaiye explained to the probation officer, “his failure to control his emotions has been the center of all or most of his conflict with the law” (p. 9 of the PSR). Instead of using his hands or imitation firearms or pepper spray, like he has in the past during explosive outbursts, he intentionally used his car to express his anger or frustration in an act of road rage. When he jammed on his brakes on a highway, he knew that people could get seriously hurt but he did it anyways. This was a violent offence by using his vehicle to express his upset and he caused significant injuries to the victims. Moreover, his inability to control his anger impaired his ability to drive safely and responsibly.

[50] Mr. Kalejaiye is proactively taking steps to address his issues. He advised that he recently completed anger management counseling and that he has been speaking more openly about his feelings and mental health challenges. This process has been liberating for him and brought him a sense of calm. Considering the gap in his record when he sought psychiatric assistance and his stated commitment to treatment, there is hope that he will get back on the right track and rehabilitate himself. Counsel also filed proof that he completed the PARS program as a result of being charged with a domestic assault and he voluntarily attended the “caring dad’s program”. He also successfully completed a “defensive driving” program.

[51] After all exhibits had been filed and after counsel had two opportunities to address me on sentencing, the case was adjourned for several weeks for me to render judgement. Last night, without leave of the court, counsel filed additional evidence by emailing it to the trial coordinator to be forwarded to me. This was highly improper and completely unacceptable. If counsel wanted to introduce new evidence, he should have brought the matter forward in front of me and sought leave of the court to reopen the proceedings. Although email exchanges, with the consent of all parties, have been helpful during the pandemic to assist with moving matters along, that does not permit counsel or the crown to unilaterally decide to send evidence to a jurist while she is deliberating.

[52] This case has been postponed far too many times and it will not be delayed again. Despite the fact this new evidence was filed in this manner, with a strong admonition to counsel, I have considered this additional exhibit on sentencing.

[53] Counsel forwarded a letter from the Elizabeth Frye Society that confirmed Mr. Kalejaiye has successfully completed online “anger solutions” courses and he has been participating in weekly telephone sessions. He has been conscientiously working on “developing an understanding of the origins of anger, the theory of anger development and techniques for effectively and safely expressing and releasing anger”. He was described as “open and engaging and has demonstrated a strong interest in improving his overall wellbeing through online programs and support at our agency”. It appears that he is committed to finding ways to address his long-standing anger management issues.

[54] In addition to his commitment to counselling, counsel filed a letter of support from Mr. Kalejaiye’s brother. Mr. Emmanuel Tidd indicated that his brother is “very remorseful” but he went on to provide excuses for this offence. Like Mr. Kalejaiye, Mr. Tidd attributed his brother’s dangerous driving to “his normal sleeping pattern was impacted, also he was working longer hours at his job”. I will not consider these excuses since Mr. Tidd was not a witness to the events that night.

[55] With respect to this offence, Mr. Kalejaiye expressed remorse for the harm that the victims suffered as a result of the “accident”. In the presentence report, he related that “his heart goes out to the victims” and that he feels badly for them. He repeatedly expressed his remorse during the sentencing and concern for the victims. He wrote in a letter of apology that:

I am sorry to all who were involved in the accident that took place on May 13th, 2019, I am thankful that no one was severely injured. I apologize to everyone that was involved in the accident and the inconvenience caused. I never meant for this to happen and I am so incredibly thankful that no one lost their life due to my actions on that unfortunate night especially Ms. Stacey, Ms Rosta and the occupants in her [word missing] were not severely injured … Once again, I apologize to the court, the complainants and to society at large.

[56] Mr. Kalejaiye’s expressions of remorse are mitigating however, the manner in which he expressed his remorse is quite troubling. First, the occupants of the vehicle were severely injured. The crown proved these aggravating facts beyond a reasonable doubt during the trial through the evidence of Ms. Stacey and Ms. Rosta that bones were broken, concussions suffered, seizures caused and lasting trauma. Secondly, while Mr. Kalejaiye may not have “meant to” cause the harm that he did, the consequences of his actions were entirely foreseeable. Thirdly, this was not an “accident”. Mr. Kalejaiye’s conduct was not only a marked departure from the standard of a reasonable person, I find that the only reasonable inference from the facts is that he was aware that his actions were dangerous. Without any expressed insight into how his callous disregard for the lives and safety of other users of the highway that night impacted the lives of the victims or how much harm he caused to all of them, his words of apology ring hollow.

[57] Mr. Kalejaiye’s lack of acceptance of full responsibility for the commission of this offence is not, in any way, an aggravating factor. Mr. Kalejaiye must not be punished for exercising his right to a trial. However, he will not have the benefit of a mitigated sentence that results from a plea of guilty. A guilty plea would have been substantially mitigating because it would have spared the traumatized victims from reliving that horrific evening. It was evident during the trial that Ms. Rosta was struggling, especially when she listened to the 911 recording, and the emotional pain she experienced while testifying was palpable.

[58] To arrive at a just sanction that balances the competing considerations of the aggravating circumstances of the offence and the mitigating circumstances of this offender, I must consider the guiding sentencing principles and any similar sentencing precedents.

C. Legal Analysis

i. Guiding sentencing principles:

[59] The fundamental purpose of sentencing is 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:

1. to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
2. to deter the offender and other persons from committing offences;
3. to separate offenders from society, where necessary;
4. to assist in rehabilitating offenders;
5. to provide reparations for harm done to victims or to the community; and
6. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[60] Section 718.1 of the Criminal Code also provides that any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As a result, depending on the circumstances of the offence and the circumstances of the offender, a Court may focus on specific principles of sentencing as the most important factors to guide the Court’s decision.

[61] This is a very serious offence and Mr. Kalejaiye is solely responsible for the consequences of his misconduct. In cases involving dangerous driving, the primary principles of sentencing that will guide my judgement are denunciation and deterrence. Please see: R. v. Frickey, 2017 ONCA 900. However, I agree with counsel that rehabilitation remains an important goal with any sentencing.

ii. The principle of restraint:

[62] Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. The Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64 at para 12 explained:

The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.

[63] An important sentencing consideration is the principle of restraint which has been codified in the section 718.2 of the Criminal Code and states that:

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[64] I have considered all other available sanctions other than imprisonment, but I find that the only sentence that is reasonable in the circumstances and commensurate with the harm done to the victims is a period of incarceration.

iii. The principle of parity:

[65] Subsection 718.2(a) of the Criminal Code codified the long-standing principle of parity that:

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

[66] Parity is an important and laudable objective, but each individual case is often so unique that it is difficult to find similar facts. Ultimately, considering the unfortunately countless ways to commit any offence, the distinctive victim impact and the individuality of each offender, it is very challenging to find comparable cases. As Chief Justice Lamer stated in R. v. M. (C.A.) at para 92:

...Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

[67] Even when there are comparable cases, I acknowledge that precedents are intended to provide guidance as opposed to dominating the sentencing process. In R. v. Rawn, 2012 ONCA 487 at paras. 29 and 30, the Ontario Court of Appeal cautioned that:

It goes without saying that a fit sentence must be ascertained on an individual basis. It is therefore inappropriate to allow the parity principle, a principle that, by definition considers another sentence imposed on another offender, to dominate the determination of a fit sentence.

[68] The sentence must be proportionate to the gravity of these offences and Mr. Kalejaiye’s sole responsibility for the commission of this crime. While he was convicted of dangerous operation of a conveyance simpliciter, I find that the crown has proven beyond a reasonable doubt the aggravating fact that Mr. Kalejaiye’s dangerous operation of his vehicle caused bodily harm to four different victims.

[69] In R. v. Correia, 2017 ONSC 1101 at paras. 20 and 28 affirmed by the Court of Appeal 2018 ONCA 554, the offender was found guilty by a jury of dangerous operation but acquitted of aggravated assault for using his vehicle to run over the victim. Justice Allen had to mete out a sentence that reflected the aggravating facts that the crown had proven beyond a reasonable doubt. The learned jurist aptly observed that:

Although dangerous driving does not require subjective mens rea, the trial judge for the purpose of sentencing is permitted to find that the offender's conduct was intentional. The principle of proportionality enunciated in s. 718.1 and the requirement to raise or lower a sentence based on aggravating and mitigating factors under s. 718.2, require the sentencing judge to take into consideration the offender's mental state when he struck the victim with his vehicle.

And further:

It can be reasonably inferred that the jury in the case before me arrived at a finding, without the necessity to determine his intention, that Mr. Correia's vehicle caused the injury to Mr. De Sousa's leg. There is evidence that establishes beyond a reasonable doubt that Mr. Correia caused Mr. De Sousa's bodily harm. Therefore, even though Mr. Correia was charged with dangerous driving simpliciter, I am entitled to consider the bodily harm as an aggravating factor on sentencing taking into account the gravity of the injury to Mr. De Sousa's leg.

[70] I find that the only reasonable inference from all the facts proven beyond a reasonable doubt during the trial is that, after driving aggressively for a period of time, Mr. Kalejaiye intentionally slammed on his brakes knowing that there were vehicles driving closely behind him. Furthermore, I find that crown has proven beyond a reasonable doubt that the collision between Ms. Rosta’s and Ms. Stacey’s vehicles would not have occurred but for Mr. Kalejaiye’s choice to slam on the brakes. He is responsible for the injuries suffered by all the victims. As a result, the sentence in this case should be similar to cases involving bodily harm.

[71] I am cognizant however, that the maximum penalty for dangerous operation of a conveyance when the crown elects to proceed by summary conviction is “not more than two years less a day” in contrast to the higher maximum penalties for dangerous operation causing bodily harm. As a result, any period of imprisonment should be considered in relation to the available maximum penalty for dangerous operation.

[72] In R. v. Rawn, 2012 ONCA 487 at paras. 43 to 45, the Court of Appeal reviewed the “normal range” of sentences for dangerous driving causing bodily harm and found that:

In terms of the range of sentences established by the jurisprudence, I note that in 2007, this court identified the normal range for impaired driving or dangerous driving causing bodily harm as between a conditional sentence and two years less a day: R. v. Van Puyenbroek, 2007 ONCA 824, 231 O.A.C. 146, at paras. 59-61. More substantial sentences were available in certain cases; in Van Puyenbroek itself a three-year sentence was upheld.

Then, in 2007, s. 742.1 of the Criminal Code was amended to exclude the availability of conditional sentences for serious personal injury offences. Given the injuries suffered by Ms. Snyder, this case clearly qualifies: R. v. Belanger, 2009 ONCA 867, [2009] O.J. No. 5242, at para. 4. While it follows that a conditional sentence is not available in this case, the more important consequence of this amendment is that it signals that Parliament has determined that conduct of this nature will not be tolerated.

It is worth repeating - dangerous driving causing bodily harm is a serious offence. An appropriate sentence must give primacy to the objectives of general deterrence and denunciation. To meet the requirements of these principles, the sentence must clearly reflect the seriousness of the conduct and its consequences, both actual and potential. To meet the requirements of denunciation, it is necessary that there be absolutely no ambiguity in the message that such conduct is completely unacceptable.

[73] Similarly, in R. v. Van Puyenbroek, 2007 ONCA 824 at para. 33, Justice Epstein highlighted that:

General deterrence and denunciation are the most important factors in the determination of a sentence in a case such as this one [citation omitted]. Other like-minded people need to know that irresponsible use of a motor vehicle on our highways will not be countenanced. A sentence can only denounce conduct and deter others to the extent that it is punitive. The essence of general deterrence, is, therefore, punishment [citation omitted].

[74] The crown advocated for a conditional sentence which is within the range of appropriate sentences contemplated by the Ontario Court of Appeal for this type of offence. I accept that a conditional sentence is punitive, and it can serve to effectively balance the competing considerations of denunciation and deterrence and rehabilitation. In R. v. Sharma, 2020 ONCA 478 at para. 110, the Ontario Court of Appeal recently reiterated that:

In Proulx, the Supreme Court explained that a conditional sentence, unlike a suspended sentence, is a jail sentence but served in the community. It serves the functions of deterrence and denunciation: Proulx, at paras. 41, 67. Indeed, conditional sentences may be available even in cases where deterrence and denunciation are the paramount sentencing objectives: R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 35.

[75] Nevertheless, I must consider whether a conditional sentence is statutorily available in this case. Section 742.1 of the Criminal Code lists five criteria a judge must consider before imposing a conditional sentence:

1. The offender must not be convicted of an offence that is specifically excluded;
2. The offence must not be punishable by a minimum term of imprisonment;
3. The court must impose a sentence of imprisonment of less than two years;
4. The safety of the community must not be endangered by the offender serving his or her sentence in the community; and
5. A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[76] The crown elected to proceed by way of summary conviction so, despite the bodily harm caused by this offence, it is not statutorily precluded from being eligible for a conditional sentence. Secondly, there is no minimum term of imprisonment for dangerous operation of a conveyance. Thirdly, the maximum sentence for this offence is two years less a day. It is the fourth and fifth prerequisites that may not be met in this case.

[77] Mr. Kalejaiye has a lengthy driving record and several convictions for violent offences, and he has been sentenced previously to periods of probation. Ministry records indicated that he wasn’t as invested in his last reporting probation order in 2017. He completed anger management programs in the past and that “did not appear to have deterred recidivism” (p. 10 of the PSR). Although he only has one conviction for a breach of probation on his criminal record, he previously reoffended while on probation. Finally, he was convicted of driving 29 km/hr in excess of the speed limit and convicted of a domestic assault while awaiting trial for this offence. These are factors to consider when assessing the potential danger that he poses to the safety of the community in terms of reoffending while on a conditional sentence.

[78] This was not an isolated incident. Mr. Kalejaiye has a longstanding history of abusing his privilege to drive. Additionally, he has acted on his angry impulses to the detriment of others for many years. I am impressed with his current and ongoing commitment to rehabilitation. Nevertheless, I am concerned about his past inability to control his anger and his lack of insight into his responsibility for this serious crime. Contrary to his description of this offence in his letter of apology, as noted, this was not an “accident”. His conduct was neither unexpected nor unintentional, it was road rage.

[79] It is mitigating that Mr. Kalejaiye has taken positive steps towards rehabilitation through counseling. He has expressed a strong commitment to seeking psychiatric help and he has become actively involved in his church. There is potential for his rehabilitation and for him to follow a better path in the future. Nevertheless, because of his history and the seriousness of this offence, I am concerned about whether a conditional sentence would endanger the safety of community. My concerns may be alleviated, in the circumstances of this case, by the loss of his driving privileges to ensure that his inability to control his temper does not imperil any other innocent users of the roadway.

[80] Even if the safety of the community would not be endangered by a conditional sentence, I must consider whether a conditional sentence would be consistent with the fundamental purposes and principles of sentencing. Undoubtedly, a strong message must be sent to Mr. Kalejaiye, the general public and like-minded offenders that a heavy price will be paid by anyone who abuses their driving privileges and endangers the lives and safety of innocent users of the highway.

[81] Driving dangerously can easily transform a vehicle into a lethal weapon capable of destroying innocent lives and wreaking havoc. Tragically, Ontarians watched helplessly as an offender transformed a van into a killing machine in Toronto. In addition, highway 401 is a busy, perilous, public highway with vehicles regularly travelling at high rates of speed. Drivers should be particularly cognizant that driving dangerously on this highway, especially stopping on it, is incredibly hazardous. There should be “absolutely no ambiguity in the message” that this specific type of misconduct is completely unacceptable and will result in a severe punishment.

[82] Considering the serious repercussions of this offence, Mr. Kalejaiye’s moral culpability, the overriding considerations of denunciation, general and specific deterrence with a repeat offender, a conditional sentence would not reflect the predominant sentencing considerations or the principle of proportionality. Quite the contrary, in spite of the mitigating facts and Mr. Kalejaiye’s potential for rehabilitation, a conditional sentence in these circumstances would undermine the public’s confidence in the administration of justice. As a result, a conditional sentence is not an available or fit sanction.

[83] This offence demands a period of incarceration to adequately express this court’s condemnation of this incredibly dangerous driving and the devastating impact on the victims. I must however, sentence Mr. Kalejaiye to the shortest period of incarceration that will achieve the fundamental principles of sentencing. In terms of the appropriate sentence, I found some guidance from three appellate decisions.

[84] In R. v. Rawn, 2012 ONCA 487, the Appellant and another driver were in separate vehicles and they each had multiple passengers. After some flirting between the occupants, the Appellant and the other driver began racing at 137 km/hour on a residential street. The cars collided and were destroyed in the collision. The occupants suffered serious injuries, including broken bones and concussions. The Appellant's passenger was resuscitated after her heart stopped. The passenger was hospitalized for two months and bedridden for one year. The other driver plead guilty and received a very lenient sentence of a suspended sentence and a period of probation. Ms. Rawn proceeded to trial. She was convicted of seven counts of dangerous driving causing bodily harm. The trial judge gave her a suspended sentence with a period of probation of 2 years and a 2-year driving prohibition.

[85] The crown appealed on the basis that the sentence was manifestly unfit. Ms. Rawn had no prior convictions. She was required to have a driver’s licence to maintain her job. She had no insight into the seriousness of her misconduct and blamed the other driver. The Ontario Court of Appeal overturned the sentence because the trial judge erred in not giving primacy to the predominant sentencing principles. Justice Epstein emphasized at paras. 41 and 49 to 51 that:

The offence of dangerous driving causing bodily harm has been described as among the more serious of crimes: [R. v. McMertry (1987), 21 O.A.C. 68]. Dangerous driving puts the public at great risk of harm. The crime is all the more egregious when people, often innocent members of the public, are injured.

And further:

First, I agree with the Crown that a period of incarceration is called for in order to meet the requirements of general deterrence and denunciation. I would therefore impose a sentence of imprisonment for 9 months.

Second, in my view, a fit sentence in this case must include an extended period of driving prohibition. I emphasize this aspect of the sentence as driving is at the core of the criminal conduct being addressed and at the core of the harm caused and potential harm created. A motor vehicle can, in a moment of recklessness, be transformed into an object capable of destroying lives. The Alberta Court of Appeal expressed this view as follows in R. v. Field, 2011 ABCA 48: "[d]riving a ton of glass and metal through spaces where people can be expected to be present and at a speed where it is likely to be impossible to stop the vehicle in time to avoid calamity cannot be treated as a youthful indiscretion" (at para. 23).

It must be made clear that driving a motor vehicle is a privilege, not a right. With that privilege comes responsibility. This responsibility entails respecting the laws that govern driving so that the public can reasonably expect that when using our road system their lives and security will not be threatened by unexpected reckless conduct by impulsive drivers such as Ms. Rawn: Field, at para. 22.

This reality must be explained, in a clear and convincing fashion to Ms. Rawn and others like her. To accomplish this goal, the court's response to conduct such as this, where drivers deliberately choose to use the roads to satisfy their own thrill-seeking interests, must include the loss, for an extended period of time, of the privilege of driving.

I would therefore vary the driving prohibition made under the Criminal Code to one of five years concurrent with the mandatory licence suspension under the Highway Traffic Act.

[86] In R. v. Markos, 2019 ONCA 80, the Ontario Court of Appeal upheld a 12-month sentence for dangerous driving causing bodily harm. Like this case, Mr. Markos did not plead guilty. The trial judge found that Mr. Markos lacked insight into the danger associated with his behaviour. The Court of Appeal found at paragraph 25 and 26 that:

The trial judge accepted as genuine Mr. Markos' statement that he was sorry for Ms. Sears' suffering. At the same time, the trial judge concluded that Mr. Markos lacked insight into the nature of his actions, noting that given the events recorded on the dash-cam video Mr. Markos "has much to contemplate." The trial judge also expressed surprise that whereas at trial Mr. Markos had testified that he had no plans ever to ride a motorcycle again, in the pre-sentence report he stated that he had just purchased a new motorcycle. The trial judge was entitled to take into account the lack of insight by Mr. Markos into the risk to the community presented by his manner of driving.

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. [emphasis mine]

[87] In R. v. Correia, 2017 ONSC 1101, the accused got into an argument with the victim while they were in a vehicle. The victim got out of the vehicle. The accused drove over a lawn and ran over the victim breaking his leg in two places. Mr. Correia had no criminal record and there were other mitigating factors. He was convicted after trial. Unlike Mr. Kalejaiye, he had not expressed any remorse. The crown asked for a sentence of 2 years and counsel asked for an absolute discharge. Mr. Correia was sentenced to a period of incarceration of 12 months and a 12-month driving prohibition in addition to the 12 months that he had been prohibited from driving while on bail. The Ontario Court of Appeal upheld this sentence.

[88] Unlike Mr. Correia, Mr. Kalejaiye has a criminal record, a lengthy driving record and he caused serious injuries to 4 innocent people. At the very least, a sentence in the range of 12 months incarceration is warranted in the circumstances of this case as well as a period of probation to address Mr. Kalejaiye’s ongoing anger management issues and a significant licence prohibition.

iv. The licence prohibition:

[89] The crown submitted that an 18-month driving prohibition is essential to reflect the aggravating features of this case. Counsel urged the court to order a 1-year driving prohibition. Neither of these positions adequately reflects the serious consequences of Mr. Kalejaiye’s informed choice to abuse his driving privileges or his poor driving history.

[90] Driving is a privilege that provides substantial convenience in our daily lives. Depending on where a person resides, it may be a necessity in order to get to and from work or other commitments. The loss of that privilege for an extended period of time can be a very significant punishment. In R. v. Frickey, 2017 ONCA 900 at paras 4 and 10, the Ontario Court of Appeal recognized that it is important to consider the propriety of a sentence as a whole:

The principles of denunciation and deterrence are particularly relevant to dangerous driving offences that are often committed by first-time offenders and otherwise law-abiding citizens. In these circumstances, the driving prohibition serves as the most practical means to ensure the protection of the public.

In considering whether the sentence is manifestly unfit, the sentence must be considered as a whole. While the driving prohibition may have been longer than in the precedents provided by the parties, the custodial sentence was shorter. In reducing the custodial sentence and lengthening the driving prohibition, the trial judge exercised the principle of restraint and took into consideration "all available sanctions, other than imprisonment, that are reasonable in the circumstances", in accordance with s. 718.2(e) of the Criminal Code. The longer driving prohibition was necessary for the protection of the public. We see no error in the trial judge's decision.

[91] I find that a total driving prohibition in the range of 2 ½ years is an effective means to prevent Mr. Kalejaiye from using his vehicle irresponsibly, deter him from committing other offences with his vehicle, protect the public and denounce this crime. I will consider however, that pursuant to subsection 41(1)(f) of the Highway Traffic Act, Mr. Kalejaiye’s licence should have been automatically suspended for a period of one year upon conviction for his first offence of dangerous driving. He was convicted in September, so he should have already been suspended from driving for the last 7 months unless the Ministry was not notified of the conviction.

[92] It is difficult to determine the appropriate length of a prohibition order in conjunction with a period of incarceration. Subsection 320.24(5) of the Criminal Code, states that any driving prohibition is “plus the entire period to which the offender is sentenced to imprisonment”. Furthermore, subsection (5.1) states that a prohibition order takes effect on the day that it is made. Presumably, since the prohibition takes effect on the date that it is made, Parliament intended that the prohibition order should be crafted so that it reflects the period of imprisonment and then the period of time that the court determines is appropriate for the person to be prohibited from driving once s/he is released into the community. That makes sense since the loss of the privilege to drive is of no consequence while a person is incarcerated.

[93] There are some practical challenges with determining the amount of time to be attributed to the “entire period to which the offender is sentenced to imprisonment”. I do not know how much time Mr. Kalejaiye will actually stay in custody. With the ongoing pandemic, many inmates are being released early on temporary absence programs to alleviate the spread of COVID-19 in forced congregate settings like a jail. In addition, with any period of incarceration, an inmate is entitled to parole.

[94] In R. v. Lacasse, 2015 SCC 64 at para. 109, the Supreme Court concisely stated that:

By adding the words "plus any period to which the offender is sentenced to imprisonment", Parliament was making it clear that it intended driving prohibitions to commence at the end of the period of imprisonment, not on the date of sentencing.

[95] It would make much more sense if these sections were worded like section 161(2) of the Criminal Code, that simply states the “order will commence on the date on which he is released from imprisonment for these offences, including release on parole, mandatory supervision or statutory release”. I have considered that Mr. Kalejaiye should have already been suspended by the Ministry of Transportation for the past seven months, but the prohibition should be in addition to a period of custody. To balance out these competing considerations, the prohibition order will be for 2 ½ years commencing today and will run concurrently with the provincial suspension. I recognize that this is close to the maximum period of prohibition available for dangerous operation when the crown proceeds by summary conviction, but it is merited in the unique circumstances of this case.

v. The impact of COVID-19 on the period of incarceration:

[96] I have commented on the abysmal living conditions of the prisoners incarcerated at the Central East Correctional Center (C.E.C.C.) in a few decisions. On an almost daily basis, jurists in Durham Region are presented with reports stating that prisoners are routinely locked down due to “staff shortages”. The situation at the C.E.C.C. has not improved as far as I am aware. Moreover, the ongoing pandemic has crippled almost every aspect of normal functioning in communities around the world, including correctional facilities.

[97] There has been a torrent of decisions about whether the pandemic is a factor to consider when crafting a fit and just sentence. Undoubtedly, sentencing Mr. Kalejaiye to a period of incarceration will put him in a forced congregate setting wherein he cannot practice safe social distancing, he does not have free access to hand sanitizers or personal protective equipment. He will not have any control over who he is housed with or who he associates with while in custody. I accept that the idea of being incarcerated is unusually stressful during this difficult time.

[98] Counsel urged me to consider the risks that Mr. Kalejaiye will face when sentenced to a period of incarceration amid a global pandemic. It is understandable that Mr. Kalejaiye is worried about being in jail during a pandemic and that his health and well-being could be put at risk. He is not elderly. I am not aware of any personal vulnerabilities that could put Mr. Kalejaiye at increased risk if he contracts COVID-19 other than a passing reference in the presentence report that he has asthma.

[99] In R. v. Studd, 2020 ONSC 2810 at para 42, Justice Davies observed that:

The Supreme Court of Canada has recognized that there will be situations that call for a sentence outside the normal sentencing range because of the specific circumstances of a particular case. However, proportionality must still prevail. Individual or collateral consequences cannot reduce a sentence to the point that it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.

[100] In R. v. A.A., 2020 ONSC 3243 at paragraphs 66 and 67, the Court addressed a sentencing with an offender who contracted COVID-19 while in custody. Justice Corrick emphasized that:

I have also considered the fact that A.A. will be required to serve his sentence while the pandemic is ongoing. As numerous jurists have already commented, the fear of transmission of this virus adversely affects the conditions of imprisonment and increases the psychological stress of inmates who can do little to protect themselves: Hearn, at para. 16; R. v. Kandhai, 2020 ONSC 1611, at para. 7; R. v. Studd, 2020 ONSC 2810, at para. 44.

The fundamental principle of proportionality remains paramount however. Collateral consequences cannot be used to reduce a sentence to the point where it is no longer proportionate to the gravity of the offences or the moral blameworthiness of the offender: Suter, at para. 56.

[101] In addition to ensuring that the sentence is proportionate, I have to consider that that the custodial facilities are responsible to ensure Mr. Kalejaiye’s care and safety. In R. v. Stone, 2020 ONCA 2953 at para. 14 to 20, Justice Juriansz addressed COVID-19 concerns in the context of an application for bail pending appeal. The Court noted that:

If, in the future, there is an outbreak of COVID-19 at Bath Institution, it will up to the prison authorities to take appropriate measures to ensure the health and safety of those who are incarcerated or work in the institution, as well as of the general public.

[102] In contrast to the lack of response to the “staff shortages” caused by labour disruptions at C.E.C.C., the Ministry of the Solicitor General has been proactive with instituting various policies and initiatives to protect the health and safety of inmates and staff in response to the COVID crisis.

[103] The crown presented a document that is circulating throughout courts in Ontario outlining the steps that are being taken to alleviate concerns about the spread of the pandemic within institutions. This document provided important information about the protective policies and practices that have been adopted in response to COVID-19 in correctional facilities across the province. The “Response to COVID-19 Information Note” authored by the “Strategic Advisor Institutional Division” within the Ministry of the Solicitor General summarizes all current and resolved cases of COVID-19 in institutions across the province and all measures that are being taken by these facilities, including C.E.C.C., to protect the health and safety of the staff and prisoners.

[104] Despite efforts to prevent the spread of the virus in institutions, not surprisingly in forced congregate settings, there have been outbreaks in some facilities. For example, at Maplehurst Correctional Complex, in February when I received the report, there were 106 inmates and 52 staff members who tested positive for COVID 19. Nevertheless, correctional institutions are diligently trying to prevent the spread of the virus.

[105] While conditions at the C.E.C.C. are far from ideal, I hope that Mr. Kalejaiye will not be housed there for a significant period of time. I will be strongly recommending on the warrant of remand that he serve his sentence at the Ontario Correctional Institute where inmates have access to more rehabilitative programming and better treatment. With ongoing counselling and medication for his bi-polar disorder, I am optimistic that Mr. Kalejaiye will gain more insight into his responsibility for his offending conduct and how his anger issues are ruining his life and hurting innocent people.

[106] I am sympathetic to the concerns of Mr. Kalejaiye and other incarcerated individuals with respect to their inability to control their exposure to the virus. No one knows what the future holds, whether there will be another wave of this deadly virus or how correctional institutions will continue to handle this ongoing crisis. The fitness of a sentence depends on numerous factors including the conditions in which a period of incarceration will be served.

[107] A period of incarceration is essential to reflect the gravity of the offence and the moral responsibility of this offender. The sentence that will be imposed is already lower than I would have otherwise ordered as a result of the crown’s position. Any further reduction in the sentence to reflect some prospective credit for the conditions in custody and the risks associated with the pandemic would reduce the sentence to the point where it is “no longer proportionate to the gravity of the offences or the moral blameworthiness of the offender”.

D. Conclusion:

[108] Certainly, an unequivocal message must be sent to other like-minded offenders and Mr. Kalejaiye that our Courts will not countenance any dangerous driving that jeopardizes the lives and wellbeing of innocent users of the highway.

[109] After considering the principles of sentencing, the guiding legal precedents and the aggravating and mitigating factors, I have decided that a fit sentence is 12-months of incarceration to be followed by 2 years of probation with the terms and conditions outlined in Schedule 1. This is the least onerous sentence that is consistent with the purposes and principles of sentencing. In addition, he will be prohibited from operating a conveyance on any street, road, highway or other public place for a period of 2 ½ years commencing today.

[110] I sincerely hope that Mr. Kalejaiye will continue to get the help that he needs to control his anger once he is released from custody and set a better example for his children. Although this sentence will probably seem inadequate to the victims in this case, I hope that it gives them some sense of closure and they are able to continue on the path towards healing from this terrible event in their lives.

Schedule I

Terms of the two-year Probation Order

Statutory conditions:

• Keep the peace and be of good behavior;
• Appear before the court when required to do so;
• Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation.

Reporting:

• Report in person or by telephone to a probation officer:
  • within 5 working days of the completion of jail sentence;
  • and thereafter at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.
• Your reporting requirements will end when you have satisfied your probation officer that you have completed all of your counselling.
• You must cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer upon request.

No contact and not to attend:

• Do not contact or communicate in any way, directly or indirectly, by any physical or electronic or other means with Debra Stacey or Farat Rosta or any member of Farat Rosta’s immediate family;

EXCEPT

• While attending at court for the purpose of conducting or defending any civil proceedings; or
• In the presence of or through legal counsel for the purpose of communicating about matters related to civil proceedings; or
• In the presence of or through mediator for the purpose of communicating about matters related to civil proceedings.
• Do not be within 50 meters of any place where you know Debra Stacey or Farat Rosta or any member of Farat Rosta’s immediate family to live, work, go to school, frequent or any place that you know the person to be.

EXCEPT

• While attending at required court appearances; or
• While attending at court for the purpose of conducting or defending civil court proceedings; or
• In the presence of legal counsel for the purpose of communicating about matters related to any civil proceedings; or
• In the presence of a mediator for the purpose of communicating about matters related to civil court proceedings.

Counselling and Treatment:

• Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your probation officer and complete them to the satisfaction of your probation officer including but not limited to;
  • Anger management; and
  • Psychiatric or psychological issues.
• 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; and
• You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

Restitution

• You are to make restitution in the amount of $600.00 to Debra Stacey to be paid in full within 12 months of the start of your probation order.