ONTARIO COURT OF JUSTICE

DATE: 2021 05 31 COURT FILE No.: Brampton 19-508

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SEYENTHAN SIVAKUMARAN

Before: Justice P.T. O’Marra

Heard on: February 28, 2020 and February 8, 2021 Reasons for Sentence released on: May 31, 2021

Counsel: A. Berg and C. Vanden Broek......................................................... counsel for the Crown J. Shulman..................................... counsel for the defendant Seyenthan Sivakumaran

P.T. O’Marra, J.:

Introduction

[1] On February 28, 2020, Mr. Sivakumaran pleaded guilty before me for Failing to Stop at the Scene of an Accident Involving a Death, contrary to section 320.16(3) of the Criminal Code of Canada. This was a matter that I pre-tried on several occasions.

[2] The section sets out the following:

320.16(1) Failure to stop after accident

Everyone commits an offence who operates a conveyance and who at the time of operating the conveyance knows that, or is reckless as to whether, the conveyance has been involved in an accident with a person or another conveyance and who fails, without reasonable excuse, to stop the conveyance, give their name and address and, if any person has been injured or appears to require assistance, offer assistance.

(3) Accident resulting in death

Everyone commits an offence who commits an offence under subsection (1) and who, at the time of committing the offence, knows that, or is reckless as to whether, the accident resulted in the death of another person or in bodily harm to another person whose death ensues.

[3] The punishment in a case of death for this offence is set out in section 320.21 of the Criminal Code states the following:

320.21 Punishment in case of death

Everyone who commits an offence under subsection 320.13(3), 320.14(3), 320.15(3) or 320.16(3) is liable on conviction on indictment to imprisonment for life and to a minimum punishment of,

(a) for a first offence, a fine of $1,000;

(b) for a second offence, imprisonment for a term of 30 days; and

(c) for each subsequent offence, imprisonment for a term of 120 days.

[4] There is a discretionary driving prohibition pursuant to section 320.24(5)(a) of the Criminal Code when the offender is liable to imprisonment for life, that states the following:

320.24(4) Discretionary order of prohibition — other offences

If an offender is found guilty of an offence under section 320.13, subsection 320.14(2) or (3), 320.15(2) or (3) or under any of sections 320.16 to 320.18, the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating the type of conveyance in question during a period to be determined in accordance with subsection (5).

320.24(5) Prohibition period

The prohibition period is

(a) if the offender is liable to imprisonment for life in respect of that offence, of any duration that the court considers appropriate, plus the entire period to which the offender is sentenced to imprisonment;

(b) if the offender is liable to imprisonment for more than five years but less than life in respect of that offence, not more than 10 years, plus the entire period to which the offender is sentenced to imprisonment; and

(c) in any other case, not more than three years, plus the entire period to which the offender is sentenced to imprisonment.

[5] The sentencing submissions and reasons for judgment have been delayed due to the Covid-19 pandemic. However, on the date that the plea was entered, and after the facts were acknowledged, the Crown presented nine (9) victim impact statements on behalf of Ms. Piedrasanta’s family. By all accounts, the accident has been devastating to her large family. She was a mother of (6) six children, a grandmother to 28 grandchildren and a great grandmother to 30 great-grandchildren.

The Facts

[6] The facts in this matter were set out in an Agreed Statement of Fact filed as Exhibit #1.

[7] On May 1st, 2019, at approximately 5:00 in the afternoon, Peel Police received a call for a motor vehicle collision at the intersection of Sorrento Drive and Elia Avenue, Mississauga. The caller advised that a female had been struck by a vehicle and the driver had left the scene of the accident. Police received information that the female victim was on the west side of the intersection and had crossed from the south to the north side of Elia Avenue. The female victim was struck within the westbound lanes of Elia Avenue. The female victim was identified as Rafaela Piedrasanta. She was 76 years old. Ms. Piedrasanta was transported to Mississauga General Hospital and later pronounced deceased.

[8] The coroner identified the following injuries sustained by Ms. Piedrasanta as a result from the force of the collision:

• A broken pelvis
• Multiple broken ribs
• Broken right elbow
• Broken right and left ankles
• Broken tibia and fibula both legs.

[9] Mr. Sivakumaran’s vehicle was identified as a 2018 Ford Pickup Truck, white in colour bearing licence plate AV 27643, with letters “LEER” written on the rear. The vehicle was registered to a company that had an address in Mississauga. From this information, witnesses and other sources such as video surveillance, Mr. Sivakumaran was identified as the driver.

[10] At 8:30 in the evening, on May 2nd, 2019, Mr. Sivakumaran was located and arrested by police for the offence of Failing to Stop Cause Death. Although he did not turn himself into police, Mr. Sivakumaran was cooperative during the investigation.

[11] The investigation revealed the following factual circumstances at the time of the collision:

• It was raining.
• The location of the impact was at a pedestrian walkway/intersection.
• It was late afternoon and the intersection was busy.
• Mr. Sivakumaran attempted to make a right turn which positioned his vehicle nearest to where the pedestrian intersection began. His position in the driver’s seat was the furthest away from that point.
• According to the downloaded data from the vehicle’s event data recorder, Mr. Sivakumaran was travelling well below the speed limit at the time of impact. The data disclosed that Mr. Sivakumaran applied his brakes on two occasions at the point in the intersection that Ms. Piedrasanta was struck while he negotiated the right turn.
• After impact, Mr. Sivakumaran never stopped his vehicle.
• Rather than taking a direct route to his home or work, Mr. Sivakumaran’s direction of travel betrayed a degree of awareness of the tragic event that occurred at the intersection. It was agreed that this level of knowledge demonstrated he was involved in an accident with Ms. Piedrasanta, knowing that bodily harm was caused to Ms. Piedrasanta, and being reckless as to whether the death of Ms. Piedrasanta resulted from the bodily harm which death in fact resulted, with intent to evade criminal or civil liability, failed to stop, to give his name and address and or offer assistance.
• At the time of the collision, Mr. Sivakumaran was a suspended driver under the Highway Traffic Act.

Positions of the Parties

[12] Both the Crown and the defence agree that a custodial sentence is warranted in these circumstances. It is accepted that an offence such as this, the principles of general and specific deterrence are primary sentencing objectives. Any such sentence that I impose must be reflective of those principles.

[13] The Crown seeks a sentence of six (6) months, and a two-year driving prohibition.

[14] The defence suggests a sentence of 90 days to be served intermittently, and a driving prohibition for a period of 18 months.

[15] The central issue for me to decide is both the length of the imprisonment and the driving prohibition to be imposed.

Mr. Sivakumaran’s Driving Record and Criminal Record

[16] Mr. Sivakumaran’s driver’s licence was suspended for unpaid fines. Mr. Sivakumaran has a criminal record for sexual assault. In 2018, he was sentenced to a conditional sentence for a period of 12 months. He was placed on probation for a period of 18 months and a weapons prohibition order for a period of 5 years was imposed.

Mr. Sivakumaran’s Pre-sentence Custody and Conditions of Bail

[17] It is my understanding that Mr. Sivakumaran was detained after his arrest and released five (5) days later on a recognizance of bail with conditions. Mr. Sivakumaran will be given 8 days credit for the time spent in custody on the usual 2:1 ratio pursuant to section 719.1(3.1) of the Criminal Code. (See: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575)

[18] Since his release Mr. Sivakumaran has not operated a vehicle. A condition of his release order was to surrender his driver’s licence to the officer in charge of the case. It is my understanding that the outstanding fines that led to his suspension under provincial statute have been paid. While this matter has been outstanding and after paying the outstanding fines, Mr. Sivakumaran has not made an application to vary his bail for his driver’s licence to be returned.

The Victim Impact Statements

[19] The victim impact statements read to the court by the Crown and through an interpreter reflected the deep and profound loss suffered by Ms. Piedrasanta’s family. Her passing is mourned, but her memory lives on forever. Ms. Kubler-Ross dedicated the following poem to her mother:

The most beautiful people we have known are those who have known defeat, known suffering, known struggle, known loss, and have found their way out of the depths. These persons have an appreciation, a sensitivity, and an understanding of life that fills them with compassion, gentleness, and a deep loving concern. Beautiful people do not just happen.

[20] Ms. Piedrasanta was the mother, grandmother and great-grandmother that touched everyone’s lives. She was warm, loving and supportive. Often travelling across the city to see her grandchildren. Karla Piedrasantra-Chakir stated in her victim statement that her mother was “loved because she was the nucleus of our great big family, the one sacrificed so much for.”

[21] Her granddaughter, Leslie Barros wrote that since her grandmother’s death, “my life was impacted in such a way that I don’t feel like the person I was before this happened. Always feels like something is missing. Whenever I fell alone and depressed I have nowhere to go whenever something good or bad happens.”

The Fundamental Purpose and Principles of Sentencing

[22] Section 718 of the Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society by imposing just sanctions that have one or more of the following statutorily imposed objectives:

(a) denunciation of the unlawful conduct and the harm caused to victims and the community;

(b) specific deterrence of the offender and general deterrence of others in the community who might be tempted to commit similar offences;

(c) separation of offenders from society, where necessary;

(d) rehabilitation of the offender;

(e) reparation for harm done to victims or the community; and,

(f) promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims or to the community.

[23] A fundamental purpose in sentencing is that a fit sentence is proportionate to the gravity of the offence and degree of responsibility of the offender. (See: Section 718.1 of the Code)

[24] A sentencing judge has considerable discretion in making a fit sentence for a crime, but that discretion must be exercised within the parameters of the Criminal Code and prevailing jurisprudence and precedent.

[25] This means that for the sentence I impose to be appropriate, it must be tailored to Mr. Sivakumaran’s circumstances, and the circumstances of the offence he committed.

[26] As a sentencing judge, I am required to exercise restraint. Section 718.2(d) of the Criminal Code mandates that any offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. Furthermore, I must adhere to the principle of parity to ensure that there is consistency in sentencing. Section 718.2(b) of the Criminal Code states that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[27] I intend to set out the aggravating factors, Mr. Sivakumaran’s personal circumstances and the mitigating factors. I will endeavour to balance the sentence sought by the Crown, with position of the defence, while taking into consideration Mr. Sivakumaran’s personal circumstances and the circumstances of other offenders who have committed a similar crime.

The Case Law

[28] The Crown provided three cases to support its position. Generally speaking, the range of sentence set out in these cases and others, seems to be three months to two years less a day in jail.

[29] In R. v. Arruda, [2001] O.J. No. 6288 (Justice Kastner-OCJ) The offender was sentence to 9 months jail, 12 months probation, and a two-year driving prohibition. The offender plead guilty at an early opportunity to the offence of Fail to Remain. The victim in the matter was 69 years of age. She was struck by the offender, while he was travelling a “little fast”, as she walked across the street near a local hospital. After three days he turned himself into the police. He had a minor criminal record. He was 25 years old and a father. He had a fairly extensive HTA record for speeding. His driver’s license was suspended twice related solely for not paying the fines in his HTA matters. He was working full time but was on leave due to depression.

[30] In R. v. Aman, 2012 ONCJ 654, [2012] O.J. No. 4998 (Justice Perkins-McVey-OCJ) After a guilty plea, the offender was sentenced to 5 months jail, 12 months probation with 40 hours of community service, and a two-year driving prohibition. The victim and a friend, while intoxicated, crossed a street at an area that was not marked by a pedestrian cross walk. The offender changed lanes to avoid the victim, but the victim doubled back and was struck on the passenger side of the vehicle and thrown 15 metres into the air. There was damage to his car, and he drove away without stopping. The offender was 25 years of age and a first-time offender. The offender had a positive pre-sentence report, a supportive family, good character references, a college degree and was employed. He made comments that reflected his genuine remorse. Striking the victim was a complete accident. There was no improper driving and he had taken evasive actions to avoid hitting the victim. However, the offender hid his vehicle out of sight and had “shoehorned” his vehicle in his garage and obscured the view of his licence plate.

[31] In R. v. Oliveiria, [2016] O.J. No. 140 (Justice McWatt (SCJ-as she was then)) after pleading guilty, the offender was sentenced to 3 months jail after being given credit for 3 months imprisonment pre-sentence custody, served on an intermittent basis, followed by 12 months probation, including 240 hours of community service, a two-year driving prohibition and a DNA order. The offender struck the victim who was riding a bicycle. After the victim bounced off the hood and windshield, she was thrown into the path of an oncoming vehicle which subsequently struck the victim. The victim was pronounced dead at the scene. It was aggravating that at the time of the offence, the offender was a G2 class driver. He had a considerable HTA record for violating various G1 class conditions. The victim’s family suffered emotionally and financially. The offender was 25 years of age and a first-time offender. In mitigation, the offender had turned himself into the police. He had a positive pre-sentence report. He had good work history, and both a supportive family and employer. The court found that he was an excellent candidate for rehabilitation.

[32] The defence relied on three (3) cases, in support of a 90-day jail sentence which I will summarize.

[33] In R. v. Wiecszorek, 2010 ONCJ 582, [2010] O.J. No. 5260 (Justice Perkins-McVey-OCJ) after pleading guilty, the offender was sentenced to a 5 month sentence after being given credit for 8 days of pretrial custody, followed by 18 months probation with 60 hours of community service and two year driving prohibition. The offender was at a restaurant with friends having a few drinks. He drove from the restaurant with two passengers. The victim was celebrating his 18th birthday with his friends and drinking in a skate park. The group was chased out of the park and the victim ran across the street and was struck by the offender who had run out in front of his car. The victim flew into the air and landed across a median in the opposite direction of traffic. Witnesses stated that the offender’s truck slowed down and then sped away from the scene. The evidence indicated that the offender was travelling above the posted speed limit 72 to 78 kms in a 60 kms zone. The offender’s passengers indicated that the collision created a loud sound and visible damage to the vehicle included a broken driver’s side window. He turned himself in the next day. The offender was a youthful first-time offender, employed as a plumber. He had a positive PSR and enjoyed strong support from family, friends and the community. He sought psychological counselling due to his feeling of guilt. Although he was drinking alcohol there was no evidence that alcohol was a factor in the collision. Deterrence and denunciation were paramount, the court found that the offender was rehabilitative.

[34] In R. v. Sandhu, 2014 ONCJ 95 (Justice D.A. Harris-OCJ) imposed a 90-day jail sentence as appropriate, followed by three (3) year period of probation with 150 hours of community service, and a 19-month driving prohibition. The offender plead guilty. At 1:30 am the victim was driving a van on the QEW to Toronto. He did not have a driver’s licence nor insurance. He was operating a van that could only hold 7 people, however he had 9 family and friends in all. As he experienced mechanical difficulties, he reduced his speed and drove slowly between 60 to 70 km/hr in a 100 km/hr zone. He activated his emergency flashers, but then decided to turn them off in order to not attract the attention of the police. The offender was operating a tractor-trailer in the same lane of the QEW. He attempted to swerve around the slow-moving vehicle but was unable to and clipped the van. The van rolled into the ditch. Eight of the occupants suffered significant injuries. An eleven-year-old boy died at the scene. The offender never stopped his vehicle. He drove his vehicle to a repair shop the next morning and claimed that he hit a moose or a deer. He was not believed, and the repair shop called the police. The offender was 29 years old with a positive PSR and no criminal record. He was fully employed. He lived with his parents, his wife and child. He was considered highly unlikely to reoffend. The court could not find a case that supported the sentence suggested by the defence for a similar offence however, the Crown agreed that it was at the “very bottom of the range, such a sentence would be appropriate here”. (para. 91)

[35] In R. v. Smith, 2016 ONCJ 62 (Justice George-OCJ) after pleaded guilty to failing to remain at the scene of an accident knowing bodily harm was caused, the offender was sentenced to pay a $1,000 fine, placed on probation for a two-year period which included 200 hours of community service, and prohibited from driving for two-years. The offender was returning from a local pub when she collided with a pedestrian that was crossing a street, knocking her down. In the process the side mirror was broken. The offender did not stop. The victim sustained serious injuries. Plates were inserted in her head. She suffered a concussion. Her shoulder was injured, and her teeth were damaged. The offender attempted to conceal what had happened by replacing the broken mirror. She was arrested a month later. The offender was 35 years old, mother of two young children and no criminal record. She was going through a separation at the time. She had a positive PSR. In my view, this case is an outlier is not reflective of the range and does not involve a fatality. A non-custodial sentence is extremely rare.

Aggravating and Mitigating Factors

Statutory Provisions

[36] On June 21, 2018, Bill C-46, an Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts was given Royal Assent. Parliament enacted statutorily aggravating circumstances in a number of driving offences for sentencing purposes. Those offences include dangerous driving, impaired driving, refuse to comply with a breath demand, flight from police, driving while prohibited and failure to stop for an accident.

[37] Section 320.22 of the Criminal Code states a sentencing judge must consider, in addition to any other aggravating circumstances, the following:

(a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;

(b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;

(c) a person under the age of 16 years was a passenger in the conveyance operated by the offender;

(d) the offender was being remunerated for operating the conveyance;

(e) the offender's blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood;

(f) the offender was operating a large motor vehicle; and

(g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance.

[38] I find the following statutorily aggravating factors apply in this case pursuant to section 320.22 of the Criminal Code:

(a) the offender was not permitted, under a federal or provincial Act, to operate the conveyance.

Seriousness of the offence

[39] In my view, the seriousness of the offence is the most significant aggravating factor. Ms. Piedrasanta was left on a city street to die.

[40] Mr. Sivakumaran was aware that he was in an accident but took steps towards evasive action and fled without rendering any assistance, which demonstrates a callous disregard for Ms. Piedrasanta’s valuable life.

[41] I am acutely aware that given Mr. Sivakumaran’s background that he was not medically trained and likely could not have saved Ms. Piedrasanta’s life; however, that does not excuse his behaviour. Mr. Sivakumaran had a legal and moral obligation to remain. (See: R. v. Aman, 2012 ONCJ 654, [2012] O.J. No. 4998, at para. 42.)

Mr. Sivakumaran was a suspended driver

[42] On May 1st, 2019, Mr. Sivakumaran was driving his vehicle while his driver’s licence was suspended due to unpaid fines pursuant to regulations under the Highway Traffic Act.

[43] Possessing a driver’s licence is a privilege and not a right. Mr. Sivakumaran abused that privilege when he decided to drive that day. Had he shown respect and adherence to our driving laws and not driven; Ms. Piedrasanta would be alive today.

Mr. Sivakumaran was on probation

[44] Mr. Sivakumaran was sentenced to a conditional sentence order for a period of 12 months that had expired two months and ten days earlier, which was followed by an 18 months period of probation. Although he was not charged with breaching the statutory condition of failing to keep the peace and be of good behaviour, I treat the fact that Mr. Sivakumaran committed a further criminal offence while on probation as an aggravating factor.

[45] In consideration of an appropriate sentence, I take the following mitigating factors in this case:

The Guilty Plea and Allocution

[46] Mr. Sivakumaran entered a guilty plea. This is indicative of his remorse and contrition. I am advised that based on the limited evidence that was available there may have been a triable issue of whether the Crown could prove that Mr. Sivakumaran had the degree of knowledge that his truck had collided with the victim. In many cases, the obvious signs or indicators of a collision and the accused’s after-the-fact conduct often belies the claim that the accused was unaware that there was an accident.

[47] His guilty plea takes on an added dimension of allowing Ms. Piedrasanta’s family to start the healing process. This is a large and close-knit family that did not need to relive this tragedy through a trial. The family and the administration of justice were spared a multi day trial.

[48] Mr. Sivakumaran read a statement that expressed his sorrow for his actions which contained a direct apology to Ms. Piedrasanta’s vast family. He demonstrated insight about how his actions have impacted so many people and caused such an unimaginable loss. At the end of his letter he closed with the following, “I am responsible for your loss and will carry that stain for the rest of my life.”

The manner of driving

[49] There was no evidence of improper driving. The forensic evidence confirmed that Mr. Sivakumaran, while negotiating a right turn, was travelling below the speed limit, and therefore was not travelling at an excessive speed and had applied his brakes. There was no visible damage to Mr. Sivakumaran’s truck due to the impact. There was not a debris field. There was no evidence that Mr. Sivakumaran was under the influence of either drugs or alcohol.

Family Support, Health Conditions, Employment

[50] Mr. Sivakumaran is 39 years old, single with no dependants. He lives with his parents who are very supportive. Both his parents wrote letters on their son’s behalf that detail the invaluable help that he provides to his parents. His parents have significant health issues. Mr. Sivakumaran Sr. is 70 years old. He is diabetic and suffers from high blood pressure and has experienced heart failure. Ms. Sivakumaran is 69 years of age. She is a breast cancer survivor and was recently laid off due to Covid-19. Mr. Sivakumaran helps his parents financially, but also assists with, shopping and exterior maintenance of their property and household chores. He also drives his parents to their medical appointments and picks up their medications.

[51] Mr. Sivakumaran has experienced his own health problems and ailments. In 2017, Mr. Sivakumaran had open heart coronary bypass surgery due to coronary artery disease. He has Type 2 diabetes and high blood pressure. It is necessary for him to take a number of heart and blood pressure medications.

[52] Mr. Sivakumaran is employed as a security technician with G4S Secure Solutions (Canada) Ltd. for ten (10) years. Rob Plume, Vice President of Sales wrote a character reference letter on Mr. Sivakumaran’s behalf. Although Mr. Plume does not indicate he is aware of the charge, Mr. Plume described Mr. Sivakumaran as the following, “diligent and professional in his demeanour and in the way that he worked with our clients.”

Pre-sentence Custody and Bail Conditions

[53] As I have stated before Mr. Sivakumaran has served the equivalent of 8 days in custody before he was released on bail. He has been on bail since June 4, 2019 with conditions. He has not driven since the offence nor has he committed any further criminal offences.

Conclusion

[54] In this matter, general deterrence and public denunciation are paramount sentencing principles which a jail sentence can only address in this type of offence. However, a jail sentence is not to be vengeful. Mr. Sivakumaran should not be punished for the crimes that he did not commit. He did not commit dangerous driving or impaired driving cause death. The offence that he has pleaded guilty to did not involve a finding of a causal relationship to his driving and the fatal result. (See: Aman, at para. 42)

[55] Bearing in mind the purpose and principle of sentencing as already noted, the guilty plea in the face of a significant triable issue, a supportive family, no evidence of improper driving or the consumption of alcohol or drug a lengthy custodial sentence is not necessary in these circumstances. In my view, a shorter jail sentence adequately addresses the need for deterrence.

[56] The caselaw is wide ranging, and many of the cases are distinguishable on the facts. The sentences that were imposed in the caselaw provided were impacted by wild and erratic driving, evasive action to avoid detection, poor records and alcohol.

[57] I am of the view that based on the aggravating and mitigating factors and the 8 days credit for presentence custody, that a further 90-day jail sentence in this matter is appropriate. There will also be an 18-month driving prohibition.

Released: May 31, 2021 Signed: Justice P.T. O’Marra