DATE: November 9, 2021 Court File No. 4411 998 20 3948 00 ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN v. KYLE BYRNE

BEFORE: THE HONOURABLE JUSTICE K. McKERLIE this 9 th day of November, 2021 at Kitchener, Ontario

Reasons for Sentence

Appearances:

M. MICHAUD Counsel for the Crown B. SMART Counsel for Mr. Byrne

TUESDAY, NOVEMBER 9, 2021

THE COURT: All right, good morning again to everyone. My name is Judge McKerlie. I am sitting in the virtual court in Kitchener today and I see the Crown, Michael is it Michaud?

MR. MICHAUD: It is, Your Honour, good morning. It is Michaud, yes.

THE COURT: Thank you. And defence counsel is whom?

MR. SMART: Good morning, Your Honour, it’s Brendan Smart. I’m in court with Kyle Byrne.

THE COURT: Okay, thank you.

MR. SMART: I have him seated directly in front of the court-issued laptop. I have my laptop up and joined but I haven’t been let into the meeting yet. So if I can be let into the meeting, I can sit directly in front of my screen. If not, I will do it from this position.

THE COURT: Okay, I see you are there. Thank you for speaking up and that is why I asked. I was looking for your face on the tile. Can Mr. Smart be let in from the waiting room?

COURT CLERK: Yes, Your Honour. I will admit him now.

THE COURT: Thank you.

MR. SMART: I’ve got it.

THE COURT: There. I see you now, thank you.

So, at the outset, let me thank Mr. Michaud and Mr. Smart for sending the complete set of materials in advance and setting out things so clearly in those materials.

(COURT REPORTER’S NOTE: At this time, a discussion was held regarding a s.743.2(1) non-association order. Victim impact statements were read and submissions made.)

THE COURT: Mr. Byrne, are you able to hear everyone clearly?

MR. BYRNE: Yes, I am.

THE COURT: Okay, thank you very much.

McKERLIE, J: REASONS FOR SENTENCE: (Orally):

THE COURT:

Kyle Byrne, on Information 3948, you are being sentenced for the May 24 th , 2020 offence of impaired operation of a motor vehicle and causing the death of Karli Chomick, contrary to s.320.14(3) of the Criminal Code of Canada.

The victim of the offence, Karli Chomick, is the mother of your two children, who were four and eight years old at the time of her death.

This is an indictable offence for which the maximum sentence is life imprisonment.

You entered a guilty plea on today’s date. Your decision to enter a guilty plea is a formal expression of remorse. It is a strong mitigating factor for sentencing.

Facts

The facts supporting the guilty plea are as follows. At 2:45 a.m. on Sunday, May 24 th , 2020 the Waterloo Regional Police Service received a report of a single motor vehicle collision on Branchton Road in the Township of North Dumfries. Police and emergency services were immediately dispatched to the scene.

Upon their arrival, they discovered your vehicle fully engulfed in flames. You had been driving northbound when the vehicle left the highway and struck a large tree. The vehicle broke apart into several large pieces and came to rest in a barbed wire fence. The force of the collision was so strong that the driver compartment and right front passenger compartment broke free from the engine bay and frame and the separated compartments came to rest in different directions.

The front seat passenger, Karli Chomick, died instantly from the severe injuries sustained as a result of the impact. Her body broke free from the seat and the seatbelt and came to rest on the other side of the barbed wire fence.

The motor vehicle caught fire after the collision. The right leg of Ms. Chomick’s body was burned before firefighters were able to extinguish the flames.

When emergency services arrived, you were located in the driver compartment of the vehicle, approximately 30 metres from the point of impact. You sustained a compound fracture of your femur and severe internal injuries. You were transported directly to Hamilton General Hospital.

Your mother, who attended the collision scene, provided information to the police. She reported that you, Karli Chomick, and your two children had attended her residence for a bonfire. You and Ms. Chomick were consuming beer. Your mother and the children went to bed at midnight. You and Ms. Chomick stayed up.

At 2:25 a.m., your mother received a frantic phone call from you. You told your mother you had been in a collision and your leg was badly injured. Your mother used the ‘Find my iPhone App’ to locate you. She drove to the collision scene and immediately called 9-1-1.

A sample of your blood collected for hospital purposes was subsequently seized pursuant to a warrant. The police also seized your cell phone and obtained your medical records. Further testing and investigation revealed that you had 170 milligrams of alcohol in 100 millilitres of your blood at 3:45 a.m. You told police that you had no memory of the collision.

The Collision Reconstruction Report was filed as an exhibit. The findings listed in that report include the following:

[1] 1 . Tire friction marks were consistent with the vehicle travelling northbound in the northbound lane, drifting to the left, crossing the southbound lane, then leaving the roadway and striking the tree. Given the tread mark evidence, brakes were applied before impact with the tree.

[2] 2 . The impact caused the vehicle to break into several pieces. The energy required to tear a vehicle apart in this manner is great and suggests a high rate of speed at the time of impact. Excessive speed contributed to the loss of control of the vehicle.

[3] 3 . Karli Chomick was wearing her seatbelt. She was ejected from the vehicle and died from blunt force trauma resulting from the collision.

Victim Impact Statements

Mr. Byrne, your selfish, criminal decision to drive while your ability to operate a motor vehicle was impaired by alcohol has resulted in tragic and life-altering consequences for Karli Chomick’s children, her parents, her extended family and her friends.

Karli Chomick’s parents, grandmother, aunts, cousins and friends prepared nine heartfelt victim impact statements in which they poignantly expressed the profound impact of your actions on their lives. Mr. Byrne, your decision to drive impaired has altered their lives forever. They describe living a nightmare from which there is no escape. They describe it as “a life sentence for a crime that none of us committed, for a crime that is 100% preventable and totally avoidable”. They are struggling to come to terms with the fact that two young children have been left without a mother because of a single selfish decision that can never be undone. They are devastated. They have each eloquently described their loss in their own words.

I am acutely aware that nothing I say today will ease their loss. I do, however, emphasize how meaningful it was to read and hear the victim impact statements presented in court today. I recognize how difficult and heart-wrenching it is to write a victim impact statement in these circumstances. In writing the victim impact statements and attending court today, you have honoured the memory of Karli Chomick. You have honoured her as a loving, devoted, kind, thoughtful and supportive mother, daughter, granddaughter, niece, aunt and friend. In a powerful way, you have given everyone in the courtroom a glimpse of a vibrant, kind, remarkable young woman who touched many lives.

Circumstances of Offender

Mr. Byrne, at the age of 29, you come before the court without a prior record. You were raised in a supportive family and have a work history as a tow-motor operator. You were in a relationship with Karli Chomick for more than 10 years. At the time of the offence, you were separated and co-parenting your children.

In the collision, you sustained serious personal injuries, including fractures to your leg, pelvis and face, a shoulder injury, a perforated bowel, and a brain injury, the result of which is that you have no memory of the collision. Your counsel acknowledged that you feel profound guilt for depriving your children of their mother.

Joint Submission

Sentencing today is proceeding on the basis of a joint submission presented by two experienced counsel, who have reviewed and taken into account the circumstances of the offence, the impact of the offence, and your personal circumstances. The Crown specifically sought and obtained input from Karli Chomick’s family in arriving at the joint submission.

The joint submission is for a sentence of imprisonment of five years to be followed by a driving prohibition order for 8 years, together with a secondary D.N.A. order and a section 109 weapon prohibition order for a period of 10 years.

In their sentencing submissions, counsel highlighted the following mitigating and aggravating factors, which were taken into account in arriving at the joint submission.

The mitigating factors are your decision to enter a guilty plea, your status as a youthful first-time offender, and the fact that you sustained significant and lasting injuries in the collision. Counsel emphasized the impact of the COVID-19 pandemic on the sentencing process--both by way of the increased mitigation of the guilty plea and the reality of serving a sentence of incarceration during the pandemic.

The aggravating factors include the following:

1. Your high degree of responsibility and moral blameworthiness. You made a reckless, selfish and criminal choice to drive while impaired. It was a senseless decision resulting in tragic consequences, which were entirely avoidable.

2. The fact that the commission of this offence resulted in the death of your passenger and deprived two young children of their mother.

3. The fact that your blood alcohol concentration of 170 milligrams of alcohol in 100 millilitres of your blood was more than twice the legal limit and significantly above the statutory aggravating factor of 120 milligrams of alcohol in 100 millilitres of blood.

[4] 4 . The fact that the Collision Reconstruction Report determined that you lost control of the vehicle while driving at a high rate of speed. It was a very violent collision in which your passenger was ejected from the vehicle notwithstanding that she was wearing a seatbelt.

[5] 5 . The fact that your first call was not to 9-1-1, but to your mother. The Crown emphasizes that although Karli Chomick died instantly, you would not have known that at the time. The Crown accurately describes your decision to call a family member rather than 9-1-1 emergency responders as “selfish”.

[6] 6 . The significant impact of this offence on the children, parents, extended family and friends of Karli Chomick.

Sentencing Principles

The paramount sentencing objectives for this offence committed in these circumstances are denunciation and deterrence. A significant sentence of imprisonment is clearly required. It is the only sentence that is proportionate to the gravity of the offence and your high degree of responsibility and moral blameworthiness. You made a selfish and irresponsible decision to drive after consuming a substantial quantity of alcohol. Your blood alcohol concentration was more than twice the legal limit.

The dangers of drinking and driving are well-known and well-publicized. Parliament has increased penalties for drunk driving and yet drunk drivers persist in dangerous, selfish criminal conduct.

More than 35 years ago, in R. v. McVeigh , [1985] O.J. No. 207 , the Ontario Court of Appeal emphasized that:

No one takes to the road after drinking with the thought that someone may be killed as a result of his drinking. The sentences should be such as to make it very much less attractive for the drinker to get behind the wheel of a car after drinking. The public should not have to wait until members of the public are killed before the courts’ repudiation of the conduct that led to the killing is made clear. It is trite to say that every drinking driver is a potential killer.

General deterrence in these cases should be the predominant concern, and such deterrence is not realized by over-emphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving.

In R. v. Suter, 2018 SCC 34 , [2018] S.C.J. No. 34 at para. 27 , the Supreme Court of Canada noted that the applicable sentencing range for impaired driving causing death is:

quite broad--low penitentiary sentences of 2 or 3 years to more substantial penitentiary sentences of 8 to 10 years--because courts have recognized that they cover a broad spectrum of offenders and circumstances. An offender’s level of blameworthiness will vary significantly depending on the aggravating and mitigating factors in any given case.

In R. v. Anthony Cook , 2016 SCC 43 , [2016] 2 S.C.R. 204 , the Supreme Court of Canada emphasized at para. 32 that “a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest”.

Sentence

I am satisfied that the 5-year sentence of imprisonment proposed by counsel in this joint submission is a fit sentence that would not bring the administration of justice into disrepute. As indicated at the outset, I recognize that no sentence imposed by this court will ease the loss so eloquently expressed in the victim impact statements.

Mr. Byrne, I accept the joint submission. Accordingly, I sentence you to 5 years imprisonment in the penitentiary. The driving prohibition order will be for 8 years following the 5-year sentence of imprisonment, which means that you will be prohibited from driving for 13 years in total. Counsel have agreed that the driving prohibition order itself should reflect the total of 13 years.

Accordingly, Mr. Byrne, you are subject to a driving prohibition order for 13 years. The driving prohibition order prohibits you from operating any motor vehicle on any street, road, highway or other public place. That is a court order made under the Criminal Code of Canada. Any breach of that driving prohibition order would carry serious consequences, including a custodial sentence and a further driving prohibition order. The driving prohibition order applies to cars and trucks, it also applies to snowmobiles, e-bikes, and any vehicle with a motor.

In addition to the driving prohibition order, there will be a s.109 weapon prohibition order for a period of 10 years which prohibits you from owning, possessing or carrying any firearm, crossbow, prohibited weapon, restricted weapon, explosive device or ammunition. That order is also imposed pursuant to the joint submission of counsel.

This is an offence that attracts a secondary D.N.A. order. There will be a secondary D.N.A. order which requires you to provide samples of bodily substances to the Waterloo Regional Police today.

Given that it is a penitentiary sentence, I will not impose the $200.00 victim surcharge.

Counsel, does that accurately reflect the joint submission?

MR. SMART: It does, Your Honour, yes.

MR. MICHARD: Yes, Your Honour.

THE COURT: Thank you. Any clarification sought by the clerk or counsel?

MR. MICHAUD: No.

MR. SMART: No.

THE COURT: Thank you very much, and again, thank you again to Ms. Chomick’s family members and friends, who have attended today, for your patience as the sentencing progressed. Thank you.

MR. MICHAUD: Your Honour, thank you very much for your time and your thoughtful consideration of this matter. I wonder, is it possible that I be placed in a break-out room with the family and friends just for some closing discussion between just us?

THE COURT: Yes, absolutely. That would be perfectly appropriate, and Mr. Byrne will be taken into custody now. Thank you.

MS. MICHAUD: Thank you very much. Madam Clerk…

THE COURT: I think what I’m going to do to sort of facilitate that process, and I note there are some other matters to proceed, I am going to take a 10 minute recess, so people who are waiting to address their other matters can get organized, and that gives you a chance to meet with Ms. Chomick’s family.

So, Madam Clerk, if you would like to just put me in a waiting room for 10 minutes and take a 10-minute recess. Thank you, Mr. Smart.

Certificate of Transcript

Form 2 Evidence Act, Subsection 5(2)

I, Jodi J. Hewett, C.V.C.R. certify that this document is a true and accurate transcription of the audio/video recording made in the matter of Her Majesty the Queen v. Kyle Byrne , in the Ontario Court of Justice , Kitchener , Ontario from Recordings No.4411_CRTRM105_20211109_084815_6_MCKERLIEK.dcr made by B. Othmer, Court Monitor, on the 9 th day of November, 2021, transcribed to the best of my skill, ability and understanding.

Date Jodi J. Hewett Certified Verbatim Reporter

Legend: (sic) - Indicates preceding word has been reproduced verbatim and is not a transcription error (ph) - Indicates preceding word has been spelled phonetically.

THIS IS NOT A CERTIFIED COPY UNLESS ORIGINALLY SIGNED

Transcript Ordered: November 18, 2021 Transcript Completed: December 18, 2021 Transcript Released: December