Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2022 03 15 COURT FILE No.: Newmarket 1001545852

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DRAK PAUL

Before: Justice David S. Rose

Heard on: December 13, 2021, March 8 2022 Reasons for Judgment released on: March 15, 2022

Counsel: Mr. S. Doyle, counsel for the Crown Mr. D. Basile, counsel for the accused Drak Paul

Endorsement

ROSE J.:

[1] On the morning of July 24, 2020, 54-year-old Daniel Bertini was out for an early morning bike ride when he was killed by Mr. Paul’s car. Mr. Paul then fled the scene on foot before being apprehended by the police about one hour and 45 minutes later. Mr. Paul pleaded guilty to Dangerous Driving Causing Death and Fail to Remain Causing Death. He is here for sentencing.

Facts

[2] On July 24, 2020, Mr. Paul was on his way to work, driving his Honda Accord southbound on a rural stretch of Keele Street. The posted limit was 60 km/hr but Mr. Paul was going much faster than that. He was clocked by a York Regional Police officer doing speed enforcement at 125 km/hr. Once the Honda passed the police cruiser the officer did a U-turn and followed Mr. Paul southbound with emergency lights activated. As the Honda approached Dearborne Avenue it accelerated. By this point the officer disengaged the pursuit of the Honda because it wasn’t stopping and the speeds were getting too quick. As the Honda approached Cavell Avenue the Honda was estimated to be going 130 – 140 km hour.

[3] Civilians saw Mr. Paul. One was going northbound and saw Mr. Paul pass another vehicle so dangerously that he almost struck that witness going in the other direction.

[4] As Mr. Paul crossed a slight hill just north of Cavell Avenue its rear passenger side tire went onto the gravel shoulder, and he lost control of his car. The Honda skidded with the front of the car rotating easterly. At that moment Daniel Bertini was riding his bicycle northbound on Keele Street and the Honda struck him. The Honda continued its southward slide leaving the road on the east side and went up an embankment before rolling over and becoming airborne for some 28 meters. It came to a rest on its roof. One of the pictures filed during the guilty plea shows the Honda on its roof with its nose pointed downward into a ditch at the side of the roadway beyond the gravel shoulder. There is a speed limit sign right there announcing the 60 km/hr zone. Other pictures filed show Keele Street to be one lane in each direction. The accident happened in a rural part of the road.

[5] Mr. Paul then left the scene on foot, and was apprehended by the police at 9:15 am walking east on the 15th Sideroad. He had walked south some 2.7 km from the scene through woods and a meadow. He had a head injury, and various bruises.

[6] Mr. Bertini was pronounced dead at the scene.

[7] Victim input helped understand what happened that day. Dan Bertini’s wife Rosy realized that he had not come home from his morning bike ride. News of a traffic fatality was broadcast on TV news, so his family first found out about the death from television. The news was that a cyclist had been hit and was not identified, so his family called the police, and ultimately Dan was identified as the victim.

[8] A police accident reconstructionist made the following determinations. The Honda was travelling at 111 km/hr before it lost control in the skid – at a minimum. During the skid Mr. Paul was going 95 km/hr before becoming airborne at 59 km/hr.

[9] Mr. Paul was the registered owner of the Honda, but he had no insurance on the car that day. He had been an uninsured driver since 2018. According to the pre-sentence report he has one speeding ticket, for 10 km over the limit.

Victim Input

[10] During sentencing submissions 4 victims read in their Victim Input statements. The Crown read in 4 others. From that process it is clear that Dan Bertini was a family man, responsible, dependable, with varied interests, from film, music, cooking to cycling, to skiing, to joking. Humble and peace maker, are phrases which described him. He was a loving man, who was loved by his family, and friends. Dan Bertini was the kind of man who always opened the car door for his wife. He was an inspiring high school science teacher. He was a devoted son to his elderly parents, calling his mother every day. His son spoke of his mentorship.

[11] Dan Bertini’s wife Rosy gave her victim input in person. Her life is very much on hold. She may well confront the loss in some sense but she is having great difficulty moving on. Her grief is all the more difficult because the injuries which killed Dan were so violent that she was prevented her from seeing him in death. It was a closed casket funeral. She was thus prevented from that moment of closure. As she said to me, Dan’s death leaves her with a permanent, suffocating and “bottomless void” – one which she feels hostage to.

[12] Dan’s son Zachary Bertini Cece also gave his victim input in Court. He described the specter of his father haunting him through the music they enjoyed together. When the music plays he thinks the song is being played by his father in his death. I get the sense that Zachary was inspired very much by his father, and his loss extends to the permanent inability to show him what his seeds have sown. Part of the father son relationship often involves a son showing the father what he has achieved. This is one of the things Zachary has had taken from him. Although I was not provided with details, I get the impression that Zachary is a teenager who is about to go off to success at university, and that he and his father were very much looking forward to that phase of his life. As he said, his father was the only significant male figure in his life, and he has no replacement for that influence. With all of that that said, Zachary still prays for Mr. Paul.

[13] Having listened to the victim input statements I was moved by them. I get the sense that Dan Bertini was a loved person who did the right thing and his sudden death left many with a painful sense of loss. The sentencing process in Court involved putting words to what is otherwise an unspeakable tragedy.

Mr. Drak Paul

[14] A pre-sentence report was prepared for Mr. Paul. He is 22 years old and has no criminal record. He had a difficult upbringing. His uncle described Mr. Paul’s family as troubled, and that Mr. Paul suffered from neglect. His parents separated when he was 7, and his father appears to have been in and out of jail. The PSR reports Mr. Paul to have an improving, positive relationship with his mother.

[15] Mr. Paul is gainfully employed as a mechanics helper. His employer reports that he is a good employee and has a future with the company.

[16] Mr. Paul told the PSR writer that he is remorseful for what happened on July 24. He feels terrible about it and knows what it is like to lose a father. Notably, Mr Paul “thought he was invincible”, and “did not think he would hurt anyone else”.

Sentencing positions

[17] On behalf of the Crown Mr. Doyle argues that a 30 month jail sentence is appropriate, and that Mr. Paul should receive a 6.5 year driving prohibition. He also seeks an order for DNA under s. 487.051 of the Criminal Code. Both offences are secondary designated offences under s. 487.04 of the Criminal Code.

[18] Mr. Basile argues for a global sentence of 18 months. He takes no issue with the DNA Order and suggests that a 5 year driving prohibition is appropriate.

[19] Mr. Doyle provided case law which was helpful. I would distill the principles as follows. The range of sentence for dangerous driving causing death is quite broad. Aggravating factors which tend to elevate the length of sentence include street racing, presence of intoxicants, deliberately engaging in risky behaviour or multiple convictions. Less blameworthy conduct can mitigate a sentence, see R. v. Stephens, 2013 ONCJ 575, or R. v. Singh, 2018 ONSC 4598 at paras 23 – 25 where the jurisprudence is summarized. In that case the offender drove his tractor trailer rig so dangerously that he collided with another truck travelling in the opposite direction. The driving pattern had started some minutes before with another unsafe passing maneuver similar to the one that resulted in the death of the oncoming truck driver. That garnered a 3 year penitentiary term for an offender with a positive background, but was after trial.

[20] In Stephens (supra) the offender was showing off his new truck, lost control of it and struck a pedestrian standing outside her house. He fled the scene and was not arrested until the next morning. West J. imposed an 18 month sentence for the dangerous driving causing death charge.

[21] For the offence of fail to remain causing death the range of sentence is between 3 months up to 2 years. Denunciation and deterrence are also paramount sentencing principles. Sentencing for fail to remain causing death tends to attract a lower sentence than dangerous driving or impaired driving causing death, which often accompany fail to remain causing death. As Justice Monahan said in R. v. Sankar, 2022 ONCJ 7 at para 25 (i), (j) & (k), sentences at the lower end of that range do not usually involve a prior criminal driving record whereas a prior driving record and/or impaired driving offences just prior to the fail to remain tend to elevate the sentence to the middle of the range. There are few cases at the upper end of the range. In that case the unusual facts and circumstances of the offender meant an 8 month sentence. In Stephens (supra) West J. imposed a 9 month sentence for the fail to stop consecutive to the dangerous driving causing death count.

[22] One decision which is also close factually to his one is R. v. Renteria, [2013] O.J. No. 6269 where the offender drove at high speed into a passenger van which had a family in it. The collision killed a 7 year old child. Mr. Renteria fled the scene and turned himself in to the police the next day. Justice Kelly accepted a 40 month joint submission for dangerous driving causing death and fail to remain causing death.

[23] My review of other decisions leads me to find that in law the principle factors in this sentence are denunciation and general deterrence. I also find that the two counts attract consecutive sentences because each one is factually different. The fail to remain charge flows from the dangerous driving but Parliament clearly intended that charge to be separate and apart from the driving conduct which caused the death.

[24] Factually I find that the manner of driving is a seriously aggravating factor. Mr. Paul was travelling far too fast for the road. A speed enforcement officer clocked him at 125 km/hr in a 60 zone. He nearly hit another motorist travelling northbound, similar to what happened in Singh (supra). Mr. Paul’s driving that morning leads me to find that he was going to crash his car at some point. It was inevitable. He was just going too fast. It is seriously aggravating that Mr. Paul was being pursued by a police car with emergency lights activated. Either he didn’t bother to notice this or he knew and didn’t care. It makes no difference because Mr. Paul was indifferent to the traffic environment and road conditions. One could well ask, what is needed to get a driver to slow down if not a police car in pursuit with lights flashing? Had he stopped to answer the police car in pursuit there is no reason to believe that we would be here today. In submissions Mr. Basile explained Mr. Paul as having panicked that morning. I struggle with that. Mr. Paul was presented with the option of standing down much earlier. Had he stopped for the police there would be no reason to panic. He would have been issued common traffic tickets – for which there is no moral stigma. He chose to continue.

[25] It is also aggravating that Mr. Paul had been operating his car since 2018 without insurance. In Ontario this is mandatory, and has been for over 40 years. Mr. Paul therefore was operating his car for well over a year without regard to the regulatory requirements for operating a car in Ontario. This may well have saved him money, but it put the broader public at risk should he be involved in a traffic collision, as happened here.

[26] The fact that Mr. Paul fled the scene is aggravating insofar as first responders did not know if Mr. Bertini was the driver of the car. He made active attempts to flee, travelling through rural wooded areas. On the facts before me, he would have continued his attempts to evade the police were he not arrested.

[27] It is mitigating that Mr. Paul pleaded guilty and therefore saved all involved having to litigate the case. With that said, the case against him appears formidable. He never set a trial date on this. It is to Mr. Paul’s credit that he is youthful and has no prior criminal record. He has only a minor traffic offence on his driving record. It is to his credit that he is gainfully employed and his employer speaks positively of him. There are very good prospects for rehabilitation.

[28] In submissions I asked both Mr. Doyle and Mr. Basile to comment on the prevalence of traffic deaths. This was generated by an article “The pandemic spurred more traffic violence” that appeared in the Globe and Mail the morning of sentencing by the journalist Andre Picard. Mr. Doyle agreed with Mr. Picard’s thesis that the roads are increasingly more dangerous, but cautioned against making too much of that proposition without more precise data. I agree. Mr. Picard has identified something broader, but which includes sentencing cases like this. It is not particularly relevant as such, but explains the reason why denunciation and deterrence are paramount concerns in the case at bar. Dangerous driving requires many responses to lower its prevalence, but sentencing objectives are the tools which are available to this Court.

[29] Considering all of these factors, I would impose the following sentences:

• For Dangerous Driving causing death - 18 months;
• For Fail to Remain Causing Death – 6 months consecutive.

The sentence will therefore be one of two years.

[30] I have considered the fact that this is a penitentiary sentence for a youthful first offender. I have come to the conclusion that this could have easily have attracted a higher sentence, towards the 2.5 years the Crown was seeking. It is his prospects for rehabilitation that prevent a longer sentence. But I also find that nothing less than 2 years will adequately address the many serious aggravating factors present.

[31] Mr. Paul has been on a term of release which prohibited him from operating a motor vehicle. He has been under that restriction since his release the day of the collision, which is some 20 months ago. I have reviewed the factors which help determine the length of a driving prohibition outlined by Durno J. in R. v. Bakai, [2010] O.J. No. 6076 (S.C.) at par. 43. Taking into account Mr. Paul’s guilty plea, his custodial sentence, his lack of prior criminal record, his minor previous HTA record, his age, and the fact that he has been prohibited from driving because the terms of his release for some 20 months I find that a 5 year driving prohibition is called for.

[32] There will be an order under s. 487.051 of the Criminal Code for him to supply a sample of his DNA to the national DNA databank.

Released: March 15, 2022 Signed: Justice David Rose