ONTARIO COURT OF JUSTICE DATE: 2022 03 22 COURT FILE No.: Newmarket 2008672

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

AZZAM AL-DERZI

Before: Justice David S. Rose

Heard on: January 10, March 16, 2022 Reasons for Judgment released on: March 22, 2022

Counsel: S. Doyle, counsel for the Crown D. Basile, counsel for the accused Azzam Al-Derzi

Rose J.:

Overview

[1] On the afternoon of July 17, 2020 Mr. Al-Derzi was driving his dump truck west on Bloomington Road, when he ran through a red light, running into 70 year old Wolfgang Srenk who was out for a ride on his motorcycle. Mr. Srenk died at the scene. Mr. Al-Derzi pleaded guilty to the charge of Dangerous Driving Causing Death to Mr. Wolfgang Srenk, and is here for sentencing.

Facts

[2] The accident happened at 3:03pm that day. The weather was clear, roads were dry and the traffic was moderate. Mr. Al-Derzi drove the truck for his employer Rafat Contracting, and was approaching Kennedy Road from the east, driving westerly along Bloomington Road. At that point Bloomington Road had a posted 70 km/h limit and Kennedy had a posted 80 km/h limit.

[3] Mr. Srenk rode his motorcycle southbound on Kennedy Road toward Bloomington at the speed limit. He had a green light. At that moment Mr. Al-Derzi was approaching Kennedy in the west bound lanes. He was going 67 km/h as he approached the intersection. Mr. Al-Derzi had a red light and should have stopped but he didn’t. He was talking on his cell phone and ran through the intersection. Mr. Srenk braked, and then skid but the suddenness of it meant he could not avoid a collision with Mr. Al-Derzi’s dump truck. Mr. Srenk was pronounced dead at the scene. Mr. Al-Derzi remained at the scene and called 911. By all accounts he was cooperative with the investigators.

[4] The traffic control signal at the intersection had been red for 13.6 seconds, and yellow for 5 seconds before he entered the intersection.

[5] Mr. Derzi’s phone records were seized by prior judicial authorization. They revealed that he:

i) received a call on his cell phone at 3:00:19 which lasted 2 minutes and 34 seconds.

ii) made a call at 3:02:44 which lasted 1 minute and 57 seconds. That call went to a co-worker of Mr. Al-Derzi.

iii) Made a 24 second call at 3:04:14 to an unknown recipient.

iv) then made a call at 3:05:02 which lasted 4 minutes and 9 seconds.

Mr. Al-Derzi entered the intersection at 3:03 pm, which was while he was making call ii). It is agreed that at the time of the incident Mr. Al-Derzi was on a hands free phone. It is admitted that the distraction of being on a call caused the dangerous driving causing death.

[6] What is clear on the Agreed Facts is that Mr. Al-Derzi was driving while distracted by his cell phone. This caused him to run a red light which resulted in the death of Mr. Srenk.

Victim Input

[7] Mr. Srenk’s wife Melanie Roach Srenk gave her victim input in Court. She was married to Mr. Srenk for 26 years, and described her marriage to Wolfgang as a team. He seemed like a man who was true to his convictions and embodied fidelity. His sudden death has left her with profound grief, and a sense of loss which strikes at the core. Ms. Roach Srenk lost both a husband and caregiver on July 17, 2020. She had many dreams of life with her husband in the years to come, but those dreams have vanished.

[8] Wolfgang’s son William also read his victim input to the Court. He was an only son, and had the close relationship with his father that might be expected in such a family. William worked closely with Wolfgang, and learned entrepreneurship from him. He saw him or talked to him every day. William too was emotional when reading his statement.

[9] Wolfgang’s daughter Carla Ramey’s victim input was read in by Mr Doyle. She relied on her father for guidance in all things, and described her sense of loss as being like a crumpled piece of paper that will never smooth back out.

[10] From the victim input it is clear that Wolfgang Srenk was a youthful, selfless, energetic man and would do anything to help his family. He was full of life, ran his own businesses and retired to enjoy the fruits of what he had created. He was the father who would help build his son a deck in the heat of the summer. The loss experienced by his family from this incident is profound.

Mr. Al-Derzi

[11] The pre-sentence report prepared for Mr. Al-Derzi was extremely positive. He is 49 years old, married with 3 children. He arrived in Canada 10 years ago and has been hard working ever since. He has a loving marriage. His children are all under the age of 12. He has a good relationship with his children, and always thinks of them before himself. Mr. Al-Derzi takes care of his elderly parents and his wife. His wife has health problems which he attends to. By all accounts Mr. Al-Derzi is a family man who supports and is supported by those around him. His free time is spent with his family doing the typical things that families enjoy.

[12] Mr. Al-Derzi has some post secondary education in computer science but found it difficult getting that work when he came to Canada. He started working for Rafat General Contracting in 2014 and they report him to be loyal worker. He drives for them Monday to Friday, and sometimes Saturday but in the winter he is expected to be out on the road to plow and salt the roads on 45 minutes notice. Mr. Al-Derzi is a respected senior employee and has good relationships with everyone at work. He trains new employees. His employer came to court and was present at sentencing.

[13] Mr. Al-Derzi himself has recently had a heart ailment and also has ulcerative colitis. Mr. Al-Derzi is remorseful and I am satisfied that his remorse is genuine.

Sentencing positions

[14] Messrs Doyle and Basile presented me with a joint submission for 15 months in jail, and DNA sampling. They are not joined on the length of the driving prohibition. The Crown seeks a driving prohibition of 4 years after release. The defence argues for an 18 month driving prohibition.

[15] The cases provided by Mr. Doyle establish a range of sentencing for similar offences which is broad, see R v. Singh 2018 ONSC 4598 at par. 23, R. v. Singh 2010 ONSC 3398 at par. 20. In Singh (2018) a transport truck driver who killed an oncoming motorist because of a dangerous passing manoeuvre was handed a 3 year sentence. In R. v. Singh (2010) the offender was driving a dump truck, ran a red light, and into a left turning vehicle killing its driver. Boswell J. handed down at 2 year penitentiary sentence, commenting that:

Other users of the road, who are vulnerable to large, commercial vehicles, must be assured that the drivers of those vehicles will abide by the rules of the road, whose aim is to make our roadways safe for all travellers. The sentence must reflect the profound harm done to the Sliwowicz family as a result of Mr. Singh's failure to observe those rules.

[16] Other cases support the proposition that professional truck drivers have enhanced moral blameworthiness because they tend to operate much larger vehicles and the public trusts them to operate their vehicles lawfully and with extra care. see R. v. Matharu 2021 ONSC 4762, R. v. Ernst [2006] A.J. No. 949.

[17] The cases provided establish that denunciation and deterrence are principal factors on sentencing. Aggravating factors tend to include: street racing, impairment by drug or alcohol; and multiple convictions, see Singh (supra).

[18] I therefore find that the aggravating circumstances are the fact that Mr. Al-Derzi was on his phone repeatedly in the moments leading up the collision. He had a blue tooth device, so he was not handling his phone, but nonetheless he engaged in an activity which distracted him from the safe operation of his truck. He was a professional driver who knew better, and knew the risk that comes with driving a dump truck while distracted.

[19] The mitigating factors here include the guilty plea, remorse, and Mr. Al-Derzi’s otherwise spotless character. Mr. Al-Derzi has excellent prospects for rehabilitation. I am told that his employer is a family member and thinks so highly of him that he has employment available once he finishes his sentence which is consistent with the Court orders handed down today.

[20] What is clear from the Agreed Facts and Mr. Al-Derzi’s Pre-Sentence Report is that bad things happen to good people. In this case the bad thing was driving while on his cell phone thereby running a red light and killing Mr. Srenk. Just because Mr. Al-Derzi is of previous good character, it does not absolve him of responsibility for what happened that day. A man died, and had Mr. Al-Derzi been paying attention to the traffic control signals instead of his phone call it wouldn’t have happened.

[21] Under the circumstances the joint submission is appropriate. It is within the broad range of similar cases, and I find that it reflects the necessary objectives of denunciation and deterrence, while meeting the objectives of rehabilitation. This case could have attracted a higher sentence, but the mitigating factors pull the case down to the mid to upper reformatory range of 15 months. I have presided over a number of pre-trial conferences on this case, which has been concluded after the work of two very experienced counsel. That work is entitled to deference.

[22] The Crown seeks a 4 year driving prohibition and the defence seeks 18 months. I would apply the factors outlined by Durno J. in R. v. Bakai [2010] O.J. No. 6076 at para. 43 to find that Mr. Al-Derzi pleaded guilty without ever setting a trial date, he has no prior criminal or driving record, he is a professional truck driver, and was never prohibited from driving as a result of his release, except for the period after he was found guilty of the charge. For that reason I would impose a 2 1/2 year driving prohibition once his custodial period ends.

[23] It is in the best interests of the administration of justice that Mr. Al-Derzi supply a sample of DNA to the National DNA Databank, and he is so ordered pursuant to s. 487.051. Dangerous Driving Causing Death is a non-enumerated secondary designated offence pursuant to s. 487.04.

[24] Lastly, Mr. Al Derzi has 60 days to pay the victim fine surcharge.

Released: March 22, 2022 Signed: Justice Rose