Youth Criminal Justice Act Notice

WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: April 4, 2022

COURT FILE No.: Newmarket 210175

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

C.Z, a young person

Before: Justice David S. Rose

Heard on: December 13, 2021, March 1 2022

Reasons for Judgment released on: April 4, 2022

Counsel: S. Doyle, G. Elder............................................................................... counsel for the Crown S. Weinstein............................................................................ counsel for the accused C. Z.

ROSE J.:

[1] The day started out nicely on May 16, 2021. It was sunny, with seasonal temperatures, on Athabasca Drive in Vaughan. The C.s were in their front yard doing the things that young families enjoy in the spring – playing with their puppy, fixing a bike, repairing a lawn hose. C.Z. was on his way to visit his girlfriend who lived on that street. In an instant all of that changed, and the lives of two children would end suddenly and horribly. An adult would be seriously injured, and C.Z. charged with Dangerous Driving Causing those two deaths and Dangerous Driving Causing Bodily Harm to John C. Mr. Z. pleaded guilty to those charges and is before me for sentencing. These are the reasons for sentence.

[2] I draw the factual portions of this Judgment not just from the Agreed Statement of Facts but also from the Victim Input Statements for which there is no apparent dispute. Nine of the victims read their statements during the sentencing proceedings. Another fourteen were filed in writing and reviewed by me. Many of the surviving victims were present at the scene and the events that followed at two different hospitals over the following 36 hours. The victim input was enormously helpful in understanding the events of the day. This case involves tragedy, which is otherwise unspeakable, and to properly describe what happened it is necessary to recount those facts in some detail, painful as it is.

May 16, 2021

[3] K.C. had arrived home the night before. My sense from the victim input is that Mr. C., his wife and their children were enjoying a home environment which was loving, warm and fun. He had been away for several weeks on a business trip, and there was real anticipation when he returned – so much so that he brought a new puppy with him for the family. His three children had been pressing their parents to get a dog, and the new dog was a surprise to everyone, including Mr. C.s wife B.P.

[4] On Sunday, May 16, the family therefore woke up as a whole, and the kids bounced on their parents’ bed. K., B., their three children, A. (10), J. (4), and K.2 (8), their nanny G., were all there. The children named the dog Coco and the family went for a morning walk through the neighbourhood to a park where they played. They went back home and the kids started to play at the front of the house. K. fixed a lawn hose. Ms. P. was sweeping the front steps. J. was getting too close to the road, and Mr. C. told him to get back on the driveway where it was safe. K.2 was by then playing with the puppy in the garage, and their neighbour John C. had arrived to help A. fix the chain on her bicycle. Mr. C. is a retired robotics expert and he often helped A. fix her bicycle. As he said in his statement, “ I can fix your bike, but your dad needs to teach you how to ride it.”

[5] Mr. C. recounted hearing a car speeding, and when he looked up C.Z.’s Mercedes was airborne and heading for his two children and Mr. C. who were all on the C. family’s driveway. The Mercedes crashed into all three before ultimately stopping at a short metal utility box on the lawn to the north. The whole family was there at the moment of impact – both parents, and each of their children.

[6] That day 16-year-old C.Z. was alone driving his parents’ sedan on his way to visit his girlfriend. She lived on Athabasca Drive, which is a posted 40 km/hr zone. He stopped at the corner of Athabasca and Beakes Crescent and slowed to almost a stop. He proceeded west on Athabasca and then accelerated rapidly before Athabasca turns in a northerly direction. The east/west limb of Athabasca has about 12 houses before it turns northerly, making the 90-degree turn over the space of about 7 houses. At this point C.Z. was travelling at 102 km/hr. The car did not negotiate the turn north and instead mounted the curb on Athabasca, travelling across one driveway, a front lawn, a hedge, and then running over J., A., and Mr. C. As the accident collision expert found, the curve where C.Z. lost control cannot be negotiated at a speed in excess of 80 km/hr, and Mr. Z.’s car was going 100 km/hr. This collision was caused by speed, and speed alone.

[7] Mr. Z.’s car stopped when it hit an electrical transformer and a retaining wall two houses away. The victims had been standing on the driveway to its left as you look at the front of their house. It is clear that this happened so quickly that they had no possible time to react and get out of harm’s way. The time from when C.Z. started from almost a stop, accelerated rapidly, to the time when it had stopped after running over J., A. and Mr. C. was all of 15 seconds. It only took about 7 seconds for him to lose control of the vehicle.

[8] C.Z. made several utterances in the moments after the crash. He said that the steering had locked up and he could not steer the car, and in another claimed that he dropped his wallet and was reaching for it when he lost control. In another utterance he claimed that something may have been wrong with the brakes on the car. The forensic analysis of the car found no mechanical problems with the car, which was a 2017 model.

[9] Ambulances arrived quickly and it was clear that both J. and A. had suffered grievous injuries from the collision. Neither Mr. C. nor Ms. P. were able to either prevent the collision or do anything to help their children recover from the injuries. J. was in need of more urgent trauma care and it was thought might not survive a trip to SickKids so he was taken to MacKenzie Health Sciences, accompanied by Mr. C. A. was ambulanced to SickKids with Ms. P. After the ER team stabilized J. he too was ambulanced to SickKids where he would join A. in a single ICU room.

[10] By this time Mr. C. and Ms. P. had let their family and friends know what had happened and many joined them at SickKids for support. This happened at a time when the Covid pandemic was present if somewhat on the wane, and the usual prohibition on multiple family members seems to have been lifted because it was an end-of-life situation. Soon the ICU room with J. and A. would have both parents in it as well as the extended family.

[11] About one hour after J. arrived Mr. C. and Ms. P. received word from the attending neurologist that J.’s brain injury was so severe that he would not survive. Life support was withdrawn and J. died in the same room as his elder sister in the bed next to him and his family. The family then extended their hope that A. might survive because there was a slim chance of that by morning. The family focussed their emotion on hope for A.’s survival, which cruelly did not permit much grieving for their now dead 4-year-old son in the moment he died.

[12] By the next day a new CT scan showed that A.’s brain had suffered too much injury to survive. Sometime around 24 hours after the collision it then became apparent to Mr. C. and Ms. P. that both of their children were now lost. More family members arrived to say their last goodbyes to A. and after that she was disconnected from life support. K. C. described that moment in poignant terms:

When we pulled the tube out of A.’s mouth she did something J. didn’t do which was to take her last breaths. She took about 12 – 15 of them. Her last breaths come up to my head all the time and haunt me – you don’t know how painful hearing those sounds were – I can’t describe what it does to me.

[13] From that point until now the loss of their children has affected J. and A.’s family, friends and anyone who knew them. The loss went well beyond their lives. Children are the hopes and dreams of parents. In families they are what tends to bring people together. B.P. described the sense of infinite loss,

If I continued to expand on the list of things that have been taken from us, I could fill an ocean – it is all the big things, the small things, the moments, the events…it is the permanent transformation of every last thing I ever experience from here on in…

Praising what is lost makes the remembrance dear

[14] A. was by all accounts a young girl brimming with life. She was quite active, learning to the play the piano from You Tube, code robotics, and follow sports. She liked the Toronto Raptors, and Philadelphia Eagles. She loved her new puppy and to create things. She was becoming a strong intelligent person. She liked to ride her bike, work out with her dad, and was not shy about asking for help when her bike was broken. At 10 years old she already had dreams of going to Harvard.

[15] J. was energetic and fearless, pushing boundaries as a young boy might. He liked the colour green, to play with toys, and particularly dinosaurs and tigers. His favourite movie was Jungle Book. He was active like his sister, learning to ski and wrestle with his nanny. I get the sense that J. was on his way to becoming a strong intelligent young man, and I have no doubt that left to his own devices he would have grown into a success.

[16] John C. described his physical injuries to the Court. He has significant orthopaedic injuries, and is no longer confident on his feet. He will likely need a knee replacement. His physical struggles to recover are not over. Mr. C. is retired so his quality of life has been significantly reduced because he can not enjoy the freedom to move around which was the focus of his retirement. When providing his Victim Input he started not with the physical injuries but the emotional trauma that he, his family, and community has suffered. It is apparent to me that Mr. C. is more concerned with the loss suffered by K.C., B.P. and K.2 than his own injuries.

[17] The raw emotions in Court on the day of sentencing proceedings reflected the death of two young children in tragedy. I cannot help but admire the ability of their parents, family and Mr. C. to personally appear here in Court and explain to me their loss with such eloquence.

C.Z.

[18] C.Z. was 16 at the time of the incident. He was newly licenced, having received his beginner’s permit only a few months before. In 2020, C.Z. had been charged with an offence under the Highway Traffic Act. That charge was withdrawn, so it plays no part in the sentencing, however as part of that process he wrote a letter, which the Crown provided at sentencing. That letter is clearly geared to C.Z. discussing the dangers associated with driving without a licence. With that said, C.Z. only one year before said that,

Taking driving lessons and learning the proper road/traffic rules is the only way you can drive safely and without getting into trouble. Always think about yourself and also the others around you. If you ever make the wrong choice to drive without your licence and you get into a severe crash think about the many problems you have now caused. If you take someone’s life in a traffic accident you can’t solve that problem, it happened and now you will have to live with that for the rest of your life.

Emphasis added

[19] Mr. Weinstein concedes the admissibility of the letter but argues that minimal weight should be attached to it. I find the fact that C.Z. was charged has no effect on this sentencing. I would attach some weight to his letter, however, because in it he clearly articulates the danger which happened on May 16, 2021, some 15 months later. It cannot be said that C.Z. did not turn his mind to the consequences of driving dangerously.

[20] The pre-sentence report (PSR) prepared for the Court is one of the most positive ones I have ever seen. Beyond the PSR he provided the Court with a report from a psychotherapist who has been providing counselling to him, as well as his high school transcripts and no less than 47 letters of reference and support from family, teachers, and friends.

[21] He has a supportive family which is financially stable. His report card from one month ago has grades between 95 and 100 in Grade 12 Business, Biology, Functions, and Chemistry. He has an excellent attendance record and is reported by his teachers to be excellent at working independently, teamwork, organization, work habits, and initiative. He has applied to several universities and has been accepted to the architecture program at University of Waterloo. He plays competitive hockey and is a black belt in Judo. Before the incident he volunteered at an addiction program because one of his brothers struggled with substance abuse issues. Before the pandemic he was a regular church goer. Since the incident he has taken therapy sessions in and outside the school setting. Those therapists speak quite positively of his insight into this tragedy.

[22] It is worthwhile quoting from the PSR:

Regarding the impact of his actions, C.Z. relayed an understanding of the impact of the incident on the victims and their families and friends. He communicated that he thinks of the deceased victims every day and takes comfort in believing that his late grandmother is in heaven with them. He relayed that he wished he could take on the pain or that it was him who died in the collision and not the children. He expressed that he would do anything to take back what happened.

[23] This fits with what I saw in the Courtroom during the sentencing submissions. The victim impact phase was emotional for everyone present, no one more than C.Z., who was physically distraught. When it came time for him to speak at the end of sentencing submissions he stood, faced the families of the victims, and spoke in genuine terms at length about his remorse and sorrow. That must have been very difficult to do. I find that his remorse is both genuine and deep. From what is before me there is little to ease his anguish in this moment.

[24] What is inescapable is that C.Z. is a focussed, insightful, and otherwise successful 17-year-old. He has accomplished much in his short time, and has set himself on a path for continued success as an adult. I cannot help but to think that if J. and A. were not killed that day they would have had similar lives when each of them turned 17. It is a bitter irony.

Sentencing under the YCJA

[25] Youths are treated differently in law. The Youth Criminal Justice Act S.C. 2002 c. 1 (YCJA) makes that clear in s. 3(1), which created a youth criminal justice system designed to hold young persons accountable through measures which: are proportionate to the seriousness of the offence and degree of their responsibility; promotes rehabilitation and reintegration of young persons; and support the prevention of crime by referring young persons to programs or agencies to address underlying behaviour. Section 38 of the YCJA outlines the purposes and principles of sentencing youths:

38(1) Purpose The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

38(2) Sentencing principles A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

(a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;

(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;

(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons with particular attention to the circumstances of aboriginal young persons;

(e) subject to paragraph (c), the sentence must

(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and

(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community;

(e.1) if this Act provides that a youth justice court may impose conditions as part of the sentence, a condition may be imposed only if

(i) the imposition of the condition is necessary to achieve the purpose set out in subsection 38(1),

(ii) the young person will reasonably be able to comply with the condition, and

(iii) the condition is not used as a substitute for appropriate child protection, mental health or other social measures; and

(f) subject to paragraph (c), the sentence may have the following objectives:

(i) to denounce unlawful conduct, and

(ii) to deter the young person from committing offences.

38(3) Factors to be considered In determining a youth sentence, the youth justice court shall take into account

(a) the degree of participation by the young person in the commission of the offence;

(b) the harm done to victims and whether it was intentional or reasonably foreseeable;

(c) any reparation made by the young person to the victim or the community;

(d) the time spent in detention by the young person as a result of the offence;

(e) the previous findings of guilt of the young person; and

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

Section 38(2)(f) brought the possibility of denunciation and specific deterrence into the fold as possible sentencing objectives when the YCJA was amended in 2012. In submissions Mr. Doyle argued that there is no need to specifically deter Mr. Z. but that denunciation was called for. I agree.

[26] The YCJA is explicit that young persons have a diminished moral blameworthiness or culpability because their cognitive abilities are not fully developed. That youths have not completed cognitive development is what brings them in to the YCJA regime before their 18th birthday. It is therefore the entirety of the youth sentencing regime which reflects the diminished moral blameworthiness of young persons.

[27] Other YCJA provisions which are important in sentencing C.Z. are s. 39, which sets out the test which must be met before a youth can be sentenced to custody, and the mandatory requirement that alternatives to custody must be considered and rejected as not a reasonable alternative or combination of alternatives to meet the purposes and principles of sentencing. Section 39 of the YCJA sets out further requirements to be met before a custodial youth sentence can be imposed, including the requirement in s. 39(1)(a) that the youth must have committed a violent offence, see R. v. C.D., R. v. C.D.K., 2005 SCC 78. The range of possible sentences is outlined in s. 42 of the YCJA.

[28] Dangerous Driving Causing Death carries the possibility of a life sentence when prosecuted in adult court, see s. 320.21 of the Criminal Code.

[29] The Crown and Defence have provided me with a long list of case law. I would not summarize each and every decision. What is apparent is that the range of sentences for youths found guilty of Dangerous Driving Causing Death is quite broad. Cases presented show sentences ranging from non-custodial (R. v. A.H., 2017 ONCJ 521, R. v. M.W., 2013 ONCJ 6256, R. v. A.J.N., 2004 BCPC 13, R. v. N.M. March 21, 2022 unreported decision of Olver J.) to 2 years custody (R. v. I.R.N., 2010 MBQB 137). Factors which tend to lengthen the sentence include: other illegal conduct during the driving pattern such as impairment (R. v. I.R.N., 2010 MBQB 137, R. v. V.F., 2005 ONCJ 5917, R. v. J.A.M.C., 2015 MBQB 115, R. v. L.E.S., 2007 SKPC 138), flight (R v. I.R.N.), racing (R. v. R.R., 2016 ONCJ 307); a stolen car (R. v. I.R.N.); and extreme speed (R. v. S.G., 2010 SKPC 55, R. v. J.L., 2020 ONCJ 29).

[30] Notably, there are a plethora of cases which impose a deferred custody order. Those are no longer relevant because the YCJA now precludes such an order if the offence is one involving the commission of serious bodily harm, see s. 42(5).

[31] Some cases are closer factually to that of C.Z. I would identify R. v. R.R., 2016 ONCJ 307 in particular. In that case a 7-month custodial sentence was imposed to be followed by 3.5 months of community supervision. In that case the young person had an excellent background like C.Z. and killed a young man who was on a bicycle. R.R. was racing.

[32] In this case the circumstances of the offence are aggravating circumstances. Two young children died and another person seriously injured. Mr. Z. also has significant responsibility not only because he was the driver but because he had turned his mind to the possibility of this happening previously. There are numerous mitigating factors, including his excellent prospects, his remorse and his guilty plea.

Application of Principles to the Case

[33] The Crown seeks a 16 month open custody order. The defence seeks a probation term, or if not probation then a 6 month open custody order.

[34] This is a violent offence under s. 39(1)(a) of the YCJA so a custodial sentence is available on the menu of sentencing options, see R. v. R.E.W., 2006 ONCA 1761, 207 O.A.C. 184 (C.A.). Given the relative sentencing positions, this case turns on the application of s. 39(2) and (3) of the YCJA.

Alternatives to custody

39

(2) If any of paragraphs (1)(a) to (c) apply, a youth justice court shall not impose a custodial sentence under section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in section 38.

Factors to be considered

(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to

(a) the alternatives to custody that are available;

(b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and

(c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.

[35] As a penultimate matter I have no difficulty in finding that there are alternatives to custody available. A youth probation order is available, and I have no difficulty in finding that C.Z. would comply with it. There is no history of lack of compliance with orders and everything about him shows that he will comply with whatever order is made. The cases noted above show that some young persons have been given probation orders even when they have been sentenced for dangerous driving causing death.

[36] The real issue in my finding is the application of s. 38 of the YCJA (supra), and whether a non-custodial order would meet the purposes and principles of youth sentencing. On reflection I find that it would not. In this case I would give serious weight to Mr. Z.’s level of responsibility, the foreseeability of the collision going back many months through his initial licencing process shortly before the accident and accompanying requirement that a just sanction include meaningful consequences, which must be connected to the grave harm done to the community in this tragedy. There is a need to denounce this conduct, though I would not find that specific deterrence is required per s. 38(2)(f)(ii). A just sanction must consider all the principles in s. 38(2), but one which must be emphasised is Mr. Z.’s degree of responsibility, which is very high, and that the sentence must be proportionate to the seriousness of the offence, and this case is at the very upper tier of seriousness. Balancing all the factors under s. 38 against the need to rehabilitate Mr. Z., I therefore find that a custodial sentence is required.

[37] Sentencing is an individualized exercise, not one of precision. Given all the factors I would impose a 12-month open custody sentence to be followed by 6 months in the community.

You are ordered to serve 12 months in open custody, to be followed by 6 months to be served under supervision in the community subject to conditions.

If you breach any of the conditions while you are under supervision in the community, you may be brought back into custody and required to serve the rest of the second period in custody as well.

You should also be aware that, under other provisions of the Youth Criminal Justice Act, a court could require you to serve the second period in custody as well.

The periods in custody and under supervision in the community may be changed if you are or become subject to another sentence.

Ancillary Orders

[38] The Crown seeks an 8 year driving prohibition, C.Z. argues for a 5 year prohibition. The factors to be considered when determining a driving prohibition were outlined by Durno J. in R. v. Bakai, 2010 ONSC 6076 at par. 43. On this issue I find that C.Z.’s lack of prior criminal record or driving record, his age, his guilty plea, and the terms of his release I would fix the driving prohibition at 6 years.

[39] This is a non enumerated secondary designated offence under s. 487.04 of the Criminal Code. I find that it is in the best interests of the administration of justice that C.Z. supply a sample of his DNA for transmission to the National DNA Databank.

[40] Lastly, C.Z. will be under a youth probation under s. 42(2)(k) for one year when he completes his community supervision. He will:

• report to a probation officer within 48 hours of his completion of community supervision and then at all times as requested;
• take counselling as requested and sign any forms necessary to ensure that probation can confirm his enrollment, attendance and completion of those programs;
• not to operate a motor vehicle unless properly licenced;

[41] This was a challenging case, and it would have been much more challenging were it not for the assistance of Messrs: Doyle, Elder and Weinstein.

Released: April 4, 2022 Signed: Justice David S. Rose