R. v. Menezes, 2023 ONCJ 457

CITATION: R. v. Menezes, 2023 ONCJ 457

DATE: 2023-10-10

Toronto

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

CARLOS MENEZES

Before Justice Mara Greene

Reasons for Judgment released October 10, 2023

A. Pasut…………………………..……………………………………… for the Crown

C. Laperriere ……………………………..………………………...…...for Carlos Menezes

[1] On July 9, 2022, Mr. Menezes drove into a pedestrian, Mr. Simpson, who had been walking in the street. Mr. Simpson flew in the air and landed a short distance away. Instead of stopping to assist Mr. Simpson, Mr. Menezes drove away. He returned a few moments later, by which time passersby had stopped and were tending to Mr. Simpson. Mr. Menezes again did not stop and drove away.

[2] A bystander obtained Mr. Menezes’ license plate and provided that information to the police. The police contacted Mr. Menezes who initially denied driving. When cautioned about lying to the police, Mr. Menezes confessed and turned himself him. He was released on a promise to appear and an undertaking which included a driving prohibition.

[3] Mr. Simpson suffered life altering but not life-threatening injuries. He had numerous broken bones all over his body. He had to undergo several surgeries, have plates put in his body to keep his bones together and has not yet regained full motion in many parts of his body.

[4] On May 11, 2023, Mr. Menezes entered a plea of guilty to the offence of failing to stop at the scene of an accident where the victim suffered bodily harm. The matter was adjourned so that a pre-sentence report and other material could be prepared. At the sentencing hearing on September 22, 2023, Crown counsel played a video that captured the accident, provided photographs of the damage to the vehicle, filed Mr. Simpson’s medical records and a victim impact statement. I was also provided with a pre-sentence report.

[5] Crown counsel is seeking a sentence of 18 months incarceration followed by 18 months of probation and a lengthy driving prohibition. Defence counsel wants the minimum sentence, which is a fine.

Circumstances of the Offender

[6] Mr. Menezes is 33 years old. He was born in Brazil and moved to Canada in 1993, when he was 3 years old. Despite having grown up in Canada and having lived the majority of his life here, Mr. Menezes did not obtain citizenship and remains a permanent resident. As a result, this conviction puts Mr. Menezes’ continued residency in Canada at risk.

[7] Mr. Menezes was raised by his mother, and he continues to have a strong relationship with her.

[8] Mr. Menezes left school in grade 10. In 2021, however, he successfully obtained his GED. Mr. Menezes also has a diploma in graphic design. At the start of the pandemic Mr. Menezes returned to school. He attended the Toronto Film School and graduated in June 2022 with honours obtaining a diploma in interactive media. Mr. Menezes also has certifications in forklift operation and automotive technology. Mr. Menezes continues to upgrade his education and is presently enrolled in an online marketing program.

[9] Mr. Menezes has largely been gainfully employed. From 2013 until 2016, Mr. Menezes worked installing windows. He worked as a truck driver in 2015 to 2019. Mr. Menezes was in school from 2020 until 2022. Mr. Menezes interned with a graphic design company in December 2022 but was not able to obtain full time employment in this field after his internship. More recently, Mr. Menezes has been working doing home exterior work. He could have found work with past employers, but these positions require a driver’s license. Mr. Menezes has been prohibited from driving since his arrest.

[10] Mr. Menezes is a good employee. One of his recent employers advised the author of the pre-sentence report that he would hire Mr. Menezes back to work if Mr. Menezes had a driver’s license.

[11] Mr. Menezes is in a long-term common law relationship. He has a six year old daughter and a fourteen year old step daughter. Mr. Menezes financially supports his family and is a very active father.

[12] Mr. Menezes’ father is suffering from Parkinson’s disease. Mr. Menezes helps his mother with the physical care of his father.

[13] Mr. Menezes has one previous conviction on his record. He was convicted ten years ago of theft. He received a conditional sentence. Mr. Menezes also has a driving record. It includes eight driving convictions from 2009 to 2017. In 2017 Mr. Menezes was convicted of failing to come a stop at an intersection in 2015 he was convicted of driving while using a handheld device. In 2014 he was convicted of driving with an improper or defective muffler. He has one speeding infraction form 2014 and an improper use of an HOV lane. In 2009, Mr. Menezes was convicted of three infractions arising from the same incident. These infractions included failure to use a seat belt, no license or improper class of license and driving a motor vehicle without a current validation on his license plate.

[14] The author of the pre-sentence report noted some negative things about Mr. Menezes, that he disputed. In particular, the author reported that Mr. Menezes stated that he was the victim in this case. I reject this aspect of the pre-sentence report. Having read the entire document, I am of the view that the author failed to objectively describe Mr. Menezes and failed to take necessary steps to develop a true assessment of him. For example, when reviewing Mr. Menezes’ employment and educational history, it is clear to me that the author of the pre-sentence report failed to report some positive information that is relevant to Mr. Menezes’ overall character. The author of the pre-sentence report also does not appear to have spoken to many people in Mr. Menezes’ life. Having read many pre-sentence reports, this one appears sadly lacking in information. Moreover, the author referred to Mr. Menezes as a “repeat offender”. I appreciate he does have a prior conviction, but it is from 2014. The language used by the author to describe Mr. Menezes places too much emphasis on this single prior bad act and very little weight to all the good he has achieved. For these reasons, I am not confident that the author of the presentence report objectively and accurately recorded the comments made by Mr. Menezes and I reject that he referred to himself as a victim and that he lacked insight into his behaviour.

[15] I am satisfied from all the information I heard at the sentencing hearing that Mr. Menezes is remorseful for his actions, he has insight into his behaviour, is taking responsibility for his acts, and does not see himself as a victim.

Circumstances of the Offence

[16] On July 9, 2022 at 7:00pm Mr. Menezes was driving his motor vehicle on Mount Olive Drive. At this same time, a pedestrian, Mr. Simpson, was wondering in the middle of the street. Many cars moved around or slowed down to avoid hitting Mr. Simpson. When Mr. Menezes arrived on scene, instead of driving on, he stopped his vehicle and had some words with Mr. Simpson. The interaction was brief, and Mr. Menezes returned to his vehicle and drove off. Mr. Simpson remained in the area.

[17] Four minutes later, Mr. Menezes returned to the area. Mr. Simpson was still wondering the street. As Mr. Menezes drove by, he hit Mr. Simpson. Mr. Simpson was thrown in the air and landed on the other side of the street. Many vehicles stopped to assist Mr. Simpson. Mr. Menezes, however, did not. Instead, he continued to drive on. Mr. Menezes then did a U-turn and returned to scene but again, instead of stopping, he continued to drive by.

[18] During the guilty plea, the Crown read in that Mr. Menezes drove “in a manner dangerous to road users”. Mr. Menezes admitted these facts though at the time of the plea neither party explained what driving was encompassed by this admission. During submissions, counsel for Mr. Menezes advised that Mr. Menezes did see Mr. Simpson in the roadway, but believed that he was not going to hit him. Mr. Menezes denied intentionally hitting Mr. Simpson and denied wanting to hit Mr. Simpson. Crown counsel conceded that she could not establish that Mr. Menezes intended to hit Mr. Simpson.

[19] At the sentencing, the video of the accident was played. The interaction between Mr. Menezes and Mr. Simpson was captured on the video. Mr. Menezes is seen exiting his vehicle and engaging with Mr. Simpson. He then returned to his vehicle and left. The accident itself was also captured. A number of vehicles drove by the area and managed to not hit Mr. Simpson despite him being in the middle of the road. Mr. Menezes when he arrived on scene the second time, did not even slow down, despite the fact that he ought to have known that Mr. Simpson was likely to still be in the roadway having seen him there four minutes earlier. Mr. Menezes then ran into Mr. Simpson. The only inference I can draw from the video, from Mr. Menezes’ admission that he saw Mr. Simpson but thought he would not him and from Mr. Menezes’ admission that he drove “in a manner dangerous to road users” is that Mr. Menezes’ failure to slow down in circumstances where he knew that a pedestrian could reasonably be in the roadway and then misjudging the distance between his vehicle and Mr. Simpson amounts to driving in a manner dangerous to road users.

[20] The photographs of the vehicle show that Mr. Simpson was hit with the side of the car. The front left corner of the vehicle, windshield and side mirror were damaged. The fact that all the damage was all to the side of the vehicle lends credence to Mr. Menezes’ position that he did not intend to hit Mr. Simpson, saw him and misjudged. Had he slowed down, however, like others that drove through the area, it is unlikely Mr. Simpson would have been hit.

[21] Mr. Menezes knew that he hit Mr. Simpson and knew Mr. Simpson was hurt. Nonetheless, he drove away. He did return moments later, but again did not stop. Mr. Menezes, through his counsel, advised that he did not stop because he panicked. When he returned, he did not stop again because he saw that others were already helping Mr. Simpson and in his panic decided to leave.

[22] On July 13, 2022 Mr. Menezes turned himself in and ultimately confessed to the police.

[23] Mr. Simpson suffered serious, life altering, but not life threatening injuries. Multiple bones were broken , he required numerous surgeries and continues to suffer the effects of the accident. Mr. Simpson’s victim impact statement explains the extent of the harm he suffered as a result of this accident. He is still suffering today both physically and emotionally. Mr. Simpson has not regained full movement in arms and relies on his family to help him. It is unclear if Mr. Simpson will ever regain full range of motion. It has been a long and painful road to recovery for Mr. Simpson.

Relevant Legal Principles.

[24] The overarching principle in sentencing in Canada is that the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is best determined by considering all the aggravating and mitigating factors while keeping in mind the objectives of sentencing which are outlined in section 718 of the Criminal Code.

[25] While the Criminal Code identifies a host of objectives that a judge must consider in assessing the appropriate sentence, how much weight a judge gives to any of the objectives is determined on a case-by-case basis. As was recently stated in R. v. Morris 2021 ONCA 680 “The individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender”.

[26] In most motor vehicle offences, the focus of sentence is denunciation and general deterrence. Failing to stop at an accident where bodily harm has occurred, is a callous, selfish act that must be condemned by our courts. Appellate courts have noted that jail sentences are often required to deter others from committing this kind of offence and to properly denounce the conduct. Driving is a regulated activity and when not done with due care and attention places the lives of others at risk. Leaving the scene of an accident when someone is hurt, is not only an offence, but it also puts the safety of others at risk because it delays access to necessary medical attention. Sentences for this offence must speak to this reality.

Range of sentence normally imposed.

[27] The normal range of sentence for failing to remain at the scene of an accident where bodily harm has occurred is hard to assess. This is largely because there are so few cases where this offence stands alone. In the vast majority of the cases I read, the offender was convicted of failing to remain as well as another offence like impaired driving causing bodily harm or dangerous driving causing bodily harm. To that end, it is difficult to assess what impact the driving offence had on the sentence imposed for failing to stop. While there are some elements of dangerous driving in the case at bar, Mr. Menezes did not admit to committing the offence of dangerous driving and was not found guilty of that offence. Given the facts admitted by Mr. Menezes, however, the driving in the case at bar is an aggravating factor.

[28] From my review of the case law, sentences for dangerous driving causing bodily harm tend to go as high as two years or more. As noted above, sentences for failing to stop at an accident where bodily harm occurred are often imposed consecutive to the dangerous or impaired driving offence and tend to range from four months to 15 months.

[29] Crown counsel provided a number of cases on dangerous driving and failing to stop. In one case, R v. Berto 2021 ONCA 839, Mr. Berto was convicted after trial of dangerous driving causing bodily harm and failing to remain where bodily harm occurred. He was sentenced to 18 months for the dangerous driving and six months consecutive for the failing to remain. Mr. Berto drove his vehicle, in anger, into a crowd of people. He then recklessly drove out of the parking lot, hitting a pedestrian rendering him a tetraplegic.

[30] In R. v. McLaren [1999] O.J. No. 2566 (SCJ), a twelve-month sentence for impaired driving and a four month sentence for failing to remain at the scene of the accident was imposed. Mr. McClaren ran into a cyclist. He had a positive pre-sentence report and good prospects for rehabilitation. Like the case at bar, the victim suffered serious injuries, required many surgeries and continued to experience pain at the time of the sentencing hearing.

[31] Recently, in R. v. Yogeswaran, 2021 ONSC 5920 Justice Stribopoulos reviewed in depth the range of sentences for dangerous driving where bodily harm ensues. In that case, the accused was speeding and driving dangerously by changing lanes and aggressively trying to get past other vehicles. Mr. Yogeswaran hit another vehicle as he went through an intersection. As a result of the accident two people were badly injured, one of whom suffered brain damage and is now permanently disabled. Justice Stribopoulos held that the range of sentences for this kind of offence was from a high reformatory conditional sentence up to penitentiary. Mr. Yogeswaran received a ten-month jail sentence and an 18 month driving prohibition. I am mindful that Mr. Menezes has not been found guilty of dangerous driving. I highlight this case because the driving is an aggravating factor in the case at bar.

[32] The range for failing to stop at the scene of an accident where bodily harm occurred was reviewed in detail in R. v. Casselman 2014 ONCJ 198. In Casselman, Justice Paciocco noted that in the cases provided to him, the range appeared to be from six months to 15 months for this offence. In deciding that a 12 month sentence was the appropriate sentence for Mr. Casselman, Justice Paciocco identified a series of aggravating factors including that Mr. Casselman had two prior convictions under the Highway Traffic Act for failing to remain at the scene of accidents, that in fleeing the accident, Mr. Casselman almost hit the victim a second time, and that he drove off in a disabled vehicle that posed a further risk to others on the road. In addition, Mr. Casselman went to extreme efforts to evade the police. He tried to his vehicle and then lied to the people who later came to help him. Justice Paciocco referred to Mr. Casselman’s conduct as a “sustained callous and self-centered attempt to evade responsibility”.

[33] In R. v. Stewart, 2018 ONCJ 678 a four month sentence was imposed for failing to remain at the scene of an accident consecutive to lengthy sentences for impaired driving causing bodily harm.

Analysis

[34] It is difficult to ascertain the real range where the only offence before the court is fail to remain where bodily harm occurred. Reviewing the above case law, the range appears to be four months at the very low end up to fifteen months. The question is where does Mr. Menezes fall within this range, or are his circumstances such that the sentence for Mr. Menezes should fall outside this range.

[35] To that end it is helpful to identify the aggravating and mitigating factors.

[36] The aggravating factors in the case at bar, include:

a) Harm to victim. This is a case where the victim suffered significant injuries, had to undergo numerous surgeries and was hospitalized for a month before being moved to a rehabilitation. Mr. Simpson still has metal plates in his body due to all the broken bones. While he is largely recovered, he still has lost his full range of motion and relies on his family for assistance.

b) This was not just a single moment of panic. Mr. Menezes drove away, returned and then drove away again once he saw a number of people helping the victim.

c) The driving that led up to the accident is aggravating. Mr. Menezes admitted that he was driving without due care.

d) Mr. Menezes has a driving record. Having said that, the record is somewhat dated and is not linked to failing to remain at accident scenes.

e) Mr. Menezes has a criminal record.

[37] Crown counsel also urged me to find as an aggravating factor that Mr. Menezes was a professional driver. I appreciate that pursuant to section 320.22(d) of the Criminal Code, it is an aggravating factor to have been receiving renumeration as a driver. In my view, this section is not engaged in the case at bar. Firstly, Mr. Menezes was not driving for work at the time of the accident. Secondly, as I understand Mr. Menezes work history, he was not working as a driver at all when this accident occurred. He stopped his employment as driver in 2019. In other words, he was not receiving renumeration as a driver at the time of the offence.

[38] Crown counsel also urged me to find that this accident was due to road rage, which if true, would be a significantly aggravating factor. I am unable to make this finding. Firstly, Crown counsel conceded that she could not establish that Mr. Menezes intended to hit Mr. Simpson. Secondly, there is also no evidence that Mr. Menezes returned to the area to have further interactions with Mr. Simpson. I am mindful that Mr. Menezes had words with the victim four minutes prior to the accident, but I do not know what was said. Moreover, I do not know why Mr. Menezes came back to the scene at 7:04. It may have been to continue engaging with Mr. Simpson, or it could be because he forgot something at home and was turning back around or that he was lost or for some other reason all together. Given the absence of evidence on this point, I cannot say that Mr. Menezes return to the scene has anything to do with Mr. Simpson

[39] The following mitigating factors exist in this case:

a) Mr. Menezes entered a plea of guilty.

b) Mr. Menezes is remorseful.

c) Mr. Menezes has insight into his actions.

d) Mr. Menezes has taken responsibility for his offence.

e) While Mr. Menezes does have a prior entry on his record form ten years ago, he otherwise was of good character.

f) Mr. Menezes is a hard worker.

g) Mr. Menezes supports his family.

h) Mr. Menezes helps his mother with the care of his father who is suffering from Parkinson’s disease.

i) Mr. Menezes has suffered some collateral consequences. He has had difficulty finding work as his main area of employment requires him to drive. This has caused a financial strain on him and his family. The past fourteen months have been very difficult for him.

j) Mr. Menezes in not a citizen. A further conviction on his record and a period of incarceration may affect his ability to remain in Canada.

[40] In looking at the cases referenced above, in my view, the facts in the case at bar, are less aggravating than those in Yogeswaran. In that case, the victim suffered permanent brain damage. Moreover, Mr. Yogeswaran was convicted of dangerous driving as opposed to the offence of failing to stop. I am therefore satisfied that I can impose a sentence less than what was imposed in that case. In my view, the 18 month sentence sought by the Crown is not a fit sentence in this case. 18 months is higher than many of the sentences imposed for dangerous driving causing bodily and is significantly higher than the sentences normally imposed for failing to stop at the scene of an accident where bodily harm has ensued.

[41] I am also of the view that a fine, as requested by Mr. Menezes, is not a fit sentence. The paramount considerations in sentencing Mr. Menezes must be on deterrence and denunciation. A non-custodial sentence will not achieve those aims nor does it properly reflect the gravity of this offence and the harm done to Mr. Simpson.

[42] Since I have determined that a sentence in the reformatory range is an appropriate sentence, I have turned my mind to whether or not a conditional sentence is a fit sentence in this case. Mr. Menezes has been in the community without incident for over a year. He has strong ties to the community and is largely pro-social. While I am satisfied that a sentence in the reformatory range is appropriate, and I am satisfied that Mr. Menezes will not commit further offences, it is my view that a conditional sentence is not a fit sentence. A conditional sentence, in my view, will not appropriately denounce the offending behaviour nor will it meet the objective of general deterrence.

[43] In assessing what is the appropriate sentence in the case at bar, I note that the facts in this case are less aggravating than those in R. v. Berto, where a six month sentence for the fail to remain was imposed consecutive to an 18 month sentence for the dangerous driving. Firstly, Mr. Berto had a trial. Secondly, Mr. Berto’s conduct was aggravating in that he first drove into a crowd of people and then drove recklessly out of a parking lot where he hit a pedestrian. Thirdly, the injuries suffered by the victim in Berto were greater. In Berto, the victim was rendered a tetrapelic after the accident. This does not mean, however, that a sentence of less than six months must be imposed. In Berto, the fact of the dangerous driving was captured by a separate, consecutive sentence. As such, the dangerous driving reasonably played a lesser role in determining the appropriate sentence for the fail to stop offence. In my view, there is some room to impose a sentence less than six months in this case.

[44] In my view, the facts in the case at bar are also not as aggravating as those in Casselman where a one year sentence was imposed for failing to stop. Mr. Casselman had a history of failing to remain at scene of accidents and engaged in a lengthy pattern of conduct to avoid responsibility for his actions and obstructed the police investigation. In the case at bar, while Mr. Menezes initially denied driving, when cautioned by police he confessed. In my view, the sentence for Mr. Menezes should be significantly lower than that imposed on Mr. Casselman.

[45] When I consider all the aggravating and mitigating factors, including the potential immigration consequences to Mr. Menezes, I am satisfied that a sentence of five and half months is appropriate. In my view Mr. Menezes is genuinely remorseful, has insight into his offence and has taken responsibility for his actions. A five and a half month sentence speaks to the aggravating facts of this case including the nature of the driving and the harm suffered by Mr. Simpson while also taking into consideration all the mitigating factors outlined above and the potential immigration consequences. I will place Mr. Menezes on probation for two years. The terms of the probation order are as follows:

a) report to probation within two working days of release from custody and thereafter as directed.

b) attend all counselling as directed by probation and sign forms to confirm compliance with this term.

c) do not operate a motor vehicle unless doing so for employment purposes.

d) no contact with Mr. Simpson.

[46] I am not imposing a driving prohibition. Mr. Menezes has been prohibited from driving since his arrest for this offence and as such has already been prohibited from driving for more than a year. Moreover, Mr. Menezes may need to drive for work and needs to support his family. I am satisfied that it would not put the public at risk to allow Mr. Menezes to drive for work purposes so that he may support his family.

Dated October 10, 2023 __________________

Justice Mara Greene