ONTARIO COURT OF JUSTICE

CITATION: R. v. Gawronski, 2023 ONCJ 67

DATE: 2023 01 25

COURT FILE No.: Region of Niagara 998 20-NR3457

BETWEEN:

HIS MAJESTY THE KING

— AND —

John Gawronski

Before Justice J. De Filippis

Heard on August 5, October 28, and November 14, 2022

Reasons for Sentence released on January 25, 2023

Mr. M. Sokolski................................................................................... counsel for the Crown

Mr. C. Barry and Mr. J. Naresh................................................... counsel for the accused

De Filippis, J.:

INTRODUCTION

[1] After I ordered the defendant to stand trial in accordance with his election in the Superior Court of Justice, this matter was returned to my Court and the defendant pleaded guilty to dangerous operation of a conveyance causing death and failure to remain at the scene of an accident knowing or being reckless about the fact that death was caused, contrary to sections 320.13 and 320.16 of the Criminal Code. The Crown submits that the appropriate sentence for both offences is a total of three years in the penitentiary, along with a five-year driving prohibition and DNA order. The Defence advocates for a global sentence of one year in jail, followed by two years’ probation with terms that include 240 hours of community service work and a one year driving prohibition. There is no controversy about the DNA order.

[2] I have concluded that the appropriate sentence is a total of 21 months in jail and a five-year driving prohibition, along with ancillary orders. These are my reasons.

THE OFFENCES

[3] On June 20, 2020, at 840 PM, the defendant was operating a black 2013 Mercedes Benz automobile southbound on Montrose Road in Niagara Falls. He turned right onto Lundy’s Lane and accelerated westbound as he cut in front of another vehicle and merged into the passing lane. He soon struck a pedestrian, Ms. Elizabeth Parent. Some of the events were captured on local CCTV security cameras.

[4] This is a tourist area with hotels, restaurants and commercial properties. Ms. Parent lived in the area at the Lundy Lane Retirement Residence. She was 94 years old. She was attempting to cross the street when she was hit. This was not a marked intersection or crosswalk. It appears that the defendant attempted to avoid the collision by moving into the curb lane, but he was unsuccessful; Ms. Parent was hit with the left front corner of the automobile, causing her to roll up and hit the windshield, after which she fell onto the roadway. She suffered extensive head and body injuries and was transported by air ambulance to hospital where she died after several hours in intensive medical care.

[5] A subsequent investigation established the following: The posted speed limit for Lundy’s Lane is 60 KMH. The defendant was travelling more than 80 KMH immediately prior to the collision. There was a lull in traffic at the time; there were no other vehicles around the defendant as he approached Ms. Parent. The roads were clear and dry. The lighting was good, and nothing obstructed the view from the defendant’s seat to Ms. Parent. The defendant continued accelerating from the time he made the right onto Lundy’s Lane until the point of impact, when the car is seen to momentarily brake. After Ms. Parent was struck, the defendant continued speeding away on Lundy’s Lane until it turned down an alleyway. Other pedestrians pointed at the fleeing automobile. The defendant’s car was found the same evening parked in the driveway of his residence. There was significant damage to the headlight assembly, hood, and windshield. There was blood on the windshield. The defendant was found at 1:23 AM the following morning at an address close to his home.

THE VICTIMS

[6] Ms. Parent is not the only victim of the crimes. I have the benefit of a statement from her daughter, Ms. Susan Fansolato, who also wrote on behalf of her brother, Mr. Ken Parent, and their respective families. She described her mother as being a person in good health, who loved to walk, and was free to come and go from the retirement residence where she had many friends. She noted that the extended family has been deprived of the company of the deceased for the time remaining to her and added the following comments:

On June 20, 2020, as a result of poor judgement and bad decisions on the part of the defendant [my] mother’s life was abruptly ended in the most tragic manner. Insult was added to injury by the fact he fled from the accident like a coward not knowing if she was alive or dead. We believe the defendant is directly responsible for that loss, but he also stole something from us that evening, the true gift of time. It cannot be returned to us or given back, it is gone forever.

It is our hope that the judge in his sentencing decision takes some time from the defendant, and after that time he (the defendant) may, it is our hope, understand the value of it and know our grief and pain over the last 2 years plus. We have felt anger and angst toward the defendant during this time which consumed us.

As this court proceeding draws to a close, we must now put these emotions in check and move forward. Our mother would have wanted this.

[7] The defendant does not have a prior criminal record. He does, however, have a driving record that includes three prior speeding convictions, as follows: 2017 – 64 KMH in a 50 KMH zone; 2018 – 65 KMH in a 50 KMH zone; and 2019 – 149 KMH in a 100 KMH zone.

[8] The defendant’s presentence report is a positive one. Seventeen letters filed on behalf of the defendant also attest to a life defined by a close family, supportive upbringing, sports, study, and work. A teacher, co-workers, and fellow students have written to let me know about the defendant’s reputation as a man of good character.

[9] The defendant is now 25 years old. He was born and raised in Niagara Falls - the only son of a married couple. His father passed away in 2017, after many years of declining health. The defendant was close to his father. The defendant’s uncle, Mr. Zoran Samac, has described this relationship and the impact the death had on the defendant. The defendant’s family doctor confirms it worsened his existing struggle with anxiety. He takes prescribed medication for this. Since his arrest, he has been in counselling. The defendant studied economics at university. He is employed as a banking associate at a credit union. This full-time position is in addition to a part time job at a restaurant. The defendant told the author of the presentence report that he regrets leaving the scene and explained that he was in shock and panicked. He added that he will never forgive himself for the pain he caused to the family of Ms. Parent. Mr. Samac has written that he has spoken often with the defendant about this tragedy and that he is “very sorry” for what he did and that it will “haunt him for the rest of his life”.

[10] The defendant addressed the Court after counsel had made submissions. He described himself as a man of faith and family. It is hard for him to think about the pain he has caused, and he is sick with grief. He stated that his anguish is a life sentence and that he will work hard to be a better person.

SUBMISSIONS

[11] I have already set out the sentencing positions of counsel in this case.

[12] The Crown pointed out that the defendant decided to speed – as he has done before. His dangerous driving occurred in a busy tourist area. The evening was clear, and the roads were dry. Counsel adds that this is not a case in which the defendant could have been mistaken about hitting a person – his windshield was significantly damaged by the impact. Yet, he fled the scene. The defendant not only caused the death of Ms. Parent, but he has also inflicted suffering on an extended family.

[13] The Defence noted that the defendant was 23 years old at the time of these offences and has not driven since then. He does not have prior criminal convictions and has pleaded guilty. He is a half credit short of a university degree with a good full-time job, supplemented by a part time one. The full-time employer is aware of this matter and the job will be there for the defendant on his release from prison. Counsel argued that the defendant’s flight was due to panic and that he did not leave an injured person alone in an isolated area. Counsel added the record shows that until these events the defendant was a man of good character.

ANALYSIS

[26] The imposition of sentence is governed Part XXIII of the Criminal Code. The following provisions are particularly important:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender

[27] Proportionality means that the severity of a sentence will depend on the seriousness of the offence as well as the moral blameworthiness of the offender; see R v Lacasse 2015 SCC 64. Personal circumstances are relevant in determining proportionality in light of the seriousness of the offence, but they do not alter the seriousness of the offence: see R v Schofield [2019] B.C.J. No. 22 (BCCA). In this case there are also other considerations at play.

[14] In R v Priest 1996 ONCA 1381 it was held that in the case of a first offender, the court should explore all other dispositions before imposing a custodial sentence and that if a custodial sentence is appropriate, a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence. This principle of restraint with respect to young first offenders was reiterated by the Court of Appeal for Ontario in R. v. Mohenu 2019 ONCA 291 and again, more recently, in R v Randhawa 2020 ONCA 668. In this regard, I note that in R v Arbuthnot 2009 MBCA 106 it was held that “youthful” means a person aged 25 years or younger.

[15] In Priest, supra, Rosenberg J.A. was careful to exclude “very serious offences and offences involving violence” from the principle that sentences for first offenders should emphasize individual deterrence and rehabilitation. In such cases, denunciation and general deterrence must be given due weight. However, this does not mean that the principle of restraint for youthful first offenders is to be ignored; see Randhawa, supra, where the Court of Appeal substituted a suspended sentence, for the jail originally imposed, for a serious violent offence.

[16] Crown and Defence counsel brought several cases to my attention involving sentencing for the present charges. Although the facts and offenders in these cases are not all like this one, these precedents are helpful. It will suffice to say I adopt the comments of my colleague, Justice Rose in R v Paul 2022 ONCJ 102:

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.

[17] In imposing an 18-month sentence for dangerous driving causing death and a 6-month consecutive sentence for failure to remain, on a youthful first offender, Justice Rose noted as follows:

The manner of driving was a seriously aggravating factor. Paul was travelling far too fast for the road. A speed enforcement officer clocked him at 125 km/hr in a 60 zone. Paul's driving that morning leads to find that he was going to crash his car at some point. He was just going too fast. It was seriously aggravated that Paul was being pursued by a police car with emergency lights activated. It was also aggravated that Paul had been operating his car since 2018 without insurance. Paul, therefore, was operating his car for well over a year without regard to the regulatory requirements for operating a car in Ontario. The fact that Paul fled the scene was aggravated insofar as first responders did not know if Bertini was the driver of the car.

[18] This offence is a serious one; the defendant’s dangerous driving caused the death of a person. The defendant’s last-minute attempt to swerve his motor vehicle shows that not only was he speeding, but he did not pay attention to the unobstructed view in front of him. Ms. Fansolato has told me that her mother was loved and will be sorely missed by her extended family. This family must live with what happened to Ms. Parent, but they are committed to honouring her memory by letting go of their understandable anger at the defendant.

[19] The defendant’s personal circumstances are mitigating; he has a supportive family and is hard working and studious. He is engaged in counselling. His remorse is genuine and substantial. I note that his speeding was not precipitated by, or part of, other illegal activity, such as flight from police. However, he has a history of driving infractions, including speeding, and his moral blameworthiness is enhanced because he fled the scene. I accept that this was due to panic and not an attempt to avoid apprehension; he was bound to be caught as he left an easily identifiable damaged car at his nearby home. I also acknowledge that he could not have saved Ms. Parent had he remained on the scene – but, he did not know this.

CONCLUSION

[20] The sentence I impose cannot erase the loss and pain caused by the defendant. It is not to be a means of revenge for what he did. Rather, it is a balancing of the established principles of sentencing – always especially difficult in a sad case such as this.

[21] The defendant will serve 15 months in jail for the offence of dangerous driving causing death. He will serve an additional six months for failing to remain at the scene. He is prohibited from driving for five years. The defendant will provide a sample of his DNA. He will pay the victim fine surcharge of $200 for each offence. I do not see the need for probation in this case.

[22] I appreciate the assistance of counsel in this matter.

Released: January 25, 2023

Signed: Justice J. De Filippis