Ontario Court of Justice

Date: 2024 03 27 Court File No.: Peterborough 23-0321

Between:

HIS MAJESTY THE KING

— AND —

DAVISON WEIR

Before: Justice S. W. Konyer

Heard on: March 15, 2024 Reasons for Judgment released on: March 27, 2024

Counsel: David Parke, for the Crown Natasha Beitman, counsel for the accused Davison Weir

KONYER J.:

[1] Davison Weir pled guilty to three counts of dangerous driving causing bodily harm. The Crown proceeded by indictment and is seeking a sentence of 30 months in jail, while the defence has asked me to consider imposing a conditional sentence of imprisonment. What follows are my reasons for sentence.

[2] I will first review the facts in support of Mr. Weir’s guilty pleas. I will then review the victim impact statements and Mr. Weir’s personal circumstances. Finally, I will consider the relevant sentencing principles and how those principles have been applied in other similar cases. This will allow me to determine what is a fit sentence in Mr. Weir’s case.

The facts

[3] On Thursday, December 22, 2022, at approximately 6:00 pm, Mr. Weir was driving his black BMW M15 eastbound on Parkhill Road in the city of Peterborough. He then turned south on Armour Road. These are residential streets. When he turned onto Armour Road he drove past houses and a park. The posted speed limit was 50 km/hr. Mr. Davison quickly accelerated to a speed of 137 km/hr within about two city blocks. The road surface was wet, and the area was lit by artificial lighting. Traffic in the area was light but consistent, typical for the time of day. Mr. Weir was not under the influence of alcohol or any controlled substance.

[4] At the same time, Elizabeth DeCarlo was operating a red Chevrolet Equinox. Her 9 year old son Nixon DeCarlo and his best friend, 8 year old Jack Ayotte, were in the rear seat of her vehicle. She was driving eastbound on Dufferin Street, a residential street which intersects with Armour Road. The intersection is controlled by a stop sign on Dufferin Street. Ms. DeCarlo came to a complete stop before pulling onto Armour Road, turning north. Her vehicle was then struck on the rear driver’s side by Mr. Weir’s speeding BMW. She was travelling at a rate of 15 km/hr at the time of the collision. An analysis of the airbag control module in Mr. Weir’s vehicle showed that he was travelling at a rate of 137 km/hr three seconds before the collision. He applied his brakes one second before the collision and struck Ms. DeCarlo’s vehicle while travelling at a rate of 101 km/hr.

[5] There was extensive damage to the front end of Mr. Weir’s vehicle. The collision caused serious damage to Ms. DeCarlo’s vehicle, particularly in the area of the driver’s side rear passenger door and rear wheel well. Jack Ayotte was seated in the rear driver’s side seat, and Nixon DeCarlo was seated in the rear passenger seat.

[6] All occupants of Ms. DeCarlo’s vehicle had to be extracted by emergency workers. Ms. DeCarlo suffered broken vertebrae in her back. Both children had to be transported to the Hospital for Sick Children in Toronto for treatment. Nixon DeCarlo suffered internal bleeding that required surgery and resulted in the loss of one of his kidneys. Jack Ayotte suffered broken vertebrae, bleeding from the brain and required further rehabilitation at a children’s facility after his release from hospital.

The victim impact statements

[7] I received victim impact statements from Elizabeth DeCarlo, her mother-in-law Catherine DeCarlo, her sister Sarah Stackhouse, as well as Joshua Ayotte, the father of Jack Ayotte. Unsurprisingly, the victim impact statements were moving, and the impacts of these offences on the victims, their families and loved ones has been enormous and lasting.

[8] Elizabeth DeCarlo described the tremendous guilt she felt in the aftermath of the collision. She was responsible for the care of the two boys in her vehicle, and initially thought she was to blame for the collision. It was not until months later, after the police investigation was complete, that she learned all of the facts. She wrote: “Following the event, I was unable to get to my son or husband for almost 2 days. I was also hurt, couldn’t walk without a walker, and definitely couldn’t drive myself anywhere. When I was finally able to get to Toronto, I arrived to see my son in ICU, his best friend also in ICU in a coma and 2 families reeling from the uncertainty and fear. I then spent almost 2 months believing that I was at fault, that somehow I had put 2 kids in danger, that there was something I could have done differently.”

[9] She also described the traumatic impact of almost losing these two children on their school, church and hockey communities. She continues to feel guilt for being the driver of the children, and no longer volunteers with children in the community in the same way as before the collision. She wrote: “Davison Weir changed who I am profoundly in a negative way – he made me a nervous, anxious, scared and paranoid person.” She cringes when she passes by the site of the collision, which is close to her home, on a daily basis. She and her family also suffered other impacts, including cancelling a vacation, financial losses from the vehicle, time off from work for her and her husband, and numerous trips to Toronto for medical appointments, rehabilitation and counseling sessions. Her son described to her how he felt alone and scared on the ambulance trip to Toronto, afraid to close his eyes because he believed he might not wake up.

[10] Ms. DeCarlo’s sister described how she learned of the collision and raced to Sick Kids’ Hospital to be with Nixon and his father. She wrote: “[Nixon’s father] and I held Nixon’s hand as the doctors and nurses worked to stabilize him and prepare him for surgery. I watched Nixon’s body swell before my eyes because his kidneys had stopped working. I watched as nurses tried multiple times to try and find veins because they kept collapsing. I watched as multiple units of blood were hooked up to his IV. I had to call my sister to explain to her that her son needed lifesaving surgery and that he would lose a kidney and possibly a spleen, although the extent of the injuries and surgery were unknown.” She described how Jack Ayotte’s family arrived at the hospital and the agonizing wait they all endured for news on the boys’ status.

[11] Ms. DeCarlo’s mother came to the scene of the collision and saw her grandson being taken away on a stretcher to go by ambulance to Toronto. She described the horror experienced by the entire family during the period that followed, as well as the profound ongoing impact these traumatic events continue to have on her life.

[12] Joshua Ayotte detailed the massive and lasting impact of this offence on his son and their family. He wrote: “Jack’s journey has been one of profound heartache, physical anguish, disappointment and humiliation, far beyond what any adult should endure, let alone an 8 year old child. His injuries were so severe that his recollection of the healing process began weeks after the incident. Emerging from a coma, Jack embarked on a slow and painful path to recovery, from blank stares to hand gestures, to walking and feeding himself. Throughout, he unknowingly resisted the aid of healthcare professionals, enduring long days and sleepless nights marked by cries and attempts to remove medical equipment from his body. One night my 8 year old son confronted his own mortality, pleading with me that he did not want to die, as I struggled to convince him otherwise.”

The circumstances of Davison Weir

[13] Mr. Weir was 19 years old at the time of these offences. He has no previous criminal record or driving record. He is the product of a stable and loving home environment. He has been diagnosed with Obsessive-Compulsive Disorder, but does not suffer from any mental health issues or addiction. He excelled at school and was a college student in Peterborough at the time of these offences. His parents helped him purchase a home in Peterborough where he was living with friends at the time. He owned the vehicle that was used to commit these offences.

[14] I was provided with many reference letters attesting to Mr. Weir’s good character. Some of the authors complained that Mr. Weir was being blamed unfairly for the collision, but all agreed that this conduct is completely out of character for this young man. Following the collision, he experienced grief and depression. He faltered in school and dropped out of college. He began doing volunteer work with students at a local elementary school. He was described in glowing terms by one of his supervisors, and was very popular with the children.

[15] Mr. Weir has been prohibited from driving as a term of his release since being charged with these offences in February 2023. He has moved to Toronto, where he lives with his partner. He has enrolled in a college in Durham so that he can attend classes using public transit. He enjoys the ongoing support of his partner, his parents and extended family, many of whom accompanied him to the sentencing hearing.

[16] He was polite, cooperative and forthcoming with the author of the pre-sentence report that was prepared in his case. The collateral sources contacted for the preparation of the report also described him in glowing terms, using words such as “loving”, “caring”, “giving”, “helpful”, “sweet”, “intelligent” and “compassionate”. Although he has never been diagnosed with any mental illness, he reportedly struggled during the COVID-19 lockdown periods. Since the collision, he reports that his mental health can fluctuate. Apart from some back issues, he has no lasting injuries from the collision.

[17] When asked by the author of the pre-sentence report about the collision, he acknowledged responsibility, described his actions as “extremely stupid”, and expressed relief upon learning from his parents that the injured children had apparently recovered from their injuries. I do not mean to say that either child has, or will, fully recover – this remains unknown at this point. I simply point out what Mr. Weir came to believe, and his reaction to forming this belief in his own mind.

[18] Mr. Weir wrote a letter of apology addressed to the DeCarlo and Ayotte families, the court and the community of Peterborough, which was filed as an exhibit at the sentencing hearing. In it, he described these offences as “the biggest mistake of my life”. He described how he was driving home after having dinner with his parents, and after turning onto Armour Road “for some stupid reason I pressed my gas peddle [sic] almost to the floor to accelerate my car to speeds above the posted limit. I didn’t look at the speedometer so I cannot say what speed I was going but I know I was going well over the posted limit. I had lost all common sense and proper judgment, which was not like me, and I cannot answer why I did this. I was always taught by my parents to obey the law and respect it. I did not do that in this moment.”

[19] He addressed the victims directly: “to the Ayotte and DeCarlo families my apologies will never be enough for what you have gone through, but I am truly sorry, and I hope that through my positive actions in the community it honours your families in some way.” Finally, Mr. Weir pled guilty to these offences at a reasonably early opportunity and without a trial date ever being set.

The relevant sentencing principles and previously decided cases

[20] Sentencing is a highly discretionary and individualized process. No mathematical formula exists for calculating a fit sentence. Rather, judges must balance the unique circumstances of the case and the offender in order to craft a sentence that best reflects the purposes, objectives and principles of sentencing. The fundamental purpose of any sentence is to protect society, and to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is achieved by imposing a sentence that reflects one or more of the traditional sentencing objectives including denunciation, specific and general deterrence, separation of offenders from society where necessary, rehabilitation, reparation to victims and communities, and promoting a sense of responsibility in offenders.

[21] As a fundamental principle, a sentence must be proportionate to the seriousness of the offence including any harm caused and the degree of responsibility of the offender in its commission. It should be on par with sentences imposed on similar offenders in similar circumstances. Where punitive sentencing objectives are paramount, the sentence should not exceed what is necessary to achieve them. All reasonable alternatives to incarceration must be given serious consideration, particularly for a youthful first offender.

[22] These offences were exceptionally serious. Mr. Weir operated his vehicle at an incredibly dangerous speed on a residential street. According to the apology letter he filed, he was in the process of returning home to a nearby address. It is reasonable to infer, therefore, that Mr. Weir was familiar with the residential nature of the neighbourhood he was travelling through. This would also be readily apparent to anyone travelling these roads. Mr. Weir’s actions resulted in severe, life-threatening physical injuries to the children in the vehicle he struck, and serious physical injuries to the other driver. He inflicted untold emotional trauma on all of his victims, their families and loved ones. As the operator of a motor vehicle, especially on residential streets, he owed a duty of care to other users of the road to operate his vehicle in a safe manner. His breach of that duty was egregious.

[23] In my view Mr. Weir also bears a moderately high degree of responsibility for his dangerous conduct. He is an intelligent young man who was sober at the time. There is nothing in his background or circumstances that in any way explains his callous decision to endanger the lives of other members of the community. He must have appreciated the dangerousness of his actions. To describe these offences as senseless is an understatement. Immaturity is the only possible explanation for his extreme risk-taking behaviour. While an unsatisfactory explanation, it is well recognized that youth and immaturity are factors which can reduce moral responsibility. This is why I calibrate his level of responsibility at the moderate to high range, rather than at the highest end of the range. The sentence I impose must be proportionate to the serious nature of these offences, the harm caused, and Mr. Weir’s degree of responsibility.

[24] There are also serious aggravating factors present here – the extreme speed, the time of day and location of the dangerous driving, the extent of the injuries to the victims, and the extent of the emotional trauma inflicted on their families.

[25] At the same time, there are significant mitigating factors present. Mr. Weir chose to plead guilty without this matter being set down for trial. Had he chosen to take this matter to trial, scarce resources would have been consumed, and additional trauma would have been inflicted on the victims. His decision to plead guilty has had real and tangible benefits to the administration of justice, and it is proper that Mr. Weir be given significant credit for his decision to accept responsibility.

[26] I also accept that Mr. Weir is genuinely remorseful for his actions. He appears to be an otherwise upstanding and law-abiding young adult. These offences are completely out of character for him. I have no doubt that he has already been specifically deterred by the process of being arrested, charged, prohibited from driving while on bail, and facing a serious criminal prosecution. Whatever sentence I impose, I think it unlikely that Mr. Weir will ever be before the criminal courts again.

[27] I have reviewed and considered the many cases provided by counsel. While they are of assistance, as I have said sentencing is a highly individualized process. The sentence I impose here must fit the circumstances of this offence and this offender. What previously decided cases do establish, however, is that for this type of offence the principles of denunciation and deterrence are of primary importance. That is not surprising given the seriousness of driving offences where bodily harm results. Rehabilitation and restraint are still important considerations, especially for youthful first offenders, but the reality is that this type of offence is committed by many young people who are otherwise good members of the community. Even in such cases, the seriousness of the offence and the need to denounce and deter the conduct usually results in sentences of real incarceration, typically in the mid to upper reformatory range.

[28] Given Mr. Weir’s previous good character and guilty pleas, I am satisfied that a sentence in the reformatory range would be sufficient to denounce his conduct and send the required deterrent message. A conditional sentence of imprisonment is therefore legally available, and must be given serious consideration. Mr. Weir would clearly pose little to no risk to the community if permitted to serve his sentence conditionally. The real issue in this case is whether permitting him to serve the sentence in the community would be consistent with the fundamental purpose and principles of sentencing.

[29] A conditional sentence can have significant denunciatory and deterrent effect, especially where the sentence is lengthy and the conditions restrictive. A conditional sentence is the preferred option where restorative and rehabilitative goals take priority, and it will often be the best option where the sentence needs to achieve a balance between punitive and restorative sentencing objectives. That said, as the Supreme Court held in the seminal case of R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para 100: “where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive option.”

[30] In most cases with similar facts, courts have found that a conditional sentence would be inadequate to address the need for denunciation and deterrence. A recent example is R. v. Skardiute, 2023 ONCJ 10, where a sentence of 15 months incarceration was imposed following a guilty plea to dangerous driving causing bodily harm by a 25 year old first offender of otherwise good character. She drove without a licence on a busy highway, passed a line of cars while traveling 140 km/hr in an 80 zone while approaching a blind hill where passing was prohibited. She collided head on with another vehicle, causing devastating injuries to the 22 year old victim that will never heal. She herself was also injured, as were her spouse and two young children, who were all passengers in her vehicle. The court found that even a strict conditional sentence with restrictive and punitive terms would be inadequate.

[31] There have also been some cases with exceptional circumstances that justified a conditional sentence. In R. v. Cadet, 2023 ONCJ 374, a youthful first offender had been racing with another vehicle on a city street in Pickering and caused a collision resulting in significant injuries. These included permanent hearing loss to a passenger in the other vehicle, significant injuries to his own 9 year old son, and devastating and lifelong injuries to himself. The nature of his own injuries coupled with the impact that incarceration would have had on his vulnerable child were factors that tipped the balance in favour of a conditional sentence.

[32] In R. v. Boutrous, 2023 ONCJ 266, an 18 year old first offender was driving friends home from work during her own break and was in a rush. She travelled at a speed of 151 km/hr in a posted 60 zone on a four-lane residential road. Due to her extreme speed, she was unable to avoid another vehicle which pulled into her lane. The crash killed the other driver. The offender had a positive background. Following the offence she required therapy to address her overwhelming feelings of guilt. At one point she fell into an acute depression, attempted suicide and was hospitalized for several days. She pled guilty to dangerous driving causing death. The court found that she was profoundly remorseful and that her moral blameworthiness was reduced by the fact that the victim had turned into her lane. These exceptional circumstances justified the imposition of a conditional sentence.

[33] There are some superficial similarities between Boutrous and the case before me. Both involve teenage drivers with good backgrounds whose driving was dangerous due to extreme speed in residential neighbourhoods. There are important differences, however. In Boutrous, there was some explanation for the speeding. The offender was working at a McDonald’s restaurant and was on a break. She offered to drive two coworkers’ home during her break, and was in a hurry to complete this task. In the case before me, Mr. Weir was simply driving home from a visit with his parents. No reason was provided for why he felt the need to be in a rush. Based on what he wrote in his letter of apology, his residence was on Maria Street. The entire distance he would have had to travel on Armour Road, from the point he turned at Parkhill Road until he would have reached Maria Street was just under 2 km according to Google Maps. At the posted limit the trip would have taken a few minutes at most. His decision to accelerate to the extreme speed he did before colliding with Ms. DeCarlo’s vehicle is simply incomprehensible.

[34] Further, in Boutrous the road being travelled was four lanes wide, two in each direction. The driving occurred just after midnight, with no traffic in the area. In those circumstances, the risk-taking was less extreme. In the case before me, the road in question is a residential city street, a single lane in each direction, with sidewalks, homes and parks bordering the street. The driving occurred at 6:00 p.m. on a weekday, a time when one would expect vehicle and pedestrian traffic to be present. It was a virtual certainty that a serious collision would occur at some point along the route at the extreme speed Mr. Weir was travelling.

[35] Lastly, although I accept that Mr. Weir is genuinely remorseful for his conduct, he has not experienced the sort of profound effects described in Boutrous as a result of his remorse.

[36] Mr. Weir is youthful, remorseful, and of previously good character. These facts, however, do not make his case exceptional. The caselaw is replete with similar offenders who have committed similar offences.

[37] I recognize, as defence counsel argued in her forceful submissions, that any jail sentence will be particularly harsh for Mr. Weir. He will undoubtedly be vulnerable in prison, and conditions in the provincial jails in Ontario are notoriously harsh. I fully appreciate the reality that imposing a jail sentence for Mr. Weir will be harmful to him, and unlikely to further his rehabilitation. The main focus of this sentence, however, must be denunciation and deterrence.

[38] In my view, a conditional sentence would be disproportionately lenient given Mr. Weir’s intentional risk-taking behaviour, his degree of responsibility, and the serious harms inflicted on his victims. A sentence to be served in his own home and community, even with restrictive terms, would not be proportionate to the seriousness of these offences, and would not adequately hold Mr. Weir to account for his actions. Nor would it send the proper message to community that dangerous driving offences that result in harm to others will always result in harsh sentences. Nothing short of a period of incarceration can achieve these goals.

[39] Having concluded that a period of real incarceration is required, I must now apply the principle of restraint and fix the shortest possible term that is necessary to achieve these objectives. The mitigating factors here persuade me that a sentence of 12 months imprisonment will suffice. The sentence for each offence will be one of 12 months imprisonment to run concurrently. Mr. Weir is prohibited from communicating with any of the victims or any member of their immediate family while serving his sentence, pursuant to s.743.21 of the Criminal Code.

[40] The jail sentences will be followed by concurrent periods of probation for 2 years. He will report to probation within two working days of his release from custody. He will cooperate with his probation officer and sign all necessary releases. He will be prohibited from communicating with any of his victims or members of their immediate families. He will attend, actively participate in, and complete all assessments, counseling or rehabilitative programs as directed by his probation officer. He will complete 100 hours of community service work on a rate and schedule as directed by his probation officer within 18 months of the start date of the order.

[41] I also prohibit Mr. Weir from operating a motor vehicle for a period of 4 years starting today. The Crown’s application for a DNA order is granted. The victim surcharges of $200 for each offence apply here, for a total of $600. Mr. Weir has 18 months to pay.

Released: March 27, 2024 Signed: Justice S. W. Konyer