ONTARIO COURT OF JUSTICE

CITATION: R. v. Gilkes, 2024 ONCJ 578

DATE: 2024 10 02

COURT FILE No.: Central East Region: Oshawa Courthouse File #23-28103253

BETWEEN:

HIS MAJESTY THE KING

— AND —

SHAMAR GILKES

Before Justice Peter C. West

Guilty Plea Entered May 3, 2024

Oral Submissions as to Sentence September 4 and 10, 2024

Reasons for Sentence released on October 2, 2024

Mr. N. Young.................................................................. counsel for the Crown

Ms. J. Baldassi…………………….…counsel for the defendant, Shamar Gilkes

WEST J.:

[1] On December 30, 2022, at around 5 a.m., the 401 Highway was beginning to fill up with traffic as individuals were driving their motor vehicles to work. Many families in the Durham Region were planning get-togethers with family and friends to celebrate the New Year, which was fast approaching. Danyang Song was driving to his work, planning to come home early to prepare for a celebration of the new year with his wife and three children, other family members and close friends. Hassan Choudhary was on his way westbound on Highway 401 as a new police cadet to attend Police College in preparation of his becoming a police officer, an hour drive. What they both encountered on Highway 401 westbound was not supposed to happen. Another driver, Shamar Gilkes, was driving his motor vehicle eastbound in the westbound lanes and he was travelling at an excessive rate of speed, 138 kms/hour. The MTO videos were part of Exhibit 2, referred to below.

[2] Danyang Song lost his life as a result of this collision, which caused significant loss to the Song family and friends and Hassan Choudhary’s life has been irreparably altered such that his goal of becoming a police officer is not something he will be able to realize. I will address the incredible loss suffered by the Song family members and his friends and the devastating impact experienced by Hassan Choudhary and his family, as a result of Mr. Gilkes decision to consume alcohol and then drive his motor vehicle later in my reasons. Unfortunately, nothing I do in terms of the sentence I impose on Shamar Gilkes will in any way change what has occurred or put life back to where it was before December 30, 2022, for the victims or for Mr. Gilkes and his family. Mr. Gilkes’ guilty plea, which demonstrates his acceptance of responsibility for causing Mr. Song’s death and the serious debilitating/permanent injuries to Mr. Choudhary will hopefully assist the victims of his actions moving forward. It is my hope and prayer that my imposition of a proportionate sentence for Mr. Gilkes will in some way provide closure respecting these criminal proceedings for all parties affected by his criminal conduct.

[3] On May 3, 2024, Shamar Gilkes pleaded guilty to Impaired Operation of a Motor Vehicle Causing Death, Dangerous Operation of a Motor Vehicle Causing Death, and Impaired Operation Causing Bodily Harm. The Agreed Statement of Facts was marked as Exhibit 1. A Pre-Sentence Report was ordered, and the Crown advised he would be requesting Victim Impact Statements from those impacted by Mr. Gilkes criminal conduct. I requested counsel provide me any caselaw they intended to rely upon in advance of the sentencing hearing date. I received a significant amount of caselaw from both counsel.

[4] On September 4, 2024, the following exhibits were filed and marked formally as exhibits:

Exhibit 2: A computer stick containing videos from Highway 401 westbound, the first video depicts the westbound lanes just east of Liverpool Road in Pickering and the second video depicts the Brock Road bridge over Highway 401 and the westbound lanes just east of Brock Road. These two videos show Mr. Gilkes’ BMW X3 proceeding eastbound against westbound traffic from 5:06:45 to 5:07:31 when the collision occurred, as well as police photographs of the accident scene; showing extensive damage to all three vehicles.

Exhibit 3: Ministry of Transportation Ontario Record of Shamar Gilkes, no HTA infractions or convictions since April 23, 2020, HTA record from August 25, 2016, There are 5 entries.

Exhibit 4: Victim Impact Statements (10 Tabs: 6 VIS from members of Song Danyang family [Zehan Song (son); Huang Jinsong (wife); James Song (son); Song Jie (elder sister); Song Chenwen (father); Jilly Song (daughter) and 4 VIS from Chaudhry family: Hassan Chaudhry (victim); Fatima Chaudhry (sister); Shabina Chaudhry (mother); and Zainab Chaudry (sister).

Exhibit 5: Updated VIS of Zehan Song.

Exhibit 6: Crown Written Submissions.

Exhibit 7: Defence Sentencing Brief (see discussion under Character of Mr. Gilkes).

Exhibit 8: Pre-Sentence Report (PSR) written by Arlene Tansingco, dated August 23, 2024.

Exhibit 9: Collision Reconstruction Report, authored by P.C. Braun.

[5] Prior to submissions being made by counsel, four of the Song family read their VIS statements in Court. I will address the VIS in more detail later in my reasons. I heard submissions by both counsel on September 4, 2024, and I want to express my gratitude for the professional manner both counsel have dealt with this very difficult sentencing hearing.

Factual Background

[6] Exhibit 1 is an Agreed Statement of Facts which provides details of the tragic consequences of Shamar Gilkes criminal conduct of operating his BMW X3 while he was impaired by the consumption of alcohol. On December 30, 2022, at approximately 5:05 a.m., Shamar Gilkes entered the 401 Highway going in the wrong direction, eastbound in the westbound collector lanes. Police obtained the MTO CCTV video from the Liverpool Road overpass, which is the first video to show a westbound vehicle in the eastbound lanes. This establishes that Mr. Gilkes could only have entered the 401 Highway driving eastbound on the westbound off-ramp onto Liverpool Road.

[7] A civilian firefighter, on his way to work in the westbound collector lanes around 5 a.m., observed Mr. Gilkes and called 911. The CCTV camera captures Mr. Gilkes SUV driving eastbound in the westbound collectors. He would drive by groups of vehicles who can be seen flashing their headlights at him. Mr. Gilkes brake lights are never activated while he is travelling eastbound past vehicles travelling westbound. The MTO cameras just west of the Brock Road bridge show the BMW going the wrong way in the westbound lanes. The vehicle moves into lane 2 (lane 1 is the left most lane if one is travelling westbound). Just prior to going under Brock Road bridge the BMW’s right turn signal flashed. After passing under the bridge the left turn flashes. This corresponds with the data obtained from the recovered Airbag module from the BMW, which shows 4.5 seconds prior to the crash the vehicle had its “Turn switch status” as “Right” and about 2.5 seconds prior to the crash the vehicle had its “Turn signal switch” as “Left.” The collision is not clearly visible on camera because of the westbound vehicles headlights but traffic can be seen coming to a halt.

[8] At 5:07:31 the BMW SUV collided first with Mr. Chaudry’s Honda Civic and then with Mr. Song’s Volkswagen. The brakes of the BMW were only applied a half second before the actual crash and only slowed the vehicle by 5 km/hr. The speed at the time of the crash was 124 km/hr. Five seconds before the crash the speed of the BMW was 138 km/hr.

[9] The BMW collided head on with Hassan Choudhary’s white Honda Civic in lane 1. The passenger side of the BMW impacted with the passenger side of the Civic, causing the Civic to rotate where it collided with the barrier and came to rest. After the collision with the Civic the BMW rotated clockwise into lane 2 and collided with Danyang Song’s Volkswagen. The BMW mounted the Volkswagen, and the roof structure was peeled back causing major damage. Mr. Song was found deceased in the driver’s seat. Mr. Gilkes’ BMW ended up on its roof after colliding with the Volkswagen.

[10] An off-duty firefighter stopped to provide assistance at the scene of the collision. The BMW’s window was broken and Mr. Gilkes was able to get out. He was attended to by EMS and ultimately brought to Sunnybrook Hospital. P.C. Delorey observed the odour of alcohol coming from Mr. Gilkes’ breath in the back of the ambulance and he read him a blood demand. He observed Mr. Gilkes speech was slurred and he seemed confused. At the hospital after he was triaged, Mr. Gilkes was arrested for impaired operation cause death and impaired operation cause bodily harm. Mr. Gilkes was read his right to counsel, cautions, and breath demand. He spoke to duty counsel in private and later attempted to provide a breath sample on four occasions. Hospital staff had drawn blood for medical purposes and P.C. Delorey attended in the lab and a vial that was not needed by the hospital was ultimately affixed with a CFS label. The blood was stored in the lab pending judicial authorization.

[11] Mr. Chaudhary was also taken to Sunnybrook Hospital. He had a broken femur, fractured pelvis, and internal liver bleeding. He was in critical but stable condition. He required six surgeries and was released from Sunnybrook to a rehab hospital in March 2023, where he spent another five weeks. Mr. Chaudhary in his VIS advised in addition to the above injuries he had a shattered elbow, injured brain, extremely low blood count, numerous broken teeth, and high heart rate. He lost his ability to walk, his ability to hold any weight in his hands, his ability to use the washroom, to eat independently.

[12] Mr. Gilkes vehicle was searched and a ½ smoked cannabis joint was found as well as a full unsmoked joint just outside the vehicle. There were also cannabis grinder found outside with cannabis leaf in it. A bottle of tequila with 1/3 remaining was also found.

[13] A hospital laboratory analysis of the serum portion of a blood sample collected at approximately 8:13 a.m. detected 34 millimoles of ethanol in one litre (mmol/L) of serum. The Centre of Forensic Sciences (CFS) laboratory analysis of the serum portion of a blood sample collected at or between 8:10 a.m. and 8:12 a.m. detected 160 mgs of ethanol in 100 ml of serum. A serum ethanol concentration of 34 mmol/L is equivalent to a blood alcohol concentration (BAC) of 135 mg/100mL at the time the blood was collected. A serum ethanol concentration of 160 mg/100mL is equivalent to a BAC of 138 mg/100mL at the time the blood was collected.

[14] Based on the results of the hospital analysis, the projected BAC at or between approximately 4:30 a.m. and 5:30 a.m. is 142 to 209 mg/100 mL. Based on the results of the CFS analysis, the projected BAC at or between approximately 4:30 a.m. and 5:30 a.m. is 145 to 212 mg/100 mL.

Positions of the Parties

[15] The Crown is seeking a global sentence of eight (8) years in the penitentiary for the offences Mr. Gilkes entered guilty pleas to. Mr. Young points to the increases in penalties brought in by Parliament through Bill C-46 on December 18, 2018, and he argued these changes signaled Parliament’s intention that sentences for impaired operation causing bodily harm and dangerous operation causing death. He also pointed to a number of decisions in the Ontario Court of Appeal, the Ontario Superior Court, and the Ontario Court of Justice, which have indicated sentences for the criminal conduct engaged in by Mr. Gilkes should increase in severity and length to properly address the sentencing principles of deterrence and denunciation. Further, he pointed to the preamble in the new provisions under s. 320.12, as indicating Parliament’s direction that sentences should be increased:

s. 320.12 It is recognized and declared that

(a) operating a conveyance is a privilege that is subject to certain limits in the interests of public safety that include licensing, the observance of rules and sobriety;

(b) the protection of society is well served by deterring persons from operating conveyances dangerously or while their ability to operate them is impaired by alcohol or a drug, because that conduct poses a threat to the life, health and safety of Canadians

[16] Mr. Young submitted the primary sentencing principles in cases involving impaired operation and/or dangerous operation where death or serious bodily harm results are deterrence and denunciation. When I asked Mr. Young what his submission would be respecting the proportionate and appropriate sentences for each offence Mr. Gilkes pleaded guilty to, he submitted the sentences should be as follows:

Impaired operation causing death respecting Danyang Song: seven (7) years;

Dangerous operation causing death respecting Danyang Song: seven (7) years concurrent to the impaired operation cause death;

Impaired cause bodily harm respecting Hassan Choudhary two (2) to three (3) years;

Total sentence nine (9) to ten (10) years; however, taking into account principle of totality and mitigation, Mr. Young submitted the proportionate and appropriate sentence for Mr. Gilkes’ criminal conduct is a global sentence of eight (8) years.

[17] The defence submitted that the appropriate and fit sentence for Mr. Gilkes, having regard to the fact he is a youthful, first offender, is three (3) years for the impaired operation cause death, the dangerous cause death should be three (3) years concurrent, and the offence of impaired operation cause bodily harm should be one (1) year consecutive to the impaired operation causing death, for a total sentence of four (4) years. Ms. Baldassi argued I cannot ignore the principles of rehabilitation and restraint having regard to Mr. Gilkes being a youthful first offender and this therefore should reduce the sentence being sought by the Crown, which she submitted was too high.

[18] Ms. Baldassi pointed to Mr. Gilkes apology letter, which reflects his profound remorse for his criminal conduct and the consequences that resulted. She pointed to the many letters of support that demonstrate his pro-social background and that he is a good candidate for rehabilitation. He has strong family support, which also reflects his pro-social background.

Circumstances of Shamar Gilkes

[19] Shamar Gilkes is currently 27 years old and was 24 years old on December 30, 2022. He has no criminal record. Mr. Gilkes does have a driving record which includes the following convictions:

2016-08-25 Fail to Stop at Sign or Roadway marking

2017-06-21 Speeding 70 km/hr in 60 km/hr zone

2019-05-02 Speeding 55 km/hr in 40 km/he zone

2019-08-15 Speeding 90 km/hr in 70 km/hr zone

2020-04-23 Speeding 149 km/hr in 100 km/hr zone

[20] Although his parents separated when he was quite young, he has a good relationship with both, and they are very supportive of him. He is an only child and was raised by his mother and grandmother. His mother is a social worker. He was very close to his grandmother, who he described as the “soul of his life” and she passed away a year ago. He is involved in an intimate relationship for the past six years and she is supportive of him.

[21] He graduated from French Immersion in Grade 12 and attended university to study communication. He became disillusioned with university because of COVID but has only a few more credits left to graduate. After school he has worked for the past 4 years in a retirement home in Whitby, although he ended up quitting this job in April 2024. Since April 2024, he has been working at two jobs, one as a furniture assembler and the other as a boat event planner, with family members for two different companies. He works 25 to 35 hours a week. His family members are aware of his charges and are supportive. He lives with his mother.

[22] Mr. Gilkes was unable to provide any information as to what took place the night before he drove his motor vehicle at 5 a.m. He maintained with the probation officer that he could not recall. The probation officer spoke with an addiction counsellor, Carole Eastman, he had been referred to by his lawyer. She has been counselling him since March 2023. He attended weekly from March to June 2023 and bi-weekly from July to December 2023 for a total of 22 sessions. When he attended 10 sessions of IAC (Individual Addiction Counselling). Ms. Eastman described Mr. Gilkes participated with openness, honesty, and willingness, demonstrating internal motivation to improve his mental health. She also described that Mr. Gilkes understood and exhibited deep remorse for the harm he inflicted on others in the case and that he took full responsibility and accountability.

[23] It is my view the Pre-Sentence Report is positive and reflects the probation officer’s opinion that Mr. Gilkes accepts responsibility for his actions and is remorseful for the life he has taken and the harm he caused. This was also reported by his counsellor, Carole Eastman, who provided two written reports (part of Exhibit 7) and spoke to the probation officer, indicating Mr. Gilkes “understands and exhibits deep remorse for the harm he has inflicted on others in this case and that he takes full responsibility and accountability.” Mr. Gilkes wrote an apology letter, dated March 1, 2024, which clearly indicates his remorse and acceptance of full responsibility for his actions, without any reservation. After hearing the Song family members read their Victim Impact Statements and re-reading Mr. Choudhary and his families Victim Impact Statements, Mr. Gilkes wrote a second letter of apology, which Ms. Baldassi read in Court. It is my view this additional letter demonstrates that Mr. Gilkes has gained insight and awareness into the enormity of the tragedy and suffering his criminal actions caused the victims in this case. He recognized there was nothing he could say that would change the consequences caused by his actions.

[24] Ms. Baldassi provided a Defence Sentencing Package containing 16 character letters written by family members and friends attesting to Mr. Gilkes previous good character. The cases talk about the fact the individuals who often commit this type of offence are persons of good character, who do not have criminal records, are usually pro-social individuals, gainfully employed, who have strong support from family and friends. Mr. Gilkes is no exception.

[25] Mr. Gilkes also provided a letter dated March 5, 2024, from Gloria Small, Chair of Durham Community Action Group, which operates DCAG Food Pantry, which supports families in Durham Region reflecting Mr. Gilkes involvement as a dedicated volunteer from June 2023 to March 2024, participating in various initiatives with this organization.

Victim Impact Statements

[26] I received ten Victim Impact Statements from those individuals whose lives have forever been impacted and seriously affected by the criminal conduct engaged in by Shamar Gilkes.

1. Zehan Song (oldest son of Danyang Song)

2. Huang Jinsong (wife of Danyang Song)

3. James Song (son of Danyang Song)

4. Song Jie (elder sister of Danyang Song)

5. Song Chenwen (father of Danyang Song)

6. Jilly Song (Daughter of Danyang Song)

7. Hassan Chaudhary

8. Fatima Chaudhary (sister of Hassan Chaudhary)

9. Shabina Chaudhary (mother of Hassan Chaudhary)

10. Zainab Chaudhary (sister of Hassan Chaudhary)

[27] As I have indicated Danyang Song died at the scene as a result of the collision caused by Mr. Gilkes between his BMW and Mr. Song’s Volkswagen. As a result of the catastrophic injuries caused to Mr. Song his death must have been instantaneous. He was 55 years of age, a plumber who was described as a skilled and hard worker, the sole income earner for his family, his wife and his three children, Zehan, a university graduate and James and Jilly, who were still in university. He was clearly a loving husband and devoted and caring father to his children. I have no doubt of his love and of his joy and pride for his family and friends. Their victim impact statements described their family’s incredible loss of a loving husband, a caring and supportive father, a beloved brother, a cherished son and a loyal, faithful friend. It is simply tragic that Mr. Song’s family and friends must carry on without him, there can be no doubt, because as was reflected in the Victim Impact Statements, to his family and friends Danyang Song is irreplaceable.

[28] The Victim Impact Statements of Mr. Song’s wife and three children are heartbreaking and reflect the tremendous loss and pain each of them experience, even now. Their description of the emotional roller coaster many of them experience because of their loss is heart-wrenching and tragic. The fact that every Christmas and New Year’s will be a sad reminder of his tragic and pointless death is indeed tremendously upsetting. Mr. Song’s family members described in their Victim Impact Statements the emotional trauma each of them deals with continually because of the senseless tragedy of Danyang Song’s death. The impact of his death is described as a nightmare, how the future no longer holds the promise of travel, children getting married and grandchildren. For his wife, Huang Jinsong, “I was so deeply dependent on my husband, we were inseparable. Every day , he would call me during work and after work and I would prepare his favourite meals, eagerly waiting for him to come home. Now, I am lost without him.” For Zehan, “those dreams were stolen” from his father, and from us, because of someone’s selfish and reckless choice. Shamar Gilkes will get a second chance, but not for my dad. His life is over forever.” His son James described how “there will forever be a void in my heart that can never be filled.” His daughter Jilly described, “He was a core figure in all my childhood memories, and he was supposed to be a core figure in all my future memories as well.” She lamented, “A part of me died with my dad, and I’m not sure if I can ever fully recover to be my full self again.”

[29] For Mr. Choudhary, his goal of achieving his dream to become a police officer certainly appears to be out of reach given his injuries and the debilitating consequences, which may be permanent. Mr. Choudhary has had to fight through pain and severe discomfort and was in Sunnybrook Hospital and St. John’s Rehabilitation Centre for close to four (4) months. He underwent six (6) surgeries and continues to struggle leading a normal life. As he indicates he may never go back to being normal – able to perform simple functions. Mr. Choudhary ended his VIS with the following: “The offender didn’t just take my health from me, he took the entirety of my being.” He has undergone countless surgeries and extensive rehabilitation. He talks about how his family has surrounded him with love and support yet maintains they did not deserve this trauma, which is completely accurate. The heartache and concern reflected in his family member’s Victim Impact Statements is palpable. The emotional anxiety experienced by all of the Choudhary family is spelt out by them in their Victim Impact Statements and continues because his injuries continue to be debilitating for him.

[30] Many victims of crime experience financial repercussions and impacts because of the loss of income caused by a sole income earner’s death or an individual’s loss of income because of their injuries. Both of the Song and Choudhary families have been detrimentally impacted financially by Mr. Gilkes’ criminal conduct. Mr. Choudhary has not been able to earn any income for the period of time since Mr. Gilkes collided with his vehicle. One of his sisters, had to quit her employment to be able to be with him in hospital. His other sister took two months off from her self-employed business to be able to assist her brother.

[31] It would be impossible for me to overstate the impact of Mr. Gilkes’ criminal conduct on these two families lives and their future. I want to express to both families my appreciation for their victim impact statements, which in my view are an essential and vital part of this sentencing hearing. Through your statements the impact and tragedy of Danyang Song’s death and the injuries suffered by Hassan Choudhary become very real. The magnitude of your pain and loss is given expression, and this is important for our community and for Mr. Gilkes to fully appreciate and understand.

Principles of Sentencing

[32] The purpose of sentencing is set out in sections 718 to 718.2 of the Criminal Code. I am of the view it is important to indicate what these sections set out because I believe this is where the applicable principles of sentencing are defined for criminal cases.

[33] Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct;

(b) Deter the offender, and others, from committing such an offence;

(c) Separate the offender from society, where necessary;

(d) Assist in the rehabilitation of the offender;

(e) Provide reparation for harm done to “victims”, or the community; and

(f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the “victims” and the community.

[34] The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:

[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

[35] As Rosenberg J.A. held in R. v. Priest, 1996 CanLII 1381 (ON CA), [1996] O.J. No. 3369, at para. 26:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[36] A sentencing judge must also have regard for s. 718.2, which provides: a sentence should be increased or decreased to account for any aggravating and mitigating circumstances (s. 718.2(a)(i) – (vi)); a sentence should be similar to other sentences imposed on similar offenders in similar circumstances (s. 718.2(b); the combined duration of consecutive sentences not be unduly long (718.2(c)); an offender not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718(d)); and all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e)).

[37] In cases involving impaired operation of a motor vehicle, particularly where death and significant injury is involved, denunciation and general deterrence are the paramount sentencing objectives, see R. v. McVeigh 1985 CanLII 115 (ON CA), [1985] O.J. No. 207 (C.A.); R. v. Lacasse, 2015 SCC 64, at para. 73; and R. v. Ramage, 2010 ONCA 488 at paras. 74-75. The sentencing principle of denunciation refers to the communication of society's condemnation of the criminal conduct engaged in. General deterrence refers to sending a message to discourage others who might be inclined to engage in similar conduct in the future. The decisions cited make the important point that these types of offences are often committed by ordinarily law-abiding people who are the most likely to be deterred by the threat of significant penalties.

[38] I was provided by both counsel numerous cases involving a broad range of sentences for individuals who operate motor vehicles while impaired by alcohol and/or drugs, where death or serious bodily harm or both occurs. I do not intend to set out each of the cases provided by counsel; rather, I will address and summarize those cases that I believe establish and explain how the sentencing principles should be applied to the facts and circumstances of Mr. Gilkes case.

[39] In R. v. McVeigh, supra, a case decided almost 40 years ago, ACJ MacKinnon increased a 21 month sentence to one of three years where an impaired driver struck and killed a 14 year old boy and he outlined the court’s reasoning as follows, at para. 16:

Members of the public when they exercise their lawful right to use the highways of this province should not live in the fear that they may meet with a driver whose faculties are impaired by alcohol. It is true that many of those convicted of these crimes have never been convicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence would be in their best interests and be the most effective form of rehabilitation. However, it is obvious that such an approach has not gone any length towards solving the problem. In my opinion these are the very ones who could be deterred by the prospect of a substantial sentence for drinking and driving if caught. General deterrence in these cases should be the predominant concern, and such deterrence is not realized by over-emphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving.

ACJ MacKinnon, speaking for the court, at para. 15, noted with respect to drinking drivers that “It is trite law to say every drinking driver is a potential killer.” I regularly try to impress this upon individuals I am sentencing for drinking and driving offences where no one has been injured or died.

[40] Judges typically look to the sentences approved of or imposed by appellate courts for assistance in determining an appropriate sentence for a particular offence. In dealing with cases involving impaired driving causing death the Ontario Court of Appeal has resisted defining a specific range of sentence to be followed because of the almost "infinite variety of circumstances in which this offence can be committed" (see R. v. Junkert, 2010 ONCA 549, [2010] O.J. No. 3387 (C.A.), at paras. 39-42).

[41] Following the reasoning in McVeigh above, two seminal decisions in the Ontario Court of Appeal, R. v. Ramage, 2010 ONCA 488, [2010] O.J. No. 2970 (C.A.) and R. v. Junkert, 2010 ONCA 549, [2010] O.J. No. 3387 (C.A.), upheld sentencing decisions of four years and five years respectively.

[42] In Ramage, the offender’s car crossed four lanes of traffic, and struck two oncoming vehicles. His passenger was killed and the driver in another car received debilitating injuries. The offender’s BAC was two to three times greater than the legal limit. The offender had no criminal record, he was described as an outstanding member of the community, and he was deeply remorseful. After a trial, he received a four-year sentence and a 5-year driving prohibition.

[43] In R. v. Junkert, the offender drove at a high rate of speed and failed to negotiate a turn in a residential neighbourhood. The car went onto a sidewalk where it struck a car and a lamp post before re-entering the roadway. During its travel, the offender’s car struck and killed a jogger. The offender’s BAC was 130 mgs in 100 mL of blood. He was convicted after a trial of impaired driving cause death and dangerous driving cause death. A sentence of 5 years for both offences and a 10-year driving prohibition was imposed.

[44] ACJ O’Connor in Junkert, at para. 46, made the followings comments respecting sentences for impaired driving causing death cases:

In my view, a sentence of five years for this offence cannot be said to be "a substantial and marked departure" from the sentences ordinarily imposed on similar offenders for similar offences. In recent years, there has been an upward trend in the length of sentences imposed for drinking and driving offences. The reasons for this trend can be attributed to society's abhorrence for the often tragic circumstances that result when individuals choose to drink and drive, thereby putting the lives and safety of others at risk.

[45] It is my view that the upward trend spoken of by ACJ O’Connor has continued over the past 12 years, since Ramage and Junkert were decided, as evidenced by the following cases and the court’s comments concerning this upward trend:

R. v. Kummer, 2011 ONCA 39, [2011] O.J. No. 234 (C.A.), at para. 15. The offender pleaded guilty to three counts of impaired driving cause death, three counts of dangerous driving cause death, two counts impaired driving cause bodily harm and two counts dangerous driving cause bodily harm. The offender was speeding, 120 km/hr in a 70 km/hr zone, his BAC over twice the legal limit, he went through an intersection and struck a vehicle with the right of way, he had no criminal record but he had a significant driving record. Three young people died, including a 12-year old boy on his way home from a hockey game. The Court of Appeal held there was good reason to move beyond the sentences imposed in Ramage and Junkert, based on the number of deaths and the harm caused and where there is a prior driving record. The eight-year custodial sentence and 12-year driving prohibition was upheld by the Court of Appeal.

R. v. Carrier, [2015] O.J. No. 4867 (C.A.), at para. 26. The offender pleaded guilty to criminal negligence cause death where the offender BAC was over 160 mgs of alcohol in 100 mL of blood, he drove his motorcycle after convincing young woman he met at bar to go riding with him, he drove the wrong way on a one-way street, locked his brakes and crashed, he suffered significant injuries and the young woman was killed – a six-year sentence and 10-year driving prohibition were upheld.

R. v. Muzzo, 2016 ONSC 2068, [2016] O.J. No. 1506 (SCJ, Fuerst) The offender pleaded guilty to four counts of impaired cause death and two counts of impaired cause bodily harm. The offender’s BAC was almost three times the legal limit, he was speeding on a country two-lane road, failed to stop at a stop sign and collided with a van that had the right of way. He killed a grandfather, three grandchildren and seriously injured the grandmother and great-grandmother. His plea was at the first opportunity, and he expressed genuine remorse. He had no criminal record and was youthful, he had a supportive family and friends, and a psychiatrist testified he was a low risk to re-offend. Crown sought 10-12 year sentence and defence sought eights years. Sentence imposed was a 10 year custodial sentence less 8 months pre-trial credit and a 12-year driving prohibition.

R. v. Altiman, 2019 ONCA 511, [2019] O.J. No. 3216 (C.A.), at paras. 55 and 64. A 31-year old Indigenous person pleaded guilty to two counts impaired driving cause death, two counts of criminal negligence cause death and two counts impaired driving cause bodily harm and two counts criminal negligence cause bodily harm. The offender’s guilty plea was “from day one” and he exhibited genuine remorse. He had no criminal record. His BAC was 175 mgs of alcohol in 100 mL of blood. He was driving at excessive high speeds and ran a number of red traffic lights until he collided with a vehicle that had the right of way. His speed at this point was 187 km/hr. The driver and front passenger of the vehicle struck in the intersection survived but had serious injuries, and the two rear passengers in that vehicle were killed as a result of the collision. The Court of Appeal reduced the 10 year sentence imposed to seven years because of Gladue factors and considerations having regard to Mr. Altiman’s indigenous background. The 15-year driving prohibition was varied to eight years, to commence at the conclusion of the term of imprisonment to comply with the caselaw in existence, Lacasse, para. 109.

R. v. Hayatibahar, 2022 ONSC 5154, [2022] O.J. No. 4005 (SCJ, Di Luca) After a trial the offender was found guilty of criminal negligence cause death, impaired driving cause death, three counts of criminal negligence causing bodily harm and three counts of impaired driving causing bodily harm. The offender was driving 170 km/hr on Yonge Street, lost control and drove into on-coming traffic colliding with three motor vehicles, killing one driver and injuring three other individuals. His BAC was 170 mgs of alcohol in 100 mL of blood. He did not have a driver’s license. A 9-year sentence was imposed less credit for pre-trial custody and Downes mitigation, leaving a custodial sentence of 8 years and 2.5 months. He imposed an 18-year driving prohibition, based on s. 320.24(5)(a) for the impaired driving causing death and 9-year driving prohibition for each of the three impaired driving causing bodily harm pursuant to s. 320.24(5)(b), which were concurrent to each other and concurrent with the prohibition imposed for the impaired driving causing death. The driving prohibition commenced on the day of sentencing because of the new legislation, as opposed to after the period of imprisonment had ended.

R. v. Robertson, [2022] O.J. No. 2360 (OCJ, Caponecchia) provides an excellent summary of Ontario Court of Appeal cases involving drinking and driving offences where death and grievous bodily harm has occurred.[1] It should be noted that the facts in the Robertson case have significant differences from Mr. Gilkes criminal conduct. Mr. Robertson pled guilty to four counts of dangerous driving cause death and after a streamlined trial dealing with a s. 8 Charter application and a constitutional challenge to the limits of tetrahydrocannabinol (THC), he was found guilty of four counts of causing death while having more than 5 nanograms of THC per mL of blood in his body within two hours of ceasing to operate a motor vehicle. Mr. Robertson was engaged in two separate instances of dangerous driving, both resulting in collisions. In the first instance he was travelling 130 km/hr in a 60 km/hr zone, failed to stop at a four-way intersection and then crashed into barriers where pedestrians could be seen walking. He did not stop despite two citizens yelling for him to stop and he fled from the police, veering out of his lane into oncoming traffic. The sentencing judge found the fact no one was injured or killed was pure happenstance. Two days later he disregarded a red light, struck a vehicle entering on the green light, travelling at 134 km/hr, and killed a mother and her three children. He had more than the allowable amount of THC in his blood. When police tried to stop him, he fled once again. The Crown sought a 23-year custodial sentence and the defence submitted a seven-year sentence was appropriate. A 17-year custodial sentence was imposed and a 34-year prohibition order.

[46] In Altiman, at paras. 70 and 107, the Court of Appeal in reviewing this upward trend since the turn of the decade in sentences imposed for offences involving impaired operation causing death indicated sentences are now typically in the four to six year range when there is no prior criminal record or driving record. If there is a prior record the range can increase to between seven and one-half years to twelve years.

[47] The reason why sentences have increased is succinctly stated by Justice Boswell in R. v. Fracassi, [2017] O.J. No. 12 (SCJ, Boswell), at para. 54:

The reality is that the message about the dangers of impaired driving has been repeated, loudly and clearly, for decades now. For those who continue to ignore a message they have heard for most of their lives, moral blameworthiness is increased, just as societal tolerance is decreased.

[48] This message has been repeatedly made by courts in this province since McVeigh in 1985.

[49] Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. It is not an exact science. The determination of the sentence that is just and appropriate in a given case is, in the words of the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64, at para. 58, "a highly individualized exercise that goes beyond a purely mathematical calculation." The seriousness or gravity of the offence, the degree of responsibility or moral blameworthiness of the offender, the circumstances of the offence and the offenders circumstances must all be taken into account and considered by the sentencing judge. As explained in Lacasse, at para 12:

…The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.

[50] The matter of sentencing ranges was addressed by the Ontario Court of Appeal in R. v. D.D., 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061 (C.A.), Moldaver J. (as he then was) said the following, at para. 33: “[S]entencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.” (See also R. v. Lacasse, supra, at paras. 57-58, 60-61.)

[51] In R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 92, the Supreme Court made it clear that

It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime…. Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction…. [Emphasis added]

[52] One measure of the seriousness of a particular offence is its maximum sentence. The maximum sentence for impaired operation of a motor vehicle causing death was increased by Parliament in 2000 from 14 years in jail to life imprisonment. The Ontario Court of Appeal in R. v. Kummer, 2011 ONCA 39, at para. 20, held the fact that a life sentence was within “the realm of possibility” signals Parliament’s intention that impaired operation cause death offences be treated severely by the Courts. Of course, this does not mean that the maximum sentence will be imposed in a given case. For example, in the Muzzo case there were four deaths, a grandfather and his three grandchildren and two counts of impaired operation causing bodily harm, the grandmother and great-grandmother, who suffered lasting injuries and Mr. Muzzo was sentenced to 10 years imprisonment less any applicable credit. It is my view there is no caselaw that would support the imposition of a particular or more severe sentence based on the number of deaths caused by an impaired driver or the level seriousness of the injuries caused.

[53] In R. v. Lis, 2020 ONCA 551, at par. 49, Justice Watt said:

Maximum sentences determine the objective gravity of an offence by indicating its relative severity. Parliament's decision to increase the maximum sentence for a crime demonstrates its intention that the offence be punished more harshly. This shifts the distribution of proportionate sentences for the offence: Lacasse, at para. 7; Friesen, at paras. 96-97. To respect Parliament's decision to increase maximum sentences, courts should generally impose higher sentences than those imposed in cases that preceded the increase in the maximum sentence: Friesen[2], at para. 100.

[54] Parliament in Bill C-46 has increased penalties for impaired operation cause bodily harm and dangerous driving cause bodily harm to 14 years when proceeded by indictment. Interestingly, this maximum sentence for these two offences is now greater than criminal negligence causing bodily harm, which is 10-years pursuant to s. 221 of the Criminal Code.

[55] As I have indicated above, the Ontario Court of Appeal has indicated in Altiman that sentences for offences involving impaired operation of a motor vehicle where death or serious bodily harm has occurred have increased over the past 12 or 13 years. In Robertson, Justice Caponecchia, at para. 110, while recognizing the sentence she imposed may have represented a departure from previous sentencing cases, referred to an Ontario Court of Appeal decision that had recently acknowledged trial judges from time to time become frustrated with a particular approach developed by appellate courts and because they are on the front lines of the administration of justice they will see that a particular approach is either not working or has become outdated. Justice Nordheimer in R. v. Lynch, [2022] O.J. No. 570 (C.A.) cited R. v. Parranto, 2021 SCC 46, [2021] S.C.J. No. 46, at para. 22, where the Supreme Court indicated “This reflects the reality that "[i]t is a common phenomenon ... for sentences to increase and decrease as societal and judicial knowledge and attitudes about certain offences change.” Of course, sentencing judges must exercise discretion in addressing these issues.

[56] Part of the frustration experienced by trial judges dealing with these offences is that since McVeigh these offences have continued unchanged, as recognized in Fracassi.

[57] The Supreme Court of Canada has recognized the prevalence of impaired drivers on our highways and roads and the carnage caused as a result. In R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, at para. 16, Justice Peter Cory observed how drinking and driving offences like this one impact our communities:

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.

[58] More recently, Justice Moldaver for the majority, re-emphasized this point in R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967, at para. 1:

Each year, drunk drivers cause tremendous suffering and loss of life on Canada's roadways. Tragically, drinking and driving offences remain one of the most common crimes in Canada - and they place a substantial burden on the criminal justice system.

[59] Finally, the Supreme Court of Canada, cited Justice Cory’s observation in Bernshaw with approval in R. v. McColeman, 2023 SCC 8, [2023] S.C.J. No. 8, at para. 72. Also, cited with approval in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 8.

Aggravating and Mitigating Circumstances

[60] Turning next to the aggravating and mitigating factors present in this case. I find the following factors and circumstances to be aggravating.

a.) The blood alcohol concentration determined by the CFS from blood taken from Mr. Gilkes at the Sunnybrook Hospital was between 145 mgs of alcohol and 212 mgs. of alcohol in 100 mL of blood, which is in excess of the level required for statutory aggravation under s. 320.22(e) of the Code and close to double the legal limit. One comment made by Mr. Gilkes to the probation officer in the PSR (top of page 6), which in my view raised some concerns, is that his “poor judgment” on December 30, 2022, at 5 a.m., “was the result of alcohol consumption” and that “alcohol consumption can cause him to behave irresponsibly”, yet he was unable to provide any explanation for how or why his blood alcohol concentration, as determined by CFS from the blood taken at the hospital, reached a BAC of between 145 mgs of alcohol to 212 mgs of alcohol in 100 ml of blood. It should be noted a Tequila bottle (although the total quantity or size of this bottle was not indicated in the facts), with one third remaining was located in the BMW. The presence of this bottle certainly leads to an inference of Mr. Gilkes was consuming alcohol while he was operating his BMW. His high BAC is a serious aggravating circumstance, both statutorily and factually.

b.) The commission of the offence of impaired operation resulted in the death of Mr. Song and serious bodily harm to Mr. Choudhary, which is more than one person and as a result is a statutorily aggravating circumstance, pursuant to s. 320.22(a) of the Code.

c.) Mr. Gilkes turned from Liverpool Road in Pickering onto a clearly marked off-ramp from 401 westbound lanes at 5:00 a.m. The Collision Reconstruction Report, pages 17-25, provides descriptions and photographs of the numerous signs and road markings clearly showing the roadway Mr. Gilkes proceeded eastbound on was an off-ramp from westbound 401. All of these signs (at least 6 or 7) clearly indicated Mr. Gilkes’ direction of travel was wrong and incorrect. Mr. Gilkes has not provided any explanation for where he was going, there was some evidence he advised someone at the scene he was going to “Punta Cana”, which does not explain why he turned onto the westbound off-ramp to go eastbound. His driving action may be as a direct result of his level of intoxication; however, this in no way provides any excuse for his actions, given he intentionally consumed alcohol to the point of significant inebriation and then deliberately decided to operate his motor vehicle in that condition. It is my view this is a serious aggravating circumstance.

d.) There was no MTO camera covering the off-ramp from 401 W/B to Liverpool Road so it is unknown if there were any vehicles driving westbound on the ramp; however, once Mr. Gilkes was driving his BMW eastbound on the 401 westbound lanes, multiple vehicles can be observed on the Exhibit 2 videos flashing their headlights at Mr. Gilkes. At no time did Mr. Gilkes apply his brakes until half a second prior to his vehicle colliding with Mr. Choudhary’s vehicle head-on. (Exhibit 9: Collision Reconstruction Report) Mr. Gilkes showed a complete disregard and lack of concern for the other motorists on the roadway. There are many vehicles travelling westbound, all individuals travelling in the early morning rush hour of commuters going to work. In my view this is an aggravating circumstance as these westbound drivers were attempting to get him to pull over and stop driving in the wrong direction.

e.) A further aggravating circumstance has to do with the time of day Mr. Gilkes drove in the wrong direction on the 401 Highway. It was 5:05 a.m. at the end of December. There might have been overhead lighting, but it was still dark out. The traffic was the early morning rush hour traffic as drivers were going to their jobs. None of these drivers were expecting someone to be operating a motor vehicle going in the wrong direction. The Collision Reconstruction Report author, Provincial Constable T. Braun (OPP), determined from the MTO videos that between the time frame 5:02 a.m. to 5:07 a.m. that a total of 172 vehicles travelled westbound, which averaged 34.4 vehicles per minute (p. 70). In my view this provides some indication of the number of vehicles that would have driven past Mr. Gilkes’ BMW (somewhere around 24 vehicles would have passed him prior to collision).

f.) I find that Mr. Gilkes conduct is extreme and completely distinguishable from a driver’s momentary lapse of attention or judgment due to impairment. Given Mr. Gilkes was driving in the wrong direction on the 401 westbound lanes it is also my view Mr. Gilkes knew a high speed head-on collision was almost a certainty and that serious bodily injury or death was the inevitable conclusion of his criminal conduct. As a result of the other motorists flashing their headlights and given the fact Mr. Gilkes was driving in lanes 2 and then lane 1 just before his head-on collision with Mr. Choudhary’s vehicle, it is my view he could easily have pulled to the shoulder beside lane 1. Because Mr. Gilkes did not do this, Mr. Choudhary and Mr. Song had no chance in these circumstances. In my view these facts increase the seriousness of this aggravating circumstance.

g.) Mr. Gilkes is entirely and solely to blame for the tragic consequences resulting from his voluntary consumption of alcohol and then his decision to operate a motor vehicle. Neither of the two driver’s whose vehicles he struck are in any way responsible for the collisions that occurred. None of the other two vehicles’ mechanics in any way caused or contributed to the collisions. The weather according to the Collision Reconstruction Report indicated it was cloudy, the temperature was 8 degrees Celsius, and the roads were wet, but it was not raining. There was over head lighting – high mast lighting, which were illuminated at the time of the collisions. In my view these facts provide a further aggravating circumstance.

h.) Mr. Gilkes was travelling at an excessive speed as he came upon vehicles travelling westbound. As determined by the reconstruction expert, Mr. Gilkes’ speed five seconds before he impacted with Mr. Choudhary’s Civic was 138 km/hr. Mr. Choudhary’s Civic was travelling at 86 km/hr at the point of collision. Considering Mr. Gilkes was driving eastbound in the westbound lanes of 401 Highway, his speed was extremely dangerous, showing a complete disregard for the lives and safety of the motorists who were flashing their headlights at him. This is another fact which is an aggravating circumstance.

i.) Mr. Gilkes travelled 1.9 km according to Exhibit 9 for a minimum time of 46 seconds given his speed and from the MTO video cameras. In reviewing the videos in Exhibit 2, it is my view that while this does not seem to be an extended period of time, given the number of vehicles passing Mr. Gilkes in the opposite direction to which he was travelling at an excessive speed, given many were flashing their headlights at him, it is my view the length of time he continued driving eastbound is also an aggravating circumstance to be considered in determining a proportionate sentence. It is my view all of the above aggravating circumstances increase the seriousness or gravity of the offences committed by Mr. Gilkes for the simple fact that he would have been fully aware of the gruesome and horrific consequences his criminal conduct was moments away from causing, yet he continued driving in this manner for almost a full 60 seconds. Further, it is my view his moral blameworthiness is very high given the various aggravating circumstances I have set out.

j.) Finally, a further serious aggravating circumstance involves the nature and extent of the injuries, both physical and emotional, suffered by the two victims, as well as their family members and friends, which I have briefly discussed when I dealt with the victim impact statements provided in this sentencing.

[61] The mitigating circumstances present in this case are as follows:

a.) Mr. Gilkes is a young man when these offences were committed as he was 24 years of age then and is now 27.

b.) He has no criminal record, although he has five HTA convictions, including four convictions for speeding.

c.) Mr. Gilkes has strong family support, has lived a pro-social life being steadily employed since graduating and he has strong support amongst his friends as evidenced by the 12 letters provided in Exhibit 7.

d.) Mr. Gilkes has attended individual addiction counselling with Carole Eastman, a Canadian Certified Addictions Counsellor with How Recovery Counselling Services once per week from March 23, 2023 to June 7, 2023, for 10 sessions and the bi-weekly from July 2023 to December 2023 for 12 further sessions and then two further sessions June 1 and 15, 2024, for a total of 24 sessions. It is my view this is a mitigating circumstance that reflects a desire on Mr. Gilkes’ part to gain insight and awareness into what led to his decisions of December 30, 2022. Mr. Gilkes indicated in his elocution letter that he has not consumed alcohol since December 30, 2022. Ms. Eastman’s two letters reflect her view that Mr. Gilkes’ remorse is genuine, and he takes full responsibility and accountability for his actions.

e.) Ms. Baldassi seemed to be suggesting that as a result of Mr. Gilkes’ criminal conduct and the tragic consequences that occurred in the death of Mr. Song and the very serious injuries inflicted on Mr. Choudhary that Mr. Gilkes has developed mental health issues. She referred to references in the PSR, p. 4, where Mr. Gilkes advised the probation officer, “My mental health has declined drastically. I am unable to sleep, eat, and function. I can never bring back the life that was lost or restore the health of the other victim and for that reason I have to say I am extremely sorry.” I have no doubt that Mr. Gilkes will need counselling to address his feelings of guilt for the “terrible mistake” he made and because of the pain he caused the Song and Choudhary families. However, it is my view this is not a collateral consequence from which Mr. Gilkes should receive mitigation in my determination of a proportionate sentence for his criminal conduct. It is my view he is the author of his guilt and pain that he says he will carry for the rest of his life. If he had not consumed alcohol in excess and then got into his BMW X3 SUV and driven it in the wrong direction on Highway 401, none of what happened on December 30, 2022, would have occurred. No psychiatric assessment was provided by the defence to support a diagnosis of any mental health illness or disorder Mr. Gilkes is suffering from. The two letters from Carole Eastman relate to his seeking “addiction counselling using a ‘harm reduction’ modality which aims to minimize the negative health, social and legal aspects associated with alcohol/drug use.” As I indicated, it may be advisable for Mr. Gilkes to seek out counselling from a psychologist or psychiatrist to address his future well-being; however, based on the fact no such reports were provided I do not view this issue as a mitigating circumstance, other than the fact he attended 24 sessions of addiction counselling, during which, according to Ms. Eastman, Mr. Gilkes gained insight and awareness in how to prevent a similar incident from occurring. As I indicate above this in my view this is a mitigating circumstance to be considered.

f.) It is my view Mr. Gilkes expression of remorse is sincere and heartfelt. Both his letter of apology contained in Tab 2(A) in Exhibit 7 and his elocution letter he wrote after hearing the heart-rending victim impact statements read by the Song family members and re-reading the Choudhary family victim impact statements reflect the depth of his remorse. Of course, Mr. Gilkes remorse will not alter the loss, emotional trauma and pain experienced by the Song family and their friends or Mr. Choudhary’s loss and the emotional trauma he continues to experience and is experienced by his family and friends. Mr. Gilkes remorse and acceptance of responsibility are mitigating circumstances.

g.) Mr. Gilkes ultimately entered guilty pleas to three of the charges he faced and admitted facts reflected by videos and the Collision Reconstruction Report. Mr. Young requested that I not give any weight in mitigation to Mr. Gilkes’ guilty pleas because of the overwhelming Crown’s case, relying on the Court of Appeal decision, R. v. Carreira 2015 ONCA 639, at paras. 11-16. There can be no doubt that Mr. Gilkes’ decision to enter guilty pleas was not “from day one” (Altiman) or “at first opportunity” (Muzzo); however, it did occur prior to the trial commencing and to some extent this in my view lessened the negative impact a trial would have caused the victims of Mr. Gilkes’ criminal conduct. As I expressed to the Crown, the lateness of Mr. Gilkes’ guilty pleas does lessen his mitigation to some degree. Nonetheless, he did enter guilty pleas and he has unequivocally accepted responsibility for his conduct, which he admits solely caused the tragic consequences present in this case. I do consider his guilty plea and acceptance of responsibility as some mitigation, although given the lateness of his guilty pleas this mitigation is somewhat reduced.

Determining a Proportionate Sentence

[62] It is my view the position of the defence respecting a global sentence of four years in the penitentiary does not adequately address the sentencing principles of deterrence and denunciation. It does not properly recognize the upward increase in sentences since McVeigh, where a three year sentence was substituted for a 21 month sentence, which was held to be inadequate respecting a single offence of criminal negligence causing death where alcohol impaired the accused. In light of the current jurisprudence the 3-year sentence submitted by the defence for the impaired operation cause death would not be a proportionate sentence. In Altiman the Court of Appeal indicated for a single death caused by an impaired driver the appropriate range of sentence was four to six years based on the caselaw. The three year sentence submitted by the defence for the impaired operation and dangerous operation offences causing the death of Danyang Song in my view does not take into account the serious aggravating circumstances present in this case that I have set out above. A 3-year sentence fails to recognize the very serious gravity of the offences as well as Mr. Gilkes’ high level of moral blameworthiness. Further, it is my view the one year consecutive sentence submitted by the defence as being an appropriate sentence for the impaired operation causing bodily harm of Mr. Choudhary does not properly address the principles of deterrence and denunciation and is not a proportionate sentence reflecting Mr. Gilkes’ moral blameworthiness or the serious gravity of his criminal conduct taking into account the aggravating circumstances present in this case.

[63] Ms. Baldassi made reference to the Supreme Court of Canada decision of R. v. Suter, 2018 SCC 34, [2018] S.C.J. No. 34, at paras. 27 and 90.

27 The sentencing range for these offences has been quite broad -- low penitentiary sentences of 2 or 3 years to more substantial penitentiary sentences of 8 to 10 years -- because courts have recognized that they cover a broad spectrum of offenders and circumstances: see R. v. Junkert, 2010 ONCA 549, 103 O.R. (3d) 284, at para. 40; R. v. Kummer, 2011 ONCA 39, 103 O.R. (3d) 641, at para. 21; Lacasse, at para. 66. An offender's level of moral blameworthiness will vary significantly depending on the aggravating and mitigating factors in any given case. In unique cases, mitigating factors, collateral consequences, or other attenuating circumstances relating to the offence or offender may warrant a sentence that falls below this broad range. By the same token, the aggravating features in a particular case may warrant the imposition of a sentence that exceeds this broad range. As long as the sentence meets the sentencing principles and objectives codified in ss. 718 to 718.2 of the Criminal Code, and is proportionate to the gravity of the offence and the level of moral blameworthiness of the offender, it will be a fit sentence.

90 As indicated, the sentencing range for the s. 255(3.2) offence is the same as for impaired driving causing death and driving "over 80" causing death -- low penitentiary sentences of 2 or 3 years to more substantial penitentiary sentences of 8 to 10 years, depending on the circumstances. In unique cases, mitigating factors, collateral consequences, or other attenuating circumstances relating to the offence or offender may warrant the imposition of a sentence that falls below this broad range. By the same token, the aggravating features in a particular case may warrant the imposition of a sentence that exceeds this broad range. As long as the objectives and principles of sentencing codified in ss. 718 to 718.2 of the Criminal Code are met and respected, the sentence will be fit.

[64] It is my view, in Suter Justice Moldaver was simply indicating there was a “sentencing range that was quite broad” respecting drinking and driving offences where a death occurred because the courts recognized (citing Junkert and Kummer) the sentencing range covered a broad spectrum of offenders and circumstances, commenting that an offender’s aggravating and mitigating circumstances will determine where a particular offender is in this broad range. The Suter decision was in respect of a s. 255(3.2) offence: refuse to provide breath sample where death has occurred. In that case the impaired operation cause death had been withdrawn by the Crown and the accused had been kidnapped, beaten, and had one of his fingers cut off by gardening shears, which Justice Moldaver found was a mitigating collateral consequence to be considered in determining an appropriate sentence. Justice Moldaver found that there was no evidence that the death occurred as a result of Mr. Suter being impaired by alcohol, rather, this was simply an accident and Mr. Suter was only guilty of failing to provide a breath sample on the advice of his lawyer, in which case the original sentence imposed by the sentencing judge was the appropriate sentence. Further, he found the Alberta Court of Appeal imposed a 26-month sentence for a dangerous operation causing death, which was not the charge Mr. Suter pleaded guilty to and they Court of Appeal substituted a sentence they believed should have been imposed, which was in error.

[65] Further, as I have discussed, in R. v. Altiman, supra, the Ontario Court of Appeal in 2019 has clearly indicated a sentencing range of four to six years where one death has resulted where an offender is guilty of impaired operation causing death. In Altiman, there were two deaths and the Indigenous accused’s 10-year sentence was reduced to seven years.

[66] It is my view the position of the defence is completely inadequate in addressing what the Court of Appeal have directed since McVeigh in 1985 are the paramount sentencing principles, namely, general deterrence and denunciation. The fact there was only one death in this case is simply a matter of sheer luck and looking at the catastrophic injuries suffered by Mr. Choudhary that becomes abundantly clear. It was miraculous that others did not die given the speed Mr. Gilkes was driving, as evidenced by the extensive damage to both of the vehicles Mr. Gilkes collided with.

[67] As I discussed earlier sentencing ranges are just guidelines, they are not intended to act as a “straitjacket”, Lacasse, at para. 58 and Suter, at para. 27. Proportionate sentences in 2024 for offences where individuals consume alcohol to excess voluntarily and then intentionally and deliberately decide to operate their motor vehicle by driving in the wrong direction on the 401 during the early morning rush hour, driving at excessively high speeds given those circumstances, that individual knows that some other innocent driver is either going to die or be seriously and permanently injured. The fact the sentence imposed in those circumstances is higher than other sentences imposed a few years earlier does not lead to a determination that sentence is unfit. Justice Wagner (as he then was) addressed this point in Lacasse, at para. 58:

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are [page1119] difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case.

Applicability of Mitigation for Collateral Consequence of Restrictive Release Conditions

[68] Ms. Baldassi also submitted that Mr. Gilkes should receive mitigation because of restrictive release conditions imposed after his release from custody. Mr. Gilkes was released on a surety release order in the amount of $15,000 without deposit. His parents each signed as a surety on his release order. His conditions included that he had to reside with one of his sureties. He was subject to a curfew between 7:00 p.m. and 7:00 a.m. except for medical emergencies involving himself or a member of his immediate family, for purpose of travelling directly to, from and while at work or when he was in the presence of a surety. He was also not permitted to have care or control of a motor vehicle or occupy the driver’s seat of any motor vehicle. His surety release order was signed on January 3, 2023.

In R. v. Downes 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555 (C.A.) the Court of Appeal held at para. 33, that "time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. . . . [I]t is incumbent on the sentencing judge to explain why he or she has decided not to take pre-sentence house arrest into account." Ms. Baldassi submitted the appropriate mitigation was a sentence reduction of 6 months. Of course, the caselaw is clear that there is no formula or specific amount of time an offender’s sentence should be reduced if they are subject to restrictive release conditions, such as house arrest. It is my view that Mr. Gilkes is not entitled to receive any mitigation as a result of stringent release order conditions.

[69] First, the fact situation in Mr. Gilkes’ case and that in Downes are significantly different. Mr. Gilkes was not subject to any period of house arrest and only had a curfew for which he had exceptions to be out of his residence, which included his employment, while in the company of a surety (he had two) and for medical emergencies.

[70] Mr. Gilkes did not provide an affidavit or any evidence as to how the curfew he was under or the term not to operate or have care or control of a motor vehicle in any way prejudiced him or imposed undue hardship upon him. In fact, he maintained his employment as a caterer at a retirement home from the time of his release on January 3, 2023, until April 2024 when he quit that employment. In April 2024 he began working at two jobs with two different family members, who according to the PSR provided transportation to him because of his release restrictions. No efforts were made to vary any conditions in his release order by Mr. Gilkes and no information was provided how the conditions in any way caused him to quit his employment of four years as a caterer at the retirement centre. (See R. v. Ijam, 2007 ONCA 597, [2007] O.J. No. 3395 (C.A.), at paras. 26-38; R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (C.A.), at para. 10; and R. v. Hunjan, 2007 ONCA 102, [2007] O.J. No. 520 (C.A.).)

Sentence Imposed

[71] As I have discussed above sentencing is an inherently individualized process and sentencing ranges are nothing more than guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases. Parity is a sentencing principle trial judges are to strive for; however, where the aggravating circumstances are particularly egregious and unique then sentences could very well be at the top end of the range or above the range of sentence (see R. v. Suter, at para. 27 and 70). In my view this is such a case.

[72] Whatever sentence I impose, it cannot undo the damage that has resulted from Mr. Gilkes’ criminal conduct. The sentence I impose is in no way meant to reflect on the value of the losses suffered by the victims. Any sentence I impose is bound by the purposes and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code, which I have gone through. As I indicated the paramount sentencing principles in this case are denunciation – to denounce, in no uncertain terms, the conduct engaged in by Mr. Gilkes, and, as well, deterrence – any sentence must reinforce the message that impaired driving often results in serious consequences and must involve a substantial sentence that will deter others from engaging in similar conduct. To a lesser extent, it must also adhere to the principles of sentencing set out in s. 718.2, respecting parity, rehabilitation, restraint, and totality.

[73] I recognize Mr. Gilkes is a youthful, first offender who is facing his first custodial sentence. These are all mitigating circumstances, which I take into consideration. His family support and previous pro-social life, his being gainfully employed, and his guilty plea, remorse, and acceptance of responsibility, all bode well for his rehabilitation prospects. I recognize as well the need to exercise restraint and consider the principle of totality, when imposing consecutive sentences.

[74] Balanced against these mitigating circumstances are the circumstances of the offences he has pleaded guilty to. Mr. Gilkes’ decision to operate his motor vehicle after consuming alcohol in the quantity he did, was the sole cause of the tragic loss of Danyang Song’s life and the devastating injuries, which resulted to Hassan Choudhary. These circumstances were completely avoidable and should not have occurred. Mr. Song was going to work and looking forward to being with family and friends that evening to celebrate the new year and Mr. Choudhary was driving to Police College working towards his goal of becoming a police officer. The results of Mr. Gilkes’ actions were catastrophic and their impact to Mr. Song’s family and friends and to Mr. Choudhary and his family and friends will unfortunately last their lifetime. The sentence I impose must hold Mr. Gilkes accountable for his criminal conduct and it must send the message to others not to engage in similar behaviour. Unfortunately, as I have referred to in these reasons the message of not drinking alcohol and driving a motor vehicle has been ignored or if heard, it has not been followed by members of the public, given the large number of drinking and driving offences laid by police each year.

[75] Mr. Gilkes’ turning eastbound onto the westbound 401 off-ramp from Liverpool Road in Pickering despite there being at least 6 signs advising motorists not to this, the video evidence of numerous westbound drivers flashing their headlights as he drove eastbound on the westbound 401 Highway yet Mr. Gilkes made no effort to slow down or pull over to the shoulder, driving for at least 46 seconds before colliding with Mr. Choudhary’s vehicle, his excessive speed driving 138 km/hr just five seconds before colliding with Mr. Choudhary’s vehicle and his speed being 124 km/hr after only applying his brake for the first time half a second before the collision and his BAC of 145 mgs to 212 mgs of alcohol in 100 mL of blood at the time the collision occurred at 5:05 a.m., all provide serious aggravating circumstances calling for a sentence which emphasizes general deterrence and denunciation.

[76] There can be no doubt of the serious gravity of the offences Mr. Gilkes pleaded guilty to, having regard to the loss of life of Mr. Song and the permanent injuries affecting Mr. Choudhary.

[77] Mr. Gilkes’ moral blameworthiness is significant. He made deliberate, intentional decisions to drive after drinking alcohol, and to drive at the speed he did, in the wrong direction on Highway 401, which can only be described as extremely dangerous, and I find he knew this would result in either death or debilitating serious injuries to innocent drivers. The horrendous impact of this tragedy on the Song and Chaudhary families is another serious consequence.

[78] Taking into account the whole of the circumstances, both mitigating and aggravating, it is my view a proportionate sentence is one of seven years to be apportioned as follows:

a. Impaired Operation of a Motor Vehicle Causing Death: Five (5) years in the penitentiary;

b. Dangerous Operation of a Motor Vehicle Causing Death: Five (5) years in the penitentiary concurrent;

c. Impaired Operation of a Motor Vehicle Causing Bodily Harm: Two (2) years in the penitentiary consecutive.

[79] Mr. Gilkes spent four (4) days in pre-trial custody before he was released on the surety release order I described above. Pursuant to s. 719(3.1) of the Criminal Code Mr. Gilkes is entitled to a credit for each day he spent in presentence custody calculated at a ratio of 1.5 to 1. He will therefore be given credit of 6 days. Ms. Baldassi requested I give Duncan credit of a further 4 days; however, no material, either a letter from the custodial facility or an affidavit from Mr. Gilkes respecting his experience while in custody, was provided by the defence. It is my view Ms. Baldassi requesting credit for the same number of days of pre-trial custody – four (4) is contrary to the direction of the Court of Appeal in R. v. Marshall, 2021 ONCA 344, [2021] O.J. No. 2757 (C.A.) and the only credit given is the six (6) reflected in the application of s. 719(3.1).

[80] Therefore the pre-trial custody credit of six (6) days will be deducted from the sentence of 2 years imposed for the Impaired Operation of a Motor Vehicle causing Bodily Harm, leaving 1 year and 359 days.

[81] The total custodial sentence remaining is 6 years 359 days.

Ancillary Orders

[82] In respect of the conviction for impaired operation of a conveyance causing death, or the conviction for dangerous operation of a conveyance causing death, s. 320.24(5)(a) of the Criminal Code provides for a driving prohibition for any duration the court considers appropriate, plus the entire period of time to which the offender is sentenced to imprisonment. In respect of the conviction for impaired operation of a conveyance causing bodily harm, s. 320.24(5)(b) provides for a driving prohibition no longer in length than 10 years in length plus the entire period of time to which the offender is sentenced to imprisonment. Under s. 320.24(5.1) a driving prohibition order takes effect the day it is imposed. Under the previous sentencing provisions, the driving prohibition commenced only once the offender was released from prison, see R. v. Lacasse, at para. 109.

[83] When I consider the extremely dangerous nature of the driving in question, including driving the wrong direction on the westbound 401 Highway, the incredibly high speeds and Mr. Gilkes significantly elevated blood alcohol concentrations, his HTA driving record it is my view the appropriate driving prohibition is 14 years, which is for the impaired operation causing death and dangerous driving causing death (Driving prohibition for the 7 years of imprisonment and a further 7 years in addition for a total of 14 years). I make a similar driving prohibition order respecting the dangerous operation of conveyance causing death, of 14 years, which will run concurrently to the driving prohibition in respect of the impaired operation of a conveyance causing death.

[84] There will also be a driving prohibition in relation to the impaired operation causing bodily harm, which will be for 7 years starting from today’s date. The two prohibition orders will run concurrently to each other.

[85] The offences Mr. Gilkes pleaded guilty to are secondary designated offences for the purposes of a DNA order. I am satisfied such an order is appropriate in the circumstances of this case and I will make such an order. It is my view that the nature of these offences, including the circumstances surrounding the commission of the offences, strongly favours such an order being made.

[86] There will also be a non-communication order under s. 743.21 for the time period Mr. Gilkes is in custody. The order shall prohibit him from communicating with Hassan Choudhary or any member of his family. This non-communication order with have one exception, except through or in the presence of counsel.

[87] Given the custodial sentence I have imposed I am waiving the Victim Fine Surcharge.

Released: October 2, 2024

Signed: Justice Peter C. West

Appendix (Cases summarized in R. v. Robertson, supra, at paras. 79-98.

79 In R. v. Boukchev, 2003 CanLII 26654 (ON CA), [2003] O.J. No. 3944 (C.A.) a sentence for dangerous driving cause death and leaving the scene of an accident was increased on appeal from 21 months to five years (less 9 months pre-trial custody). While speeding the offender ran two red lights and dragged the 20-year-old victim. He had a "horrendous" driving record and showed flagrant disregard for prior license suspensions and driving prohibitions.

80 In R. v. Ramage (2010), 2010 ONCA 488, 265 O.A.C. 158 the court upheld a four-year sentence imposed after a trial on an impaired driver with an exemplary background and whose driving had resulted in the death of one person and debilitating injuries to another.

81 In the case of R. v. Niganobe, 2010 ONCA 508 a female Aboriginal offender was sentenced to five years imprisonment for impaired driving causing death and impaired driving causing bodily harm. The appellant had a prior criminal conviction for impaired driving. This appellate court did not interfere with the sentence.

82 In R. v. Junkert, 2010 ONCA 549, [2010] 103 O.R. (3d) 284 the offender drove at a high rate of speed and failed to negotiate a turn in a residential neighborhood. His car went onto the sidewalk, where it struck a car and a lamp pole before re-entering the roadway. During its travel, the car struck and killed a jogger. The offender's blood alcohol concentration at the time was 130 mg/ml. He was convicted after trial of both impaired driving and dangerous driving. He was a first offender. A sentence of five years for both offences and a ten-year driving prohibition was upheld on appeal.

83 In R. v. Bush, 2012 ONCA 743, 112 O.R. (3d) 626, the impaired driver killed one person. He pled guilty to criminal negligence causing death, impaired driving causing death, driving while disqualified, and breach of an undertaking to abstain from the consumption of alcohol. A global sentence of 12-years imprisonment was upheld.

84 In R. v. Purtill, 2013 ONCA 692, this court refused to interfere with a six-year sentence for criminal negligence causing death and bodily injury and impaired driving causing death and bodily injury. The impaired driver had caused the death of a five-month-old infant and serious injuries to his mother. He had one prior dated conviction for impaired driving.

85 In R. v. Carreira, 2015 ONCA 639, 337 O.A.C. 396, an intoxicated motorcyclist lost control of his bike and crashed, killing his rear-seat passenger. He pled guilty to criminal negligence cause death. His blood alcohol concentration was 160mg/100ml. He was a self-admitted "binge alcoholic." The court did not interfere with the sentence of six years' imprisonment.

86 In R. v. Stevens, 2017 ONCA 686, the court upheld a six-year sentence for impaired operation of a vehicle causing death and dangerous operation causing death for a female offender who had been driving with between 70-110 mg of per 100ml of alcohol in her blood on a country road.

87 In R. v. Eden, [2021] O.J. No. 5347 (CA) the offender pled guilty to having operated her mother's motor vehicle and colliding with another vehicle ahead of her that had stopped at an intersection. The offender proceeded to strike a motorcycle heading in the opposite direction. The offender fled on foot and was arrested a short time later about two kilometres from the accident. The offenders blood alcohol readings at the time of the accident in a range between 70 milligrams to 135 milligrams of alcohol per 100 millilitres of blood. The offender was estimated to have been speeding approximately 113km in a posted 80 km zone. A five-year sentence was upheld.

88 In R v Lewis, 2021 ONCA 597 a total of eight years incarceration for impaired driving causing death, criminal negligence causing one death and breach of probation was upheld. The offender was found guilty after a trial. The facts included a street race in rush hour with speeds of 130 kph in a 50 kph zone. The offenders blood alcohol concertation was between 83-113 milligrams percent. Mr. Lewis also had a related 2014 record for dangerous driving while fleeing police and a provincial record with seven speeding convictions.

89 In R. v. Romano, 2021 ONCA 211, [2021] O.J. No. 1858 (C.A.) a police officer who was driving 115km/ in a 60/km zone in order to catch up with his surveillance team was convicted after trial (and two appeals) and sentenced to 8 months jail for dangerous driving cause death.

90 Most recently in R. v. Durani, [2022] O.J. No. 142 the offender was convicted of criminal negligence causing death while street racing and failing to remain. He participated in a high-speed race on a busy city street during rush hour resulting in the death of a jogger. Although relatively young, the appellant was not a first offender and the pre-sentence report indicated he had no insight into his behavior. The sentence of five years imprisonment (less 1 year for pre-sentence custody) was upheld on appeal.

b) Collisions resulting in two deaths

91 In R. v. Mascarenhas (2002), 2002 CanLII 41625 (ON CA), 60 O.R. (3d) 465 (C.A.), a 12-year jail sentence was reduced to 10 years. However, the nine-year sentence for causing the deaths of two people was upheld. The driver pled guilty. He struck two pedestrians while driving with a blood alcohol level between .339 and .353. The offender was 46-years old and had three previous impaired driving convictions. He also received a consecutive sentence of one year for breaching a term of his bail prohibiting from driving.

92 A six-year sentence was upheld on appeal for two counts of dangerous driving causing death and one count of dangerous driving causing bodily harm in R. v. Regier, 2011 ONCA 557, 16 M.V.R. (6th) 20. Two young people were killed, and the driver of another vehicle seriously injured. The driving was described as "aggressive" and his maneuvering as "grossly unsafe". The appellant had a lengthy driving record involving 25 Highway Traffic Act convictions over a period of 28 years and was charged with careless driving in another incident near the place of this accident on the same highway within two years following this accident. The court in Regier quoted a 2003 endorsement by the Court of Appeal, in which the court observed that "sentences have tended to increase in severity for these types of offences because of the heightened recognition of the need for general deterrence and protection of the public."³⁵

93 In R. v. Lacasse, [2015] SCC 64 the 20-year-old offender pled guilty to having caused the death of his two passengers while impaired. He lost control of his car while driving 130/km in a 75km zone down a country road. The sentence of six and a half years was upheld.

94 R. v. Altiman, 2019 ONCA 511, [2019] O.J. No. 3216 (CA) a 31-year-old Indigenous person pled guilty to having caused the death of two individuals by driving with a high blood alcohol concentration through a red light at a high rate of speed. On appeal his sentence was reduced from 10 years jail to seven. Mr. Altiman pled guilty, had no criminal record or traffic record and was of previous good character.

c) Collison resulting in three deaths

95 In R. v. Wood, 2005 CanLII 13779 (ON CA), [2005] 197 O.A.C. 43 (C.A.), the offender had an extensive criminal record and pled guilty for having killed three people and injuring one while driving without a licence and with a blood alcohol level nearly twice the legal limit. The sentence of nine years imprisonment was upheld on appeal.

96 In R. v. Kummer, 2011 ONCA 39 the Ontario Court of Appeal upheld an eight-year prison sentence imposed on a driver who pled guilty to three counts of impaired driving cause death, three counts of dangerous driving cause death, two counts of impaired driving cause bodily harm and two counts of dangerous driving cause bodily harm. The offender was speeding, travelling 122/km in a 70/km zone before he went through an intersection and struck a vehicle which had the right of way. The offender had no criminal record but had a significant driving record. Three young people died, including a 12-year-old boy on the way home from a hockey game.

97 In R. v. Randhawa, [2020] O.J. No. 257 a sentence of seven years was imposed on an individual whose driving at high speeds in a residential area after a night of drinking caused the death of his three passengers and his own traumatic brain injury. He had approximately twice the legal limit for alcohol in his system. The appellant was 22 years old, and his passengers ranged in age from 19 to 24 years old.

d) Collisions resulting in four deaths

98 There are no appellate cases from Ontario which comment on the fitness of a sentence where someone's driving unlawfully caused the death of four people, someone's entire family.

99 Counsel made submissions with respect to the decision in R. v. Muzzo, 2016 ONSC 2068, [2016] O.J. No. 1506 (S.C.). A sentence of ten years was imposed on an offender who drove impaired and killed three children and their grandfather. Other than the tragic consequences in both cases, the offence and the offenders are notably different:

• In the Muzzo case the Crown sought a twelve-year jail sentence, the defence eight;

• Prior to Mr. Muzzo driving through a stop sign he was speeding; at the time of impact he was travelling 85km in a 60km zone. In Mr. Robertson's case he was travelling almost twice the legal limit prior to impact, 134km in a posted 70km zone;

• Unlike in Mr. Robertson's case, a medical professional assessed Mr. Muzzo to be a low risk to reoffend;

• Unlike Mr. Robertson, prior to the offence Mr. Muzzo had an established history of having lived a pro-social life and was a productive member of the community. He had completed his education and acquired a reputation for having a strong work ethic;

• Unlike Mr. Robertson, Mr. Muzzo was a licenced driver and there is no indication that Mr. Muzzo failed to comply with any licencing and registration of his vehicle;

• Unlike Mr. Robertson, there is no indication that Mr. Muzzo drove without insurance;

• At the age of 29, Mr. Muzzo had 12 highway traffic convictions over 12 years, 10 for speeding. At the age of 20, Mr. Robertson accumulated 15 highway traffic violations in the two-year period immediately preceding the offences before the court;

• Mr. Muzzo was a licenced driver; Mr. Robertson was not. Mr. Robertson was subject to two different driving suspensions at the time he committed the offences on June 16 and 18, 2020;

• Unlike in Mr. Robertson's case, Mr. Muzzo did not cause a crash two days earlier: and

• Unlike in Mr. Robertson's case, there is no indication that Mr. Muzzo ever attempted to evade responsibility for his actions or detection by police. Mr. Muzzo admitted he was driving at the roadside after having been cautioned and again after speaking with his lawyer.

[1] I have read and considered all of the cases referenced by Justice Caponecchia in her judgment, at paras. 78-98, and have reproduced them as an Appendix at the end of my reasons. It is my view sentencing is a fact driven and highly individualized process and while parity for similar offender and similar offences is something to be strived for, I agree with the observations of the Supreme Court in Lacasse and M. (C.A.) referred to above.

[2] R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100.