ONTARIO COURT OF JUSTICE
DATE: March 5, 2025
COURT FILE No.: 2020-001881
BETWEEN:
Mississauga (City)
— AND —
Olavo Williams-Cordeiro
REASONS FOR SENTENCE
Before Justice of the Peace V. Fisher-Grant
Heard on November 5, December 16, 2024
Reasons for Judgment released on March 5, 2025
Mr. B. Jackson — counsel for the prosecution
Mr. R. Darrah — counsel for the defendant
[1]
On April 16, 2024, Olavo Williams-Cordeiro was found guilty as charged with careless driving causing death and stunt driving. The stunt driving charge was conditionally stayed pursuant to the Kienapple principle by the court until all appeal periods have expired when a full stay will take effect.
[2]
The Crown submits that a sentence of 18 months custody and a driving prohibition of five years is warranted. The Defense submits that a sentence of probation, community service hours and a driving prohibition for three years is appropriate. The parties agree that if the court were to impose a period of probation, a community service order would be warranted.
THE OFFENCE
[3]
Mr. Williams-Cordeiro in the wee hours of the morning, around 2 a.m., on August 16, 2020, along with another car driver, and Mr. Chen on his motorcycle chose to operate their vehicles, on the 403, in tandem and at high speeds. While traffic was fairly light, there were other cars on the road that night. There were other drivers that evening who observed the vehicles to “blow past” them, and that when they went past the witness’s car shook. One witness described that: the first car blew past, but the second car couldn’t make the same maneuver because of traffic. When they could they hammered it and passed the cars. The motorcycle was “blowing by like they were standing still.”
[4]
This race behaviour went on for several kilometers: from around the 403/Dundas to the 403/Hurontario. Mr. Williams-Cordeiro’s car was being operated at speeds between 141-193 km/hr in the 100 km/hr zone. Ultimately the motorcycle Mr. Chen was operating accelerated to 282 km/hr and slammed into the back of a car, sending that car across three lanes into the left guardrail, the motorcycle exploding into flames and ending Mr. Chen’s life.
[5]
I recount these facts to emphasize the seriousness of the matter and its consequences. As the court commented in R. v. Field, 2011 ABCA 48 paras. 22-23, “driving a ton of metal and glass through spaces where people can be expected to be present and at a speed where it is likely to be impossible to stop the vehicle in time to avoid a calamity cannot be treated as youthful indiscretion. Street racing is entirely avoidable. There is no need for it ever to happen.”
[6]
With that backdrop, I still must assess this matter on its own facts and circumstances regarding Mr. Williams-Cordeiro specifically. Sentencing is an individualized exercise … [i]t involves a variety of factors that are difficult to define with precision. … everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case. See R. v. Robertson, 2022 ONCJ 240, para. 101.
SENTENCING PRINCIPLES AND THE LAW :
[7]
The Highway Traffic Act provides at s. 130(4):
Penalty – On conviction under subsection (3), a person is liable to a fine of not less than $2000 and not more than $50,000 or to imprisonment for a term of not more than two years, or to both, and in addition his or her driver’s licence or permit may be suspended for a period of not more than five years.
[8]
The Highway Traffic Act [“HTA”] was amended on September 1, 2018, to provide for the offence of careless driving causing death and new related penalties. The Act previously had provided for lower fines, and up to six months incarceration. The amendments were a recognition by the legislature of society’s concerns and recognition of the gravity of fatal driving offences. The amendments are a recognition that there needed to be meaningful consequences for those who engage in careless driving behaviour that results in the death of another.
[9]
In the regulatory context, the objectives of sentencing are specific and general deterrence, denunciation, proportionality, and restraint. As recognized in R. v. Cotton Felts Ltd., 1982 ONCA 3695, 1982 O.J. No. 178, deterrence is the paramount consideration in sentencing for public welfare statutes. To be meaningful, a sentence must be felt by the defendant while also serving as a warning to others who might be likeminded in their misconduct. A just sentence must be appropriate to the gravity of the offence and the responsibility of the offender. This is unlike the criminal law wherein rehabilitation is also a factor for the court’s consideration. Given the lower mens rea in the regulatory context the concept of rehabilitation is an “awkward fit.” R. v. Miller, 2023 ONCJ 77, para. 63.
[10]
The need for specific deterrence will depend on the individual offender, Miller, supra, para. 63, and turns on the circumstances of the matter at hand. Deterrence under the HTA reflects the need to discourage persons from “driving behaviours that negatively impact the safety of those using the roadways … [it] exists to ensure that the roadways are used safely by all.” R. v. Henry, [2023] O.J. No. 2974, para. 22.
[11]
Denunciation as a sentencing objective in the HTA context will depend on the offender’s departure from the standard of “due care and attention.” It is the conduct of driving without due care and attention that is the focus of sentencing in the regulatory context. “… [I]t is not the consequences that is the focus of the sentence rather, it is the driving conduct itself, lack of due care and attention, along with other mitigating and aggravating factors being taken into consideration.” R. v. Grosse, 2017 ONCJ 228, para. 7.
[12]
The amendments of the HTA to include specific penalties for careless driving cause death reflect the seriousness and consequences of driving without due care and attention or without reasonable consideration for other persons using the highway.
[13]
The principle of restraint reminds the court that incarceration should be used sparingly and with “great care.” Miller, supra, para. 65. In this matter, I am mindful that this sentencing takes place in the regulatory context not in the criminal one.
SENTENCE RANGE AND CASE LAW
[14]
Mr. Williams-Cordeiro has been convicted of careless driving cause death in the context of a street race. Neither counsel was able to point to any cases of this, similar, factual circumstance. Each argues that regard can be taken, however, to like facts in the criminal context with reference to the lower mens rea standard in the regulatory one.
[15]
The Crown points to a variety of cases that imposed custodial sentences. The defense submitted case law that suggests a conditional sentence order could be appropriate in some cases. A conditional sentence is a jail sentence served in the community usually with a period of full house arrest followed by probationary terms and other restrictive conditions.
[16]
A conditional sentence is not an available sentence in the POA context. The defense therefore then suggests that a period of probation with a significant number of community service hours would meet the principles of specific and general deterrence in this matter and given Mr. Williams-Cordeiro’s particular circumstances.
[17]
In R. v. Badhwar, 2011 ONCA 266, the sentence of 30 months custody for criminal negligence causing death was upheld. The victim was a driver of a tractor trailer who was killed when his vehicle was struck by a co-accused who was racing with the accused. The race lasted for more than 40 km on Highway 400, with speeds of up to 170 km/hr and weaving through traffic. Mr. Badhwar was convicted as a participant after trial.
[18]
In the related matter regarding a co-accused, Nusrat, a conditional sentence was overturned with the Court commenting on the seriousness of street racing:
… street racing will not be tolerated. … the objectives of general deterrence and denunciation must be paramount.
While the respondent did not intend to cause [the victim’s] death, he deliberately engaged in egregious behaviour over an extended distance on a busy highway. The potential for tragedy was high, if not inevitable.
Where the offender’s conduct results in serious personal injury or death, the gravity of the offence must be given predominance in determining the appropriate sentence.
… where persons such as the respondent engage in intentional risk taking of this nature and duration, and with such horrific consequences, they should expect to face a substantial period of incarceration.
R. v. Nusrat, 2009 ONCA 31 at paras. 65-69.
[19]
I do note, as stated above, this is a regulatory matter, and the court is not dealing with moral blameworthiness nor results of conduct in the same way as in the criminal context. However, I accept that the court is also speaking of the objectives of general and specific deterrence in the foregoing and the considerations related thereto in a street racing context.
[20]
In R. v. Field, supra, that court commented “[s]entencing cannot focus entirely on the offender’s youth, or his otherwise good characteristics. Driving motor vehicles is a privilege, not a right as it is governed by a vast array of licensing requirements and limitations reflective of universal public awareness that even largely safe motoring is perilous to the users of the road. … Street racing is entirely avoidable. There is no need for it ever to happen”.
[21]
In R. v. Durani, 2022 ONCA 17, the accused was racing with another during rush hour. The co-accused’s car crashed into the victim’s car, killing her. The accused did not remain at scene. A five-year sentence was imposed for the criminal charge.
[22]
In R. v. Akhtar, 2018 ONSC 6191, the accused was street racing with speeds up to 144 km/hr in a 60 km/hr zone. The race lasted almost 2 minutes. The accused collided with the victim’s vehicle when they were turning left at an intersection. A passenger in the car was killed and two others were injured. The accused did not have a criminal record and had one conviction for speeding. After trial he was sentenced to 30 months custody, with a 10-year driving prohibition.
[23]
In R. v. Mercer, 2018 NLSC 219, the accused was found guilty after trial of street racing. The race was over 8 kilometres including speeds of 130 km/hr in a 80 km/hr zone with side by side driving and attempting to overtake one another. The co-accused collided with an oncoming car killing an 18-year-old and seriously injuring an 81-year-old. He had three speeding convictions, one unrelated criminal conviction and was on a criminal probation order at the time. He was sentenced to 4 years in custody with a 10-year driving prohibition.
[24]
In R. v. Hutchinson, [2022] O.J. No. 2756, sent. aff’d [2024] O.J. No. 2126, the appellant was travelling about 131 km/hr in a 80 km/hr zone when she passed another car, and struck the victim who was riding a bike. She was a youthful offender and pled guilty. She did not have a criminal record but did have convictions for speeding. She was sentenced to a two-year conditional sentence order, probation and a 10-year driving prohibition for dangerous driving causing death.
[25]
In R. v. Beedawia, 2024 ONSC 3247, [2024] O.J. No. 1570, the accused failed to stop at a stop sign colliding with another motor vehicle. The victim was a four-year-old passenger of the other car. The accused did not have a record, criminal nor driving, was remorseful and had full time employment. He was sentenced to a 2-year conditional sentence order for dangerous driving causing death, 2 years probation and a 7-year driving prohibition.
[26]
In R. v. Boutrous, [2023] O.J. No. 2801, the accused pled guilty to dangerous driving causing death which involved speeds of 151 km/hr in a 60 km/hr zone. She was youthful and did not have a criminal nor driving record. She received a 2-year conditional sentence order, probation and a 5-year driving prohibition.
[27]
In R. v. Linton, 2022 ONCJ 197, [2022] O.J. No. 2013, the accused pled guilty to dangerous driving causing death and dangerous driving causing bodily harm. He had attempted to pass another vehicle in traffic at speeds over 100 km/hr when he collided with another vehicle, killing the driver, and injuring two passengers. He did not have a criminal or driving record and was a youthful offender. He was injured in the incident. A 2-year conditional sentence was imposed for the dangerous operation causing death and 1 year 4 months concurrent for the dangerous operation causing bodily harm. He was given a 4.5-year driving prohibition.
[28]
In R. v. Laycock, [1996] O.J. No. 3846, the defendant was convicted for careless driving causing death. The defendant struck and killed a cyclist when they were both travelling on a two-lane gravel shouldered highway. The defendant was sentenced to 60 days custody with a one-year driving prohibition.
[29]
In R. v. Miller, [2023] ONCJ 77, the defendant was convicted of careless driving causing death. The circumstance involved texting while driving when Ms. Miller’s motor vehicle struck and killed the cyclist-victim. The victim being a cyclist was statutorily aggravating. The defendant did not have a criminal record but did have an entry for driving while holding a hand-held communication device. There was a recognition that there were triable issues and regarding the strength of the Crown’s case. She pled guilty and was very remorseful. She was sentenced to 45 days custody with a 2-year driving prohibition.
[30]
In R. v. Watson, [2023] ONCJ 50, the defendant was sentenced to 45 days custody and a 4-year driving prohibition for careless driving causing death, and 30 days concurrently for careless driving. He was a truck driver. Two pedestrians were struck when they crossed the road in an area that was not a crossing. Mr. Watson was also injured in the incident. The victims were deemed to be vulnerable pursuant to section 130(6) of the HTA.
[31]
In R. v. Biggar, [2024] O.J. No. 5883, the defendant was convicted after trial of careless driving causing death. She made a left hand turn at an intersection colliding with a motorcyclist that was proceeding through. She did not have a criminal nor driving record. She was injured in the collision and was 17 years old at the time. There were section 130(6) considerations and numerous victim impact statements. She was sentenced to a fine, probation with community service hours and a four-year driving prohibition.
MITIGATING AND AGGRAVATING FACTORS
[32]
The facts of this matter are particularly aggravating. The facts arise in the context of a street race. The three vehicles, two cars and a motorcycle, drove for several kilometres weaving in and out of traffic at extremely high speeds with the motorcycle ultimately colliding with another car. The speed driven at times by the defendant was almost double the speed limit. There were other vehicles on the roadway although it was in the middle of the night. It was dark. This was not a momentary lapse in judgement, this was a choice of behaviour undertaken by the defendant.
[33]
He has a troubling and aggravating driving record. The accident occurred on August 16, 2020. Five of his speeding convictions occurred after this incident. Of the six convictions two of them are for speeds greater than 40 km/hr over the limit.
[34]
On May 20, 2024, after he was convicted in this matter, his license was suspended for 30 days as he was charged for stunt driving. While the matter apparently remains outstanding, and he has not been convicted, the court notes that at that time a police officer would have arguably had reasonable and probable grounds to lay such a charge. I do not accord this circumstance a lot of weight, given that he has not been convicted, but it is concerning that after the incident and conviction in this matter, Mr. Williams-Cordeiro continued to seemingly operate a vehicle in a manner with excessive speed.
[35]
He does not have a criminal record.
[36]
He is now 26 years old. He was 22 at the time of the offence. He is youthful.
[37]
I accept that when he spoke to the court, he was remorseful and recognized the consequences of his behaviour. I accept that he regrets deeply what occurred. I also accept, and agree, that he is not as he said, “a bad person.” He rightly recognizes that he has made “poor decisions in the past.”
[38]
He had been living with his grandmother, until very recently, who knew about this conviction. She was supportive of him and he assisted her. He struggles financially and it appears he only recently has been on a more secure footing with respect to employment and housing. That appears today to be again in flux. He was trying to build a business and support his brother in the music industry.
[39]
He has had what can be termed a difficult upbringing with a father who admitted that due to addiction issues that he was not the best father, that he was not abusive but was frequently absent. When Mr. Williams-Cordeiro was younger his father spent time in and out of prison. His parents live in Manitoba but do provide emotional support to their son.
[40]
The parties agree that I can consider that Mr. Williams-Cordeiro is a member of a vulnerable population that is an overrepresented group in the justice system. I accept that as a result of his situation he did not have advantages and that he faced struggles through school. He did have talent playing basketball through school. His family moved from Toronto to Winnipeg approximately when he was in grade 5. He experienced a lot of racism, noting his was the only black family in the community. He did not have many friends and leaned on his sport for friendship. He left home at 15 and returned to Toronto. His family and residence situation appears from the PSR to have been challenging. It is also apparent that he had a close relationship with his grandparents and the loss of his grandfather in 2023 impacted him greatly. He advises that he felt at times he had lost everything.
[41]
His brother and parents in their letters to the court spoke highly of him. They mentioned that even when he faced his own financial uncertainty and difficulties, he took the time to take food and clothing to persons facing homelessness. I accept that Mr. Williams-Cordeiro is a caring person who wants to do right by his community and his family. Those characteristics will hopefully carry him through to a successful future and prospects and they speak to his potential.
[42]
However, these positive characteristics in his life related to his family and values, seem in contrast to what appears to occur when he gets behind a wheel of a car.
SENTENCE
[43]
Before I impose sentence, I note that any sentence that this court imposes is not a reflection of the value of Mr. Chen’s life nor is it intended to make up for the loss to his family of their loved one. There is nothing that this Court can say or do, that will bring back Mr. Chen or compensate for his death and his loved one’s loss. Sentencing is not a measure of value of a life nor is it meant to be some sort of revenge. There is no sentence that can adequately address the loss of a loved one. I am sure Mr. Chen’s family continues to suffer from the unnecessary loss of their loved one.
[44]
In consideration of all of the circumstances, although the court recognizes that Mr. Williams-Cordeiro is not a “bad person,” that he had faced a difficult and uncertain living situation, this must be balanced against the circumstances of the offense and the principles of sentencing.
[45]
I take into account that Mr. Williams-Cordeiro has lived with this matter outstanding for some two years. I accept that it has weighed on him.
[46]
This case calls out for a sentence that reflects in particular the principle of general deterrence. All drivers of motor vehicles need to understand the consequences of their driving behaviour on other persons using the roadway. They must understand that using roadways in a manner that is inconsiderate and indeed, foolhardy, careless and without regard for others is unacceptable. Street racing behaviour cannot be tolerated on our roads.
[47]
The case law where non-custodial dispositions have resulted are distinguishable from the matter at hand in particular in the most significant aspect, the racing behaviour. This is particularly aggravating. Given the aggravating circumstances of this case, and the need for general and specific deterrence, denunciation and despite some mitigating factors regarding Mr. Williams-Cordeiro himself, I have determined that a non-custodial sentence even with a significant period of probation, is not appropriate.
[48]
In coming to an assessment of the appropriate licence suspension, I have taken into account the case law presented. The maximum driving prohibition allowable in this case is 5 years. Driving is not a right, it is a privilege. Mr. Williams-Cordeiro has a concerning driving record. I accept that he feels remorse. However, the facts of this matter and his record, although not the worst driving record, is directly related to the type of facts of this case, are aggravating. He should not be behind the wheel of a car for an extended period of time. In my view that time is 4 years.
[49]
Given the facts of the matter, and the public recognition of the need to denounce this type of driving behaviour, I view that an appropriate sentence is one of 9 months in custody. Probation for 18 months thereafter with the statutory terms: that you attend court when and as required, that you not commit the same or similar offence that can result in imprisonment and that you notify the court of any change in your address. During the period of probation you are not to operate a motor vehicle. Your driver’s licence will be suspended for a period of four years beginning today.
[50]
Although I am sure this is not the result Mr. Williams-Cordeiro hoped for, I sincerely hope that he is able to come through this time and fulfill his desire to prove that he can do better. I hope that he continues to learn from this mistake and becomes successful in the steps forward he has made so far.