ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20120319

BETWEEN:

HER MAJESTY THE QUEEN – and – ROMAN LUSKIN

Melisa Montemurro, for the Crown
Jennifer K. Penman, for Mr. Luskin

HEARD: December 22, 2011 and March 2, 2012

TROTTER J.

Introduction

[ 1 ] Impaired by alcohol, and driving his car at a shocking rate of speed, Roman Luskin crashed into a minivan that was carrying 5 people. Three of them – Kim Hon To (44 years old), Christine Taing (24 years old) and Thimui Quach (64 years old) – were thrown from the vehicle and died at the scene. The driver of the minivan, Si Pho Taing (who was Mrs. To’s husband and Christine Taing’s father) broke his collar bone. The other passenger, Hon Tran, suffered numerous life-threatening injuries.

[ 2 ] As a result of this collision, Mr. Luskin has entered pleas of guilty to three counts of criminal negligence causing death and two counts of impaired driving causing bodily harm.

The Offences

[ 3 ] The collision occurred close to midnight on October 17, 2009 on Finch Avenue West in Toronto, a busy city street. Moments earlier, Mr. Luskin’s BMW passed a police cruiser traveling in the opposite direction. The officers in that cruiser estimated that Mr. Luskin was traveling at 150 to 200 kilometres per hour. As they began turning their car around, they heard the terrible crash. Mr. Luskin’s vehicle hit the minivan as Mr. Taing attempted to make a left hand turn. The crash destroyed the minivan, shredding it into four pieces. It left a large field of metal and glass debris all over the road. One can only get a true sense of the magnitude of this destruction by looking at the eerie photographs of the scene.

[ 4 ] An expert report estimated that Mr. Luskin would have been traveling at 181 kilometres per hour just prior to the collision and at a minimum of 118 kilometres per hour when he smashed into the minivan. The cause of the collision was a combination of excessive speed and Mr. Luskin’s consumption of alcohol.

[ 5 ] Mr. Luskin was arrested at the scene. He smelled of alcohol. After he was treated for a fractured wrist, he was asked to provide a breath sample. He refused to do so. But blood was seized. An analysis of his blood estimated that, at the time of the collision, his blood alcohol level was between 122 and 157 mgs of alcohol in 100 ml of blood.

The Impact on the Victims

[ 6 ] The devastation caused by this criminal act is obvious. Three people lost their lives that fall evening, in a violent manner, without ever knowing what happened to them. Their injuries were catastrophic. Mercifully, loss of consciousness and death came almost immediately. But the pain of their deaths lives on. Mr. Taing lost a wife and a daughter in the crash. He is so grief-stricken by his loss that he was unable to bring himself to prepare a Victim Impact Statement.

[ 7 ] When Ms. Quach was killed in this horrific collision, she had five children who she had raised almost single-handedly, following the premature death of her husband. In a joint Victim Impact Statement, her children and grandchildren express their sorrow and anguish as a result of losing the loving head of the family.

[ 8 ] Ms. Tran, who is now in her late 30’s, suffered life-threatening injuries. Her injuries included: a traumatic brain injury; a broken leg; liver and spleen lacerations; multiple rib fractures; and traumatic psuedoaneurysm of the descending thoracic aorta. She lost 12 teeth. Right after the collision, she endured a number of surgical procedures. She was then hospitalized for 3 months. Ms. Tran’s uncle prepared a poignant statement, detailing the impact of her injuries. She requires constant care. Ms. Tran suffers memory loss. She frequently attends many medical appointments with occupational therapists, psychiatrists, psychologists and speech language pathologists. She is on many medications. She suffers from pain disorder and, not surprisingly, depression. Ms. Tran will never be the same. Her life has been ruined.

Mr. Luskin and His Circumstances

[ 9 ] Mr. Luskin is now 23 years old. He was born in Kazakhstan. His family moved to Israel in 1998, where Mr. Luskin studied to be a dental technician. The family moved to Canada in 2005. Many character reference letters were filed in support of Mr. Luskin. He is spoken of as a kind and considerate person. A number of these letters refer to Mr. Luskin’s life prior to arriving in Canada.

[ 10 ] In 2008, apparently as a result of a swimming pool accident, Mr. Luskin suffered a spinal cord injury which has affected the use of his arms to a certain extent. He received disability payments from the Ontario Government as a result of this injury. There is no indication that this injury was connected in any way to the offences. Moreover, nothing has been filed to suggest that it has had any impact on his incarceration to date or that it will have any impact in the future.

[ 11 ] Since coming to Canada in 2005, Mr. Luskin has encountered considerable legal troubles. In 2007, he was convicted of a number of offences in Kingston, all related to credit card fraud. He received a one-year conditional sentence, which expired in October of 2008. After that, he was on a peace bond. As the Crown said during her submissions, for most of his time since coming to Canada, Mr. Luskin has been on bail, serving a sentence, subject to a peace bond or in jail.

[ 12 ] Mr. Luskin is subject to a deportation order as a result of his previous convictions. An appeal from that decision is pending. Any sentence I impose today will likely trigger further proceedings. If he receives a sentence of greater than two years on the present charges, it will extinguish his right to appeal the deportation order that is presently in place and any other order that is made as a result of these offences: Immigration and Refugee Protection Act , S.C. 2001, c. 27, s. 64.

[ 13 ] At the conclusion of the sentencing hearing, Mr. Luskin exercised his right to address me personally. Reading a prepared statement, he expressed remorse for his actions, and apologized to those affected by what he has done.

[ 14 ] One more thing must be said about Mr. Luskin and his situation. He receives moral support from his mother and his step-father. They too have suffered as a result of his offending and may continue to experience unpleasant consequences if Mr. Luskin is deported. I also note that Mr. Luskin lost his natural father many years ago, when he was killed by a drunk driver in Kazakhstan.

Positions of the Parties

[ 15 ] The Crown submits that I impose a sentence of at least 10 years’ imprisonment. She further asks that I impose a 15-year driving prohibition. Counsel on behalf of Mr. Luskin submits that a total sentence of 6 to 7 years’ imprisonment would be appropriate in the circumstances. Mr. Luskin has spent a considerable period of time in pre-sentence custody. Counsel disagree on how much credit he should receive for this time in jail.

Analysis

(a) Pre-trial Custody

[ 16 ] The Crown submits that Mr. Luskin should not receive the typical 2:1 credit for all of his pre-trial custody because he has been delaying proceedings in order to accumulate time in pre-trial custody with a view to obtaining enhanced credit. On Mr. Luskin’s behalf, Ms. Penman argues that this makes no sense because the favourable parole rules applicable to inmates in Federal institutions would result in Mr. Luskin actually spending less time in custody than in his present situation.

[ 17 ] On the record before me, I am unable to find that Mr. Luskin delayed his plea for the purposes of racking up time in pre-sentence custody. While I am not required to impose credit on a 2:1 basis, prior to the recent amendments (S.C. 2009, c. 29, s. 3) to the Criminal Code , which came into force after the commission of these offences, the 2:1 ratio was accepted as the customary credit for pre-trial custody: see R. v. Wust (2000), 2000 SCC 18 () , 143 C.C.C. (3d) 129 (S.C.C.) and R. v. Rezaie (1996), 1996 1241 (ON CA) , 112 C.C.C. (3d) 97 (S.C.C.). Mr. Luskin is entitled to credit on this basis, especially given the significant period of time he has spent at the Toronto Don Jail.

(b) The Appropriate Sentence

[ 18 ] The law is clear – in drinking and driving cases that result in death or bodily harm, the principal aims of sentencing must be general deterrence and denunciation. This approach can be traced back to the decision of the Court of Appeal for Ontario in R. v. McVeigh (1985), 1985 115 (ON CA) , 22 C.C.C. (3d) 145 (Ont. C.A.).

[ 19 ] In R. v. Bernshaw (1995), 1995 150 (SCC) , 95 C.C.C. (3d) 193 (S.C.C.), Justice Cory explained the impact of drunk driving in our communities. As he said at p. 204:

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.

After reviewing empirical data on the issue, Cory J. added the following observations, at p. 205:

These dry figures are mute but shocking testimony demonstrating the tragic effects and devastating consequences of drinking and driving. The social cost of the crime, great as it is, fades in comparison to the personal loss suffered by the victims of this crime through the death and injury of their loved ones. The gravity of the problem and its impact on Canadian society has been so great that Criminal Code amendments were enacted aimed at eliminating or, at least, reducing the problem.

[ 20 ] There is no reason to think that these words are any less valid today. Indeed, since Bernshaw , a virtual chorus of cases repeat these concerns and continue to stress the importance of deterrence and denunciation. Moreover, sentences for these types of offences have tended to increase over the years: R. v. Linden (2000), 2000 15854 (ON CA) , 147 C.C.C. (3d) 299 (Ont. C.A.), at p. 300; R. v. Reiger (2011), 2011 ONCA 557 () , 282 O.A.C. 392, at para. 2 ; R. v. Boukchev (2003), 117 O.A.C. 119, at para. 6 ; R. v. Junkert (2010), 2010 ONCA 549 () , 259 C.C.C. (3d) 14 (Ont. C.A.), at p. 24. Just last year, in R. v. Kummer (2011), 2011 ONCA 39 () , 266 C.C.C. (3d) 32 (Ont. C.A.), MacPherson J.A. reiterated this theme and said at p. 37: “As the dangers of impaired driving have become increasingly evident and as this problem has continued to demonstrate its intractability, the sentences imposed where impaired driving results in death have increased.” Rejecting the argument that two of the Court’s recent decisions ( R. v. Ramage (2010), 2010 ONCA 488 () , 257 C.C.C. (3d) 261 (Ont. C.A.) and R. v. Junkert , supra ) capped the maximum sentence for these offences at four to five years, MacPherson J.A. pointed out that the maximum sentence for impaired driving causing death is life imprisonment. Consequently, he said (at p. 39): “It must remain within the realm of possibility that a life sentence could be imposed for this crime.”

[ 21 ] With respect, the sentence that the Crown asks me to impose, nothing less than 10 years’ imprisonment, is not supported by the authorities. Kummer is the most compelling authority from the Court of Appeal because it is very recent and the factual matrix in that case is similar to Mr. Luskin’s case. In Kummer , the Court upheld a sentence of eight years’ imprisonment. Like Mr. Kummer, Mr. Luskin killed three people. Mr. Kummer seriously injured two other people. Mr. Luskin injured two people, one very severely. While Mr. Luskin has a criminal record, Mr. Kummer had none, but he had a terrible previous driving infraction involving alcohol.

[ 22 ] I also note that, in Kummer , MacPherson J.A. compared the facts of that case to two other decisions of that Court in which sentences of nine years were either upheld ( R. v. Wood (2 005), 2005 13779 (ON CA) , 196 C.C.C. (3d) 155 (Ont. C.A.)) or substituted ( R. v. Mascarenhas (2002), 2002 41625 (ON CA) , 60 O.R. (3d) 465 (C.A.)). As MacPherson J.A. said, because Mr. Kummer did not have the same terrible criminal records as the offenders in those cases, he was entitled to a slightly lesser sentence. The same reasoning must apply to this case.

[ 23 ] It is also important to appreciate that the sentence upheld in Kummer reflects the upward trend of sentences in this area; it does not foreshadow it. Moreover, there is nothing in that case (or in other recent cases from the Court of Appeal) to suggest that sentencing judges should be extending the range even further. This is not to say that harsher sentences may not be justified in some cases. After all, MacPherson J.A. did posit the possibility of a life sentence in an appropriate case. However, I am not persuaded that there are any legally significant factors in this case that warrant assessing the appropriate sentence outside of the framework discussed in Kummer .

[ 24 ] Of course, there is no tariff or set sentence for this type of case. Each case is unique and the appropriateness of any sentence that is imposed must be determined by the facts of the case, the circumstances of the offender and the constellation of aggravating and mitigating factors.

[ 25 ] In this case, there are numerous aggravating factors, the principal ones being:

(a) Mr. Luskin’s blood-alcohol level was high, being between 1.5 to 2 times the legal limit;

(b) Mr. Luskin’s driving was atrocious. Proximate to the time of the collision, he was driving at 180 kilometres an hour in a 60 kilometre per hour zone. He was a danger to everyone in the area that evening;

(c) The devastation caused by his driving is almost unspeakable. He killed three people. He injured two others, essentially ruining the life of one of them;

(d) Mr. Luskin has a prior criminal record. However, I do not place much weight on this because the record is unrelated. However, it does, to a certain extent, undermine the effect of the letters attesting to his good character. Mr. Luskin also has a driving record. However, it is negligible, and I give it no weight; and

(e) Mr. Luskin refused to provide a sample of his breath following this collision even after being informed that three people had been killed.

[ 26 ] There are also mitigating factors that must be taken into account. The most important of which are as follows:

(a) Mr. Luskin is a youthful offender, being only 23 years of age;

(b) Mr. Luskin has entered a plea of guilty. While the case against him would appear to have been overwhelming, Mr. Luskin is still entitled to credit for admitting his guilt, saving the system the cost of a trial and sparing further pain to those who have been affected by this terrible event. Balanced against this is the fact that the guilty plea is not an early one: R. v. Daya (2007), 2007 ONCA 693 () , 227 C.C.C. (3d) 367 (Ont. C.A.), at p. 372;

(c) Mr. Luskin is remorseful for what he has done. The Crown alleges he is not. I fail to understand the basis for that submission. From a legal standpoint, it is difficult for an accused person to express remorse prior to a plea or finding of guilt. The plea is an indication of remorse. In this case, remorse is also to be found in the character letters filed on Mr. Luskin’s behalf. I accept Mr. Luskin’s statement from the prisoner’s box that he is remorseful; and

(d) Mr. Luskin has support in his community and from his family. However, the assertion of good character is muted somewhat by his criminal record and prior involvement with the criminal justice system during his short time in Canada.

[ 27 ] Each case of drunk driving causing death is uniquely tragic. The violent loss of life in this case is horrific. Without warning, three people, who were going about their daily law-abiding lives, enjoying the love of family and friendship, had their lives taken from them by the selfish and incredibly reckless actions of a drunk driver. Their families will be forever broken. The two people who were lucky enough to escape with their lives are themselves sentenced to a lifetime of painful memories of that fall night, especially Mr. Taing, who lost his wife and his daughter. In addition to her emotional pain, Ms. Tran will likely always suffer physical pain from her many injuries.

[ 28 ] To properly give effect to the significant aggravating factors present in this case, and to reflect the principles of general deterrence and denunciation, a sentence at the very upper end of the continuum of sentences for this type of case is warranted. I am unable to meaningfully distinguish this case from R. v. Kummer . Applying the law conscientiously, it is my view that a sentence of 8 years’ imprisonment is appropriate for this horrific cluster of offences.

[ 29 ] To return to the issue of pre-trial custody, Mr. Luskin has been in jail for two years and five months. As noted previously, he is entitled to credit on a 2:1 basis, for a total of four years and ten months. Accordingly, I sentence him to a further three years and two months in the penitentiary.

[ 30 ] On Count #1, I sentence Mr. Luskin to three years and two months of imprisonment. I do the same on Counts #2 and #3, to be served concurrently. On Count #9, I impose a concurrent sentence of one year imprisonment. On Count #10, I impose a concurrent sentence of three years.

[ 31 ] In addition to an eight year penitentiary sentence, I prohibit Mr. Luskin from driving anywhere in Canada for 15 years. This order may be somewhat academic because Mr. Luskin may be deported following the custodial portion of his sentence. I make an order under s. 109 for 10 years. I also make an order that Mr. Luskin provide a sample of his DNA.

Conclusion

[ 32 ] In these Reasons for Judgment, I have refrained from referring to this tragic event as an “accident.” That word trivializes the serious nature of these offences, which are characterized by a wanton and reckless disregard for the safety and lives of others. The consequences of Mr. Luskin’s offences are as grave as they are permanent. Understandably, some will believe that no period of incarceration would ever be long enough to mark the magnitude of what happened that fall night. But there is no sentence that a judge could impose that would somehow make things right. In the circumstances, I must impose a serious penitentiary sentence in order to denounce Mr. Luskin’s lethal behaviour and to deter others bent on the same path of destruction. A higher sentence would improperly distort recent authority from the Court of Appeal; a shorter one would fail to reflect the devastation caused by Mr. Luskin that night.

TROTTER J.

Released: March 19, 2012

DATE: 20120319

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – ROMAN LUSKIN

REASONS FOR JUDGMENT TROTTER J.

Released: March 19, 2012