R. v. Ally, 2015 ONSC 1204
COURT FILE NO.: CR-12-2343
DATE: 2015-02-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NAFRAAZ JAZID ALLY
Accused
M. Michaud, for the Crown
A. Baksh, for the Accused, Nafraaz Ally
HEARD: December 4 and 22, 2014
REASONS ON SENTENCE
DALEY RSJ.
Overview
[1] The offender, Nafraaz Jazid Ally, was found guilty following a trial before a judge and jury of the offence of dangerous driving causing bodily injury to Natassia Vaz, contrary to s. 249(1)(a) of the Criminal Code of Canada.
[2] The tragic motor vehicle accident that occurred on October 4, 2011, has had devastating results for Ms. Vaz, her family, and her friends. No sentence imposed upon the offender, Mr. Ally, could ever compensate for the loss and damage that has been suffered as a result of his actions.
[3] The purpose of imposing a sentence following a criminal conviction is not to inflict vengeance upon the offender, nor is it to generally compensate the victim for the loss sustained. Claims for compensation for damages related to the pain and suffering, as well as the financial consequences of a motor vehicle accident, are to be pursued in another forum, namely in a civil action.
[4] At this time, it is my task to determine a fit and proper sentence for the offender in accordance with the sentencing principles and objectives as provided for in ss.718, 718.1, and 718.2 of the Criminal Code of Canada (the “Criminal Code”).
Factual Background and Evidentiary Record:
[5] The motor vehicle accident giving rise to the charge occurred on October 4, 2011, at the intersection of Cottrell Boulevard and Via Romano, in the city of Brampton.
[6] Just prior to the accident, the offender was travelling eastbound on Cottrell Boulevard, approaching its intersection with Via Romano. Ms. Vaz had been travelling westbound, and, upon reaching the intersection with Cottrell Boulevard, she was intending on making a left-hand turn to travel southbound on Via Romano Way.
[7] This intersection is governed by traffic signals, and the uncontradicted evidence at trial was that both the Vaz and Ally vehicles entered the intersection when they were each facing a green traffic signal for east and westbound vehicles.
[8] As the Crown seeks to advance in submissions on the sentencing of the offender that there are certain aggravating facts relating to the offender’s level of culpability, it is necessary to determine whether the aggravating facts as asserted have been proven beyond a reasonable doubt. In order to consider whether the evidence establishes beyond a reasonable doubt the aggravating facts, it is necessary to consider the evidence offered at trial by not only the drivers involved but several witnesses, including six eye witnesses to the accident.
[9] Counsel for the Crown submitted that, in accordance with s. 724 of the Criminal Code, I should make four specific factual findings, which would constitute aggravating facts relevant to sentencing, and which are facts that are not necessarily implicit in the finding of guilt as determined by the jury.
[10] The four factual findings as urged by counsel for the Crown are as follows:
(1) that the offender’s vehicle was travelling at a speed of 110 km/h
or greater;
(2) that the offender was racing another vehicle;
(3) that the offender’s vehicle cut sharply in front of two other
vehicles;
(4) that the offender passed a vehicle to its left, which was travelling
in the left turn lane for eastbound travel on Cottrell Boulevard.
[11] For the purpose of considering these submissions on behalf of the Crown, it is necessary to briefly examine the evidence of eyewitnesses to this accident, an accident reconstruction witness, as well as the evidence of Ms. Vaz and the offender.
[12] Certain facts were agreed to at trial as set out in an Agreed Statement of Facts, including the date and location of the accident, the fact that the offender was driving a 1995 black Nissan Maxima, and the fact that Ms. Vaz was driving a 2007 blue Chrysler PT cruiser.
[13] The evidence at trial disclosed that Cottrell Boulevard, near its intersection with Via Romano, travels generally in an east-west direction, with two lanes going in each direction and left-hand turn lanes at its intersection with Via Romano, which generally travels in a north-south direction. The posted speed limit for vehicles travelling on Cottrell Boulevard in the vicinity of its intersection with Via Romano was 50 km/h.
[14] The witness Kiratpal Bhinder was walking eastbound along the north side of Cottrell Boulevard at between 9 and 9:30 PM on the date of the accident, when his attention was caught by the sound of a loud noise squealing from tires, and he then observed a black car. Within a fraction of a second, he observed a Chrysler PT Cruiser attempting to make a left-hand turn to travel southbound off Cottrell Boulevard onto Via Romano, and he then observed the black motor vehicle strike the Chrysler.
[15] Bhinder testified that he estimated that the black vehicle was travelling at 100 km/h, and it was his evidence that the speed limit near the intersection where the accident occurred was 60 km/h. He further testified that he believed the offender’s vehicle was driving in an unsafe manner, given his belief that the speed limit was 60 km/h and that the accident location was in an area near a shopping plaza and where children may be present on the sidewalks.
[16] This witness estimated the speed of the offender’s vehicle based on what he could hear and the engine noise. He was located approximately 100 m from the intersection as the vehicle passed him.
[17] He acknowledged that the traffic signal for the eastbound vehicle was green and that the oncoming vehicle going westbound on Cottrell Boulevard attempted to make a left-hand turn in front of this eastbound vehicle.
[18] He did not observe any other vehicle racing with the eastbound vehicle prior to the accident. He never observed the eastbound vehicle weaving or changing lanes
[19] On seeing the eastbound vehicle, he observed it to be in the curb lane. He observed brake lights on the back of this vehicle and then saw the vehicles collide in the intersection. He was unsure as to whether the left turning vehicle was moving or stationary when he first observed it, as he did not see it prior to the actual collision. His observations were made in a split second.
[20] Two other pedestrians, who were walking together on the south side of Cottrell Boulevard, made observations of the offender’s vehicle prior to the accident.
[21] Shivali Gupta testified that she was walking eastbound on the south side of Cottrell Boulevard with her husband, Ankur Gupta, towards the intersection where the accident occurred. She observed a vehicle heading eastbound past where she stood, at a distance of approximately 3 to 4 streetlamps to the west of the intersection. She described the speed of this vehicle as “pretty fast,” but acknowledged that it was difficult for her to estimate the speed of the vehicle. She confirmed that the speed limit in the area was 50 km/h.
[22] She did not observe the eastbound vehicle racing with another vehicle. She observed that it changed lanes in the vicinity of where she and her husband were walking when they first observed it.
[23] She did not observe the left turning vehicle at the intersection.
[24] Ankur Gupta stated that he was walking with his wife on the south side of Cottrell Boulevard when he heard a noise and a car go past them. He testified that the car was black and very noisy.
[25] As the eastbound vehicle approached the intersection of Cottrell Boulevard and Via Romano, the witness observed the vehicle change from the outside lane to the right or curb lane. As to the speed of this vehicle, he stated that he could only guess that the speed was between 100 and 120 km/h. He agreed that the sound of the car’s engine or muffler may have given it the appearance of travelling fast. He had observed another vehicle immediately ahead of the black car pass through the intersection.
[26] This witness agreed that he did not observe any other vehicle racing with this black vehicle and that he only observed the vehicle change lanes once. He did not observe the collision between the two vehicles, nor did he observe the Chrysler PT Cruiser prior to the collision.
[27] Oshana Mako testified that he had been riding a dirt bike in the vicinity of the intersection of Cottrell Boulevard and Via Romano. He testified that he observed two vehicles, side-by-side, travelling eastbound on Cottrell Boulevard, and he also observed a Chrysler PT Cruiser travelling westbound on Cottrell Boulevard and intending to turn left to travel southbound on Via Romano.
[28] This witness’ evidence must be examined with extreme caution.
[29] He testified that the two vehicles going eastbound, which he observed side-by-side, were travelling in excess of 100 km/h. He later indicated that they were possibly going as fast as 120 to 130 km/h and that they appeared to be racing – but he didn’t know. He conceded that this was an educated guess as to the speed of the vehicles.
[30] He first testified that he was on a dirt bike travelling northbound on Via Romano, but then acknowledged that he had given a statement to the police after the accident indicating that he was actually walking at the time he made observations of the accident. He further admitted that he did not want the police to know that he was riding a dirt bike at the time on the street, as he was not legally allowed to do so.
[31] He further agreed that he was wearing a helmet at the time of his observations and that he had no peripheral vision because of this. This witness also acknowledged that, when testifying at the preliminary inquiry, he stated that he could not really see Cottrell Boulevard from where he stopped at 20 to 35 feet south of the intersection on Via Romano.
[32] Also, he observed the traffic signal for eastbound vehicles as green at the time of the collision, however, he agreed that from his vantage point there were houses located near the intersection that blocked his view, and that from his position he was only able to see the intersection.
[33] Omdeep Singh Pabla testified by video link from Vancouver. He had been driving eastbound on Cottrell Boulevard and he testified that he observed two vehicles cut in front of his car near the intersection of Cottrell Boulevard and Gore Road, a distance to the west of the accident scene. He described these vehicles as a beige Nissan and a dark blue car.
[34] He stated that the dark blue car cut him off without signaling and then the beige Nissan pulled up side-by-side with the dark blue car and they were travelling at matching speeds. These vehicles gained distance from his car, and he estimated that the dark blue car was travelling at a speed above 90 km/h.
[35] He did not observe any other eastbound vehicles travelling ahead of him apart from the beige vehicle and the dark blue vehicle. He did not observe any lane changes by the dark blue vehicle as it approached the intersection where the accident occurred, and he then observed its brake lights.
[36] He observed the impact between the dark vehicle and the Chrysler PT Cruiser at a distance, but did not see how the impact occurred.
[37] Kahmiri Lal testified with the assistance of a Punjabi interpreter.
[38] On the evening of the accident, he was driving home and travelling eastbound on Cottrell Boulevard in the left lane of the two eastbound lanes towards its intersection with Via Romano. He stated that he observed one car passing on his left, and he estimated that this occurred when he was approximately 10 to 12 car lengths to the west of the intersection. He stated that the car that passed him on his left was gray or black. He first observed this vehicle as it passed him on his left. It then came in front of his vehicle and entered into the left turn lane at the intersection. He testified that this vehicle was travelling very fast; he stated that his vehicle was travelling between 50 and 55 km/h.
[39] At trial, this witness acknowledged that he provided a statement to the police on October 4, 2011, in which he indicated that a dark car had passed him on the right side of his vehicle and that he did not think that the driver of the car travelling westbound and making a left-hand turn had observed the dark car.
[40] In his evidence at trial, the witness maintained that this vehicle actually passed him on the left side. He stated that there was another car that passed him on his right.
[41] The witness agreed that in testifying at the preliminary inquiry he had the assistance of a Punjabi interpreter. He also agreed that he stated that the black vehicle had passed on his left while he was travelling in the left lane and that when this occurred the vehicles were located at a “far distance” from the intersection of Cottrell Boulevard and Via Romano.
[42] The witness agreed that he was in error when stated in his evidence at the preliminary inquiry that the black vehicle had driven into the westbound oncoming lanes, and he further agreed that there was a median on Cottrell Boulevard separating the east and westbound lanes near its intersection with Via Romano.
[43] The witness agreed that the traffic signal was green for the eastbound black vehicle as it entered the intersection at Via Romano.
[44] Ms. Vaz testified and she acknowledged that she had no memory of the motor vehicle accident and stated that her last memory dated from August 2011 while she was at work.
[45] She testified that she has suffered a traumatic brain injury as a result of the accident, as well as a fracture to her head and skull. She has impaired short-term memory. She was hospitalized from October 4 to October 31, 2011, and then was transferred to a rehabilitation facility where she remained until December 15, 2011.
[46] Kenneth Wright had been employed with the Peel Regional Police for 31 years and for 17 of those years he was involved in the investigation of major collisions and fatal and serious motor vehicle accidents. He was qualified and accepted as an expert witness entitled to offer opinion evidence related to accident scenes and collision reconstruction, as well as speed calculation.
[47] Based on his own observations of the accident scene on the evening of October 4, 2011, Wright was of the opinion that the offender had been travelling eastbound on Cottrell Boulevard in the passing lane, and that he moved into the right-hand curb lane and locked his brakes, and his vehicle then slid into the intersection. He was of the opinion that the offender’s vehicle struck the Chrysler PT Cruiser on its passenger side, and that the vehicles stayed together and rotated clockwise in a southeast direction. The vehicles then separated, with the offender’s vehicle ending up facing westbound at rest, and the Chrysler PT Cruiser coming to rest in the southeast corner of the intersection after colliding with a hydro-pole.
[48] The witness estimated that the offender’s vehicle slid 25 m after his vehicle’s brakes were applied and locked.
[49] The witness testified that, based on the skid marks, the Ally vehicle was travelling at a minimum of 70 to 71 km/h prior to braking. However, in cross-examination he agreed that he did not know the speed of either vehicle, and agreed that the minimum speed of 70 to 71 km/h was not accurate and that there was no evidence available as to the speed of the Ally vehicle or that of the Vaz vehicle. He also acknowledged that he did not do any calculations as to the speed of the Ally vehicle.
[50] He agreed that the skid marks originating from the locked and sliding tires on the Ally vehicle and the steering of the vehicle to the right may indicate an evasive action on the part of the driver.
[51] This witness also acknowledged that there were no skid marks found in the eastbound left turn lane of Cottrell Boulevard.
[52] The offender, Ally, testified with respect to this accident. As to the speed limit on Cottrell Boulevard, he stated that it varies between 50 and 60 km/h. He also indicated that travelling eastbound on Cottrell Boulevard towards the intersection where the accident occurred there is a long curve on the road, but that the intersection is visible from a position of approximately 100 m west of the intersection.
[53] As he was approaching the intersection from the west, he was travelling in the left of the two eastbound lanes. He confirmed that there was a left turn lane for eastbound traffic on Cottrell Boulevard at its intersection with Via Romano.
[54] As he was approaching the intersection he observed the headlights of a left turning vehicle at the intersection that had passed the crosswalk line and was stopped within the intersection.
[55] Ally testified that he did not drive his vehicle into the left-hand turn lane at the intersection, as had been stated by the witness Lal. He also denied cutting off any vehicle travelling in his direction, and he further testified that he was never driving alongside another vehicle or racing with a vehicle.
[56] The offender testified that prior to the accident, as he was travelling on Cottrell Boulevard approaching the intersection, he was travelling at between 70 and 75 km/h and no more than 80 km/h. He stated that he looked at his speedometer from time to time as he was travelling eastbound. He testified that his speed was between 70 and 75 km/h when the left turning vehicle cut in front of him. The vehicle was stopped when he first observed it.
[57] He further stated that, no matter what speed he would have been travelling, the collision could not have been avoided as the left turning vehicle started to turn in front of him.
Circumstances of the Offender:
[58] Mr. Ally is a 25-year-old first-time offender. He is single and has no children. He resides with his parents and sister in the family home. Following graduation from high school he worked in a factory position for a brief period of time and then obtained a position as a technician working on alarm systems.
[59] The offender worked in that position for four years in a full-time capacity until 2011 - the date of his arrest. According to the pre-sentence report, his employer’s supervisor has indicated that he would consider rehiring him.
[60] The offender has been unemployed since 2011, however, in the winter of 2012 he was accepted into an electrical engineering technician diploma program at Humber College. This is a two-year program, and, as of the date of the presentence report on November 25, 2014, it was anticipated that he would complete the program in the spring of 2015. He has further plans to continue his education as an electrical engineering technologist. The certified copy of his academic record from Humber College, dated November 25, 2000, was entered as an exhibit on the sentencing hearing. Overall, it appears that the offender has maintained average marks in this program.
[61] There is no history of the offender having any problem or history of drug or alcohol use. He has no history of psychiatric psychological problems.
[62] With respect to his insights into the seriousness of the outcome of his driving, both in his statement before the court at his sentencing hearing and as recorded in the pre-sentence report, the offender focuses to a significant degree on the consequences of the accident on himself, and particularly in respect of his loss of driving privileges. He did express his sorrow to Ms. Vaz and her family for the outcome of the accident and for the very serious and long-term injuries suffered by her.
[63] Letters of reference were filed from the offender’s employers and from the United Muslim Association, which all spoke to his good character, reliability, and hard work.
[64] The offender has eight driving convictions dating from 2007, which include four moving offences - the most recent of which dates from January 2, 2011, in respect of failing to come to a stop at an intersection. He has one speeding conviction for driving 75 km/h in a 60 km/h zone. His other convictions include improper use of seatbelt assembly, removal or modification of seatbelt, no insurance, and failure to produce a driver’s licence.
Impact on the Victim:
[65] At the time of the trial Ms. Vaz was 23 years of age. While no medical evidence was submitted relating to the injuries she sustained, it was her evidence that she suffered a traumatic brain injury as a result of the accident and that she has continued to suffer from deficits in concentration and memory.
[66] Prior to the accident she was enrolled in a business administration program at Humber College and was also working full-time at a TD bank.
[67] As of the time of trial, she was enrolled as a part-time student in the second year of a business marketing course, which she commenced in September 2014. She studies with the assistance of note-takers and tutors.
[68] She continues to receive treatment from speech and occupational therapists.
[69] She has a civil action pending with respect to the injuries and losses she sustained in the motor vehicle accident.
[70] Ms. Vaz provided a victim impact statement, which she read during the sentencing hearing. In addition to providing details as to her post-accident treatment and health, Ms. Vaz indicated that the past three years have been primarily spent in active treatment and rehabilitation with a variety of doctors and therapists. She continues to receive regular ongoing care at the Toronto Rehab Centre, including treatment for traumatic brain injury. In spite of her injuries and limitations she has worked as a volunteer at Toronto Rehab.
[71] While not fully dealt with in the evidence nor in the victim impact statement, it appears that Ms. Vaz is not presently capable of living independently.
[72] It is clear that she has sustained very significant injuries that may have long term consequences on her enjoyment of life and her employability.
[73] Victim impact statements were also provided by her sisters, Shania and Melissa Vaz, and from her parents, Ryan and Mary Vaz, as well as from her best friend, Katie Tiexeira.
[74] Each of these statements detail the history surrounding the circumstance of the accident, the victim’s course of treatment and care, and the observed results of the accident upon Ms.Vaz, as well as the losses suffered by her family and friend.
Position of the Crown:
[75] It was submitted on behalf of the Crown that taking into account the four aggravating facts as urged by it, the offender should receive a custodial sentence of three years.
[76] In addition, a five-year driving prohibition should be ordered, as well as a weapons prohibition for 10 years under s. 109 of the Criminal Code. It was also submitted that the offender should provide a DNA sample.
Position of the Defence:
[77] In his submissions on behalf of the offender, counsel fairly acknowledged that it was open to me to find beyond a reasonable doubt that the offender was driving at an excessive rate of speed, above the posted speed limit.
[78] As to a custodial sentence, it was submitted that the appropriate range of sentence in this case would be 3 months to 12 months, however, the sentence should be at the lower end of the range so as to reflect a reduced level of criminal culpability based on some degree of negligence on the part of Ms. Vaz. It was submitted that the appropriate custodial sentence would be three months.
[79] It was further submitted that the appropriate driving prohibition order would be for a term of 18 months and that no s. 109 order or DNA sample should be required.
Mitigating and Aggravating Factors:
[80] As to mitigating factors, Mr. Ally is a youthful, first-time offender, who has been steadily employed and has been advancing himself through additional education since he was charged. He has resided with his parents throughout since the time of his arrest, and otherwise appears to be of good character.
[81] With respect to aggravating factors, for the reasons detailed below, I have concluded that, other than the offender driving at an excessive rate of speed, well over the speed limit, the Crown has not established beyond a reasonable doubt the other facts which it has urged constituted aggravating factors to be considered on sentencing.
[82] The neighborhood location of the offender’s driving and the adjacent pedestrian sidewalks and stores certainly give rise to a heightened risk of very serious injury or death following the dangerous driving in which the offender was involved.
Analysis:
[83] Guided by the principles of sentencing as set out in ss. 718, 718.1 and 718.2 of the Criminal Code, and specifically recognizing the fundamental principle of proportionality as set out in s. 718.1, a sentence to be imposed must be in keeping with the gravity of the offence and the degree of the offender’s responsibility.
[84] The most important factors for consideration in determining a fit sentence in a case such as this, involving a finding of guilt for dangerous driving causing bodily harm are general deterrence and denunciation: R v. Rawn, 2012 ONCA 487 [Rawn] at para. 33.
[85] G.L. Epstein J.A. stated as follows in Rawn at para. 41:
The offence of dangerous driving causing bodily harm has been described as among the more serious of crimes: R v. McMertry (1987), 21 O.A.C. 68 (Ont. C.A.), at para. 11. Dangerous driving puts the public at great risk of harm. The crime is all the more egregious when people, often innocent members of the public, are injured.
[86] As further noted by G.L. Epstein J.A., in order to meet the requirements of the sentencing principles relating to this offence, the sentence must clearly reflect the seriousness of the conduct and its consequences, both actual and potential: Rawn at para.45.
[87] With respect to the submission on behalf of the Crown that other relevant facts have been established in the trial evidence which are to be considered as aggravating facts on sentencing, in the course of considering the evidence in accordance with s. 724 of the Criminal Code and when making findings of fact that may constitute aggravating factors on sentencing, where the offender has led evidence, the principles established in R. v. W. (D), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, (SCC) at paras 10-11 apply.
[88] While some aggravating factors are included, and are implicit from, the jury’s factual determinations underlying the finding of guilt, additional findings of fact are required in order to consider the alleged aggravating factors asserted on behalf of the Crown.
[89] The sentencing court is required to make only those factual determinations necessary for deciding the appropriate sentence in a particular case: R. v. Medwid, [2009] O.J. No. 1992, 83 W.C.B. (2d) 463, (S.C.J.) at para. 8.
[90] As to the first aggravating fact that is urged on behalf of the Crown, namely, that the offender was driving at a speed of 110 km/h or greater, on the whole of the evidence including the testimony of the offender, I am not satisfied beyond reasonable doubt that his speed was in that range.
[91] The offender acknowledged that he was travelling between 70 and 75 km/h and no more than 80 km/h, which is well in excess of the speed limit of 50 km/h.
[92] The witness Kiratpal Bhinder gave evidence that he believed that the offender was travelling at 100 km/h and that the speed limit was 60 km/h. He acknowledged that his estimate of the vehicle’s speed was based on what he could hear and the engine noise.
[93] Ankur Gupta testified that he could only guess that the speed of the vehicle was between 100 and 120 km/h, and he agreed that the car’s engine or muffler may have given it the appearance of travelling fast.
[94] The witness Oshana Mako was an entirely unreliable witness. He testified that the offender’s vehicle was travelling side-by-side with another vehicle going in excessive of 100 km/h, and later in his evidence stated that they were possibly going as fast as 120 to 130 km/h and that they appeared to be racing. The witness indicated that this was an educated guess.
[95] Mako acknowledged that he had lied to the police in stating that he was a pedestrian, when in fact he had been driving a dirt bike northbound on Via Romano near its intersection with Cottrell Boulevard. This witness’ testimony as to his vantage point and observations was most unreliable, particularly given his acknowledgment that he was wearing a motorcycle helmet and that his peripheral vision was affected by that as well as that his view of vehicles approaching the intersection was obstructed by houses.
[96] The witness Omdeep Singh Pabla testified that he observed a dark blue car travelling at a speed above 90 km/h.
[97] Kahmiri Lal testified that he observed a vehicle that was travelling very fast pass him.
[98] Kenneth Wright, in providing opinion evidence as to speed, acknowledged that his statement that the offender’s vehicle had been travelling 70 to 71 km/h prior to braking was not accurate, and he conceded that there was no evidence available as to the speed of the offender’s vehicle or that of Ms. Vaz.
[99] Taking into account the whole of the evidence as to speed, and considering the offender’s own testimony in that regard, I find as a fact that his vehicle was travelling significantly in excess of the speed limit and as high as 80 km/h; however, I am not satisfied beyond a reasonable doubt that his speed was 110 km/h or greater.
[100] As to the assertion that the offender was racing another vehicle just prior to this collision occurring, on the whole of the evidence I am left with reasonable doubt that the offender was involved in racing.
[101] The witness Bhinder and both witnesses Gupta testified that they did not observe the offender’s vehicle racing with another vehicle.
[102] The witness Pabla made observations of a blue vehicle travelling side-by-side with a beige Nissan near the intersection of Cottrell Boulevard and Gore Road, a distance to the west of the accident scene.
[103] The witness Mako, for the reasons expressed already, offered most unreliable evidence as to his observations at the intersection of Cottrell Boulevard and Via Romano. While he stated that he observed two vehicles driving eastbound on Cottrell Boulevard, travelling side-by-side, this evidence is contradicted by the other independent witnesses who observed the intersection in the seconds immediately prior to the collision.
[104] The witness Lal gave most confusing testimony with respect to the path of the offender’s vehicle and the presence of another vehicle passing him to his left as he approached the intersection. In several respects, his evidence also contradicted testimony previously given by him during the preliminary hearing.
[105] The offender denied racing or driving alongside another vehicle.
[106] Therefore, considering all of the evidence, I am left with reasonable doubt as to whether the offender was involved in racing another vehicle immediately prior to entering the intersection where the collision occurred.
[107] As to the assertion that the offender cut in front of two cars, namely, the vehicles driven by Pabla and Lal, I am also left with reasonable doubt as to whether the offender drove in that fashion.
[108] While the witness Pabla testified that he observed a dark colored vehicle cut off his vehicle without signaling and then pull up beside another vehicle and travel at a similar speed, he stated that this vehicle was a blue vehicle. The witness Bhinder testified that he did not observe the offender’s vehicle weaving or changing lanes. The witness Shavali Gupta did observe the offender change lanes in the vicinity of the intersection. Her husband, Ankur Gupta, testified that he observed another vehicle ahead of the offender’s vehicle and saw it pass through the intersection.
[109] The offender denied cutting off any vehicle travelling in the eastbound direction.
[110] On this evidence, I am left with reasonable doubt regarding the allegation that the offender sharply cut in front of two vehicles.
[111] As to the allegation that he passed the Lal vehicle on the left by entering the left hand turn lane for eastbound vehicles, I am left with reasonable doubt on the whole of the evidence, including the evidence given by the offender, that this occurred.
[112] The witness Lal was a very unreliable witness who offered confusing and conflicting evidence as to his observations on the evening in question.
[113] In his evidence at trial, he testified that the offender’s car passed him on his left. The evidence is that there is a median adjacent to the left hand turn lane on Cottrell Boulevard extending from before the intersection to the west. There is no evidence that the offender’s vehicle collided with that median.
[114] In cross-examination, this witness admitted having given a police statement indicating that a dark car had passed him on his right side. However, he maintained in his trial evidence that the vehicle actually passed him on his left and that another car passed him on his right.
[115] There are serious concerns as to the reliability of this witness’ recollection of events and his observations, particularly since he agrees that he was in error in his earlier evidence on stating that the black vehicle had driven into the westbound, oncoming lanes in the area of the intersection.
[116] Considering the testimony of the offender and the evidence offered by Lal, I am left with reasonable doubt as to whether the offender’s vehicle passed Lal on the left as alleged.
[117] In considering a fit and proper sentence, the degree or level of culpability of the offender must be examined: R. v. Kwakye, 2015 ONCA 108 at para 4.
[118] Apportionment of liability and the concept of contributory negligence are not recognized in the assessment of criminal conduct, except as part of sentencing, after the required standard of causation has been established: R. v. L.(K.), 2009 ONCA 141 at para. 18. Here, it is implicit in the jury’s finding of guilt that the required standard of causation was satisfied.
[119] While the relative degrees of negligence of the offender and of Ms. Vaz in the manner in which they drove are not to be considered as determinative in the setting of a fit and proper sentence to be imposed, they may be examined as one consideration, among many, in determining the degree or level of the offender’s culpability.
[120] The evidence is un-contradicted that the offender entered the intersection while facing a green traffic signal in his favour. As a result of the injuries she sustained, Ms. Vaz was unable to offer any evidence as to the events of the accident, and in particular how she was operating her vehicle just prior to the collision.
[121] The evidence is that her vehicle was stationed inside the intersection and then turned into the path of the offender’s vehicle as he entered the intersection while travelling well in excess of the posted speed limit.
[122] S. 141(5) of the Highway Traffic Act, R.S.O. 1990, Chapter H.8, provides as follows:
No driver or operator of the vehicle in an intersection shall turn left across the path of the vehicle approaching from the opposite direction unless he or she has afforded a reasonable opportunity to the driver or operator of the approaching vehicle to avoid a collision.
[123] In view of the evidence that Ms. Vaz was attempting to make a left-hand turn across the path of the offender’s vehicle, which was entering the intersection on a green traffic light, albeit at an excessive and unlawful speed, I find that the degree of culpability of the offender, for sentencing purposes, is thereby somewhat reduced.
[124] In the court’s decision in Rawn G.L. Epstein J.A. stated at paras. 43 and 44 as follows:
In terms of the range of sentences established by the jurisprudence, I note that in 2007, this court identified the normal range for impaired driving or dangerous driving causing bodily harm as between a conditional sentence and two years less a day: R. v. Van Puyenbroek, 2007 ONCA 824, 231 O.A.C. 146 (Ont. C.A.), at paras. 59-61. More substantial sentences were available in certain cases; in Van Puyenbroek itself a three year sentence was upheld.
Then, in 2007, s. 742.1 of the Code was amended to exclude the availability of conditional sentences for serious personal injury offences. Given the injuries suffered by Ms. Snyder, this case clearly qualifies: Belanger, at para. 4. While it follows that a conditional sentence is not available in this case, the more important consequence of this amendment is that it signals that Parliament has determined that conduct of this nature will not be tolerated.
[125] As is clear from the evidence at trial, Ms. Vaz sustained a very serious bodily injury, and, as such, a conditional sentence would not be available under s. 742.1 of the Criminal Code if a sentence of two years less a day were imposed.
[126] While the offender, in his submissions to the court, indicated his sorrow for the injuries and losses suffered by Ms. Vaz, overall, he seemed equally concerned with his own circumstances.
[127] Counsel for the Crown and the defence referred to several decisions on sentencing with respect to the offence of dangerous driving causing bodily harm.
[128] In the decision of R. v. Garson, 2014 ONSC 978, E.J. Koke J. imposed a sentence of 18 months in circumstances where it was concluded that the offender drove intentionally at the victim and this resulted in very serious injuries. A five-year driving prohibition order was imposed as well.
[129] In the Alberta Court of Appeal decision of R. v. Gould, 2013 ABCA 58, the court increased the custodial sentence from 9 months to 12 months, in circumstances where the offender was found guilty of two counts of dangerous driving causing bodily harm in a street racing context.
[130] In R. v. Marynissen, 2007 ONCA 821, the Court Of Appeal reduced a global sentence of seven years for a conviction of dangerous driving and failing to remain at the scene of an accident to a global sentence of five years. The offender had driven her vehicle at a group of people standing on a street and they were able to jump out of the way. She continued driving down the street, turned around, and accelerated at a high rate of speed towards the group, which had returned to the roadway. The offender’s vehicle struck a victim who sustained very serious injuries, including severe brain trauma.
[131] In R. v. Perez, [2004] O.J. No. 3747, 2004 23105 (Ont. C.A.) the Court of Appeal set aside a conditional sentence and imposed a custodial sentence of one year in circumstances where the offender had been driving at a high rate of speed on a city street while racing, and where he had consumed alcohol and his blood-alcohol level was over the legal limit at the time of the accident. The accident resulted in serious injuries to the passenger in his vehicle.
[132] Baltman J., in R v. Kippax, 2010 ONSC 2529, imposed a penitentiary sentence of three years, along with a 10-year driving prohibition, where the offender was found guilty of one count of dangerous driving causing death and two counts of dangerous driving causing bodily harm while he was stunt driving.
[133] In the Court of Appeal decision in Rawn, the offender, who had consumed alcohol prior to driving, became involved in driving in tandem with another vehicle on a residential street at speeds of at least 137 km/h, following which the vehicles collided. At trial, the offender was sentenced to comply with terms of a two-year period of probation, and a two-year driving prohibition order was imposed.
[134] On appeal, the offender’s sentence was increased to nine months imprisonment, along with a five-year driving prohibition.
[135] Establishing a proper and fit sentence regarding this offence is a case-specific process that calls for the assessment of many factors. I have concluded that a period of incarceration must be imposed in respect of this offender and that the requirements of general deterrence and denunciation would be satisfied by a custodial sentence of nine months.
[136] As has been stated on many occasions, driving a motor vehicle is a privilege and not a right. The offender, in exercising that right, has been found guilty of a most serious offence, which resulted in grievous bodily injury to the victim and loss to her family. Driving, as he did, in the area where this accident occurred with pedestrian traffic and stores nearby, could have occasioned greater personal injury and even death.
[137] I have concluded that the offender should be deprived of his right to drive a motor vehicle for a significant period of time, and, as such, a driving prohibition order for a period of three years, concurrent with the mandatory licence suspension under the Highway Traffic Act, is imposed. While this may somewhat limit his employment opportunities, I have determined that such a driving prohibition is necessary for both general deterrence and denunciation, given the most serious nature of this offence and recognizing the outcome of his conduct.
[138] I have also determined that a 10-year firearms prohibition under s. 109 (2)(a) of the Criminal Code and a lifetime prohibition under s. 109 (2)(b) shall be ordered. As to the Crown’s request that the offender provide a DNA sample, I have concluded that this is not necessary in the circumstances of this case. The offender did not flee the accident scene and was cooperative with the police during their investigation of this offence.
Daley RSJ.
Released: February 25, 2015
CITATION: R. v. Ally, 2015 ONSC 1204
COURT FILE NO.: CR-12-2343
DATE: 2015-02-25
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
NAFRAAZ JAZID ALLY
Accused
REASONS ON SENTENCE
Daley RSJ.
Released: February 25, 2015