CITATION: R. v. Layugan, 2016 ONSC 2077
COURT FILE NOS.: CR-14-40000194 and 193
DATE: 20160330
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Martin Sabat, for the Crown
- and -
MARLON LAYUGAN
Sal Caramanna, for the Accused
HEARD: January 7 and March 3, 2016
Thorburn J.
REASONS FOR SENTENCE
1. OVERVIEW
[1] In the early morning hours of December 14, 2011, Marlon Layugan was leaving work to go home. Mr. Kazimov was a security guard at the workplace. He appeared from the darkness wearing only dark clothing and was struck by Mr. Layugan’s car. Mr. Kazimov fell to the ground.
[2] The accident was not Mr. Layugan’s fault.
[3] Mr. Layugan stopped his car, and after a few seconds he continued to drive. He turned his car around 20 to 25 seconds later. He was back in the parking lot where the accident took place in under 1 minute. Tragically, within that time, a tractor trailer reversed up the driveway, killing Mr. Kazimov.
[4] Marlon Layugan elected to proceed by way of trial by jury.
[5] The jury convicted Mr. Layugan of
a. failing to stop his vehicle, give his name and address or offer assistance, after being involved in a motor vehicle accident with a pedestrian, Aydin Kazimov, knowing that Mr. Kazimov was suffering bodily harm and with the intention of escaping civil or criminal liability contrary to section 252(1.2) of the Criminal Code, R.S.C. 1985, c. C-46;
b. manslaughter contrary to section 236(b) of the Criminal Code, by committing an unlawful act that caused the death of another; and
c. criminal negligence causing death contrary to section 220(b) of the Criminal Code by failing to do something it was his duty to do, and in doing so, showing a wanton or reckless disregard for the life or safety of another person.
[6] I must therefore sentence Mr. Layugan. In so doing, I considered the evidence regarding these offences, the circumstances of this offender, and the victim impact statement. I also reviewed the legal principles and the extensive list of cases provided by the parties, which the parties suggest, involve like offences and like offenders. In arriving at my conclusion, I applied the legal principles to the unusual circumstances in this case.
2. THE EVIDENCE REGARDING THESE OFFENCES
[7] The following summary of material facts set out at paragraphs 8 to 27 below was read to counsel, and they agreed that it is accurate and complete:
[8] On December 13, 2011, Mr. Layugan went to work. He worked an extra-long shift, from 14:00 to midnight at the request of his employer. At 12:15 a.m. on December 14, 2011, Mr. Layugan left work. His car was in good working order, he was not impaired and he drove at low speed. It was late at night and the roadway in the parking lot was dimly lit.
[9] At 12:17:55, as Mr. Layugan drove down the west lane way, Mr. Kazimov, a 69-year-old Fiera Food security guard, came suddenly out from the left side of the lane way.
[10] Mr. Layugan did not know Mr. Kazimov. Mr. Kazimov was dressed in dark clothing and wore no reflective gear. Mr. Layugan said he did not see Mr. Kazimov, and the expert in accident reconstruction agreed that Mr. Layugan did not likely see Mr. Kazimov before Mr. Layugan’s car struck him.
[11] Mr. Kazimov fell onto the hood of Mr. Layugan’s car and then onto the ground slightly to the front and right of Mr. Layugan’s car.
[12] Mr. Layugan acknowledged that he knew his vehicle had collided with a human being as he saw his limbs moving on the ground.
[13] The accident was not Mr. Layugan’s fault.
[14] According to the accident reconstruction expert, Mr. Kazimov was injured but was likely still alive after this collision.
[15] Mr. Layugan stopped his car for a few seconds and then drove away at 12:18:01. About 20 to 25 seconds later, Mr. Layugan returned to the scene and arrived back less than a minute after his car had collided with Mr. Kazimov.
[16] Tragically, within that intervening minute, Mr. Kazimov was killed. At 12:18:20, twenty seconds after Mr. Layugan left the scene, Mr. Kazimov’s body began to be dragged by the tractor trailer that drove in reverse up the laneway.
[17] Although employees had requested reflective gear from their employer, Fiera Food Company did not equip their security guards with reflective gear until after this incident. Moreover, although the truck made a beeping sound while it was in reverse, the sound could not be heard at the back of the trailer due to the surrounding sound of the factory.
[18] At 12:21:40, the truck driver came back to see what was wrong and found there was a person under the passenger side back wheels of the trailer.
[19] Upon re-entering the parking lot, Mr. Layugan was told a trailer had just backed up. Mr. Layugan told his co-worker, Mr. Ubina, that he came back because he forgot something in the office. Mr. Layugan parked his vehicle and walked over to the scene but did not see the person any more. He went inside the building to see if the person was there, but he was not, so Mr. Layugan went right back out. As he was walking, the truck driver yelled, “There’s a man. Call 911.”
[20] Mr. Layugan ran southbound toward the office with the truck driver. They went to see the supervisor to tell him that something was wrong. The supervisor told Mr. Layugan to light up the area with his car lights, and he did.
[21] Mr. Kazimov was pronounced dead at the scene at 12:42.
[22] The truck driver said that he heard someone say something to the effect of, “You killed him.” He did not recall who said this to him or whether it was before or after the 911 call was made or EMS arrived.
[23] The next day, a police investigation began. Among other things, there was an extensive review of video footage in and around the area.
[24] Upon his arrest at 21:00 on December 14, 2011, Mr. Layugan was asked for the first time and told police that his car had collided with the victim before he was hit by the tractor trailer. According to police, Mr. Layugan was at all times cooperative.
[25] Mr. Layugan speaks little English and testified through an interpreter. Mr. Layugan said that although he knew his car had hit someone and this person was on the ground, he left. He said he did not intend to flee but was in a state of panic and it took him 20 to 25 seconds to recover from the shock of the accident to realize he should return to the scene to help Mr. Kazimov, by which time it was too late.
[26] In keeping with their finding of guilt, the jury was satisfied beyond a reasonable doubt that:
a. Mr. Layugan left the scene in order to escape liability (although it is agreed that the accident itself was not his fault);
b. in doing so, he breached his legal duty to stop and offer assistance to Mr. Kazimov;
c. it was reasonably foreseeable that when Mr. Layugan left, Mr. Kazimov would suffer substantial harm;
d. in leaving, he showed a wanton and reckless disregard for Mr. Kazimov’s life;
e. this conduct amounts to a marked and substantial departure from that expected of a reasonable person in the circumstances; and
f. his decision to flee, albeit a decision that lasted for only 20 to 25 seconds, was a significant factor in Mr. Kazimov’s death.
[27] Although he was found to have the mental intent to leave the scene immediately after the accident, there is no question that the collision between Mr. Kazimov and Mr. Layugan’s vehicle was an unforeseen, sudden, stressful and unusual incident. The accident was not Mr. Layugan’s fault.
[28] The parties do not agree as to Mr. Layugan’s moral blameworthiness.
[29] Defence counsel submits that Mr. Layugan returned to the scene of the accident because he came to his full senses after the shock of hitting someone, and he wanted to see if the victim was alright.
[30] The Crown takes the position that Mr. Layugan chose to leave and that his testimony that he drove back to help Mr. Kazimov must be viewed with skepticism because he lied to Mr. Ubina about the reason for coming back and did not drive back to the exact same spot where the accident occurred.
[31] In my view, Mr. Layugan was clearly subject to great stress when, tired and on his way home in the dark, his vehicle hit a man who flew in front of his eyes across the car and onto the ground. The accident was not his fault. However, the jury found that this stress was not sufficient to render him incapable of making decisions and he decided to leave out of fear of civil or criminal responsibility.
[32] Thereafter, Mr. Layugan came back to assist Mr. Kazimov and not, as the Crown suggests, to see how much trouble he was in. He parked in the same general area of the parking lot as there was now a large truck where the accident occurred. He did not disclose the earlier collision and he should have. However, he remained at the scene and assisted in calling 911 and speaking with the Supervisor until his Supervisor told him he need not stay any more.
3. THE CIRCUMSTANCES OF THIS OFFENDER
[33] A presentence report was prepared to provide information about Mr. Layugan. The report was extremely positive.
[34] Mr. Layugan was born in the Philippines on June 27, 1975. He is the fourth of six children. He had a happy childhood, and none of his immediate family members has a criminal record. His father has died, but he maintains a positive relationship with his mother and siblings.
[35] He is now 40 years old. He has no criminal record for any other offences, and there are neither any outstanding charges against him nor any past or outstanding driving charges.
[36] Mr. Layugan met his wife in the mid-1990s.
[37] In 2002, Mr. Layugan’s wife moved to Canada, and he came to join her in 2007. He has worked continuously since his arrival. He is a permanent resident.
[38] Mr. Layugan resides with his wife, his two very young children and his sister. His wife is a laboratory technician.
[39] He had a third child who died in February 2014. She had pneumonia. Mr. Layugan was home with the child while he was released on bail on these charges. One of the conditions of his bail was that he was not permitted to drive. He therefore called his family physician who told him to give the child Tylenol. The child’s condition got worse, and by the time they were able to get her to hospital, she was so ill that she died. The loss of his daughter has haunted him, especially as he was not able to drive and did not take her to hospital as soon as he otherwise would have.
[40] Mr. Layugan and his wife attend counselling sessions to address the loss of their daughter and the effect of these offences.
[41] Mr. Layugan’s wife describes him as a family man and a good husband. She is supportive and will provide any assistance. Mr. Layugan’s sister describes her brother as a good father, husband and a religious person. She indicated from the time he was a child to the present, he has never encountered any trouble with authority.
[42] Mr. Layugan has been out of custody on bail terms since December 2011. He has not contravened any of the terms of his bail. The terms of his bail include a provision that he cannot drive a car or travel out of Ontario.
[43] He continues to work as a machine operator for an industrial safety supplies distributor.
[44] Mr. Layugan has never had a problem with alcohol and has never experimented with illicit substances.
[45] He has undergone supportive counselling and has expressed his willingness to continue to do so. He also voiced his readiness to comply fully with any terms of community supervision should such be ordered by the Court.
[46] According to the author of the Pre-Sentence report, “Mr. Marlon Layugan was polite and compliant during the interview. He presented as personable and disappointed in himself regarding his current circumstances…. He indicated that the death of the victim will upset him for the rest of his life… and he continues to grieve the death of the victim.”
[47] It is agreed that this was an offence committed in response to an unforeseen event rather than a decision to commit a wrongful action.
[48] Given all of the above, his otherwise good character and the fact that this was a situation to which he reacted rather than one he created, the chances of his reoffending are extremely low.
- THE VICTIM IMPACT STATEMENT
[49] Mr. Kazimov’s family attended the trial. They listened to the evidence through a Russian interpreter. They prepared a letter for the court that reads as follows:
The incident that happened on December 14, 2011 became a terrible shock and a severe hardship not only for our family but also for the many friends and relatives. We have lost a very dear, beloved and loving man who was a pillar and support for all of us. It is very hard to talk about it. The loss is irreparable and the pain from it will never heal. The tragedy aggravated by the fact that it was the result of a serious crime. Unfortunately, the convicted did not admit his guilt. We are sorry for his family, but we do believe he must carry a just punishment, which will be determined by the Honourable Court.
5. THE LAW
General Principles of Sentencing
[50] Section 718 of the Criminal Code provides that, in sentencing a person convicted of offences, the court must consider:
i. denunciation of the unlawful conduct;
ii. deterring the offender and others from committing offences;
iii. separation of offenders from society where necessary;
iv. rehabilitation of offenders;
v. reparation for harm done to victims or to the community; and
vi. promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
[51] The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Therefore, a sentence should be increased or reduced to account for aggravating or mitigating circumstances of the offence or the offender.
[52] Parity is another governing principle that requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing ranges are useful to provide guidelines for trial judges. (R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, at para 244.)
[53] Sentencing is however an individualized process, which necessarily means that sentences imposed for similar offences may not be identical (R. v. Cox, 2011 ONCA 58, [2011] O.J. No. 228; R. v. L.M, 2008 SCC 31, [2008] 2 S.C.R. 163.)
The Kienapple Principle
[54] A person cannot be convicted of two offences where both arise out of the same facts and where in substance only one “crime” has been committed. Where such offences are committed, a conditional stay on the lesser charge will be entered. (Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.)
[55] Both criminal negligence causing death and manslaughter are homicide charges, and both are subject to a maximum penalty of life in prison. In R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, in concurring reasons, Arbour J. held, at paras. 61-62:
There is a great deal of overlap between some of the culpable homicides which are not classified as murder, such as unlawful act manslaughter and manslaughter by criminal negligence. Moreover, there is no difference between the offence charged here [criminal negligence causing death] and manslaughter by criminal negligence. Section 222(5)(b) of the Criminal Code, read in conjunction with s. 234, makes clear that the offence of criminal negligence causing death is a type of manslaughter; see also R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at pp. 41-42, per McLachlin J. (as she then was). For ease of reference, I set out the relevant provisions:
- Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years;
- (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
(4) Culpable homicide is murder or manslaughter or infanticide.
(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act;
(b) by criminal negligence;
Culpable homicide that is not murder or infanticide is manslaughter.
Every person who commits manslaughter is guilty of an indictable offence and liable,
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years;
The circumstances of this case palpably demonstrate the overlap: the accused was initially charged with manslaughter and there is nothing in the record that explains why he was committed for trial on the charge of criminal negligence causing death rather than on the original charge of manslaughter. Nothing turns on this since the two are totally interchangeable. This is further demonstrated by cases, such as R. v. Collins, [1999] O.J. No. 2437 (QL) (S.C.J.), which indicate that the s. 86(2) offence of careless handling or use of a firearm is a lesser, included offence to criminal negligence causing death, the distinction turning on the degree to which the conduct departs from the required standard. The equivalency between the two offences is further demonstrated by the sentencing provisions of s. 220(a) and s. 236(a), both of which provide a four-year, mandatory minimum sentence where a firearm is used in the commission of criminal negligence causing death and manslaughter, respectively. [Emphasis added.]
(See also R. v. Lam, 2003 CanLII 31332 (ON CA), [2003] O.J. No. 4127 (C.A.).)
[56] Where there are multiple offences, the principle of totality requires the court to craft a global sentence that is not excessive. (R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 42; R. v. Gummer, 1983 CanLII 5286 (ON CA), [1983] O.J. No. 181 (C.A.), at para 13.)
Relevant Cases involving Similar Offences committed by Similar Offenders in Similar Circumstances
[57] Attached as Appendix A to these Reasons for Sentence is a comprehensive table that includes all of the cases cited by counsel as well as additional cases involving similar offences. The summary includes the key facts, including the aggravating and mitigating circumstances in each case. I have paid particular heed to R. v. Aman, 2012 ONCJ 654, [2012] O.J. No. 4998 (C.J.) and R. v. Arruda, [2001] O.J. No. 6288 (C.J.) which are cited by the Crown and R. v. Cobaria (2012) (unreported) (OCJ) cited by the Defence. These cases are most similar to the facts in this case.
[58] It is agreed that a conditional sentence is not applicable in this case.
Immigration Consequences of Sentencing
[59] In R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, Wagner J. for the Court held, at para. 14, that “a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.” He went on to adopt the position asserted by Doherty J.A. in R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 158, where Doherty J.A. held that
[i]f a trial judge were to decide that a sentence at or near two years was the appropriate sentence in all of the circumstances for [the offender], the trial judge could look at the deportation consequences for [the offender] of imposing a sentence of two years less a day as opposed to a sentence of two years. I see this as an example of the human face of the sentencing process. If the future prospects of an offender… can be assisted or improved by imposing a sentence of two years less a day rather than two years, it is entirely in keeping with the principles and objectives of sentencing to impose the shorter sentence. While the assistance afforded to [the offender] by the imposition of a sentence of two years less a day rather than two years may be relatively small, there is no countervailing negative impact on broader societal interests occasioned by the imposition of that sentence. [Citations omitted.]
[60] A permanent resident is inadmissible on grounds of serious criminality for having been convicted in Canada of an offence punishable by a maximum term of imprisonment of at least 10 years, or of an offence for which a term of imprisonment of more than six months has been imposed. (Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 36(1) (a).)
6. THE POSITIONS OF THE PARTIES
[61] The Crown and Defence agree that one of the charges of criminal negligence causing death and manslaughter must be stayed, as in substance only one crime has been committed notwithstanding these two convictions.
Mr. Layugan’s Position
[62] Mr. Layugan’s counsel submits that a global sentence of six months less a day should be imposed, which he breaks down as follows:
i. a sentence of six months less a day on the charge of criminal negligence causing death;
ii. a stay of the charge of manslaughter; and
iii. a stay of the charge of failure to remain at the scene.
[63] Defence counsel relies on the decision in R. v. Morrisey (supra) for his assertion that the convictions of criminal negligence causing death and manslaughter are equally serious charges. He therefore submits that the Kienapple principle should be applied to stay the manslaughter conviction in favour of the conviction for criminal negligence causing death.
[64] Moreover, the added component of wanton and reckless disregard that is an essential component of criminal negligence causing death arguably makes it more serious than manslaughter by unlawful act, for which the standard is reasonable foreseeability of an objectively dangerous act.
[65] He further suggests that the conviction for failing to remain at the scene of the accident is a necessary element in the charge of criminal negligence causing death and, therefore, his conviction for fail to remain should also be stayed.
[66] He submits that there is no record of similar offences committed by similar offenders, and the sentence he proposes would serve the purpose of deterrence and denunciation without jeopardizing any chance Mr. Layugan might have for rehabilitation.
[67] He also notes that Mr. Layugan will be deported to the Philippines if he receives any one sentence of more than six months.
The Crown’s Position
[68] The Crown suggests that Mr. Layugan should receive a global sentence of two years less a day, which the Crown breaks down as follows:
i. 2 years less a day for manslaughter to be followed by 3 years’ probation;
ii. 9 months for failure to remain at the scene of an accident, to be served concurrent to the conviction for manslaughter; and
iii. a stay of proceedings on the charge of criminal negligence causing death.
[69] The Crown suggests that the conviction for criminal negligence causing death should be stayed in favour of the conviction for manslaughter. The Crown relies on the case of R. v. Cox, 2011 ONCA 58, [2011] O.J. No. 228 (C.A.), at para. 3, which reads as follows:
On February 1, 2008, Ms. Cox was convicted of manslaughter, criminal negligence causing death, and failure to provide the necessaries of life. She was sentenced to nine years imprisonment for manslaughter. The convictions for criminal negligence causing death and failure to provide the necessaries of life were stayed in accordance with R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
[70] The Crown agrees with the Defence that this is a most unusual case, that there are no cases involving similar facts where the charge of manslaughter was invoked and the cases cited by the Crown are almost all cases involving charges of criminal negligence causing death and failure to remain at the scene of an accident.
[71] The Crown also requests the following ancillary orders:
a. a DNA sample, since manslaughter is a primary designated offence;
b. a driving prohibition order (Mr. Layugan suggests the one year mandatory provision is sufficient whereas the Crown suggests 10 years); and
c. a section 743.21 no-communication order to prevent Mr. Layugan from contacting 10 people (though there is no evidence that Mr. Layugan has attempted to contact any of them).
- APPLYING THE PRINCIPLES OF SENTENCING TO THESE FACTS AND CONCLUSION
The Convictions
[72] Mr. Layugan has been convicted by the jury of failing to remain at the scene of an accident, manslaughter and criminal negligence causing death.
[73] Section 724 of the Criminal Code provides:
(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.
(2) Where the court is composed of a judge and jury, the court (a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.
[74] The facts of this offence are as agreed in paragraphs 8 to 27 and as further found by me at paragraphs 31 to 32.
Application of the Kienapple Principle
[75] The offences of criminal negligence causing death and manslaughter arise out of the same set of facts and are in effect one crime. In view of the Kienapple principle outlined above, it is therefore agreed that a conditional stay must be entered on one of those two charges.
[76] Based on the reasoning in Morrisey, the charges of manslaughter and criminal negligence causing death are equally serious culpable homicides. As such, it is open to the court to stay either the manslaughter or criminal negligence causing death conviction in favour of the other.
[77] I find the Cox decision of little assistance as, while the court in Cox decided to stay the conviction for criminal negligence causing death in favour of the manslaughter charge, there is no discussion or analysis of the issue as there is in the Supreme Court decision in Morrisey.
[78] The Crown concedes that while Mr. Layugan was charged with manslaughter, the primary consideration when sentencing an accused is for the court to look at similar offenders who committed similar offences in like circumstances.
[79] The cases involving manslaughter are of little or no assistance because neither party has been able to find a single case where an accused was charged with manslaughter on facts similar to this case. The only cases that are similar on their facts to the situation in this case are cases involving the failure to remain at the scene of an accident and/or criminal negligence causing death.
[80] The Crown concedes that given that there are no similar cases that involve a manslaughter conviction, I may therefore look to similar cases where the accused was charged with criminal negligence causing death in determining a fit sentence.
[81] Because either charge can be stayed and the only similar cases are those involving criminal negligence, I therefore stay the conviction for manslaughter in favour of the conviction for criminal negligence causing death and I have reviewed the many cases cited to me that involve convictions for criminal negligence causing death.
[82] I agree with the Crown’s submission that the conviction for fail to remain should not be stayed but should rather be served concurrent to the conviction for criminal negligence causing death as the element of bodily harm does not form part of the necessary findings of fact for a conviction for either manslaughter or criminal negligence causing death. I note this is consistent with the decisions in the case law. (See for example: R. v. Desjardins, [1998] B.C.J. No. 1707 (C.A.); R. v. Nandlall, [2009] O.J. No. 3451 (S.C.); R. v. Colby, 1989 ABCA 285, 100 A.R. 142).
[83] As a result, Mr. Layugan will be sentenced for failure to remain at the scene of the accident and criminal negligence causing death. I note that while I have decided to impose a sentence based on these two convictions, my decision as to the appropriate global sentence would not have been different had he been sentenced on the basis of the fail to remain and manslaughter convictions.
Analysis of the Relevant Factors on Sentence
[84] I have considered the effect of this tragedy on the victim’s family and friends, the principles of sentencing set out in the Criminal Code and the particular circumstances of this offence and this offender. I have reviewed the many cases where sentences were imposed on offenders who failed to remain at the scene of an accident resulting in the death of an innocent victim so as to compare and contrast them with the facts before me.
[85] I am acutely aware that Mr. Kazimov’s family and friends will never recover from the shock and horror of his sudden and tragic death. They have nothing left but their memories, and nothing this court can do will bring Mr. Kazimov back.
[86] It is important that those who leave the scene of an accident resulting in the death of an innocent man be punished in order to denounce such conduct and to deter others who might do so.
[87] The question is: what is a suitable punishment?
[88] The facts in each case are unique, but it is agreed that the circumstances of this incident are highly unusual.
[89] Unlike almost all of the other cases dealing with persons convicted of failing to remain at the scene of an accident and criminal negligence causing death:
i. Mr. Layugan had consumed no alcohol or drugs;
ii. he was not driving at excessive speed, and in fact, was driving below the acceptable speed limit;
iii. he was not driving erratically or recklessly;
iv. he did not instigate the situation leading to the accident;
v. the situation whereby his car struck Mr. Kazimov was in no way his fault;
vi. Mr. Layugan had just finished an extra-long shift at the request of his employer, and just after midnight, he left to return home to his family;
vii. at the time of the first collision, Mr. Layugan had no time to think about what he would do as the event was unforeseen, sudden, stressful and unusual;
viii. 20 to 25 seconds after the collision, Mr. Layugan chose to return to the parking lot where the incident took place. Tragically, 20 seconds after the first collision, Mr. Kazimov was run over and killed by a tractor trailer, and by the time he returned it was too late; and
ix. after he returned, he stayed to help the truck driver call 911 and report the incident to the supervisor.
[90] Mr. Layugan did not tell anyone that his vehicle had hit Mr. Kazimov before he was run over by the truck driver until the following day, and he should have. However, he did not deny it when first confronted by police. He was at all times cooperative with police and told them things they might not otherwise have known such as the fact that he believed Mr. Kazimov was still alive after the first collision as he saw his limbs move.
[91] But for several other significant contributing factors, Mr. Kazimov might never have been hit in the first place or killed: Mr. Kazimov was not wearing any reflective gear as the company did not see fit to provide its night staff with reflective gear (although employees had asked for it), there was a constant, very loud noise in the area so any sounds Mr. Kazimov might have made would not have been heard by the truck driver at the time he was run over, and the lighting in the area was very poor.
[92] This case is also highly unusual because of the circumstances of this offender:
i. he has always expressed his remorse about the fact that Mr. Kazimov was tragically killed. Mr. Layugan broke down during his testimony at trial (and before his conviction) and expressed his remorse about Mr. Kazimov’s death after he left the scene. Again during the sentencing proceeding, he expressed sadness at the death of Mr. Kazimov. Remorse can mitigate the seriousness of an offence;
ii. Mr. Layugan has no outstanding charges against him;
iii. Mr. Layugan has no prior history of driving infractions;
iv. there have been no breaches of his bail conditions for the four and one-half years he has spent on bail. Even in the dire circumstances he found himself in with a very sick child, he obeyed the terms of his bail and did not drive;
v. Mr. Layugan has, with the exception of this offence, lead an exemplary life, and he has the full support of his family to assist with his rehabilitation; and
vi. he has been involved in counselling to deal with this incident and has indicated a willingness to continue to obtain help.
[93] Though there are many mitigating circumstances as set out above, the only aggravating circumstance is the nature of the offences.[^1]
[94] Mr. Layugan does not have the benefit of a guilty plea.
Conclusion as to the Appropriate Sentence
[95] There is no mandatory minimum sentence for these offences, and a wide range of sentences have been imposed. This reflects the marked variations in the factual circumstances surrounding the offences and the offenders. Offenders whose reckless conduct such as street racing, speeding, the consumption of drugs and/or alcohol or whose behaviour is discovered long after the fact are generally subject to much more severe sentences. (R. v. Linden (2000), 2000 CanLII 15854 (ON CA), 147 C.C.C. (3d) 299 (Ont. C.A.).)
[96] As noted in the table of cases, there are cases similar to this one on their facts, such as R. v. Aman and R. v. Arruda, in which sentences in the range of 5 to 9 months were awarded. Moreover, there are many others where conditional sentences were ordered. In R v. Cobaria (20 April 2012), Brampton (C.J.), a similar offender in similar circumstances was granted a 90 day intermittent sentence.
[97] Nonetheless, I would only impose a sentence of this kind on convictions of this type in highly unusual circumstances. This, in my opinion, is that highly unusual case.
[98] This case bears none of the usual hallmarks of “hit and run” cases: As noted above, Mr. Layugan was not reckless when he hit Mr. Kazimov, and the accident was in no way his fault. He reacted during a time of great stress resulting from the unforeseen, traumatic event of seeing a body fly across his windshield and onto the ground in front of him late at night. He exercised very poor judgment during this time of great stress and fled the scene to avoid liability but chose to return seconds later on his own. Tragically, by the time he returned, it was too late. But for this incident, Mr. Layugan has a very positive record as an upstanding person.
[99] To those of you in the Kazimov family, I know you must live with the pain that nothing this court can do will bring Mr. Kazimov back. I hear your wish for a just punishment.
[100] Mr. Layugan has and will continue to have to live with the fact that his actions resulted in Mr. Kazimov’s death. His actions have brought shame and suffering to him and his family. He will have to live with the knowledge that he has a criminal conviction for serious offences for the rest of his life. I believe that he has and will continue to feel remorse, and he has sought help in trying to understand and deal with his feelings.
[101] The highly unusual facts surrounding these offences, the circumstances of this offender, including the fact that I do not believe him to be a threat to the safety or security of others, and his excellent prospects for rehabilitation warrant a sentence of five months on the charge of failing to remain at the scene of the accident and a concurrent sentence of six months on the conviction for criminal negligence.
[102] I believe that this sentence addresses the principles of sentencing.
[103] In view of the immigration consequences for Mr. Layugan and in accordance with the reasoning in Pham that a judge may exercise his or her discretion to take collateral immigration consequences into account (provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender), a term of imprisonment of six months less a day on the criminal negligence causing death conviction will be imposed.
[104] This will be followed by 18 months of probation and 100 hours of community service. Mr. Layugan will be afforded credit of 30 days for the 4 ½ years spent on bail without incident.
[105] In addition,
i. Mr. Layugan shall provide a sample of his DNA pursuant to section 487.051(4) of the Criminal Code;
ii. a driving prohibition order will be imposed for 2 years from today’s date (as he has already been prohibited from driving a car for 4 ½ years while he was awaiting trial);
iii. in accordance with section 743.21, there shall be a no communication order to prevent Mr. Layugan from initiating contact with any of the ten people referred to below:
a) Yuriy Snisarenko
b) Eugene Bluvshteyn
c) David Gelbloom
d) Eugene Bodyakin
e) Alexei Shalom
f) Greg Ubina
g) Andrey Zolotukhin
h) Igor Tishchenko
i) Arif Kazimov and
j) Alla Kazimov
Thorburn J.
Released: March 30, 2016
Appendix A
Case
Counts
Facts
Aggravating factors
Mitigating factors
Custodial sentence
R c. Peladeau (Q.C.C.A)
Three counts of criminal negligence causing death
Alcohol
None – 2 years probation + 120 hrs community service
R v. Ball, [1993] O.J. No. 3207 (S.C.)
Manslaughter
Ball accidentally shot his friend while handing a rifle.
Remorse
Positive pre-sentence report
Family support
Potential for successful future: education, job, partner
Suspended sentence
R c. Cedras, (Q.C.C.A.)
Two counts of criminal negligence causing death
Alcohol
Suspended sentence for 2 years + 120 hrs community service
R v. Kutsukake, 2006 CanLII 32593 (ON CA), [2006] O.J. No. 3771 (C.A.)
Criminal negligence causing death
The victim asked the appellant to tow him down the street. He went to the driver’s side of the vehicle while it was slowly moving and interlocked arms with the appellant, grabbing the pillar by the driver’s window with his left hand. The appellant drove down the street at approximately 50 kilometres per hour towing him at the side of her car. He eventually let go and continued down the road while the appellant made a U-turn. On the return trip on the same street but in the opposite direction, the victim grabbed the pillar with both hands because the appellant had bruised her arm during the first encounter. The appellant accelerated, rolled down the window and yelled out the speed she was reaching, eventually 80 kilometres per hour. The victim fell and was run over by the vehicle.
High speed
Thrill seeking
Positive pre-sentence report
No history of behavioural problems
Employed and educated
Guilty plea
Remorse
18 months conditional
R v. Singh, 2009 ONCJ 223, [2009] O.J. No. 2043 (C.J.)
Criminal negligence causing death
After an altercation in a parking lot, the accused accelerated his vehicle forward, and his car struck the victim, who fell to the ground. The vehicle continued moving forward and ran over the victim. As the vehicle mounted the boulevard curb, he was dislodged from under the vehicle. The vehicle continued across the boulevard and sidewalk.
No major driving offences
Responsible for family
Employed
Pro-social lifestyle
Remorse
18 months conditional
R v. Nitikin, [2003] O.J. No. 2505 (C.A.)
Manslaughter
Nikitin was driving his truck and trailer. A school bus was parked at the side of the road with its red warning lights flashing and its stop sign arm extended. Five-year-old Adam Ranger and his 12-year-old brother, Alex, were crossing the highway to the driveway of their home. Nikitin did not see the boys until it was too late. He swerved to avoid them and crashed into the ditch. Unfortunately, the trailer he was towing behind his truck struck Adam, killing him instantly.
Ignored school bus signal
No criminal record
Good family life
Steady employment
22 months conditional
R v. Condon, 2007 BCSC 1334, [2007] B.C.J. No. 1958 (S.C.)
Criminal negligence causing death
Two counts of criminal negligence causing bodily harm
The three victims were struck by a vehicle driven by the accused, which travelled along a side street; it passed through the intersection and hit the three women as they walked along the sidewalk on the opposite side of the street. Condon was a user of crack cocaine and took a withdrawal medication that causes seizures. She continued to drive despite several warnings. A seizure was the cause of the accident.
Was warned of the risk of driving
No previous criminal or driving record
Successfully completed a substance abuse program
Employed and cares for her daughter
Remorse
2 years less a day conditional
R v. Tayfel, 2008 MBQB 101, 226 Man. R. (2d) 302
Criminal negligence causing death
Four counts of criminal negligence causing bodily harm
Dangerous operation of an aircraft
The accused was to fly one group of fishermen into Gunisao Lake at 6:00 a.m., pick up another group and return them to Winnipeg by shortly after 9:00 a.m. The flight from Winnipeg to Gunisao Lake was uneventful. The accused landed at the fishing camp, delivered the first group of fishermen, picked up the second group, being six men, and began the return flight. The accused testified that around Gimli, which is about 40 miles north of Winnipeg, he noticed that the fuel gauges were dropping more quickly than he would have expected. This continued and, approximately 15 miles out of Winnipeg, one of the engines quit because it ran out of fuel. He restarted it by activating the cross-feed on the fuel system and attempted a landing at Winnipeg. The conditions were still overcast, and he missed the first approach. While he was coming around to make a second attempt, both engines quit as he was passing over downtown Winnipeg, and he was forced to land on Logan Avenue, which is a busy transportation route. The aircraft was demolished in the crash that occurred on landing. No one on the ground was injured, and everyone in the plane survived the landing, although most were injured. Sadly, one of the passengers, Mr. Jones, died several weeks later from complications related to his injuries. Following an investigation, the accused was found guilty of regulatory breaches.
Relationship of trust between accused and victims
No criminal record
Pro-social lifestyle
Already been sentenced under regulatory regime
Employed
Supportive family
Has been facing charges for almost 6 years
No criminal behaviour since
Remorse
2 years less a day conditional
R v. Komendat, [2003] O.J. No. 5654 (S.C.)
Criminal negligence causing death
Komendat was intoxicated. He drove at a speed of 130-150 km/hr in a 100 km/hr zone. Komendat lost control rounding a curve and struck the metal guardrail at a sharp angle. His passenger suffered fatal injuries.
Alcohol
Intentional risk taking
Prior speeding offences
No criminal record
No substance abuse problems
Guilty plea
Family support
Good character
Remorse
Community service
Youth
2 years less a day conditional
R v. Khosa, 2003 BCSC 221, [2003] B.C.J. No. 280, aff’d 2003 BCCA 645
Criminal negligence causing death
Shortly after 9:00 p.m., the evening of November 13, 2000, Irene Thorpe was walking along the sidewalk on Southwest Marine Drive when Sukhvir Khosa's vehicle ran out of control and struck and killed her. Mr. Khosa was street racing with Bahadur Bhalru. Both men were convicted of criminal negligence causing her death.
High speed
Street racing
Remorse
No criminal or driving record
Complied with bail conditions
Unlikely to reoffend
No drugs/alcohol
Community support
2 years less a day conditional
R v. Morissette, 2011 QCCA 632
Criminal negligence causing death
Morissette drove at a high speed, lost control of the vehicle, and struck the facade of a motel. His passenger died.
High speed
Previous speeding offences
Impact on the victim’s family
No criminal record
No substance abuse issues
Low risk of recidivism
Victim’s family forgave him
Good character
Positive pre-sentence report
2 years less a day conditional
R v. Cobaria (20 April 2012), Brampton (C.J.)
Failure to remain
Cobaria was driving toward a green light. The victim, a pedestrian, was crossing toward a red light. The victim darted out in front of Cobaria’s car, and he struck her with some force causing her to tumble over the roof of his car. Cobaria left the scene. He turned himself into police two days later. It was determined that his driving was proper.
The nature of the offence
Was not driving improperly or impaired
Remorse
No criminal record
Pro-social attitudes
Employed and has a family
Turned himself into police
90 days intermittent
R v. Orders, 2014 BCSC 771, [2014] B.C.J. No. 857
Criminal negligence causing death
The harness that the victim was wearing had not been attached to the hang glider by Mr. Orders. After trying desperately for about 90 seconds to hang on to Mr. Orders and the control bar of the hang glider, she lost her grip and fell to her death. He pleaded guilty to criminal negligence causing death.
Guilty plea
No criminal record
Accepted responsibility, remorseful
NB: Court also considered his immigration status
5 months
R v. Aman, 2012 ONCJ 654, [2012] O.J. No 4998
Failure to remain
Ms. Aman was driving southbound on Bronson Avenue when she struck Mr. Miller with the passenger side of her vehicle. The contact caused Mr. Miller to be thrown approximately 15 meters to a resting place on the west side of the sidewalk of Bronson Avenue. As a result of the impact, Mr. Miller flipped twice in the air and his boots were thrown from his feet. From the description of witnesses, Ms. Aman clearly must have seen Mr. Miller, as Ms. Aman’s vehicle is seen attempting to veer into the middle lane of traffic to avoid Mr. Miller. Unfortunately the vehicle struck Mr. Miller and Ms. Aman did not attempt to stop and render any assistance as she was required to do. Mr. Miller died later that morning as a result of the injuries he suffered.
Seriousness of offence
Took steps toward evasive action; callous disregard for victim’s life
Some evasion of responsibility
Hid vehicle
Youth
First-time offender
Guilty plea
Remorse
Family support
No other driving offences
No evidence of improper driving or impaired driving
Low risk to reoffend
Likelihood of rehabilitation
Not travelling at excessive speed
5 months
R v. Arruda, [2001] O.J. No. 6288 (C.J.), aff’d [2002] O.J. No. 2403 (C.A.)
Failure to remain
Arruda was driving fast and struck a pedestrian. He continued to drive on. At no time did he return to the scene of the incident or did he offer his name and address or provide assistance.
Left a person to die
Impact on others: victim’s family, other members of the community
Took steps to conceal his vehicle
Guilty plea
Turned himself in and provided whereabouts of vehicle
Took steps to rectify his error of judgment within the first few days of the incident
He exhibited and continues to exhibit remorse
9 months
R v. Horton, [2003] O.J. No. 4513 (S.C.)
Criminal negligence causing death
While under the influence of alcohol and marijuana, Horton placed a bicycle and chair on the street. This caused the victim to lose control of his vehicle, and the resulting accident killed him.
Older and more mature than co-accused
Intoxicated at time of offence
Guilty plea
No criminal record
Made efforts at rehabilitation
1 year
R v. Atherfold, [2005] O.J. No. 3483 (C.J.), aff’d 2006 ONCJ 364, [2006] O.J. No. 3925 (C.A.)
Criminal negligence causing death
In the midst of an argument during which the victim was standing outside the driver’s side door of Atherfold’s car, Atherfold put the car in reverse and accelerated quickly. This trapped the victim and dragged him backwards for eight metres until he slammed into a tree. Atherfold was drunk at the time.
Drunk at the time of the accident.
Pro-social lifestyle
Continuously employed
No substance abuse problems
Family support
Remorse
1 year
R v. Davis, [2010] O.J. No. 4742 (C.J.)
Failure to remain
Operating a vehicle without insurance
Making an unsafe lane change
Davis failed to yield the right of way to a motorcycle travelling through an intersection. An accident occurred and the driver of the motorcycle was killed. Davis continued driving, but he turned himself in later that evening.
Serious nature of offence
No insurance, no valid driver’s license
Prior criminal record relating to driving
Did not stop
Guilty plea
Remorse
Positive pre-sentence report
Family support
No criminal involvement since
1 year
R v. Regier, [1998] O.J. No. 3133 (Gen. Div.)
Criminal negligence causing death
Criminal negligence causing bodily harm
Regier was 18 years old. His vehicle allegedly proceeded through a stop sign and collided with a van. Regier's passenger was killed. The driver of the van and the passenger were severely injured. Regier was observed with an open bottle of beer in his hand after the accident. He had only trace alcohol in his blood. A motor vehicle accident reconstructionist opined that Regier could not have stopped before entering the intersection.
Alcohol – underage drinking and open liquor in vehicle
Previous criminal record for careless driving
Liquor Act convictions
Disrespectful of authority
Lives with parents
High school education
Employed
No risk to community
1 year in the community
R v. Saboksayr, 2006 BCPC 299, [2006] B.C.J. No. 1447
Criminal negligence causing death
Saboksayr was being chased by another car. He entered an intersection through a red light at 100 km/hr and T-boned another vehicle. The driver of that vehicle was killed.
Seriousness of offence
Had the opportunity to prevent collision; wanton disregard for lives and safety of others
No criminal record
Contributed positively to society
Guilty plea
15 months
R v. Persaud, 2002 CanLII 44931 (ON CA), [2002] O.J. No. 1883 (C.A.)
Criminal negligence causing death
Persaud was intoxicated and drove on a major thoroughfare at a high rate of speed. He struck the victim and fled the scene. The victim bled to death.
Callousness of actions
Alcohol
Prior good character
No criminal record
20 months
R v. Andrzejczak, [2001] O.J. No. 1075 (C.J.)
Criminal negligence causing death
Mr. Carlton Sommers was killed while he was engaged in the course of his employment. He was struck when a car operated by the accused struck a guardrail and then crashed into his vehicle. Mr. Sommers' vehicle had been parked well off to the side of the Queen Elizabeth Way in this jurisdiction, and he was engaged as the electrical site supervisor for a construction area located adjacent to that highway. It was a Wednesday, shortly after three p.m. The collision was violent, caused him to be thrown a considerable distance. The injuries he sustained resulted in his instantaneous death. On the date in question the accused was herself an emotionally troubled and depressed individual who had a significant alcohol problem. She had apparently been talking about ending her life previously and had advised her sister earlier of potentially doing so by driving her car off the road. She had been prescribed pills to assist her sleeping and she had been mixing those with Tylenol 3s at points during the day. During the collision which resulted in the victim's death, the accused had become highly intoxicated and had left her home in her car.
Ongoing substance abuse problem; alcohol during offense
Significant degree of culpability – attempted suicide
Speeding and erratic driving
Made progress in alcohol rehabilitation
2 years less a day
R v. Daniels, [1998] O.J. No. 4363 (C.A.)
Criminal negligence causing death
Three counts of criminal negligence causing bodily harm
Failure to remain
A friend of the appellant was involved in an altercation outside of a Yorkville nightclub. The appellant left his car to assist his friend. He assumed the role of peacemaker and he and his friend eventually made their way back to the car, which was parked in front of the nightclub. Contrary to the wishes of the appellant, the altercation continued. One person struck the car with a pole, while others taunted the appellant's friend, urging him to get out of the car and fight. The appellant backed up and then drove forward on to the sidewalk in front of the nightclub, striking three pedestrians. Two suffered bodily harm and one was killed. The appellant then struck a parked car before leaving the scene. A passenger in the parked vehicle suffered bodily harm.
Seriousness and gravity of offences
Positive background and good character
Single isolated act by an otherwise responsible, law abiding, and productive individual in circumstances of severe provocation
2 years less a day
R v. Brisson, [2003] O.J. No. 6216 (C.J.), aff’d [2006] O.J. No. 2183 (C.A.)
Criminal negligence causing death
Brisson drove at an excessive rate of speed on a windy, hilly, narrow road while impaired by alcohol and while suffering from a lack of sleep. He drove off the road and killed his passenger.
Alcohol
No previous driving offences
Never been in jail
Talented in his profession
Remorse
2 years less a day
R v. Chan, 2004 BCSC 1581, [2004] B.C.J. No. 2499
Criminal negligence causing death
Failure to remain
Chan drove his vehicle at high speed through a red light and ploughed into a marked police cruiser, hitting it squarely on the driver’s door. Constable Jim Ng, the occupant of the cruiser, died almost instantly. Mr. Chan, although shaken up in the accident, managed to get out of his vehicle and, with the help of two friends, leave the scene within just over five minutes.
Wanton disregard of others
No criminal record or driving offences
Active in his church
Good employee and student
Remorse
Unlikely to reoffend
2 years less a day
R v. Lam, 2003 CanLII 31332 (ON CA), [2003] O.J. No. 4127 (C.A.)
Criminal negligence causing death
The accident occurred on a busy six-lane highway in a built up commercial area at one of the busiest times of day. Prior to the collision, the respondent was engaged in a “show of speed” with another automobile, which lasted less than one minute. He had modified his vehicle for both the appearance and ability to attain high speeds. At the time of the collision, the respondent was travelling at an estimated speed of 170 km/h in a 70 km/h zone.
Modifications made to car
Show of speed
No criminogenic factors; low risk of reoffending
No alcohol/drugs
No street racing or reckless driving for a lengthy period of time
No criminal record or significant driving record
Good character
Respected bail conditions
2 years less a day
R v. Gabriel, [1999] O.J. No. 2276 (S.C.)
Criminal negligence causing death
Gabriel disobeyed the traffic control lights and entered the intersection against a red light. At a very high rate of speed, Mr. Gabriel's vehicle struck the victim’s westbound vehicle broadside and pushed the second car right through the intersection. The violent collision involved Gabriel’s vehicle striking the driver's side of the victim’s car.
Reckless disregard of safety of others
Speeding
Traffic violation
Alcohol
Prior criminal record
On probation at time of offense
Initial denial of responsibility
Complied with bail terms
Guilty plea
Remorse
2 years less a day
R v. Fretz, 2008 ONCA 507, [2008] O.J. No. 2502
Two counts of criminal negligence causing death
Fretz consumed alcohol and then drove his car on the Queen Elizabeth Highway, in an erratic “out of control” fashion, at speeds in excess of 140 kilometres per hour. His vehicle crossed three lanes of traffic and struck a car that was parked on the shoulder of the highway. The two people in the parked car were killed instantly.
Reckless conduct
Alcohol
Youth
Lack of prior driving offences
Gifted athlete
Family and community support
Remorse
2 years less a day
R c. Duval, 2009 QCCQ 5201, [2009] J.Q. No. 5849
Criminal negligence causing death
Criminal negligence causing bodily harm
Flight from a police officer causing bodily harm
Duval and his friends were being pursued on the highway by police for erratic driving. Duval was driving, and he was drunk. He was driving over 200 km/hr and lost control of the car. The car crashed, and a passenger was ejected from the car. This passenger was killed and another was seriously injured.
Alcohol
Inexperienced driver (probationary license – was prohibited from having any liquor)
Pre-existing traffic violations
Evading police
Youth
No criminal record
Prosocial upbringing
Employed and learning a trade
Lives with his partner
Remorse
No criminal personality traits; low risk of recidivism
2 years less a day
R v. Aylward, [1996] N.J. No. 262 (P.C.)
Criminal negligence causing death
Three counts of criminal negligence causing bodily harm
Aylward was in the company of one Jason Gosse. Some beer was consumed by both. The vehicle entered the turn (in a 70 kilometers per hour zone), on the wrong side of the road. The vehicle went off the road. It was nearly midnight. The vehicle came to rest in a ditch and began to burn. Four of the five occupants, including the driver, managed to escape, but Mr. Evans was not so fortunate. He was trapped in the burning vehicle where he succumbed to smoke inhalation.
Serious misjudgment
Alcohol & drugs
Speed
Ignored warnings of excessive speed
Driving on the wrong side of the road
Prolonged pattern of recklessness
Guilty plea
Remorse
Improving education and lifestyle
No criminal record
Youth
Positive pre-sentence report
2 years
R v. Sandreswaren, [2001] O.J. No. 3933 (C.J.)
Criminal negligence causing death
Sandreswaren entered an intersection while facing a red light, causing a collision which killed the driver of the other vehicle. He was driving at excessive rate of speed while intoxicated, refused repeated offers by a passenger to drive the vehicle and ignored warnings about the red light by two passengers in the vehicle. He was an airport taxi driver with a record of driving offences, which included four convictions for speeding.
Alcohol
Speeding
Gravity of offence
Degree of responsibility
Remorse
Community service
2 years
R v. Van Puyenbroek, 2007 ONCA 824, 226 C.C.C. (3d) 289
Impaired driving causing bodily harm
Dangerous driving causing bodily harm
Failure to remain
Careless storage of firearms
The appellant was intoxicated at a Christmas party. Although he was offered a ride, he insisted on driving himself home. On the way, he hit two pedestrians who were walking on the shoulder of the highway, causing one of them very serious injuries. He left the scene and drove the short distance to his home, where he was arrested by the police less than two hours later. During the course of the arrest, the police found two long guns and ammunition that were improperly stored.
Degree of impairment
Nature of accident
Serious injuries and suffering of victim
Previous impaired driving conviction
Expression of remorse
3 years
R v. Gallant (1989), 36 O.A.C. 229 (C.A.)
Criminal negligence causing death
Accused had driven with a blood/alcohol level 2.5 times the legal limit. He had travelled between 80-130 km/h weaving from lane to lane before striking two people, killing one and injuring the other.
Significant amount of alcohol
Unemployed, uneducated
Criminal record
Alcoholic and drug user
No criminal record or driving offences
Remorse
3 years
R v. Burcham (1987), 23 O.A.C. 21 (C.A.)
Three counts of criminal negligence causing death
Criminal negligence causing bodily harm
The appellant had been driving his truck for several hours while drinking beer. Although the appellant had been drinking, there was not enough evidence to prove that he was impaired. The appellant had turned off the headlights on his vehicle in order to sneak up on another vehicle that was being driven by an acquaintance. While attempting to overtake the other vehicle, the appellant hit four pedestrians and killed three of them.
Alcoholic
Driving at night without headlights
Minor criminal record
Youth
Supportive family
High school education
Employed
Remorse
3 years
R v. McVeigh (1985), 1985 CanLII 115 (ON CA), 22 C.C.C. (3d) 145 (Ont. C.A.)
Criminal negligence causing death
The respondent was very drunk when the motor vehicle he was driving struck and killed a 14-year-old boy. The accident happened at approximately 7:30 p.m. on April 1, 1983, while the boy was sitting on his bicycle less than a foot from the curb under a street lamp on a well-lit and dry multi-lane residential parkway.
Significant amount of alcohol
Drinking problem
No criminal record or driving offences
Has a family
Employed
3 years
R v. Tang, 2001 BCPC 62, [2001] B.C.J. No. 796
Criminal negligence causing death
During a street race at 1:37 a.m., Tang struck and killed a pedestrian and fled the scene.
Street racing
Previous criminal record and driving offences
Police chase
Surrendered to police
Remorse
4 years
R v. B.D.R., [2000] O.J. No. 5516 (C.J.)
Criminal negligence causing death
Failure to remain
Possession of stolen vehicle
BDR attended a party with his girlfriend. He consumed a substantial amount of alcohol. He had an argument with his girlfriend and left the party. He drove away in a stolen car that was given to him to get rid of. BDR was an unlicensed and inexperienced driver. He drove down a residential street at a high rate of speed, disobeyed a stop sign and struck a 26-year-old woman seated at a picnic table. BDR was aware that he struck someone and hurt them badly. He exited the vehicle and walked back to the party.
On probation at time of offence
Unlicensed and inexperienced driver in a stolen vehicle
Not a first-time offender; record suggests he has little regard for others
Has failed to comply with court orders in the past
Victim was a completely innocent person
Victim was left dying while BDR only cared for himself
Likely to reoffend (personality disorder)
Unemployed, not in school
Alcoholic
Self-centered, despite nurturing upbringing
Previous incarceration has not deterred him
Effects of his actions have not impacted him
Guilty plea
Adhered to bail conditions
Young, i.e. greater chance of rehabilitation
Some indication of awareness of pain he caused
4 years
R v. Boukchev, 2003 CanLII 26654 (ON CA), [2003] O.J. No. 3944 (C.A.)
Dangerous driving causing death or bodily harm
Leaving scene of an accident
Boukchev ran over and killed a pedestrian while running a red light at a high rate of speed. The victim was dragged under the vehicle for 190 metres. Boukchev fled the scene. When he was questioned by police, he claimed the vehicle had been stolen. He eventually pleaded guilty.
Lengthy record of driving offences
Two driving-related criminal convictions
Prior convictions for assault, assault causing bodily harm, obstruction of a peace officer, failure to appear, failure to comply with a recognizance
5 years
R v. Boyd (1998), 33 M.V.R. (3d) 37 (Ont. Gen. Div.)
Criminal negligence causing death
Impaired driving
The victim was Boyd's 17-year- old friend, who was a passenger in his vehicle. The accident occurred when Boyd, who was impaired and speeding, collided with a telephone pole and trees. Hammond died at the scene.
Alcohol
Previous speeding offences
No criminal record
Youth
Employed
Good character
Followed bail conditions
5 years
R v. Anderson (1992), 1992 CanLII 6002 (BC CA), 74 C.C.C. (3d) 523 (B.C.C.A.)
Two counts of criminal negligence causing death
Criminal negligence causing bodily harm
The accident happened shortly after 7:00 p.m. on the evening of January 13, 1989. It occurred on a main artery known as the Mary Hill bypass in Coquitlam. The vehicle driven by the accused, Anderson, travelling at an excessive rate of speed entered into a curve, crossed over a centre line, and collided head-on with an oncoming vehicle. The location of that accident was near the junction of United Boulevard and the Mary Hill bypass in the vicinity of the Port Mann bridge. The conduct of the accused was not a momentary lapse. The accident was not the product of a mere mistake of judgment.
Alcohol
Criminal record
No remorse
5 years
R v. Sinclair, 2009 MBCA 71, 240 Man. R. (2d) 135
Manslaughter
Three males beat Adam Lecours and left him injured in the middle of the road. Ten minutes later a car ran over him. He died from injuries that were consistent with the assault and the impact from the car. The trial judge found that the accused were two of the three assailants. She also found that the car running over Mr. Lecours was not an intervening act to break the chain of causation.
Assault committed while attempting to commit robbery
Random attack on a stranger
Three on one attack with a high level of violence
Callous disregard for victim’s life; left him helpless on the road
Youth
Lack of criminal record
Positive pre-sentence reports
Offence was out of character for offender
No criminal involvement since
Remorse
6 years
CITATION: R. v. Layugan, 2016 ONSC 2077
COURT FILE NOS.: CR-14-40000194 and 193
DATE: 20160330
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
MARLON LAYUGAN
REASONS FOR SENTENCE
Thorburn J.
Released: March 30, 2016
[^1]: I note that at the time of the certiorari application to quash certain charges in this case, the Crown alleged that Mr. Layugan had told the truck driver “You killed him”. This assertion was not proven at trial.