Court File and Parties
COURT FILE NO.: CR15-40000154-0000 DATE: 20160928
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N : HER MAJESTY THE QUEEN – and – ALEKSEY ALEKSEV
Counsel: John Rinaldi for the Crown Michael Simrod for Aleksey Aleksev
HEARD: June 28 and September 6, 2016
TROTTER J. :
Introduction and Background
[1] Adrian Dudzicki was 23 years old and in the prime of his life when he was run over by Aleksey Aleksev at a Toronto intersection. Driving recklessly and at a high rate of speed, Mr. Aleksev went through the intersection against a light that had been red for at least 6 seconds. Mr. Dudzicki was riding his bike across the intersection when he was hit and killed almost instantly.
[2] After a trial by judge alone, I found Mr. Aleksev guilty of dangerous driving causing death (Criminal Code, s. 249(4)), criminal negligence causing death (s. 220) and manslaughter (s. 234): see R. v. Aleksev, 2016 ONSC 1834. For the purposes of sentencing, I emphasize the following findings from my previous Reasons:
- Mr. Dudzicki had the right of way and was acting lawfully when he crossed the intersection within the cross-walk;
- Mr. Aleksev was driving at a high rate of speed as he drove along a stretch of road leading up to the intersection where the collision occurred;
- When he hit Mr. Dudzicki, Mr. Aleksev was traveling in the range of 90 km/h when his vehicle should have been stationary;
- Mr. Aleksev had not consumed any alcohol;
- Mr. Aleksev was driving in a high density neighbourhood with a good deal of vehicular and pedestrian traffic, at about 9:30 on a weekday morning;
- Mr. Aleksev’s attention was diverted from the road as he adjusted the heating or radio in his car;
- The stale red light that he went through was preceded by a 3-second an amber light; and
- Mr. Aleksev made a seriously dangerous maneuver to avoid a large truck that had lawfully moved into the intersection.
Mr. Dudzicki and the Impact of His Death
[3] As noted already, Mr. Dudzicki was 21 years old when he was killed. Mr. Dudzicki was a world-class squash player. He was on his way to play squash on the day he died.
[4] The Crown filed a number of Victim Impact Statements (VIS). Many moving accounts were written by Mr. Dudzicki’s friends and fellow members of the competitive squash community. Mr. Dudzicki is remembered as a person of great character, with a competitive spirit. Many speak of his kindness and his leadership, both on and off of the squash court.
[5] The impact on Mr. Dudzicki’s parents has been devastating. He was an only child. His parents are no longer together. They both speak of their excruciating loss. As his mother wrote, “My life will never be the same again…He was all that I had. He meant the world to me.” His father read his very moving VIS in court. He has suffered enormously since his son died. He writes, “Since then it is just emptiness, there is no hope, there is nothing.” His partner wrote of her own pain and described Mr. Dudzicki, Sr. as being a “mere shell of himself.”
Mr. Aleksev and His Circumstances
[6] At the time that I delivered my Reasons for Judgment on April 16, 2016, I ordered that a Pre-Sentence Report (PSR) be prepared. Unfortunately, when the case returned for a sentencing hearing on June 28, 2016, it had yet to be prepared. Apparently, it had fallen through the cracks. The case had to be adjourned, at great inconvenience to Mr. Dudzicki’s family, who travel to court from out of town. A PSR was prepared for the new hearing date of September 6, 2016. As discussed below, the Report is so deficient and rife with inappropriate content that I considered ordering a new one. However, after hearing the submissions of counsel, I agreed to salvage what I could and proceed with the hearing.
[7] Mr. Aleksev is a young man. He was 20 at the time he committed his offences. He is now 23. He was born in Kyrgyzstan and came to Canada about 10 years ago with his parents and his younger brother. Mr. Aleksev initially struggled upon coming to Canada. He has had limited academic success. His employment has been sporadic. Most consistently, he has worked at his father’s auto shop. He was on his way there the morning that he ran over Mr. Dudzicki. Mr. Aleksev seems unmotivated to work, perhaps because of the ongoing criminal proceedings.
[8] It is reported that Mr. Aleksev has experienced some problems with alcohol in the past. However, alcohol was not a factor in the offences for which Mr. Aleksev was found guilty.
[9] The author of the PSR thought it was appropriate to record the attitudes of Mr. Aleksev’s family members about the offences. I suspect this was done to highlight some minimization on their part. Assuming their views are accurately captured, they are unhelpful. It is Mr. Aleksev’s views that are important. It is he who must be sentenced, not his family.
[10] One aspect of Mr. Aleksev’s father’s account to the PSR author is relevant. He said that his son tends to drive very fast and has accumulated “many tickets as a result.” Mr. Aleksev has committed a number of infractions under the Highway Traffic Act, R.S.O. 1990, c. H.8. Because he has always had so-called “novice” licences (i.e., G1 and G2), his licence has been suspended from time to time. His most serious infraction, and one that the Crown places the most weight upon, is for driving 92 km/h in a 60 km/h zone. This offence occurred on November 17, 2012.
[11] Mr. Aleksev does not appear to accept full responsibility for what happened. He described some of the evidence against him as “exaggerated.” He referred to what he had done as the “scenario.” He was given an opportunity to address me under s. 726 of the Criminal Code. Mr. Aleksev said that he is sorry and that he has thought about that fateful day ever since.
[12] Mr. Aleksev was released on bail the day after he was arrested. The terms of his bail were not onerous. He was prohibited from driving, but he was allowed attend work or enroll in school.
The Positions of Counsel
[13] On behalf of the Crown, Mr. Rinaldi argues that Mr. Aleksev should receive a penitentiary sentence of 3 to 5 years, followed by a 20-year driving prohibition under s. 259(2)(c) of the Criminal Code. Mr. Simrod submits that Mr. Aleksev should receive a 90-day intermittent sentence, followed by a 10-year driving prohibition.
Analysis
[14] There are two preliminary issues that must be addressed before determining the appropriate sentence. The first addresses the offence for which I should enter a conviction. This is the multiple convictions issue. The second deals with the contents of the PSR.
(a) Multiple Convictions
[15] In my Reasons for Judgment, I raised the question of whether I should register a conviction on the count of manslaughter as opposed to criminal negligence causing death: see R. v. Aleksev, 2016 ONSC 1834, supra, at paras. 60-61. Both offences are punishable by a maximum sentence of life imprisonment. Given that, in this case, the manslaughter verdict is based solely on the unlawful act of criminal negligence causing death, the two offences are conceptually indistinguishable: see R. v. Morrisey (2000), 2000 SCC 39, 148 C.C.C. (3d) 1 (S.C.C.), at p. 28.
[16] In R. v. Ramage (2010), 2010 ONCA 488, 257 C.C.C. (3d) 261 (Ont. C.A.), Doherty J.A. noted that, for many years, the courts have struggled with the scope of the rule in R. v. Kienapple (1974), 1974 SCC 14, 15 C.C.C. (2d) 524 (S.C.C.). He went onto say that the application of the rule (at p. 279), “is often of academic interest only, as its outcome has no impact on the actual sentence to be served by the accused.” That is the situation in this case – the sentence I impose will be the same, notwithstanding the label I attach to it. Neither counsel argued otherwise.
[17] The Crown submits that it is entitled to a conviction on the on the most serious offence. This is typically determined by the maximum punishments that attach to the offences in question: R. v. Loyer (1978), 40 C.C.C. (3d) 291 (S.C.C.). But as already noted, the maximum sentences are identical for both offences.
[18] The Crown argues that manslaughter is the more serious of the two offences. I was unclear on the precise basis for this submission, other than that greater stigma might attach to the “manslaughter” label. However, I find the following words of Matas J.A. in R. v. Williams (1981), 63 C.C.C. (2d) 141 (Man. C.A.) to be very helpful (at p. 148):
Perhaps the layman regards manslaughter as a more serious offence than causing death by criminal negligence. It is part of the accepted wisdom that Parliament enacted the offence of causing death by criminal negligence because of reluctance of juries to convict drivers of motor vehicles of manslaughter… My experience with jurors leads me to believe they are now more sophisticated than this theory gives them credit for. And the theory would have no bearing at all on motor vehicle cases tried by a judge alone. In any event, the test is not what the general view might be of the relative seriousness of the offenses but what Parliament has decreed by the provisions of the Code.
[19] Mr. Rinaldi submits that the Crown has a broad discretion to lay charges and prosecute and that trial judges cannot interfere with that discretion. Of course, I do not disagree with this proposition. The Crown was certainly entitled to lay all three charges in this case. While the wisdom of this decision was questioned, its legality could not be challenged. I conscientiously applied the law to the facts of this case and rendered verdicts of guilty on all three counts. Now it falls to me to enforce the rule against multiple convictions in a manner that is fair.
[20] This issue has arisen because of the manner in which the Crown chose to charge this case. It might be said that this indictment is “overloaded” – it charges three offences for the exact same act. Had the Crown chosen to lay a single count of manslaughter, both criminal negligence causing death and dangerous driving causing death would have been included offences. In those circumstances, I would have been required to enter a conviction for manslaughter. But that is not the situation here.
[21] No authority was brought to my attention for the proposition that, in circumstances where an accused is found guilty of two offences of equal penal severity, the Crown is entitled to choose which count is to be conditionally stayed. There are examples of trial judges entering stays on manslaughter charges in similar circumstances. See, for example, R. v. Lam (2003), 2003 ONCA 100, 180 C.C.C. (3d) 127 (Ont. C.A.) and R. v. Layugan, 2016 ONSC 2077. To the contrary, see R. v. Cox, 2011 ONCA 77. Moreover, I note that almost all of the sentencing cases drawn to my attention by both counsel (see section (c), below) are cases of dangerous driving causing death and criminal negligence causing death.
[22] In all of the circumstances, including how comparable cases of equal or greater severity are typically charged and prosecuted in this province (e.g., R. v. Muzzo, 2016 ONSC 2068, R. v. Ramage (2010), 2010 ONCA 488, 257 C.C.C. (3d) 261 (Ont. C.A.), R. v. Kummer (2011), 2011 ONCA 39, 266 C.C.C. (3d) 32 (Ont. C.A.), R. v. Junkert (2010), 2010 ONCA 549, 259 C.C.C. (3d) 14 (Ont. C.A.) and R. v. Luskin (2012), 2012 ONSC 1764, 282 C.C.C. (3d) 542 (Ont. S.C.J.)), I conditionally stay the charges of manslaughter and dangerous driving causing death. I enter a conviction on the count of criminal negligence causing death (s. 220). As I have attempted to stress, this decision has no impact whatsoever on the sentence I will impose. It does not in any way diminish the seriousness of the offending, nor does it minimize the tragic circumstances and the devastating impact of Mr. Dudzicki’s untimely death.
(b) The Pre-Sentence Report
[23] As I noted in paragraph 6 above, there are serious problems with the PSR. Among them are the following:
(i) The author reported the views of the Officer in Charge that, from her observations of Mr. Aleksev throughout the trial, he did not appear remorseful; (ii) The author reported the views of the Officer in Charge that Mr. Aleksev had acted inappropriately at the scene by not rendering assistance to Mr. Dudzicki; (iii) The author reported that the Officer in Charge endorsed the position of the Crown that Mr. Aleksev should receive a penitentiary sentence; (iv) The author devoted a lengthy section of the PSR to “Comments of the Family”; and (v) The author expressed the opinion that Mr. Aleksev was not a suitable candidate for community supervision and should receive a sentence in a “structured environment,” which I take to be an obvious reference to imprisonment.
[24] The inclusion of this material is inappropriate and beyond the scope of s. 721(3) of the Criminal Code, which requires that PSR’s focus on “the offender’s age, maturity, character, behaviour, attitude and willingness to make amends.” As O’Connor A.C.J.O. said in R. v. Junkert (2010), 2010 ONCA 549, 259 C.C.C. (3d) 14 (Ont. C.A.), at p. 26: “A pre-sentence report is intended to be an accurate, independent and balanced assessment of an offender, his background and his prospects for the future.” While probation officers may seek input from police officers, they are limited in what they may include in a PSR. As Fairburn J. said in R. v. Carrera-Vega, 2015 ONSC 4598, at para. 22: “Reports cross the line when they focus on an officer's views of an offence or offender, to the exclusion of other information. They also cross the line where an investigator's ‘impressions of the facts relating to the offence charged’ are related:” R. v. Rudyk, [1975] N.S.J. No. 33 (C.A.); R. v. Green, 2006 ONCJ 364.” See also R. v. McPherson, 2013 ONSC 1635.
[25] This PSR crosses the line. While police officers may provide information to assist in the preparation of a PSR, it is not an opportunity to weigh in on the issue of what sentence should be imposed. Moreover, a PSR is not a platform for an officer’s opinions about an offender. Similarly, a PSR is not a forum for the expression of views by those impacted by the offence. There is a separate procedure for obtaining input from victims in s. 722 of the Criminal Code. This procedure was used in this case, yielding very helpful information from those affected by the offence. This information should not have been repeated in the PSR. All told, the PSR is unbalanced, unfair and unhelpful.
[26] There is another dimension to this problem. As I explain in the next section, Mr. Aleksev must receive a custodial sentence. The PSR will follow him as he makes his way through the correctional system. It will form part of his institutional file. Correctional and parole authorities may rely upon it in their assessments of Mr. Aleksev. This is why it is imperative that the document be balanced and fair.
[27] When a PSR contains inappropriate content, a sentencing judge has a number of options, including: (1) striking the PSR and ordering that a new one be prepared; or (2) ignoring the inappropriate parts of the PSR. As counsel submitted, the second option is preferable. Expunging the inappropriate content will result in a PSR that is acceptable and consistent with s. 721 of the Code: see R. v. Carrera-Vega, supra, R. v. McPherson, supra. I go one step further. In view of the concerns raised in the previous paragraph, the inappropriate portions of the Report have been redacted. The original version of the PSR will be sealed. The redacted version may be made available to correctional, parole and probation authorities.
(c) The Appropriate Sentence
[28] Determining an appropriate sentence in this case is very difficult. The loss of life, especially a young life like Mr. Dudzicki’s, is tragic. It is made even more so when it was completely avoidable. Sentencing is made more difficult because the offence was committed by a young person, with no criminal record.
[29] Being convicted of criminal negligence causing death, Mr. Aleksev faces a maximum penalty of life imprisonment. The maximum sentence for this offence is rarely imposed, and it will not be in this case. Clearly, general deterrence and denunciation are engaged by this type of offending. However, other principles of sentencing are in play and the appropriate sentence must turn on balancing the aggravating and mitigating circumstances, all within the framework of the guidance provided by the Court of Appeal.
[30] In terms of mitigation, Mr. Aleksev is a youthful first offender. There is a long line of authority in this province stressing the importance of individual deterrence and rehabilitation in these circumstances: see R. v. Stein (1974), 15 C.C.C. (2d) 376 (Ont. C.A.), R. v. Priest (1996), 110 C.C.C. (3d) 289 (Ont. C.A.), R. v. Kutsukake (2006), 213 C.C.C. (3d) 80 (Ont. C.A.) and R. v. Borde (2003), 172 C.C.C. (3d) 225 (Ont. C.A.). Moreover, when a custodial sentence is required for a youthful first offender, as it is here, it should be a measured response. As Rosenberg J.A. held in Priest at p. 296: “Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.” This approach is reflected in ss. 718.1, 718.2(d) and (e) of the Criminal Code.
[31] There are other mitigating factors. Mr. Aleksev has the support of his family. Moreover, because Mr. Aleksev is not a Canadian citizen, he faces the prospect of deportation from Canada, back to a country to which he now has very few ties. However, while this might be considered to be mitigating, in the sense that it is a so-called “natural” consequence of offending, it is not a factor that can serve to reduce the sentence below what would otherwise be appropriate: see R. v. Pham (2013), 2013 SCC 15, 293 C.C.C. (3d) 530 (S.C.C.) and R. v. Freckleton, 2016 ONCA 130. As a result of the combined operation of s. 24 of the Faster Removal of Foreign Criminals Act, S.C. 2013 and s. 64(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, a person who is deemed “inadmissible” may appeal to the Immigration Appeal Division if he or she receives a sentence of less than six months’ imprisonment. The appropriate sentence in this case will far exceed six months’ imprisonment.
[32] The Crown submits that there are a number of important aggravating factors present in this case. However, many of the factors relied upon (including erratic driving, excessive speed, going through a stale red light and almost sideswiping a school bus before hitting Mr. Dudzicki) are constitutive of my conclusions on criminal liability. See R. v. Aleksev, supra, at paras. 41 to 47, 53 to 54. The Crown also relies on Mr. Aleksev’s previous driving record and his apparent penchant for driving too fast. I accept that these facts are aggravating, but only to a certain extent. They are regulatory infractions. Similarly, the fact that the vehicle Mr. Aleksev drove that day was not properly plated adds a degree of irresponsibility to his offending. The Crown alleges that the vehicle was not properly insured. Mr. Aleksev was charged with offences under the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25. These charges were withdrawn, albeit without notification to Mr. Rinaldi. Nevertheless, the defence disputes that the vehicle was uninsured. Without appropriate proof to the requisite standard in accordance with s. 724(3)(e), this cannot be considered to be an aggravating factor.
[33] Lastly, the Crown points to Mr. Aleksev’s deflection of responsibility as described in the PSR. He submitted that any expression of remorse that might be expressed at the sentencing hearing must be discounted as disingenuous. Mr. Aleksev did express some remorse when permitted to do so. In the context of what was said to the author of the PSR, it does ring somewhat hollow. However, I do not discount it completely. I hope that, over time, Mr. Aleksev will come to appreciate that he is solely responsible for taking Mr. Dudzicki’s life. To the extent that his present attitude falls short, it cannot be considered to be as an aggravating factor.
[34] Both counsel relied on many cases in support of their respective positions. The Crown submits that the Court of Appeal has created a penitentiary range of sentence, relying largely on R. v. Linden (2000), 147 C.C.C. (3d) 199 (Ont. C.A.). However, in that case, the Court rejected the existence of an established range for criminal negligence causing death. As Rosenberg J.A. said at p. 300:
If there was any error by the trial judge, it was in assuming that there was a set range for the offence of criminal negligence causing death. The cases demonstrate that criminal negligence causing death can be committed in so many different ways that it defies the range-setting exercise. The cases do not demonstrate a range, only a series of examples that are driven by the almost infinite variety of circumstances in which this offence can be committed. As counsel for the appellant submitted, cases can be found in the reformatory range and there are even examples of suspended sentences.
The only principle that can be stated with assurance concerning this offence is that, where the offence involves not only reckless driving conduct but the consumption of alcohol, the sentences have tended to increased severity over the past twenty years. Otherwise, the particular offence is very much driven by individual factors, especially the blameworthiness of the conduct. The more that the conduct tends toward demonstrating a deliberate endangerment of other users of the road and pedestrians, the more serious the offence and the more likely that a lengthy prison term will be required. [emphasis added]
[35] This approach was confirmed in R. v. Lam (2003), 2003 ONCA 100, 180 C.C.C. (3d) 127 (Ont. C.A.) in which the Court dismissed a Crown appeal from a sentence of two years less a day imposed for criminal negligence causing death. Writing for the Court, Labrosse J.A. said (at p. 126):
However, while the court in Linden stated that there is no set range for the criminal negligence causing death offence, it recognized that driving offences involving reckless conduct and the consumption of alcohol are generally subject to more severe sentences. In addition to the consumption of alcohol or drugs, courts have also treated multiple deaths, racing, reckless driving for a lengthy period of time, a lengthy criminal record, a bad driving record, flight from the police, and leaving the scene of the accident as aggravating circumstances. [emphasis added]
See also R. v. Guay (1986), 15 O.A.C. 111, R. v. Persaud (2002), 2002 ONCA 41, 26 M.V.R. (4th) 41 (Ont. C.A.), R. v. Middleton (2012), 2012 ONCA 523, 289 C.C.C. (3d) 55 (Ont. C.A.), all involving reformatory sentences.
[36] Many of the cases that have resulted in penitentiary terms involved the consumption of alcohol, a feature that is missing for this case. This is not to say that the cases of criminal negligence causing death that do not involve alcohol are not serious. Far from it. This case is a sad reminder of the devastation that can be caused by the egregious conduct of a sober driver. Nevertheless, the governing authorities highlight the aggravating nature of alcohol consumption in this context.
[37] Similarly, a realistic view of the case law does not support the imposition of an intermittent sentence. An intermittent sentence would fail to “satisfy the sentencing principles of proportionality, denunciation and deterrence:” see R. v. Christnik, 2012 ONCA 141 (a conditional sentence case).[^1]
[38] The recent decision of the Court of Appeal in R. v. Laine (2015), 2015 ONCA 519, 327 C.C.C. (3d) 67 (Ont. C.A.) is very instructive. Like Mr. Aleksev, Mr. Laine was in his early 20’s. He drove in a criminally negligent manner on a country road and lost control of his vehicle. This caused the death of two of his friends, and serious injuries to another. No alcohol was involved. The trial judge imposed a total sentence of 4 years’ imprisonment.
[39] The Court of Appeal reduced the sentence to two years less a day. Writing for the Court, MacFarland J.A. characterized Mr. Laine’s conduct and circumstances as follows (at p. 83):
The appellant’s wanton course of conduct likely occurred in less than two minutes, over a stretch of highway 1.7 km in length. Neither the distance nor the time involved were long, but the consequences were utterly devastating.
The families of the two young women who were killed as the result of the appellant's conduct have lost their loved ones forever. Society has been deprived of all they might have been. Ms. Sheppard will always suffer from the serious injuries she sustained. Nothing the court can do will change or alleviate this suffering.
However, the court must fix the proper sentence for this offender, who committed these offences in these circumstances.
The appellant was 21 years of age at the time of the offences. He had had his G2 driver's licence for about one year. No alcohol or drugs were involved in the offences. He had a minor highway traffic record, which the trial judge described as "of no consequence". He had no criminal record. [emphasis added]
Many of these same important features are present in this case.
[40] The Court held that the sentencing judge erred in failing to take into account Mr. Laine’s youth and the fact that he had had never been incarcerated (citing R. v. Priest, supra and R. v. Brown, 2015 ONCA 361). In reducing the sentence to one of two years less a day, MacFarland J.A. said the following at p. 84:
In my view, given the appellant's youth, the circumstances of the offence, the fact that no alcohol or drugs were involved, the appellant's efforts to rehabilitate himself, and the support offered by his family, the appropriate sentence would be two years less a day. I would vary the sentence accordingly.
[41] It might be said that Mr. Aleksev has done little to rehabilitate himself. However, there are few offence-related aspects of his character or circumstances that require rehabilitation. His driving conduct involved a single instance of gross irresponsibility, against a backdrop of a casual attitude towards the privilege of driving and putting a motor vehicle on the public roads and highways of this province. However, unlike Mr. Laine, Mr. Aleksev faces grave immigration consequences for his role in a very similar offence, committed in very similar circumstances at the same stage of life.
[42] Parity is a principle of sentencing prescribed by s. 718.2(2)(b) of the Criminal Code. The section provides that a judge should impose sentences “similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” The parity principle does not demand that offenders and offences be “identical”; the standard is “similar.” I am satisfied that the circumstances of this case are sufficiently similar to Laine to warrant a similar sentence.
Conclusion
[43] On the count of criminal negligence causing death, I impose a sentence of 2 years’ less a day imprisonment, followed by 3 years of probation, upon which I invite the submissions of counsel as to conditions. In addition, Mr. Aleksev will be prohibited from driving for a period of 15 years under s. 259(2)(c) of the Criminal Code. This increase is intended to reflect the devastating consequences of Mr. Aleksev’s offending, and his prior abuse of the privilege of driving. I enter conditional stays on the remaining counts.
TROTTER J. RELEASED: September 28, 2016
