Court File and Parties

COURT FILE NO.: CR-15-10000611 DATE: 20170324 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Regina v Haytham Markos

BEFORE: E.M. Morgan J.

COUNSEL: Marnie Goldenberg, for the Crown Richard Diniz, for the Defendant

HEARD: Sentencing submissions: February 23, 2017

Sentencing Judgment

[1] On January 10, 2017, after a short trial before me sitting as judge alone, I convicted Haytham Markos of dangerous driving causing bodily harm.

[2] Mr. Markos was on trial as a result of a collision that occurred on April 6, 2014, while he was driving his motorcycle northbound near the corner of Yonge Street and Pleasant Boulevard in Toronto. He collided with a left-turning southbound vehicle and was thrown from his motorcycle. The speeding motorcycle continued northbound and veered east onto the sidewalk, striking Dorianne Sears, who had just come out of a coffee shop and was walking on the sidewalk on the east side of Yonge Street.

[3] The collision occurred because Mr. Markos was driving too fast and passing cars by whipping around them to the left then to the right and in between the two lanes of vehicles. There is little doubt as to how the accident happened; not only were there several witnesses who saw it take place, but the entire thing was captured on video from a dash camera that by chance was mounted on the car just behind Mr. Markos’ motorcycle when he stopped at a red light just prior to the collision.

[4] Jamie Holcomb, a passenger in the car with the video camera, stated that Mr. Markos’ motorcycle was “weaving in and out of traffic and going much faster than the rest of traffic.” The video shows Mr. Markos moving left to pass the car directly in front of him and then immediately moving right to pass a CAA truck in front of him in the left lane. Another nearby driver stated that Mr. Markos’ motorcycle “immediately took off from the light at a much faster speed than traffic.” Ms. Holcomb estimated that Mr. Markos was driving “[p]robably twice as fast as other traffic.”

[5] On the video, Mr. Markos can be seen doing what is often referred to as a ‘whip-around’ pass with respect to the vehicles directly ahead of him and ahead of him to the right. His motorcycle buzzes past the two cars and, being a motorcycle, is able to squeeze in-between the two cars while pulling ahead of both of them. It is a patently dangerous move, and is done in a way which not only involves excessive speed but which puts him between other vehicles so that his line of sight is obscured. He did not see the southbound car turn left in front of him, and the southbound driver did not see him.

[6] Ms. Sears was very seriously injured as a result of Mr. Markos’ driving. As her hospital records were admitted into evidence at trial on a consent basis, I had not heard Ms. Sears testify before she read her victim impact statement at the sentencing hearing. It was a very dignified but powerful statement. One would have to be bereft of feelings not to have been moved by it.

[7] Ms. Sears was an active, healthy 67-year old on April 6, 2014. That Sunday afternoon, she was engaged in the most natural and innocent pastime: walking along Yonge Street, looking at the shops, and enjoying the early spring weather. She stopped for a coffee at the corner of Young and Pleasant. She came out of the coffee shop, and in an instant her life changed forever. I know from the trial that Mr. Markos’ motorcycle came careening toward her on the sidewalk after it hit the southbound vehicle, and that it crashed into her and put her through the plate glass window of the coffee shop. Ms. Sears says that she recalls stepping onto the sidewalk, but that the next thing she can recall was waking up in a hospital bed some three months later.

[8] The hospital report shows that Ms. Sears suffered spinal fractures, facial and cranial damage, and more broken bones, vertebrae and ribs, not to mention soft tissue injuries, than one would care to count. When she related her experience in her victim impact statement, she did not go out of her way to over-dramatize the medical issues she has faced. But her labored gate, her careful mannerisms, and the intensity of her expression let anyone who was listening know that she suffered, and continues to suffer, immensely.

[9] Ms. Sears indicated that she can no longer live the life that she once did, and is in need of constant medical attention. Given the prolonged period of hospitalization and the extensive nature of her injuries, the fact that she is able to get up and attend at court is a testament to the advanced medical intervention she received and, no doubt, to her own inner strength. Officer Arthur Lane of the Toronto Police who investigated the collision testified that he saw Ms. Sears the night of the accident as she lay in the hospital bed. He said that from his perspective it is a wonder that she is still alive, as on the day of the collision it was unclear whether she would survive. Needless to say, Ms. Sears deserved none of this pain and suffering.

[10] I have had the benefit of reading a Pre-Sentence Report on Mr. Markos. The Report indicates that Mr. Markos has a supportive family network. Several of his family members, together with his fiancée, attended the sentencing hearing. He has worked as an auto glass installer, and has plans to continue working for his brother who has recently opened an auto glass business. The Report also indicated that Mr. Markos is sorry that Ms. Sears was injured as a result of the collision, and that he certainly did not intend to hurt anyone – least of all himself, as he also had some injuries as a result of the incident.

[11] The one thing that I found surprising was that the author of the Report indicated that Mr. Markos had just purchased a new motorcycle and was anticipating getting back on the road. When Mr. Markos testified at trial, he stated that he was so impacted by the collision that, despite the fact that it was his hobby and passion, he had no plans to ever ride a motorcycle again. He intimated at the time that he did not want to risk any further injuries to himself or others. To learn that he has a brand new motorcycle therefore took me by surprise.

[12] Counsel for Mr. Markos advised me that Mr. Markos purchased the new vehicle not so much to ride it, but to ensure that he can keep his license current. That seems like a rather expensive licensing requirement, and I must say it surprises me that one has to actually own a motorcycle to keep one’s motorcycle license current with the Ministry of Transportation, but that is not the issue here. The real issue is whether Mr. Markos has learned anything from this tragic incident.

[13] Mr. Markos is not entirely insensitive, and I do believe that his statement that he is sorry for Ms. Sears’ suffering is genuine. At the same time, he has apparently absorbed little of the driving lesson implicit in the collision that he caused. The Report indicates that Mr. Markos continues to insist that his driving was “not that bad” and that he was not at fault on the day in question. That is not a good sign, and may go some way to explain why he is looking forward to riding again.

[14] I do realize that it is often difficult to put one’s own actions into perspective. People tend to see the world, and especially their own conduct, through their own eyes and not from an objective point of view. That, however, should not be the case here. Mr. Markos, like me, has seen the videotape of his driving and the collision. It was played over and over again at trial. Seeing oneself on video is typically an eye-opening experience, especially when the action in issue is rather dramatic.

[15] Mr. Markos has watched himself, moving twice as fast as the rest of traffic, zipping out of the right lane, into the left lane, out of the left lane, and back into the right lane, all within a few seconds and while slipping in between lines of cars moving up Yonge Street. With all of that displayed in a few crucial minutes of videotape, he does not think that he did anything wrong or that he may have been at fault in the collision and the cause of Ms. Sears’ near-death experience. Since I too have watched the video a number of times, I can only say that it is rather arresting to hear his view of it. Mr. Markos has much to contemplate.

[16] When it comes to dangerous driving, the Court of Appeal has indicated that, “General deterrence and denunciation are the most important factors in the determination of a sentence in a case such as this one”: R v Rawn, 2012 ONCA 487, at para 33. With that in mind, counsel for the Crown is seeking a custodial sentence of 18 months. She compares this case with R v Holland, [2000] OJ No 400 (Ont CA), where the accused sped through a red light and the trial judge sentenced him to 5 months in custody plus 2 years of probation. The Court of Appeal overturned the sentence, and increased it to 18 months in custody. In the process, the court opined that, “The sentencing judge took exaggerated account of remorse and family history, and underemphasized the seriousness of the offence and the severity of the injuries.”

[17] This case is also analogous to R v Irons, 2016 ONSC 1490, where the accused was travelling southbound on Allen Road in clear, dry weather, and with excessive speed made two unsafe and, as the court described it, “extreme lane changes” and then rear-ended a motorcycle with a passenger on it. As the court observed, at para 69, the driver “made a deliberate and conscious decision to drive dangerously on a busy highway. This is not a case where momentary inattention caused a collision”.

[18] Section 718 of the Criminal Code indicates that deterrence is an important goal to keep in mind here. Indeed, section 718.1 requires that the sentence be proportionate to the gravity of the offence and the responsibility of the offender. In Irons, the court described the range of sentences in the reported case law for similar incidents. At para 68, the court pointed out that where the dangerous driving results in serious injuries, the appropriate range is 6 to 18 months incarceration with a 5 year driving prohibition.

[19] Counsel for Mr. Markos points out that there are mitigating factors here as well. No alcohol was involved in the collision, and Mr. Markos’ driving record, while not entirely clean, shows nothing but relatively minor offences in the past. This was a crime of negligence, not intent, and is not as severe as a case where a person is intentionally street racing and causes a serious crash.

[20] Nevertheless, Mr. Markos put everyone around him at risk by his excessively fast and dangerous driving. He could have killed himself, and it is a miracle that he did not kill Ms. Sears. He also could have killed the driver of the vehicle that he hit; indeed, he only avoided injuring that driver because Mr. Markos’ motorcycle was no match for the other driver’s rather bulky SUV.

[21] It is not Mr. Markos’ right to jeopardize other people’s health and safety in this way. As the Ontario Court of Justice observed in R v Nandlall, [2009] OJ NO 3451, at para 51, “It is a privilege to possess a driver’s license to operate a motor vehicle. That privilege was seriously abused on [the day of the collision].”

[22] I hereby sentence Mr. Markos to 12 months in custody, followed by 2 years’ probation. In addition, Mr. Markos shall be prohibited from driving a motorcycle for a period of 5 years from today.

[23] The terms of probation to be adhered to by Mr. Markos are as follows:

• that upon completion of the custodial sentence, he will report to a probation officer as required;
• that he will have no communication or contact, direct or indirect, with Dorianne Sears, including in person, by telephone, digitally, or via any social media;
• that he maintain a clean driving record with no moving violations during the probation period; and
• that he take driving lessons, including motorcycle driving lessons, as required and approved by the probation officer.

[24] The Crown has also requested two ancillary orders: a DNA order and a firearms prohibition under s. 109 of the Criminal Code. In my view, neither of those are relevant to the offense at issue here, as this was a crime of negligence rather than intentional conduct, and had nothing to do with firearms. I therefore decline to issue those ancillary orders.

Morgan J. Date: March 24, 2017