COURT FILE NO.: CR16400007630000 DATE: 20180910 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Crown – and – MALEK AL-MADANI and MARIO SEJKO Defendants
Counsel: Peter van den Bergh, for the Crown Brian Brody, for the Defendant Mario Sejko
HEARD: August 17, 2018 SPIES J. (Orally)
Reasons for Sentence of Mario Sejko
[1] On January 22, 2018, Mario Sejko was convicted by a jury of operating a motor vehicle in a manner dangerous to the public contrary to s. 249(1)(a) of the Criminal Code. He is now before me for sentencing. I have already sentenced his co-accused, Malek Al-Madani who was also convicted on the same date; of dangerous driving causing death. Mr. Sejko’s sentencing was adjourned because he retained counsel who could not attend at the time of Mr. Al-Madani’s sentencing.
[2] On May 3, 2018 I sentenced Mr. Al-Madani to nine months in custody, a period of probation of two years, which included 200 hours of community service, and a driving prohibition order for a period of ten years; R v. Al-Madani, 2018 ONSC 2461.
The Facts
Circumstances of the Offence
[3] As this was a jury trial, I must make my own assessment of the evidence to arrive at a factual foundation for this sentencing. For the most part, the facts before the jury were not in dispute save for the issue of whether or not there was an intervening act that caused Mr. Al-Madani to lose control of his vehicle, which is not relevant to the sentencing of Mr. Sejko. With that in mind, I find that the circumstances of the offence Mr. Sejko was convicted of are as follows.
[4] In the early morning hours of October 9, 2015, Mr. Al-Madani and Mr. Sejko were driving at an excessive speed westbound on Lawrence Avenue East approaching the intersection of Lawrence Avenue East and Railside Road to the south and Curlew Drive to the north, in the City of Toronto. In this location Lawrence Avenue East is a main thoroughfare, with three lanes westbound with a fourth lane for left turns onto Railside Road.
[5] The posted speed limit on Lawrence Avenue East at the time was 60 km/hr. Mr. Al-Madani was driving a Dodge Caliber in the middle lane and he had three passengers. Mr. Sejko was in the curb lane, driving a Porsche and he had one passenger in the front seat; his long-time girlfriend. Mr. Al-Madani and Mr. Sejko did not know each other; they just happened to be travelling close together at the time of the collision at similar speeds.
[6] The intersection that Mr. Al-Madani and Mr. Sejko were approaching had traffic lights with pedestrian crosswalks. Although it was late at night a Tim Horton’s on the northeast corner of the intersection was open and traffic was going into and out of its driveway onto Lawrence Avenue East, very close to the intersection. It was of course dark and it was raining heavily - the road was wet.
[7] There was no evidence that Mr. Al-Madani or Mr. Sejko had consumed any alcohol or that either one was impaired by any drug. Furthermore, there was no evidence of any erratic driving on the part of either driver before the collision.
[8] Based on the evidence of an expert called by the Crown, Mr. Ste-Croix, I find that Mr. Sejko’s Porsche was travelling at 114-115 km/hr., slightly slower than Mr. Al-Madani’s Dodge Caliber which was travelling at 126 km/hr. in the short period just before the accident. Mr. Sejko was able to lower his speed and bring his vehicle to a safe, controlled stop and he was not involved in the collision between Mr. Al-Madani and the pedestrian, Mr. Gaitskell, who was killed.
Circumstances of the Offender
[9] I received a Pre-Sentence Report (“PSR”) dated March 12, 2018. The author of the PSR spoke to not only Mr. Sejko but also his parents, his girlfriend, his girlfriend’s mother, a friend and others. Mr. Sejko was born on November 16, 1995 in Albania. He came to Canada with his parents at the age of five. He has one younger brother, who is currently attending high school. He grew up in a loving and supportive household. He has been involved in romantic relationship with his girlfriend for eight years, off and on. This relationship has strengthened over the years.
[10] Mr. Sejko did not complete high school at the usual time. After he had some Grade 11 credits, he quit as he did not enjoy school. He then began working with his father and his father’s construction company. While in high school, Mr. Sejko was suspended and expelled for various reasons which he attributes to his friends at the time that influenced him negatively. Since leaving high school, he has minimized his association with these friends. His father confirmed that he has been working with him fulltime for three years until he started college last year, and that he is “hard-working, polite with other workers and great with customers”.
[11] The PSR states that Mr. Sejko has completed an equivalency test which I assume is with respect to his high school diploma and that he registered for a college real estate course in 2017. Mr. Sejko has also expressed interest in furthering his education in personal injury law but needs to save money for his tuition.
[12] According to the author of the PSR, when he met with Mr. Sejko, Mr. Sejko did not accept any responsibility for the offence. He admitted that he was speeding, but not up to the level of the police reconstruction report, and that he was able to control himself and his car. He did not express any remorse for his actions, and believed that the “investigation was done wrong”. He also blamed the police for being biased. Nevertheless, he expressed willingness to comply with all of the conditions of a community supervision sentence if deemed appropriate by this Court.
[13] Based on the PSR, Mr. Sejko clearly has the support of his parents, his girlfriend and his girlfriend’s mother. A friend also provided a character reference letter. The character references all agree that Mr. Sejko has matured greatly since the time of this offence.
[14] There is a comment from the investigating officer in the PSR that I have ignored.
[15] To my surprise, Mr. Sejko has a criminal record. I say this as he was self-represented at trial and struck me as a very respectful, intelligent young man. He handled his defence before a jury very well, even bringing a motion for a directed verdict. He had no record for provincial driving offences at the time of his conviction for dangerous driving.
[16] Mr. Sejko was convicted in June 2012 as a youth, with carrying a concealed weapon, theft under $5,000.00, uttering threats, and assault with a weapon. I do not know what the weapon was save that it was not a firearm. He received 18 months’ probation and a mandatory weapon’s prohibition order. Mr. Sejko’s probation ended January 6, 2014. Mr. van den Berg advised that pursuant to s. 119(9)(b) of the Youth Criminal Justice Act, Mr. Sejko’s youth record is now part of his adult record as there has been a further finding of guilt within a three-year period.
[17] Mr. Sejko was also convicted in August 2016, which would have been about ten months after the offence before this Court, of robbery. Mr. Brody submitted that Mr. Sejko stole a pair of gloves at the time when he reported that he was under the influence of drugs, mainly cocaine, Xanax and alcohol. He could not recall his reasoning to commit the crime. He pleaded guilty and received a sentence of 90 days intermittent (in addition to five days of pre-sentence custody), 18 months’ probation, and a discretionary weapons prohibition order pursuant to s. 110 of the Criminal Code for 10 years.
[18] This robbery conviction is only relevant to sentencing because it suggests that Mr. Sejko had a problem with alcohol and by his own admission, some illegal drugs. It is not clear when this problem began although it seems that it was before the robbery, although as I have said there was no suggestion in the evidence that alcohol or drugs were a factor in Mr. Sejko’s driving. Mr. Sejko told the author of the PSR that he relapsed, which he believes was due to the stress from the charge before this Court. The new charge for robbery was described by Mr. Sejko to the author of the PSR as a “wake-up call”. He stated that he has been “self-regulating” to remain abstinent since then, although he admitted that he used illegal drugs on a couple of occasions since the robbery conviction, although when he did, he did “not enjoy the feeling at all”. Mr. Sejko has never completed any counselling or treatment in regards to his substance abuse. I was advised that Mr. Sejko did seek counsel for depression, but he has not sought any counselling for his drug problems. He has now moved in with his girlfriend, and apparently his depression has subsided.
[19] The author of the PSR concludes that Mr. Sejko appears to be a suitable candidate for community supervision. Counselling is recommended by his probation officer, among other terms.
[20] Also filed as part of the sentencing submissions is a letter dated July 26, 2018, from the Co-Coordinator from the Bloor Central Salvation Army, confirming that Mr. Sejko has completed 32 hours, with 18 still pending, painting and cleaning for the Salvation Army, in the period from July 18 to July 26, 2018. He is described as an “incredible help”, having led a small team of painters. He provided them with hundreds of hours’ worth of work by the team he led. The letter states that Mr. Sejko has assured them that he will continue to volunteer, and they look forward to having him.
[21] In a letter from Mr. Sejko to the Court, he states that he knows of his wrongful actions on October 2015, and although he was not racing, he admits he was speeding. He states,
The tragedy that took place on the rainy night of October 2015 not only affected me, but it also ruined the lives of many others. My speed might have not been a contributing factor to the death of Brian O’Malley, but I still have tremendous remorse carried on my shoulder to this day. This event changed my life drastically, starting from depression all the way to recovery.
[22] Mr. Sejko stated in his letter that in the first year after the accident he suffered from severe depression, but that he has moved on and has taken steps to put himself in school again and is now in the process of completing the real estate course at OREA College. He also stated that he has matured tremendously over the past three years and takes responsibilities for his actions.
Legal Parameters
[23] The maximum sentence for the conviction of dangerous driving pursuant to s. 249(2) of the Criminal Code is five years. There is no minimum. In addition, pursuant to s. 259(2) of the Criminal Code, a discretionary driving prohibition not exceeding three years may be imposed.
Positions of Crown and Defence
[24] Mr. van den Bergh, submitted that it would not be wrong to sentence Mr. Sejko to 30 days in custody. However, he accepted that there has been a real changes in Mr. Sejko since his conviction for robbery. It is his position that I should impose a $2,000.00 fine, two years’ probation, and an 18 months’ driving prohibition, which he submitted gives Mr. Sejko the maximum credit for how he has conducted himself since the offence.
[25] Mr. Brody submitted that I should give Mr. Sejko a conditional discharge, and that there be a probation period of 12 to 18 months’ with a requirement for further community service hours. He did not agree that there should be an 18 month driving prohibition and submitted that one year would be enough.
Sentencing Cases – Dangerous Driving
[26] Mr. van den Berg relied on one decision, R. v. Rodrigues, 2007 ONCJ 492, where the court was sentencing two offenders, Mr. Rodrigues, who had been involved in the collision that caused the death of the parents of a little girl, and Mr. Gasparro, who was convicted only of dangerous driving. Mr. Gasparro had pleaded guilty, had no criminal record, no driving record, and there was no alcohol or drugs in his system at the time. It appears the main issue was that he was speeding as he proceeded through the intersection, and once he realized an accident took place, he returned to the scene. Mr. Gasparro was 19 at the time of the offence, had very strong family support and a positive PSR. At para. 22, the court noted that it was the speeding that led to the dangerous driving charges. Mr. Gasparro was sentenced to a fine of $2,000, probation for two years, a driving prohibition as a term of his probation for 18 months, and 100 hours of community service. Mr. van den Bergh argued that Mr. Sejko’s situation is more serious given his criminal record and that he is not be entitled to the credit Mr. Gasparro would have been entitled to because he pleaded guilty. I agree with this submission.
[27] Mr. Brody relied on a number of cases. In R. v. Nelson [2002] O.J. 4282, Justice Hill dealt with a summary conviction appeal in a case the drivers of two vehicles were observed to be shouting back and forth and driving aggressively, narrowly missing each other over a five to six km stretch of a highway. The drivers at no time signal any lane changes. The speed of the two vehicles ranged between 80 to 120 km/hr. during this altercation in a posted 100 km/hr. zone. Neither offender had a prior criminal record. The trial judge sentenced the Appellant to a fine of $600, probation for nine months with driving restrictions during the course of the probation.
[28] On appeal, Hill J. acknowledged that the other driver’s driving was markedly worse than that displayed by the Appellant. He also noted that the trial judge had received little assistance respecting the operation of the provincial regulatory suspension scheme following the conviction for dangerous operation of dangerous driving. He noted, however, that pursuant to section 41(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, (HTA), provides that the drivers’ license of a person “who is convicted of an offence […] under section 249 […] of the Criminal Code […] is thereupon suspended […] upon the first conviction for one year”. Considering various factors, most of which are not present here, Justice Hill substituted a conditional discharge and set aside the conviction. He quashed the fine, but kept the nine months’ probation order.
[29] In R. v. Ahmed, 2015 ONSC 4241, A. O’Marra J. sentenced to the offender to a conditional discharge plus 12 months’ probation. The conditional discharge was considered appropriate as the offender was a young man with no record who was caught up in a situation not of his making. Although he caused a collision, it was the result of an impulsive reaction on finding himself in a fearful situation. The trial judge considered s. 730 of the Criminal Code, which deals with absolute and conditional discharges, and at para. 13, the court stated:
Dangerous driving is the type of offence which requires the sentence that denounces the conduct and deters others who may present as a danger to other members of the public. It is a rare circumstance in which a discharge will be granted when a person commits the offence of dangerous driving, because of the need to emphasize the sentencing objectives of denunciation and deterrence. But that does not mean it is precluded. The courts have long recognized, when the preconditions have been met, that there is nothing in the language of the section that limits its application to only technical or trivial violations. [Citation omitted, emphasis added]
[30] The court noted at para. 14 that the offender had addressed the court and had accepted responsibility for his actions, which the court accepted as an expression of genuine remorse. The court imposed a period of 12 months’ probation with a driving prohibition as a condition of the discharge for the 12 months in addition to a one year driving prohibition under s. 259(2) of the Criminal Code, which in the view of O’Marra J. provided the necessary deterrent message.
[31] In R. v. Lau, [2017] O.J. 2054, the offender was 23 years’ old with an acknowledged difficulty with alcohol, and no criminal record court. The sentencing justice ordered a conditional discharge and a period of probation for two years. In addition, pursuant to section 259 of the Criminal Code on consent, the offender was prohibited from operating a motor vehicle for 12 months.
[32] In R. v. Lund, [2017] O.J. 2047, the court also found a conditional discharge was appropriate. In that case, the court referred to R. v. Meyers (1978, 37 C.C.C.) (2nd) (Ont. C.A.), at pp.184-5, where the court stated that where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration. The court referred to s. 742.1, which lists the five criteria that a court must consider before deciding to impose a conditional sentence and although the court found at para. 60 that:
[t]his was a planned and deliberate crime. It continued for an extended period of time. These young men put themselves and other members of the community at risk when they set out on this joint venture. The two of them died.
[33] Nevertheless, the court granted the offender, who had no criminal record, a conditional discharge and a period of probation for two-years. Mr. Brody submitted that this case was most on point. In this case, however, the offender pleaded guilty, which the court took to be an acceptance of responsibility, as well as an expression of remorse.
[34] The final case Mr. Brody provided is R. v. Hussein, [2017] O.J. 4770. In that case, the offender pleaded guilty and was granted a conditional discharge with a period of probation of 18 months and an 18 month driving prohibition.
[35] The case law that counsel have provided to me suggests that a conditional discharge for the offence of dangerous driving may be appropriate for an offender who has no criminal records and had pleaded guilty to the offence and/or the sentencing judge is satisfied that the offender is truly remorseful for his conduct that constituted the offence.
Principles of Sentencing
[36] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which the sentence I impose should attempt to achieve. These are denunciation, deterrence; both specific and general, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. In addition, in imposing sentence I must take into account the principle of proportionality and the applicable aggravating and mitigating circumstances relating to the offence as set out in s. 718.2.
Determination of a Fit Sentence
[37] Mr. van den Bergh submitted that Mr. Sejko was travelling close to double the speed limit on a rainy night and there was a very realistic possibility of vehicles turning onto Lawrence Avenue. He put other users of the roadway to enormous risk, as he was driving too fast and had less time to react to others, and others had less time to react to him. It is his position that the primary sentencing objective in this case is denunciation and deterrence.
[38] Mr. van den Bergh also argued that Mr. Sejko is not a man without a criminal record and that a conviction is required; that this offence could have required jail time, but for all of the positive steps Mr. Sejko has taken since his robbery conviction.
[39] Mr. Brody conceded that Mr. Sejko’s driving demonstrated a marked departed from a reasonable driver. He pointed out, however, that Mr. Sejko was able to stop his car and helped at the scene, and attended to others that were hurt. His girlfriend was the one who called the ambulance. He submitted that I should give Mr. Sejko’s youth record very little weight and he pointed out that there was a large gap in time in Mr. Sejko’s criminal record to the dangerous driving charge. He also argued that Mr. Sejko left high school to stop hanging out with the peer group that was causing trouble in his life which show maturity. He also submitted that some of Mr. Sejko’s conduct reflects that he has taken personal responsibility for this offence.
[40] Mr. Brody advised this Court that he is concerned what impact multiple convictions will have on Mr. Sejko’s application to become a real estate agent. He also pointed out that Mr. Sejko was not able to drive for three months while he was on bail, and then he was allowed to drive from 6 a.m. to 8 p.m. and thereafter from 6 a.m. to 12 a.m. He complied with those terms.
[41] Mr. Brody submitted that there was an absence of certain aggravating factors. For example, it has not been established that Mr. Sejko was driving dangerously for an extended period of time, he didn’t attempt to flee the scene, he complied with strict conditions on his driver’s license after he was charged, he was 19, and he has bright prospects. He submitted that a conditional discharge in this case would not be contrary to the public interest or put Mr. Sejko at risk of future offences. He submitted that Mr. Sejko’s criminal convictions will hinder him from getting on with his life.
[42] With these submissions in mind, in my view, the following facts are aggravating factors in this case. I do not accept Mr. Brody’s submission that this was a not a premeditated offence. Although I do not know how long Mr. Sejko was driving at a high speed, his decision to do so was clearly a deliberate and conscious decision to drive dangerously at an excessive speed as he was approaching an intersection. This was not a case of momentary inattention. He drove at a dangerously high speed particularly given that it was dark, the roadway was wet, it was raining heavily, and although the traffic was light he was approaching an intersection with a light and there were cars pulling onto the roadway from the Tim Horton’s and pedestrians could be expected to be on the sidewalks. I agree with Mr. van den Bergh that the fact that Mr. Sejko has a criminal record is also an aggravating factor.
[43] Mr. Sejko cannot be penalized for insisting on his right to a trial, but he does not get the benefit of a reduced sentence because of a guilty plea. This is a neutral factor.
[44] In terms of mitigating factors I find that the PSR is positive and I am impressed with the steps that Mr. Sejko has taken to obtain his high school diplomas and improve his employment prospects. Mr. Sejko was clearly afforded a good upbringing in a loving family where he has continued to enjoy support and he has the support of his longtime girlfriend and her mother.
[45] The other mitigating factors that I find exist that are relevant to sentence in this case are as follows:
a) Certain aggravating factors present in other cases were not present in this case. There is no evidence that Mr. Sejko was driving erratically before the collision or that he had been speeding for any significant period of time or that he attempted to flee the scene of the collision. Furthermore, he had not consumed any alcohol or drugs nor is there any evidence that he was distracted while driving; b) Mr. Sejko remained at the scene and he and his girlfriend assisted in calling 911 and assisting those who were hurt; c) Mr. Sejko was only 19 at the time of the accident; d) Mr. Sejko impressed me as an intelligent young man who has a lot of potential if he can get his life back on track. His steps to upgrade his education corroborate this.
[46] There is no question that in sentencing Mr. Sejko I must consider the primary goal of denunciation and general deterrence given the nature of this offence.
[47] In terms of specific deterrence, I have considered the sincerity of Mr. Sejko’s expression of remorse in his letter to the Court. Given what he told the author of the PSR, I have some real concerns as to whether or not he truly takes responsibility for his actions and accepts the implicit finding made by the jury that he his driving in the conditions on the night in question at speed almost double the posted speed limit constituted dangerous driving. He is of course entitled to maintain this view but in terms of sentencing I am not sure that he appreciates that the fact he was able to bring his car to a controlled stop and did not hit and kill a pedestrian is very fortunate but does not excuse his dangerous driving. Had he been in the lane that Mr. Al-Madani was travelling in he might have been the one who killed Mr. Gaitskell. Given this concern in my view a need for specific deterrence is still present. I do accept however that the accident had a severe impact on him and that like Mr. Al-Madani it appears he has learned a hard lesson.
[48] I must also consider the need for general deterrence. Driving offences have been considered to be very serious offences. As I stated in my sentencing of Mr. Al-Madani at para. 104;
There is clearly still a need that other drivers, particularly young drivers, know that irresponsible use of a motor vehicle on our highways will not be countenanced. As Epstein J.A. said at paras. 41 and 48; “[d]angerous driving puts the public at great risk of harm and a motor vehicle can, in a moment of recklessness, be transformed into an object capable of destroying lives”.
[49] In my view the cases relied upon by Mr. Brody are distinguishable from the case at bar. Those offenders got the benefit of pleading guilty and not having a criminal record. I have no evidence as to whether or not Mr. Sejko’s criminal record is an impediment to his obtaining his real estate licence. In my view it is more likely that the Toronto Real Estate Board would be more concerned about the robbery conviction than a dangerous driving conviction that did not involve the use of alcohol or drugs. Furthermore, as I have said I have concerns about the sincerity of Mr. Sejko’s expression of remorse that I have already referred to. For these reasons in my view this is not one of those rare cases where a conditional discharge is appropriate.
[50] Considering all of the factors I have referred to and the submissions of counsel and Mr. Sejko, I have come to the conclusion that a conviction for dangerous driving is required and that a fit sentence is a $2,000 fine and a period of probation of 18 months. I do accept however the submissions of Mr. Brody that the driving prohibition be for only one year.
Disposition
[51] Mr. Sejko, would you please stand.
[52] With respect to your conviction for dangerous driving I order that you pay a fine in the amount of $2,000. You will have 18 months to pay this fine.
[53] In addition you will be subject to a period of probation for 18 months. In addition to the compulsory conditions of this probation order, provided for by s. 732.1(2) of the Criminal Code, the additional conditions of the order pursuant to s. 732.1(3) of the Code are as follows:
a) report within two working days of today, in person, to a probation officer and thereafter when required by the probation officer; b) do not change your address without the prior approval of the probation officer; c) make reasonable efforts to further your education or vocational training and/or find and maintain suitable employment either as an employee or business owner and provide progress reports to your probation officer as directed; d) attend and actively participate in counselling or treatment program(s) for psychological or substance abuse issues as identified by your probation officer and sign releases to monitor compliance as needed; e) complete 150 hours of community service under the supervision of your probation officer. Ideally that will be with the Salvation Army but I leave that to you and your probation officer.
[54] Furthermore, pursuant to s. 259(2) of the Criminal Code, I make an order prohibiting you from operating a motor vehicle on any street, road, highway or other public place for a period of one year.
[55] Mr. Sejko, a copy of the Probation Order will be given to you by the court officials. Please pay very careful attention to all of these conditions. I must tell you that breach of any of these conditions will be taken very seriously by this Court. You must appreciate that incarceration will likely result if any of the conditions of your probation are breached.