Court File and Parties
COURT FILE NO.: CR-18-30000004 DATE: 20190712 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – KUNAL BULLAND Defendant
Counsel: Ben Snow, for the Crown Jessica Zita, for the Defendant
HEARD: June 14, 2019
Reasons for Sentence
FAIETA J.
[1] On February 19, 2019, after a trial without a jury, Kunal Bulland was found guilty of impaired driving causing bodily harm.
[2] The circumstances that gave rise to this conviction were as follows. Mr. Bulland attended a concert in downtown Toronto. After the concert ended, Mr. Bulland took public transit to pick up his car from the vicinity of the Kennedy subway station. On September 7, 2016, at about 12:25 am, Mr. Bulland’s car struck a pedestrian, Mr. Ian Godin-Chevrier, who was walking across Danforth Road. Mr. Bulland did not attempt to “hard brake” or take action to avoid colliding with Mr. Godin-Chevrier at any time before the collision. The posted speed limit was 60 km/hour. Mr. Bulland’s car was travelling at a speed between 71 and 86 kilometres per hour at the time of impact. The force of the impact projected Mr. Godin-Chevrier about 30 metres down the road. Mr. Godin-Chevrier did not die as a result of the collision however his injuries are catastrophic. Mr. Bulland admitted to drinking three pints of beer earlier that evening before the concert began. Mr. Bulland’s cognitive faculties were impaired at the time of his collision. Mr. Bulland had a blood alcohol concentration (“BAC”) of between 80-120 mg of alcohol in 100 ml of blood given that his breath samples taken about two hours after the collision showed a BAC of 84 mg of alcohol in100 ml blood and 85 mg of alcohol in 100 ml blood.
[3] The sole question now: what is a fit sentence for Mr. Bulland?
Impact on the Victim
[4] At trial, the following facts were admitted regarding the impact that this collision had on Mr. Godin-Chevrier:
Mr. Godin-Chevrier was 23 years old at the time and had been residing with his mother in Scarborough. He was working part-time doing general labour construction and had been attending school part-time to obtain his high school diploma. He had no significant health issues prior to the collision.
Mr. Godin-Chevrier suffered significant bodily harm as a result of the collision. He was critically injured and rushed to Sunnybrook hospital in life-threatening condition. Most significantly, he suffered severe traumatic brain damage, which required a part of his skull to be removed to relieve pressure. Other injuries included a broken lower tibia in his left leg, a broken right wrist, a broken facial bone in the right side of his face, ocular nerve damage to his right eye and liver damage. He required multiple surgeries to treat the brain injury and broken bones.
Mr. Godin-Chevrier remained in Sunnybrook hospital for approximately 8 months. He was then transferred to the Salvation Army Toronto Grace Rehabilitation Centre, where he remains presently. He continues to suffer from hydrocephalus, with the accumulation of fluid in his brain creating pressure in his skull. He is confined to a bed and cannot move on his own, nor can he operate a wheelchair on his own. He has lost the ability to use the entire left side of his body, including his leg, arm and hand. He has difficulty seeing out of his right eye and has been diagnosed with aphasia, which impairs his ability to process language and speak. He requires assistance to eat and cannot control his bowels. He suffers from ongoing depression.
Mr. Godin-Chevrier’s long-term prognosis is bleak. He will never be able to walk again. There is a slight possibility that further surgery to his head could reduce swelling and allow him to recover some use of the left side of his body and improve his speech. However, he will never be able to care for himself without assistance and will never be able to work again.
[5] Mr. Godin-Chevrier is not capable of providing a victim impact statement. Mr. Godin-Chevrier’s mother, Bernice Chevrier, provided the following victim impact statement dated April 11, 2019, along with photos of Mr. Godin-Chevrier both before and after this collision:
Emotional Impact:
Ian was an outdoor kid, he was active, he was social and well liked, he loved doing things outdoor by himself or with his friends. This has totally changed now that he’s pretty much confined to a bed and a chair while under 24-hour hospital care. He’s pretty depressed about it, and he’s expressing it more and more as the days go by. He was working as a general labourer and was attending school to obtain his high school diploma and now he doesn’t have the capacity to do either. He used to love math and someday wanted to be a helicopter pilot, but those dreams of his are no longer attainable.
Ian is now on medication for depression. He has had suicidal thoughts and feeling of despair and not wanting to be alive. He’s bored because he’s so confined and limited in what he can do. Friends and family have pretty much abandoned us with an exception of a few who find the time to visit because he also suffers from loneliness. Ian was a very happy person before. He used to be constantly busy, always moving and he was a great son to have around the house because he helped me out so much, he was also my rock. He would always try his best to be such a good son. We may not have gotten along at times but I was there for him, he was there for me. Because of his memory impairment, he no longer has those memories to reflect and to remember. Most of our family to him are strangers because he cannot make the connection to who they are.
Our family has been hugely affected by this. My younger son, who is younger by 18 months, doesn’t know how to interact with his older brother Ian. Ian’s injuries are pretty visible and undeniably there. His brother isn’t comfortable visiting him and has not come to terms with the fact that his brother won’t be the same. I cannot imagine exactly how he feels because he and his brother were close and similar in ways. My mother was affected a lot because she lived with Ian and myself most of Ian’s life and practically raised Ian. I can tell she’s hurt and it pains her to see him in such a state, but since she’s a very stoic woman, she doesn’t show it. She’s 82 years old so to put so much stress on her has really taken life out of her. All she really does now is visit Ian in the hospital. It has really impacted her quality of life. Everything she ever did, was all for Ian, and now that he is not the same Ian, she’s having a hard time to adjust to this Ian. My mother, sons and I have become isolated from family because of all of our family is up in northwestern Quebec, and we don’t have them to support us because of the distance (Notre-Dame-duNord PQ is about a 7hr drive north)
It’s changed everything for me. I am limited on what I can do because I have to care for him and since moving my mom here to help me out in order to live in this city while Ian is recovering, I care for them both and they both have extraordinarily different care needs. It feels like I no longer live, I can no longer have fun because I see Ian daily, and I come home to care for my mom. I take everything so seriously because I feel bad for trying to do so while my son is laying there unable to get out of bed. I have the undaunting task of making his decisions medically and legally. It’s like I have been handed a life sentence because he will need care until he or myself expire. It’s impacted my relationships with partners, family and friends and how I interact with other people. It’s a lot to condense into this statement. The first thing I do when I wake up is think of him, the last thing I do before bed is think of him. I walk around and my mind is a bit of haze because I’m always wondering if he doing good and that he’s well taken care of if I am not with him. If I see a skateboard in a window or even a picture of someone with his likeness in appearance, I think of him. My whole world revolves around him. It’s taken an emotional, mental, and physical toll on myself. I had to have surgery to try and make sure I am around long enough to take care of him, so I would put my own health at risk to care for him. It’s never just me, its him and I against the world. I cannot do anything without considering how it will affect him, I can’t live as myself anymore, and if I take time for myself, I feel guilty. I haven’t been able to work since his accident, because of the care he requires. It’s a full-time job and I don’t get paid for it. It hasn’t been easy since that faithful day. At the beginning, I would sit there not knowing whether he would make it through because I almost lost him 3 times. Nor is it any easier now. My cell phone never leaves my hand because I have a fear of missing a call the hospital because something has happened to him. It is so emotionally draining. I wanted to cry but I couldn’t cry anymore, I physically had no more tears to cry as I watched him lying there wondering if he’s going to make it through the first initial nights.
At first, I wasn’t angry, I was more concerned about my son and if he would ever wake up from his coma. I was more in wonder, why, how…just how? What happened? The initial shock of it all. I’m just remembering myself sitting in the hospital just dumbfounded. I felt so helpless. This was the first time anything this impactful had happened to me. It was pretty hard to do on my own. I don’t think anyone understands just how hard it is, until your put in that situation yourself. I didn’t’ ask for this situation, I don’t think anyone ever does but after time had gone by, I am now angry because he didn’t ask for this either. I actually felt sorry for the accused at first. Now, not so much. I recall that night so vividly. I actually work up at 12:35 wondering if Ian had come home. I didn’t hear him come in, so I assume he would be back in an hour or so…I later found out that his accident happened at 12:27 and it was probably my mother intuition that woke me up. I sleep with my tv on so when I woke up that morning, Breakfast Television was on tv and there was a blurb about a pedestrian being hit south of McCowan. I was watching this on my tv, I received a call from the investigating officer that my son was rushed to Sunnybrook. I seen a shot of a bulls ballcap, red and black in color on the road and then a zoomed pic of a car, and I asked the investigating officer if the car that was involved was red in color. He said that it was and he asked me how I knew the color of the car? I told him I just seen it on the news…while waiting to hear if Ian was going to make it through surgery or not, I sat alone in the Critical Care unit waiting room watching over and over the news blurb because it played all day on the tv. Let me tell you, it was not easy knowing that your son, had to go to the emergency surgery alone. That day plays like a movie, and no matter how much time passes, that movie plays in my memory over and over.
Physical Impact:
He has aphasia which impact his speech, his vocabulary is limited. He wasn’t able to eat at the beginning. First he had a tube down his throat and then he had to have a G-Tube placed in his stomach permanently, a feeding tube so that he can get nourishment. He lost a lot of weight. This kid was built like a brick shit house and now he’s like a noodle. He has no muscle mass. He has no core to keep himself straight. His left side is negligent; he’s unable to use his left side, even to chew. His joints and muscles suffer from dystrophia, throughout his whole body, it’s everywhere. Even yesterday we found a new pain. He has numerous neurological problems, hydrocephalus, which is unabsorbed fluid within the brain cavity. He has the buildup where he had his skull flap removed to alleviate the pressure when he was operated on. This has made his recovery that much more difficult. There were many attempts to drain the fluid which actually caused more problems because he then developed meningitis 3 times and another time his lung collapsed. This kid has been through it all. From the initial impact, he suffered from severe multitrauma severe traumatic brain injury resulting in acute large right front temporoparietal subdural hematoma multifocal right frontotemporal contusion, as well as multiple facial lacerations. He had Emergency right front temporoparietal craniotomy for evacuation of subdural hematoma and frontotemporal contusion, and extensive sub temporal craniectomy for decompression of expanding contusion. He had multiple superficial scalp lacerations on the right side and a deeper laceration on the back of the head which had been stapled in the Trauma Room. He also had a laceration under the chin which was stapled.
Ian and myself, in the past 2yrs 7 months and 22 days, have not spent one night in the same house since this accident. We were lucky to have spent his 24th birthday together and did stay under one roof, while he was battling meningitis and I stayed with him all night in the emergency room. I wonder if he’s going to walk again. No one knows this. No one can tell me. It goes back to him being this active kid. Will he be able to even walk again? I know he will never be the same, I am fully aware of that. He will never be nowhere close to what he once was. And this saddens me. I don’t think anyone in their right mind wants to accept the fact that their son, their child, in any sort of hurt, Physically or Mentally. And I have the task to ensure him that everything is going to be ok…when deep down, I know it won’t be.
Economic Impact:
It’s been a huge expense having Ian in the hospital, he has been in Toronto Grace Health Center for 2 years. The parking is expensive, to buy food, and the wear and tear on my car, and the gas. It costs money to have a TV for him so he has something to occupy his time. After the accident I was homeless for 3 months. Ian was contributing to the rent and after the accident I couldn’t afford it on my own. I had to move twice and I had to have my mom and younger son move in with me in order to make ends meet. If my mom and son wasn’t here, I don’t know what I would do. You know you’re broke when you have to live in community housing. It’s not the safest area to live. It’s a lot to deal with. I have to worry about things I wouldn’t worry about if I could live somewhere else, in my own controlled environment. Ian and I was going to move out of the city, and now that he is in the hospital, I have to stay here, not because I want to, but because I have to. I am not going to abandon my son because I can’t afford to live here in Toronto. I don’t know any mother would do that. This city isn’t a place to live if you cannot afford it.
Because of my inability to work, I have been taking a college course in social services to try and get formal education in order to try and get some stable employment, but because of the tuition fee, I may not be able to return to school for the second year and I need that second year to complete the course. I have made a few attempts to try to find work, but because of Ian’s appointment schedule, I can’t find somewhere to work because I would need the flexibility to allow me to take the time to take him where he needs to go.
Fears for Security:
It was hard to see the accused at the trial. I worry about being approached. I also feel intimidated by his presence.
I have enclosed two photos of Ian to show how big of a difference there was from before to now. I want the accused to see just how much life he has taken out of my vibrant and happy son. I know my son was a very forgiving person. He held no ill harm towards anyone. I on the other hand, am not so forgiving. I take comfort in knowing that there is someone up there looking out for Ian because he is still with me. This trial, and having to write this statement has been retraumatizing. Not only did the accused hit him once physically, but he hits him every time I have to remember that day. I have no words to say how hurt I feel to hear him blaming my son for his own actions and irresponsibility. I am sure the spiritual being that anyone believes in, is the only one that can pass judgement onto others for the actions they have don’t in their life, I cannot not, I am sure the one who makes the final judgement, will know what needs to be done.
[6] A few parts of Mrs. Chevrier’s statement go beyond “describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence” in that it criticizes Mr. Bulland. As a result, those criticisms must be disregarded in accordance with s. 722(8) of the Criminal Code.
Circumstances of the Offender
[7] The following history is primarily taken either from a pre-sentence report prepared by Claire Antoncic, dated April 24, 2019, or from defence counsel’s submissions.
[8] Mr. Bulland was born in June 1983 in Dubai. He was an only child. When he was 12 years old, Mr. Bulland immigrated to Canada with his parents. His parents had a tumultuous relationship. He describes a childhood that was dark and isolating at times. He recalls being verbally, physically, and mentally abused by his parents. Mr. Bulland lived in a constant state of fear of displeasing his parents. He recalls school work not being easy and that he was always enrolled in extra tutoring after school. He believes that his constant feelings of inadequacy may have been the start of his lifelong struggle with depression.
[9] Mr. Bulland states that he first attempted to commit suicide in 2002. Starting in 2002, he attended Ryerson University for studies in information technology management. After two years in that program, he enrolled in a criminology program at the University of Toronto. After his parents divorced in 2005, he lived with his mother although he does not have a good relationship with her. His father remarried in 2005 and has an 11-year-old son with his second wife. Mr. Bulland states that he is very close with his step-brother and that he “lives for him”. In 2005, Mr. Bulland attempted to commit suicide a second time. He states that he dropped out of the criminology program in 2005 when his mental health issues worsened.
[10] A report from Dr. Arian Behzadi, a psychiatrist, dated April 10, 2019, states that Mr. Bulland has never seen a psychiatrist in the past. Dr. Behzadi states:
The patient states that his mental health symptoms started around 14 years ago and following the divorce of the parents, he reports elements of pervasive chronic depression including problems with self-esteem, low mood and affect, mild elements of hopelessness and also problems to cope with the difficult interpersonal occasions. He states that he noticed he had problems in terms of controlling his anger and showing impulsive behaviours on 2 occasions in 2009 and then in 2017 he took an overdose with the intention of self-harm. In the occasions of 2009 he went to the Emergency department by himself and he was being kept in the hospital for a few days. In 2017, he called police himself, but when the police came by he refused to go to the hospital, and he stayed home. Currently, he does not report acute interventions or contemplation about suicide. He states that marrying his wife was a positive effect on his life making him less suicidal and more hopeful about the future.
[11] Mr. Bulland was married in 2006 and separated in 2007.
[12] Mr. Bulland went to India for nine months from 2010 to 2011 and lived with his father to recover from bouts of depression. On his return, Mr. Bulland states that he was on employment insurance for about eight months. Mr. Bulland reported regular marijuana consumption when he was in his 20s but quit at the age of 29 due to what he described as over consumption.
[13] Between 2012 and 2014, Mr. Bulland worked as a sales manager at a telecommunications company. Between 2014 and May 2016, Mr. Bulland worked at a mixed martial arts gym. Defence counsel states that, by 2015, Mr. Bulland was drinking anywhere between 6 to 12 bottles of beer per day around the time of the collision in September, 2016. Mr. Bulland worked as an account manager at a local fitness centre from May 2016 to September 2018. Mr. Bulland worked as a car salesperson from September 2018 until December 2018. His friend, Michael Mandool, has known Mr. Bulland for ten years. He states that Mr. Bulland has used alcohol in the past as a coping mechanism.
[14] Mr. Bulland lives with his mother but nevertheless he states that they do not have a close relationship. Mr. Bulland states that his mother lost her job after the September 2016 collision and that she has stopped functioning. He has kept the current proceedings a secret from his mother for fear that she would further decline.
[15] Mr. Bulland married Stacey Bulland (nee Kowalski) in December 2018 and she currently resides in Bentonville, Arkansas. They met online 22 years ago and began dating in 2016. Mr. Bulland attempted to commit suicide again in 2017 when his relationship with Mrs. Bulland was going through a turbulent period. Mr. Bulland had intended to move to Arkansas but, as a result of this court proceeding, Mrs Bulland intends to move to Canada. Mrs. Bulland states that she suffers from physical and mental health issues. She states that Mr. Bulland is “her rock”. She states that Mr. Bulland was happy prior to the September 2016 collision but that he has been severely depressed since that time. Mr. Bulland has worked for an online food delivery service since December 2018. Mr. Bulland is currently taking medication for depression and anxiety. He reports that he experiences suicidal thoughts at least once a day.
[16] Mr. Bulland states that he unsuccessfully made some efforts to obtain mental health support after the September 2016 collision. A letter dated September 13, 2016 from the East Toronto Health Centre responded to a consultation referral from his family physician, Dr. Jain, and stated that there was no doctor available to see him. A further referral for “Anxiety/depression” was refused by the East Toronto Health Centre on November 29, 2017.
[17] Recently, Mr. Bulland has renewed his efforts to obtain help.
[18] A letter dated March 7, 2019 from the Scarborough Health Network’s Rapid Access Addiction Medicine (RAAM) Clinic, a walk-in clinic, states that Mr. Bulland made his second visit on March 7, 2019 and that he will be attending the RAAM clinic “for the foreseeable future to help achieve his treatment goals”. Mr. Bulland states that he makes efforts to attend the RAAM clinic at least once a month.
[19] A letter dated March 8, 2019 from the Pinewood Centre of Lakeridge Health states that Mr. Bulland initiated involvement in the Community Withdrawal Management day program on March 4, 2019. He has subsequently completed this two-week program.
[20] More recently, Mr. Bulland has joined an Early Stage Recovery Group that meets on three afternoons each week for up to two months.
[21] Mr. Bulland works for a food delivery service six days a week depending on shift availability. His schedule from June 2019 shows that he works four hour shifts at dinner time.
[22] Mr. Bulland submitted five letters of support from friends that have known Mr. Bulland for many years. They describe him as “an upstanding member of his community”, “a hard worker”, “one of the most caring and generous people”, “always been there for me” and “honest, respectful and reliable”. One of his friends, Mr. Mandool, indicated that Mr. Bulland is scheduled to start work for him as a technical consultant on an independent part time basis on June 18, 2019. His father, Rajkumar S. Bulland, states that everything changed for Mr. Bulland after his parents divorced. Mr. Bulland would confine himself to his bedroom most of the time and lost interest in the outside world. He started to drink beer. Mr. Bulland lives with his mother who is not capable of looking after herself. He helps clean her house, bring food to the table, and does all of the groceries and outside work. He also states that Mr. Bulland drives his 11-year-old step brother to various locations so that he can participate in various sporting activities. His wife, Mrs. Stacey Bulland, states that they were drawn to each other as they both suffer from depression and similar family issues. She has thyroid disease, narcolepsy, Asperger’s and obsessive-compulsive disorder. He has provided her with a great deal of emotional support. She states that any punishment that is given to Mr. Bulland will also punish her and everyone who loves him.
[23] Ms. Antoncic’s assessment of Mr. Bulland is as follows:
Throughout the interview process he presented himself in a polite and cooperative manner. Regarding the matters before the Court, the subject acknowledged culpability and accepted responsibility for his actions. The subject admitted that a lack of appropriate coping skills and inability to deal with stress has contributed to a long history of extreme substance abuse. The collateral contacts confirmed this information and reiterated that the subject is relied upon significantly by his family. It was also made evident to this writer that the subject expresses a great deal of remorse for his actions.
During the interview, the subject described heavy alcohol consumption during turbulent periods in his life and constant cravings for alcohol. Despite this, the subject has only recently sought help for his long standing substance misuse. It is evident that the subject suffers from serious mental health concerns and he has for quite a long time. He has taken the necessary first steps to address his long standing substance misuse and mental health concerns, but unfortunately, the serious nature of the outstanding charge appear to have been the motivating factor for him to address the areas of concern.
In conclusion, Community Supervision may be beneficial to support the subject in addressing the noted areas of concern. The subject reported full motivation to comply with any sanctions imposed by the Court and indicated that he would be amenable to treatment or counselling, as may be directed.
[24] Dr. Behzadi’s report states that Mr. Bulland’s mood has been lower since the 2016 collision as he is anxious that he will be put in jail. The patient has a long history of alcohol use disorder. He has been treated at the RAAM clinic since February 2019 and he continues to go in a routine manner. He was being prescribed Gabapentin to help his craving as well as his anxiety symptoms. He denies using any other substances. Mr. Bulland admits that he drinks 2 or 3 beers per night. He denies drinking and driving since the 2016 collision. He denies any other legal history apart from the impaired operation charge related to the 2016 collision. He found that Mr. Bulland expresses chronic death wishes but no acute suicidal ideation or intention and no ideas for harming others and has good insight and fair judgment. There is no indication of major depressive disorder at this point although he had at least one episode in 2005 and probably in 2009. No indication of generalized anxiety disorder, social anxiety disorder or post-traumatic stress disorder. Dr. Behzadi diagnosed Mr. Bulland as having chronic alcohol use disorder and chronic depression. He increased the dosage of Cipralex that had been provided by Mr. Bulland’s family doctor. He recommended that Mr. Bulland continue with the RAAM clinic for purposes of addressing his alcohol use disorder. He also found that Mr Bulland would benefit from long term psychotherapy sessions to address his chronic personality traits affecting his interpersonal relationship which makes him cope with alcohol. He further recommended anger management psychotherapy.
Analysis
[25] Section 718 of the Criminal Code provides that:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [Emphasis added]
[26] In R. v. Clouthier, 2016 ONCA 197, 346 O.A.C. 162, the Ontario Court of Appeal stated:
The predominant sentencing objectives in determining a fit sentence for alcohol-driving offences, especially those in which bodily harm is caused to a fellow human being, are general deterrence and denunciation. …
[27] Subsection 255(2) of the Criminal Code provides that every person who is found guilty of operating a motor vehicle while their ability to operate the vehicle is impaired by alcohol or a drug and who has caused bodily injury or death to another person is guilty of an indictable offence and is subject to a maximum term of imprisonment – in the case of bodily harm, for 10 years, and in the case of death, for life.
[28] In R. v. Muzzo, 2016 ONSC 2068, 353 C.C.C. (3d) 411, at para. 59, Justice Fuerst stated:
Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is, in the words of the Supreme Court of Canada, “a highly individualized exercise that goes beyond a purely mathematical calculation.” The gravity of the offence, the offender’s degree of responsibility, the specific circumstances of the case, and the circumstances of the offender all must be taken into account by the sentencing judge.
[29] Section 718.1 of the Criminal Code states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Once again, in Clouthier, the Court of Appeal described this principle as the fundamental principle of sentencing. In R. v. Hamilton (2004), 72 O.R. (3d) 1, Doherty J.A. stated, at paras. 90-91:
90 The “gravity of the offence” refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. …
91 The “degree of responsibility of the offender” refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime. …
[30] Section 718.2 (a) of the Criminal Code provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Of particular relevance in this case is s. 718.2 (a)(iii.1) of the Criminal Code, which calls upon courts to also take into consideration evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances.
[31] Subsections 718.2 (b)-(e) of the Criminal Code also provide that:
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
[32] In Clouthier, at paragraph 56, the Court of Appeal stated that the range of sentences for an offence of this type is in the mid to upper reformatory and lower end penitentiary range.
[33] In R. v. Gill, 2017 ONSC 723, 8 M.V.R. (7th) 152, Justice Quigley made several important observations.
[34] First, he noted at paragraph 3 that:
No criminal law process or sentence can ever recompense a victim like the two who were injured here for the injuries they sustained and that is not the purpose of this sentencing. The purpose is to punish the offender for his injury-causing conduct in accordance with our law. Nothing more and nothing less, so the issue on this hearing is what should be the fit sentence for this offender, having regard to all of the circumstances and the harm caused to the complainants who were so seriously injured for life in the accident this offender caused.
[35] Second, at paragraphs 28—30, he explained the importance of the objectives of deterrence and denunciation as follows:
In a case such as this, however, as drinking and driving offences continue to wreak enormous life-altering carnage on the highways and municipal byways of Canada, denunciation and general deterrence to others must continue to be paramount in deciding what sentence to impose, as is specific deterrence of the particular offender whose conduct of driving a vehicle while impaired must receive the strongest message of community denunciation. The sentence must convey our society’s condemnation of the conduct of the particular offender. But at its core, it is the message of general deterrence to others that must be so strongly communicated, because as Fuerst J. notes so aptly in Muzzo, unlike so many other kinds of crime, more often than not it is otherwise law-abiding citizens who commit these offences. People who would never break the law still think it is acceptable to get behind the wheel of a car when they have been drinking. So the message to those otherwise good citizens must convey a strong message of deterrence that if unheeded will result in substantial penalties of incarceration being imposed.
Frankly, it is plain that the public is not getting the message. Notwithstanding increasing sentences that have been imposed in recent years, individuals continue to feel at liberty to get into their vehicles, potential killing machines, and drive those vehicles while they are impaired by alcohol. This is not an offence that results from happenstance circumstances. It is not an offence of passion or one caused by being in the wrong place at the wrong time. It is an offence that results from a specific conscious decision by the offender as a person who has been given the privilege of a license to drive a motor vehicle, to get into his or her car and put the keys into the ignition when they cannot help but know that they are impaired, unless they are so impaired that they are virtually comatose.
It is a conscious decision that puts numerous people’s lives at risk, not to mention ruining the lives of those who may be injured or damaged or killed as a result of the actions of the impaired driver. It requires the strongest judicial condemnation. Sentences must reflect the public’s total despair and outrage over the continuing proliferation of drinking and driving offences in this country and the loss of life and damage that they occasion.
[36] Third, following a review of the case law, Justice Quigley found that the sentencing decisions prior to 2010 have limited precedential value today as “the message emanating from appellate courts is that impaired driving offences that cause either death or serious injury to person must call for longer terms of incarceration in the interests of general and specific deterrence”.
[37] Justice Quigley imposed the same sentence as the Crown seeks in this case with the difference that the sentence was in addition to Mr. Gill’s pre-trial custody credit of 2 years and three months. The facts of that case were as follows. Mr. Gill, while extremely impaired, drove a motor vehicle that struck a motorcycle from behind causing serious injuries to both motorcycle passengers. He refused to provide a breath sample. At the time of the collision, Mr. Gill was required to keep the peace and be of good behavior pursuant to a probation order. Mr. Gill pleaded guilty to impaired driving, dangerous driving causing bodily harm and breach of probation. The aggravating factors included his conscious choice to drive while impaired, his dangerous manner of driving, the extreme level of impairment, his refusal to provide a breath sample, his prior record, and his high level of moral culpability. No mitigating factors existing apart from his guilty plea.
[38] In their submissions, counsel addressed numerous cases described in the table below. Crown counsel referred me to Clouthier, Gill, Black, Stennett, Czajka, and Mitchell. Defence counsel referred me to Clouthier, Ferguson, Irons, Layugan, Drozdowski, and Puvtoski.
| Offence(s) | Circumstances/ Aggravating Factors | Mitigating Factors | Disposition |
|---|---|---|---|
| R. v. Czajka, 2018 ONCJ 350, 31 M.V.R. (7th) Impaired operation causing bodily harm. | Offender veered into oncoming traffic causing a head-on collision. He had a blood alcohol concentration that was almost twice the legal limit. The victim, a 79-year-old man, suffered extensive injuries and is confined to a wheelchair and now suffers from depression and anxiety. | Guilty plea. No criminal record. Sincere remorse. Completed counselling for alcohol abuse and no reason to believe that he will re-offend. Several letters attest to his good character. Pursuing a variety of prescribed therapeutic interventions as a result of his own injuries from the collision that would be impacted by a lengthy custodial sentence. | 14 months imprisonment. 18 months’ probation to follow. 3 year driving prohibition. DNA order imposed. Victim fine surcharge $200. |
| R. v. Stennett, 2018 ONCJ 466, 36 M.V.R. (7th) 345 Impaired operation causing bodily harm. Dangerous operation causing bodily harm. | Offender’s vehicle was completely destroyed after he drove from a nightclub across a highway at an excessive rate of speed, hit two light poles, several parked trucks, and caused life threatening injuries to his two passengers. Offender had a G2 license and was not permitted to operate a motor vehicle after having consumed alcohol. Five weeks earlier he had received a warning for drinking and driving with a G2 license. | Person of good character. 24 years old. No prior criminal record. Completed high school despite a difficult childhood. Steadily employed since leaving high school. No evidence that drug or alcohol addiction would pose further risk. Supportive family. Suffered a significant injury in the collision. Blood alcohol concentration was between 66mg and 96 mgs at the time of operation which is at the lower end of the range of many cases cited and thus distinguishes his moral blameworthiness. Although no guilty plea, the trial was focused. | 18 months imprisonment on the offence of dangerous operation causing bodily harm. Twelve months concurrent on the offence of impaired operation causing bodily harm. Probation for 18 months. |
| R. v. Gill, 2017 ONSC 723, 8 M.V.R. (7th) 152 Impaired operation causing bodily harm. Dangerous operation causing bodily harm. Breach of a probation order. | Offender rear-ended a motorcycle causing extensive injuries to its two passengers. Refused to provide a breath sample. Extreme level of impairment. Swerving in and out of traffic. Prior criminal record – not driving related. | Guilty plea. Remorseful. | Four years and three months’ imprisonment combined with a five-year driving prohibition. However, two years and three months credit for pre-sentence custody. As a result, two years imprisonment, less a day, for impaired operation. Two years imprisonment less a day, for dangerous operation, concurrent. Nine months imprisonment for failure to comply with probation order, concurrent. Driving prohibition for five years. Probation. |
| R. v. Mitchell, 2016 ONCJ 731, 5 M.V.R. (7th) 328 Two counts of impaired operation causing bodily harm | Offender, 31 years old. Attempted to “show off” while driving. Struggles with substance abuse and comingling alcohol and drugs. Voluntarily consumed large quantity of alcohol and then drove her motor vehicle. BAC levels of 102-107 mg/100 ml. Significant and extensive injuries to two passengers. | Guilty plea. 31 years old. No criminal record. Remorseful. Mother of three young children. Significant challenges as a child. Participated in program for alcohol abuse program. Highly sympathetic person in the beginning stages of rehabilitation with reasonable prospects. | Concurrent sentence of 16 months incarceration less presentence custody, prohibited from driving for 2 years and probation. |
| R. v. Irons, 2016 ONSC 1490, 95 M.V.R. (6th) 265 Two counts of dangerous operation causing bodily harm and two counts of failure to remain at the scene of the accident knowing that bodily harm had been caused [Note – no charge of impaired operation] | Made two extreme, unsafe lane changes while travelling faster than the posted speed limit. Rear ended a motorcycle carrying two persons. One victim hospitalized for five months and suffered a traumatic brain injury; the other victim suffered scars to most of her body. | Youthful offender. No alcohol consumed. Dangerous driving was for a brief time. Offender turned himself into police. Remorseful. | Twelve months for each count of dangerous operation, concurrent. Six months for each count of failure to remain, concurrent. Five year driving prohibition. DNA order. |
| R. v. Layugan, 2016 ONSC 2077, 96 M.V.R. (6th) 257 Failure to remain at the scene of the accident knowing that bodily harm had been caused. Manslaughter. Criminal negligence causing death. [Note – no charge of impaired operation] | Offender left work to go home after midnight. He struck a security guard who was wearing dark clothing. Offender drove away and returned one minute later. In the meantime, the security guard had been run over and killed by a tractor trailer. | Very remorseful. Has otherwise led an exemplary life. No prior history of driving infractions. Had not consumed alcohol or drugs. Not driving at an excessive speed. Not driving recklessly. The collision was not the Offender’s fault. Offender will be deported if he receives a sentence of more than six months. | Six months less a day for criminal negligence causing death. Six months less a day for failing to remain at scene, concurrent. 18 months’ probation. Driving prohibition. No communication order. |
| R. v. Clouthier, 2016 ONCA 197 Impaired operation causing bodily harm, dangerous operation causing bodily harm, and two counts of failure to stop at the scene of an accident. | Offender rear-ended three vehicles in 15 minutes. BAC between 100-150 mg alcohol/100 ml blood. | Guilty plea. Expressed sincere remorse. 21-year-old first offender. Was suffering from depression at time of collision and abused alcohol and drugs. Very favourable pre-sentence report. Participated in drug and alcohol program. Undertaken psychotherapy. Performs volunteer work. Remains employed. | Five months sentence imposed at trial was unfit. Eleven months imposed concurrently for impaired operation causing bodily harm and dangerous operation causing bodily harm. |
| R. v. Puvtoski, 2015 ONCJ 97 Operation Over 80. | Collision with a motorcyclist. Blood alcohol concentration in the range of 120-170mgs. Catastrophic and life-threatening injuries suffered. | Crown proceeded on lesser charge rather than operation impaired causing bodily harm. No criminal record. Good character. Strong family support. Conviction would put his business in jeopardy. | 30 days sentence to be served intermittently. |
| R. v. Ferguson, 2014 ONCA 673, 68 M.V.R. (6th) 175 Dangerous operation causing bodily harm. | Suicidal after a breakup with his girlfriend, the Offender crossed the centre line of the road and struck an oncoming vehicle injuring its two passengers. Immediately after the impact, the Offender was heard to yell that he wanted to die and was found in the driver’s seat, slashing his wrists. No evidence of alcohol. | Youthful offender. | 90 day intermittment sentence. One year probation. Two year driving prohibition. |
| R. v. Black, 2014 ONSC 3120 Impaired operation causing bodily harm. | Offender collided with oncoming vehicle. Blood alcohol 190 mg/100 ml. Impaired operating conviction two years earlier. Numerous license suspensions. Presence of beer bottles in the vehicle. Did not render aid or call ambulance. Victim suffered a brain injury and various fractures. Three years after the collision, the Victim is completely disabled and unable to return to work. | Guilty plea to impaired operation simpliciter. Cooperative with police. Remorseful. Struggled with alcohol over the years. Supportive family. | 3 years imprisonment |
| R. v. Drozdowski, 2014 ONCJ 264 Three counts of impaired operation causing bodily harm. | Rear-end collision. Blood alcohol 182-188 mg/100 ml. Victim’s injuries persisted for two years after collision but were not catastrophic injuries. | Guilty plea. Youthful offender. Remorseful. No prior criminal record. Supportive family. Employed. Well-regarded. Positive pre-sentence report. No evidence of a substance abuse problem. | 90 days sentence. 18 month driving prohibition. 12 months probation. |
| R. v. Van Puyenbroek, 2007 ONCA 824, 226 C.C.C. (3d) 289 Impaired operation causing bodily harm, dangerous operation causing bodily harm and failing to remain at the scene of an accident. | Offender collided with two pedestrians walking on the highway and then drove home. | Dated conviction for drinking and driving. Expressed remorse. Offender supported two dependents and needed his licence to work. | Total sentence of three years after receiving two-for-one credit for fifty-five days of pre-trial custody in addition to a five year driving prohibition. |
Aggravating Factors
[39] There are a number of aggravating factors in this case.
[40] First, the Crown submits that the most aggravating factor is the catastrophic, permanent injuries suffered by Mr. Godin-Chevrier. In terms of the gravity of the offence, the injuries’ impact on him and his family closely approaches a case of impaired driving causing death. The Crown submits that it was a “stroke of fortune” that Mr. Godin-Chevrier did not die as a result of the collision and that Mr. Bulland should not receive the benefit of the fact that Mr. Godin-Chevrier survived given his condition.
[41] Second, Mr. Bulland chose to drive his motor vehicle while he was impaired by the consumption of alcohol.
[42] Third, there is Mr. Bulland’s careless driving conviction in September 2007 and his failure to keep his promise to the Court not to drink and drive again. The admitted facts were as follows. An automobile operated by Mr. Bulland struck and knocked over a hydro pole at about 2 a.m. on November 11, 2005 driving southbound, again, on Danforth Road. He left the scene of the accident and was found a short distance away by a police officer. Mr. Bulland’s eyes were red and bloodshot and his speech was slightly slurred. About two hours later, breath samples were taken that showed a BAC of 51 mg alcohol in 100 ml of blood and later 43 mg of alcohol in 100 ml of blood. On September 28, 2007, Justice Mavin Wong, of the Ontario Court of Justice, gave Mr. Bulland a sentence of $1,200 fine, one-year probation with 30 hours community service. Prior to sentencing, in response to the question whether he had anything to say, Mr. Bulland told Justice Wong:
“Um, not to um, ever drink and get behind the – get behind the wheel of a motor vehicle. …”
[43] In delivering her sentence, Justice Wong admonished Mr. Bulland. She stated:
THE COURT: All right. Well sir, you have no prior record. You have entered a plea of guilty to these charges, I can’t say at the earliest of opportunities. This case has been going on now over a year, almost a year and a half, but I gather it is because you were charged criminally with the offences of impaired and over 80. So your lawyer has been working hard, I trust, in trying to persuade the Crown’s office to, I will use the word lower the charge, reduce the charges relating to the Criminal Code offences, and deal with it by way of Highway Traffic Act offences. I note from the information you may be on other outstanding charges, I do not know. The charges I am dealing with today have only today with the driving charges. I just hope you do not take a real sort of lax view of this Mr. Bulland. I do not know you at all, obviously, but I just hope I do not read your body language as thinking that this is really no big deal, because anytime anybody gets behind the wheel of a car and their judgement is at all off, then obviously very serious consequences can take place, because a car can be a lethal instrument. It is just a big piece of machinery. And you hit a hydro pole so hard, it would seem, that there was significant damage to it. Whether it is in the single digit thousands or whether it is the double digit thousands, and you left. So when I think about you being law enforcement, I am thinking, where was his judgement. You know, was it so impaired by the consumption of alcohol that he was not being responsible. Because if you are thinking about a field of law enforcement, the first thing that comes to my mind, in terms of people that I want to protect me, is good judgement, and good morals, and good ethics. And along the way you did not have that.
And I also think about you in particular, and I think you have a young child that you are responsible for, you are 23 years of age and yet you behave in this irresponsible way. Do not know what this is all about, do not know much about you, so I really do not hope that you do not walk away from this thinking, “well I got a fine”. This is very significant fines, and they are very significant fines, for these kinds of entries, because of the seriousness of the whole circumstances. If you had proceeded to trial, certainly you would have been subject to Criminal Code findings of guilt, which means criminal convictions, which means, there goes the law enforcement career. But you also would have been facing different penalties, including driving prohibitions and so on. So life is not simply just “oh, I got a fine”. You are going to get a hard time trying to get insurance for subsequent driving, This is going to really impair your ability to insure your motor vehicle; “A”, you are a male; “B”, you are young and; “C”, you have now got a bad driving record. So your insurance is going to go way up. You have got a six month old child, your work employment is not steady at this point, you have got a lot of things to put together in your life sir. And so I want you to leave this courtroom understanding that you only can get so many chances in life, and right now you have sort of lost a few, because you are being dealt with very reasonably. Again, Mr. Charitsis has done a good job for you, but you are not going to get too many more. So hopefully you can pull everything together and we will not see you back in the courtroom again.
[44] The Ontario Court of Appeal’s observations in R. v. Kummer, 2011 ONCA 39, 103 O.R. (3d) 649, at paragraph 26, are equally applicable here in relation to Mr. Bulland’s 2007 conviction. In Kummer, the court stated:
The 2007 incident should have served as a "wake-up call" to the appellant. It should have impressed upon him the danger he posed to himself and others when driving in an altered state. Clearly it did not. ... While it would be difficult to believe that any person in Canada could be ignorant of the dangers of drinking and driving, the appellant had particular reason to be aware of the risk he posed in doing so. His decision to disregard that risk is an important factor that can and should be considered in determining an appropriate sentence.
[45] Fourth, Mr. Bulland’s driving conduct is an aggravating factor. Mr. Bulland could have hard-braked or taken evasive action to avoid colliding with Mr. Godin-Chevrier. He did neither.
[46] Fifth, Mr. Bulland has a criminal record. He was convicted of assault contrary to section 266 of the Criminal Code on September 23, 2008. He received a suspended sentence and 12 months’ probation.
Mitigating Factors
[47] There are mitigating factors:
[48] First, Mr. Bulland’s remorse for his actions is reflected in the pre-sentence report as well in his statement to the court at the sentencing hearing. Mr. Bulland told the Court:
For the countless number of hours spent in the hospital, sleepless nights, and so much more, I am truly sorry. … Regardless of what sentence is handed down, the severity of the sentence, the length of the sentence, it will one day end, but what won’t end is that burden that I’m going to carry with me for the rest of my life for what happened to Mr. Godin-Chevrier, and that will only end when I cease to exist.
[49] Second, Mr. Bulland has supportive family and friends who attest to his good character.
[50] Third, Mr. Bulland has a family that is dependent on him.
[51] Fourth, Mr. Bulland has begun to participate in alcohol abuse programs.
Position of the Crown
[52] The Crown asks that the following sentence be imposed on Mr. Bulland:
- Two years’ less a day imprisonment;
- 3 years’ probation on the following terms:
- Keep the peace and be of good behavior;
- Report within 2 working days of release from custody and thereafter as directed by your probation officer;
- Do not operate a motor vehicle;
- Do not occupy the driver’s seat of a motor vehicle;
- Do not own a motor vehicle in Canada;
- Attend all counselling, specifically for alcohol abuse, as your probation officer shall direct and sign any necessary release to permit your attendance and compliance to be monitored by your probation officer; and
- Attend and complete the “Missing You” program at a time and place arranged by your probation officer;
- 5 year driving prohibition (s. 259(2)(b) of the Criminal Code); and,
- Secondary DNA order (s. 487.051(3)(b) of the Criminal Code).
Position of the Defence
[53] The Defence seeks an intermittent sentence in the range of 60 to 90 days. The Defence takes no issue with the Crown’s proposed terms of probation or the proposed ancillary orders. The Defence submits that Mr. Bulland’s rehabilitation prospects are strong given the support of his family and friends and given that he has begun the process of seeking help to address issues that he has “long pushed aside”.
[54] The Defence submits that Mr. Bulland’s only other criminal conviction was for assault in 2008. She submits that the sentence sought by the Crown would offend the “jump” principle and that an intermittent sentence would align with the “jump principle”. The Defence submits that a lengthy period of incarceration would hurt Mr. Bulland’s depression and alcohol dependency issues as well as thwart his rehabilitation.
Decision
[55] A fit and proper sentence in this case must reflect the sentencing objectives which figure most prominently in these circumstances: deterrence and denunciation.
[56] Given the carnage that continues to occur on our roads as a result of self-entitled people, who are often otherwise law-abiding people of good character, that choose to drive while impaired, it is not surprising that some courts have more recently imposed longer sentences in order to more loudly send the message to the public that such behavior will not be tolerated. Two recent examples make this point. In Muzzo, amongst other things, a five year sentence was imposed for impaired operation causing bodily harm. In Gill, a sentence of four years and three months was imposed.
[57] As noted earlier, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The gravity of this offence cannot be overstated. The harm caused by Mr. Bulland was catastrophic and will remain with Mr. Godin-Chevrier for the rest of his life. Given the nature and extent of his injuries, Mr. Godin-Chevrier has, for all intents and purposes, lost his life. Mr. Bulland’s moral culpability is high. He chose to drive while impaired. This was not the first time that Mr. Bulland had been before a court in circumstances where he had caused damage as a result of drinking and driving. Mr. Bulland chose to drive while impaired even though he had promised a judge not to do so. Mr. Bulland struck Mr. Godin-Chevrier, a pedestrian, with his motor vehicle when he had opportunity to stop or take evasive action. He did neither. He struck Mr. Godin-Chevrier at a speed beyond the posted limit on the road and catapulted him about 30 metres.
[58] This collision is not only a tragedy for Mr. Godin-Chevrier and his family, it is also a tragedy for Mr. Bulland’s family. He has a wife, father, mother and step-brother who depend on him for various forms of support and will, for a period of time, be deprived of that as a result of his actions.
[59] The jump principle, raised by the Defence, has no application in these circumstances given that Mr. Bulland’s crime in this case is fundamentally different in kind and seriousness than the crime of assault for which he was previously sentenced: R. v. Courtney, 2012 ONCA 478, 294 O.A.C. 346, at para. 10.
[60] An intermittent sentence would be a grossly unfit sentence. None of the cases cited in support of an intermittent sentence bear any resemblance to the facts of this case.
[61] In addition to my assessment described above, I have also considered the mitigating and aggravating factors in arriving at my decision.
[62] Mr. Bulland, please stand.
[63] I sentence you to three years and three months imprisonment.
[64] I also order that you shall not communicate, directly or indirectly, with Ian Godin-Chevrier or Bernice Chevrier during the custodial period of your sentence, other than through counsel for purposes of any litigation arising from the collision.
[65] You will provide a sample of your DNA as required by s. 487.051(3)(b) of the Criminal Code. I am satisfied that it is in the best interest of justice to make an order authorizing the taking of samples from Mr. Bulland for the purpose of DNA testing. In arriving at this conclusion, I have considered the nature and circumstances surrounding the offences, his repeated use of alcohol while driving, and the impact on Mr. Bulland’s privacy and security of the person and his agreement to the taking of such samples.
[66] You will be subject to a five-year driving prohibition under s. 259(2)(b) of the Criminal Code in addition to the period of imprisonment.
FAIETA J.
Released: July 12, 2019
COURT FILE NO.: CR-18-30000004 DATE: 20190712 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – KUNAL BULLAND Defendant REASONS FOR Sentencing FAIETA J. Released: July 12, 2019
