COURT FILE NO.: CRIMJ(P) 1861/19
DATE: 20210907
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. G. Hendry, for the Crown
- and -
GOWSIHAN YOGESWARAN
Ms. C. Kerr, for the Accused
HEARD: June 30, 2021 (By Zoom Videoconference)
REASONS FOR SENTENCE
Stribopoulos J.
Introduction
[1] Early on the evening of Wednesday, September 5, 2018, Mr. Yogeswaran drove his car dangerously as he travelled northbound on Airport Road, just before entering the intersection at Braydon Boulevard, and colliding with a left-turning vehicle driven by Kiranjit Lidhar.
[2] Mr. Yogeswaran's dangerous driving lasted just seconds. Despite its brevity, it occasioned catastrophic life-altering consequences for Khushi Lidhar, who was sitting in the front passenger seat of her mother's car at the time of the collision. Kiranjit Lidhar was also seriously injured in the accident but, thankfully, has made a full recovery.
[3] Following a judge-alone trial, the court found Mr. Yogeswaran guilty of two counts of dangerous driving causing bodily harm, contrary to s. 249(3) of the Criminal Code, R.S.C. 1985, c. C-46. These are the court's reasons for sentencing Mr. Yogeswaran for these offences.
[4] These reasons begin by detailing the circumstances of these offences and their profound impact on the victims, especially Khushi Lidhar. Then, they describe Mr. Yogeswaran's circumstances. After that, these reasons summarize the positions of the parties. Finally, these reasons turn to consider the governing principles before addressing the appropriate sentence for Mr. Yogeswaran for his offences.
I. Circumstances of the Offences and Impact on the Victims
[5] The court's reasons for judgment comprehensively detail the circumstances of Mr. Yogeswaran's offences: see R. v. Yogeswaran, 2021 ONSC 1242. Accordingly, only a brief overview of the relevant facts is necessary.
[6] At approximately 6:45 p.m. on Wednesday, September 5, 2018, Mr. Yogeswaran was driving his Dodge Charger northbound on Airport Road and travelling in the passing lane as the roadway approaches Braydon Boulevard in the City of Brampton. It was the tail end of rush hour, and there was a moderate amount of traffic, with vehicles using the intersection in all directions. As he closed in on the intersection, the light turned green, giving northbound vehicles, including Mr. Yogeswaran, the right of way.
[7] As Mr. Yogeswaran travelled northbound, the vehicle directly ahead of him in the passing northbound lane did not immediately accelerate through the intersection even though the light had turned green. The driver of that vehicle must have become momentarily distracted while waiting for the light to change.
[8] Instead of slowing behind that car, as he should have, Mr. Yogeswaran accelerated towards it and the intersection, reaching 117 kilometres per hour ("km/h") in a posted 70 km/h zone. As he accelerated, he changed lanes, moving his vehicle to the right to get ahead of an SUV travelling in the northbound centre lane. Although Mr. Yogeswaran signalled that lane change, it was extremely aggressive; he narrowly missed striking the slower-moving car travelling in the northbound passing lane. As a result, he emerged from behind that vehicle just before entering the intersection at highway speeds and passing it on the right.
[9] As Mr. Yogeswaran's vehicle closed in on the intersection at Braydon Boulevard, Ms. Lidhar's vehicle, a Honda Civic sedan, was in the southbound left-turn lane at that intersection. Ms. Lidhar was waiting to make a left turn onto Braydon Boulevard. Either not seeing Mr. Yogeswaran's fast-approaching car or thinking that he would deaccelerate behind the slower moving vehicle ahead of him in his lane, Ms. Lidhar turned left onto Braydon Boulevard from the southbound left-turn lane.
[10] As she made her turn, Ms. Lidhar's Honda crossed paths with Mr. Yogeswaran's vehicle in the northbound curb lane of the intersection. The front of Mr. Yogeswaran's Dodge struck Ms. Lidhar's vehicle at the front passenger door. The force of the impact spun her Honda around and propelled it off the road. It travelled over the curb and across the sidewalk at the intersection's northeast corner before coming to rest in some bushes.
[11] The collision seriously injured Ms. Lidhar, who suffered fractured bones, lacerations to her spleen and lungs, and a tear to her vertebral artery. Her condition was sufficiently dire that she was initially in the Intensive Care Unit. Ms. Lidhar spent seven days in the hospital before ultimately being discharged. Thankfully, she has now fully recovered from her physical injuries.
[12] Unfortunately, Khushi Lidhar, who was in the front passenger seat, took the brunt of the high-speed impact. She suffered fractures to her wrist, ribs, pelvis, and vertebrae, as well as lacerations and contusions to her bladder and liver. But, most significantly, she also suffered a severe traumatic brain injury.
[13] Khushi Lidhar spent nearly two months at the Hospital for Sick Children, undergoing countless procedures to treat her many injuries. She then spent slightly more than three months in the Complex Clinical Care Unit at the Holland Bloorview Kids Rehabilitation Hospital before being discharged in early February 2019.
[14] Before the accident, Khushi Lidhar was a bright, outgoing, athletic, and personable teenager. She was an excellent and popular student. When the accident happened, Khushi was just starting high school and looking forward to beginning what promised to be an exciting new chapter in her young life.
[15] Today, because of the severe traumatic brain injury she suffered in the collision, Khushi is profoundly and permanently disabled. She no longer has control over her body; she cannot roll, sit, stand, bend, reach, walk or crawl. Any mobility she now enjoys depends on the use of a wheelchair. She needs the assistance of others to meet all her basic needs; that includes receiving nourishment through a feeding tube. Given Khushi's reduced cognitive functioning, she is no longer able to speak or otherwise communicate. Tragically, it appears unlikely that Khushi will ever recover from these injuries; they are permanent. As a result, she will likely require the assistance of others to meet her basic needs for the rest of her life.
[16] Given the nature of Khushi's injuries, her entire family, including her mother, father, and brother, have all been profoundly impacted by the events of September 5, 2018. Due to Khushi's injuries, her life, and the lives of those who love her, are forever altered.
II. Mr. Yogeswaran’s Circumstances
[17] Mr. Yogeswaran is now 25 years of age. He was 22 at the time of his offences.
[18] Mr. Yogeswaran was born in Sri Lanka. His family fled that country because of the civil war. He immigrated to Canada with his parents and sister in 2008. Mr. Yogeswaran became a Canadian citizen in 2013. He still lives with his parents and provides financial assistance to them. He has a close relationship with his parents and sister, as well as his extended family. He continues to enjoy the love and support of his family.
[19] Before September 5, 2018, Mr. Yogeswaran led an entirely pro-social life. After graduating from high school, he attended college, where he studied information technology and security. He worked as a co-op student at Equitable Bank while in college and secured full-time employment with the bank after graduation. Since starting with Equitable Bank six years ago, Mr. Yogeswaran has received promotions. He now works as an IT Architect.
[20] Mr. Yogeswaran's supervisors and coworkers at Equitable Bank are incredibly impressed by him. They describe him as an extremely hard-working, dedicated, innovative, and collaborative employee who is well known and respected by everyone at the bank. The Chief of Human Resources at the bank describes Mr. Yogeswaran as a person of integrity who is respectful, kind, and empathetic. Given how highly regarded he is at the bank, it has agreed to grant Mr. Yogeswaran a leave of absence while he serves his sentence. As a result, he will return to the bank when he finishes his sentence.
[21] Mr. Yogeswaran obtained his G1 driver's license in 2013 and his G2 in 2016. Up until 2018, he drove his father's car. That year he purchased the Dodge Charger that he was driving on September 5, 2018.
[22] Before that day, Mr. Yogeswaran had never been involved in a car accident and had never even received a ticket. He does not have a criminal record.
[23] Given the materials filed on sentencing, it is evident that Mr. Yogeswaran is extremely remorseful. In a letter he wrote, filed on sentencing, Mr. Yogeswaran acknowledges that he was speeding and made an unsafe lane change on the day of the accident. He recognizes that his actions "forever altered two innocent people's lives" and writes "that I will have to live with and will regret [that] for the rest of my life." That letter and those from his coworkers and family members, who describe him expressing similar sentiments to them, demonstrate that Mr. Yogeswaran takes full responsibility for his offences and is genuinely remorseful for his actions.
III. Positions of the Parties
[24] The parties are far from agreed on the appropriate sentence for Mr. Yogeswaran.
[25] On behalf of the Crown, Mr. Hendry submits the court should impose a sentence of three years of imprisonment, followed by a five-year driving prohibition. In urging that sentence, he emphasizes the gravity of the harm Mr. Yogeswaran's offences caused to the victims, especially Khushi Lidhar, and the importance of denunciation and deterrence when sentencing an offender for dangerous driving causing bodily harm. In that regard, Mr. Hendry argues that sentences for this offence have recently grown longer. Further, Mr. Hendry submits that the sentence he proposes would not interfere with Mr. Yogeswaran's rehabilitation because of the long-term support he enjoys from his family and employer. In all the circumstances, Mr. Hendry argues, a sentence of three years imprisonment followed by a five-year driving prohibition is appropriate.
[26] On behalf of Mr. Yogeswaran, Ms. Kerr acknowledges that denunciation and deterrence are the preeminent sentencing objectives for dangerous driving causing bodily harm and require a custodial sentence in this case. However, she submits that Mr. Yogeswaran does not bear sole responsibility for what occurred. Instead, she argues that Ms. Lidhar's unsafe left turn contributed and deserves some consideration when assessing Mr. Yogeswaran's degree of responsibility for the catastrophic harm caused by the collision. Further, Ms. Kerr emphasizes the mitigating factors, including Mr. Yogeswaran's youth, his lack of any prior criminal or driving record, that he is a person of previously good character and has a positive work history, and that he is genuinely remorseful. In all the circumstances, Ms. Kerr submits that a sentence of six months imprisonment followed by a lengthy driving prohibition would serve the objectives of denunciation and deterrence and be proportionate to the gravity of Mr. Yogeswaran's offences and his degree of responsibility.
IV. The Governing Principles and the Appropriate Sentence
a) The purpose, objectives, and principles of sentencing
[27] Sentencing is necessarily highly discretionary; judges have no set formula to follow in determining the appropriate sentence. Instead, the court must balance a host of relevant factors concerning the offence and the offender to fix a sentence that best accords with the purpose, objectives, and principles of sentencing.
[28] The "fundamental purpose of sentencing is to protect society" and to contribute "to respect for the law and the maintenance of a just, peaceful and safe society": Criminal Code, s. 718.
[29] Achieving that purpose requires the court to impose "just sanctions" that reflect one or more of the traditional sentencing objectives. These include denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation to victims, promoting a sense of responsibility in offenders, and acknowledging the harm done to victims and the community: Criminal Code, ss. 718(a)-(f).
[30] The fundamental principle of sentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1. In other words, the sentence must fit both the seriousness of the crime (including the harm it occasioned) and the offender's level of moral blameworthiness in its commission: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 36-37; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 40-43; R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 (C.A.), at pp. 546‑47.
[31] Proportionality is a function of the circumstances of the offence and offender, in comparison to sentences previously imposed for similar offences committed in similar circumstances. As the Supreme Court of Canada explained: "Individualization and parity of sentences must be reconciled for a sentence to be proportionate": R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53
b) Sentences for dangerous driving causing bodily harm
[32] When Mr. Yogeswaran committed his offences, dangerous driving causing bodily harm was an indictable offence that carried no minimum penalty and a maximum punishment of ten years imprisonment: Criminal Code, s. 249(3). Additionally, as part of sentencing, the court has the authority to impose a driving prohibition that takes effect after a sentence of imprisonment ends and lasts for up to ten years: Criminal Code, s. 259(2)(b).
[33] Dangerous driving causing bodily harm is a serious offence: R. v. Rawn, 2012 ONCA 487, 34 M.V.R. (6th) 175, at paras. 41 and 45. As the Court of Appeal has observed: "Dangerous driving puts the public at great risk of harm. The crime is all the more egregious when people, often innocent members of the public, are injured.": Rawn, at para. 41.
[34] Given the gravity of the offence, the Court of Appeal for Ontario has recognized that denunciation and deterrence are the preeminent objectives when sentencing an offender for dangerous driving causing bodily harm: Rawn, at para. 33; R. v. Goulet, 2009 ONCA 786, 86 M.V.R. (5th) 161, at para. 3. As the Supreme Court of Canada has explained, in cases where deterrence and denunciation require emphasis, "courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law‑abiding society.": Lacasse, at para. 6.
[35] Accordingly, it is far from surprising that courts ordinarily impose custodial sentences for dangerous driving causing bodily harm. The Court of Appeal has repeatedly observed that sentences for dangerous driving causing bodily harm range between a conditional sentence and two years less a day of imprisonment, with longer sentences in some cases: see R. v. Van Puyenbroek, 2007 ONCA 824, 165 C.R.R. (2d) 307, at para. 59; Rawn, at para. 43; R. v. Currie, 2018 ONCA 218, 23 M.V.R. (7th) 16, at para. 15; R. v. Markos, 2019 ONCA 80, 37 M.V.R. (7th) 1, at para. 26.
[36] In urging the court to sentence Mr. Yogeswaran to three years of imprisonment, a period beyond the upper end of the range recognized by the Court of Appeal for this offence, the Crown argues that sentences for this offence have grown longer in recent years. To support that argument, Mr. Hendry relies on a brief endorsement by the Court of Appeal from 2011, dismissing an appeal against a six-year sentence imposed for two counts of dangerous driving causing death and one count of dangerous driving causing bodily harm: see R. v. Regier, 2011 ONCA 557, 16 M.V.R. (6th) 20, at para. 2. Regier quoted an earlier endorsement by the Court of Appeal, also involving a sentence appeal in a case of dangerous driving causing death, in which the court observed that: "Sentences have tended to increase in severity for these types of offences because of the heightened recognition of the need for general deterrence and protection of the public.": R. v. Boukchev (2003), 2003 CanLII 26654 (ON CA), 177 O.A.C. 119 (Ont. C.A.), at para. 6.
[37] With respect, I cannot agree with the submission that these endorsements displace the guidance provided by the Court of Appeal concerning the range of sentences for dangerous driving causing bodily harm. First, they involve the comparatively graver offence of dangerous driving causing death. Second, they predate the Court of Appeal's considered reasons in both Rawn and Markos. For example,in Markos, a 2019 decision, the Court of Appeal reiterated that: "This court has identified sentences for dangerous driving causing bodily injury as normally ranging up to two years less a day, with more substantial sentences available in certain cases": Markos, at para. 26. A review of a selection of sentencing decisions involving dangerous driving causing bodily harm confirms that sentences for that offence ordinarily fall within the range recognized by the Court of Appeal.
[38] In Van Puyenbroek, following a trial, the accused was convicted of dangerous driving causing bodily harm, impaired driving causing bodily harm, and leaving the scene of an accident. Driving at night while drunk, he left the roadway and struck two pedestrians walking on the shoulder, one of whom was wearing a reflective vest. He then left the scene. One of the victims suffered severe injuries; she required brain and bowel surgery. She remained in hospital for several months before being transferred to a rehabilitation centre and required the use of a wheelchair at trial. The accused, who was married with two children, had a dated criminal conviction for impaired driving. After accepting the Crown's submission that the applicable range was three to five years imprisonment, the sentencing judge sentenced the accused to three years imprisonment concurrent for the offences of dangerous driving causing bodily harm and impaired driving causing bodily harm, in addition to 110 days spent in pre-trial custody. He also imposed a consecutive sentence of six months of imprisonment for the offence of failing to remain at the scene of the accident.
[39] In Van Puyenbroek, at para. 61,the Court of Appeal concluded that the sentencing judge erred in his understanding of the range of sentences that courts have historically imposed for dangerous and impaired driving causing bodily harm. The court noted that the actual range "runs from conditional sentences to two years less a day in prison in circumstances comparable to those in this case in terms of aggravating factors": at para. 59. Nevertheless, after emphasizing the need for deference, it concluded that the sentencing judge had not erred in imposing a sentence "somewhat beyond the range historically imposed in similar cases.": at para. 62. However, after citing the totality principle, the Court of Appeal reduced the total sentence to three years of imprisonment after credit for pre-trial custody: at para. 64.
[40] In Goulet, the accused pleaded guilty to dangerous driving causing death and dangerous driving causing bodily harm after causing a collision that killed one person and injured three others. The accused had driven recklessly for a significant period before the accident, which occurred when he crossed a double solid line to pass a transport truck on a curve and collided head-on with another vehicle. The accused was 24 at the time of the accident, had no criminal record, had excellent rehabilitative prospects, and demonstrated genuine remorse for what happened. The sentencing judge rejected the appropriateness of a conditional sentence, concluding that, in all the circumstances, it would not adequately address the principles of denunciation and general deterrence. Instead, the sentencing judge sentenced him to 18 months of imprisonment followed by a five-year driving prohibition. The Court of Appeal, finding no error in principle, dismissed Mr. Goulet's sentence appeal.
[41] In Rawn, a jury convicted the accused of seven counts of dangerous driving causing bodily harm. On the night in question, Ms. Rawn had been drinking with a friend at a bar. Afterwards, while driving, they encountered another vehicle driven by a young man who had five of his friends in his car. The two cars ended up on a residential street with a posted speed limit of 50 km/h, where they proceeded to drive for just over a kilometre and reached speeds of 137 km/h before eventually colliding with one another. Ms. Rawn's car flipped onto its roof, and the other driver's vehicle crossed the median, struck trees, and then a fence. The passenger in Ms. Rawn's car suffered severe injuries. She had to be resuscitated at the hospital after her heart stopped. She remained in hospital for two months and in bed for another year. She suffered permanent damage to her right arm. The other driver and the five passengers in his vehicle sustained lacerations, concussions, bruising, and broken bones. At the time of the collision, Ms. Rawn was 40 years old, and she did not have a criminal record. After concluding that the sentencing judge committed errors in principle in imposing a suspended sentence, the Court of Appeal substituted a sentence of nine months of imprisonment and imposed a five-year driving prohibition.
[42] In R. v. Ally, 2015 ONSC 1204, 75 M.V.R. (6th) 299, the accused was convicted of dangerous driving causing bodily harm following a jury trial. He drove at 80 km/h in a posted 50 km/h zone and struck another vehicle in an intersection when its driver attempted to make a left turn in front of him. The left-turning driver suffered severe injuries, including a skull fracture and traumatic brain injury. She experienced impaired short-term memory and could only continue her studies with assistance and was unable to live independently. The accused was 25 years of age, had a positive work history and was attending college. He had eight prior driving-related convictions, including four moving violations. Although he was remorseful, in his comments to the author of the pre-sentence report, he focussed on the consequences of the accident for himself, particularly his loss of driving privileges. The court imposed a sentence of nine months of imprisonment followed by a three-year driving prohibition.
[43] In Currie, the accused pleaded guilty to two counts of dangerous driving causing bodily harm. He was speeding, travelling 20 km/h over the limit on a busy highway, when he fell asleep behind the wheel due to his consumption of alcohol and drugs (including cannabis, cocaine, and fentanyl). As a result, his vehicle crossed the centre lane before colliding with an oncoming car. The victims, a mother, and her daughter, suffered "grievous injuries" that will "have devastating lifelong physical and psychological impacts" on them: at paras. 2 and 12. After the collision, the accused attempted to dispose of a bag of marihuana, and police also found drug paraphernalia in his vehicle. The accused was a 19-year-old novice driver with a G2 license, which meant that he was not permitted to drive with any alcohol in his body. He did not have a criminal record. The sentencing judge imposed concurrent sentences of 18 months of imprisonment plus two years of probation and a four-year driving prohibition. The Court of Appeal found no error in principle and concluded that the sentence was not unfit. It, therefore, dismissed the accused's appeal against his sentence.
[44] In R. v. Porto, 2018 ONCA 291, 23 M.V.R. (7th) 1, the offender – a police officer – was found guilty of dangerous driving causing bodily harm after a trial. He responded to an emergency call while on duty and drove through a small town at 178 km/h, despite the posted speed limit being 50 km/h. He passed a construction zone and a school and crashed into a vehicle travelling in the same direction, but in the process of making a left turn as he tried to pass him on the left. The Court of Appeal declined to substitute a discharge for the $2,500 fine and one-year driving prohibition imposed by the sentencing judge. The decision does not detail the victim's injuries, but given the sentence imposed, one can only assume that the injuries must have been relatively minor.
[45] In Markos, the accused was convicted after a trial of dangerous driving causing bodily harm. He was driving his motorcycle substantially faster than the rest of traffic on a busy city street and weaving in and out of traffic to pass other vehicles before he collided with a left-turning SUV at an intersection. The collision ejected the accused from his motorcycle, which, in turn, struck and seriously injured a pedestrian on the sidewalk. The victim woke up in hospital three months after the accident. She suffered spinal fractures, facial and cranial damage, broken bones, including her vertebrae and ribs, and soft tissue injuries. She was still experiencing the effects of her injuries at the time of sentencing.
[46] In Markos, the accused had a relatively minor driving record and was remorseful. However, he demonstrated limited insight into his actions, telling the author of the pre-sentence report that his driving "was not that bad" and maintaining that he was not at fault for the accident. The trial judge sentenced Mr. Markos to 12 months of imprisonment, followed by two years of probation. He also prohibited him from operating a motorcycle for five years. The Court of Appeal concluded the custodial sentence was fit and refused to intervene, except to vary the driving prohibition to apply to all motor vehicles and reduce its duration based on the time spent on bail subject to a restriction on his ability to drive.
[47] This review of the case law demonstrates that, subject to some outliers (for example, Van Puyenbroekand Porto), sentences for dangerous driving causing bodily harm are usually within the range recognized by the Court of Appeal. Not surprisingly, where a particular case falls within that wide range is a function of its specific aggravating and mitigating factors.
[48] Section 718.2(b) of the Criminal Code instructs that: "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." That provision codifies the long-established sentencing principle of parity, which, as noted, is closely tied to the principle of proportionality: Lacasse, at para. 57.
[49] Nevertheless, it bears mention that sentencing ranges do not dictate the appropriate sentence in a specific case. They are guidelines rather than "hard and fast" rules: Nasogaluak, at para. 44. As the Supreme Court of Canada explained in Lacasse, at para. 57-58:
[57] ... Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case:
Even when an appellate court has established a range, it may be that a fact pattern will arise, which is sufficiently dissimilar to past decisions that the "range", as it were, must be expanded. The fundamental point is that a "range" is not a straitjacket to the exercise of discretion of a sentencing judge.
(R. v. Keepness, 2010 SKCA 69, 359 Sask. R. 34, at para. 24)
[58] There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case....
c) The aggravating and mitigating factors
[50] In determining the appropriate sentence, a sentencing judge must consider any relevant aggravating or mitigating circumstances relating to the offence or the offender: Criminal Code, s 718.2(a). These serve to "push the sentence up or down the scale of appropriate sentences for similar offences.": Nasogaluak, at para. 43.
[51] In terms of aggravating factors, the Criminal Code directs the court to specifically consider: "evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation": Criminal Code, s 718.2(a)(iii.1). In short, "[t]he negative effect of a crime on its victims is always an important consideration in sentencing.": R. v. Drabinsky, 2011 ONCA 582, 107 O.R. (3d) 595, at para. 179.
[52] Without question, the significant injuries sustained by Kiranjit Lidhar are an aggravating factor. And, much more so, are the catastrophic life-altering consequences for Khushi Lidhar. There was nothing hyperbolic about Mr. Hendry's characterization during sentencing submissions when he noted that: "the person who Khushi Lidhar was and was going to be, died that day, and she will never be the same." That fairly sums up the gravity of the harm to Khushi Lidhar and the unimaginable loss experienced by her family and friends. For all of them, the tragic consequences will reverberate for the rest of their lives.
[53] In seeking a sentence of three years of imprisonment, the Crown emphasizes the profound impact these offences had on Khushi Lidhar and her family. The Crown submits that Mr. Yogeswaran bears sole responsibility for these consequences and that the sentence the court imposes must reflect that.
[54] As noted, proportionality is the fundamental principle of sentencing; a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender": Criminal Code, s. 718.1 (emphasis added).
[55] Taking proper account of the gravity of the offence is essential to achieving proportionality. It ensures "that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused.": Nasogaluak, at para. 42. The gravity of the offence has a close connection to the objective of denunciation: Ipeelee, at para. 37.
[56] However, the gravity of the offence and the moral blameworthiness of the offender are separate considerations, and the principle of proportionality requires that sentencing judges give each careful consideration: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 83.
[57] At trial, Mr. Yogeswaran argued that Ms. Lidhar's left turn was an intervening act that broke the chain of causation between his dangerous driving and the harm occasioned by the collision.
[58] When Ms. Lidhar made her left turn, another vehicle immediately across from her in the northbound passing lane was on the cusp of entering the intersection. Additionally, at the time, both Mr. Yogeswaran's car and an SUV in the northbound centre lane were quickly approaching the intersection. All these vehicles had a green light, and therefore enjoyed the right of way. In the circumstances, it was unquestionably unsafe for Ms. Lidhar to make a left turn when she did.
[59] In its reasons for judgment, the court concluded that Ms. Lidhar's ill-advised left turn "played an instrumental role in causing the collision" while also finding that "it did not displace the significant contribution made by Mr. Yogeswaran's dangerous driving.": Yogeswaran, at para. 229. Accordingly, "Ms. Lidhar's ill-advised left turn" did "not qualify as an intervening act that severed the causal link between Mr. Yogeswaran's dangerous driving and the resulting bodily harm.": Yogeswaran, at para. 229.
[60] Unlike causation in civil law, criminal law does not recognize contributory negligence. As the Supreme Court of Canada has noted, the criminal law does not "have any mechanism to apportion responsibility for the harm occasioned by criminal conduct, except as part of sentencing after sufficient causation has been found.": R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 49 (emphasis added); see also R. v. K.L., 2009 ONCA 141, 75 M.V.R. (5th) 1, at para. 18.
[61] It is not the function of this court to apportion liability between Ms. Lidhar and Mr. Yogeswaran for the catastrophic harm caused by the collision. That will be for the court that adjudicates any civil claims arising from the accident. Suffice to say that when it comes to assessing Mr. Yogeswaran's degree of responsibility for the harm that resulted, it would be wrong to place all the blame on him and sentence him on that basis. In truth, although Mr. Yogeswaran's dangerous driving was a significant contributing cause of the harm occasioned by the collision, and he undoubtedly deserves punishment for the contribution made by his criminal behaviour, he does not bear sole responsibility for the tragic outcome. Remembering that is essential to ensuring that the sentence imposed on Mr. Yogeswaran is proportionate to his degree of responsibility.
[62] There are also several mitigating factors the court must consider in deciding on the appropriate sentence.
[63] First, there is the fact that Mr. Yogeswaran does not have a criminal record or any history of provincial driving offences: see R. v. Dobis (2002), 2002 CanLII 32815 (ON CA), 58 O.R (3d) 536 (C.A.), at para. 28.
[64] Second, there is Mr. Yogeswaran's youth. At the time of his offences, he was just 22 years old. The Court of Appeal has made it clear that, ordinarily, when sentencing a youthful first offender, the focus should be on specific deterrence and rehabilitation. These objectives usually favour a non-custodial sentence: see R. v. Stein (1974), 1974 CanLII 1615 (ON CA), 15 C.C.C. (2d) 376 (Ont. C.A.), at p. 377; Priest, at pp. 543-44. That principle, however, has its limits. It does not apply to "very serious offences and offences involving violence": Priest, at p. 543. In other words, "where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate.": Stein, at p. 377.
[65] Given the gravity of the offence of dangerous driving causing bodily harm and the need for sentences that emphasize denunciation and deterrence, even youthful first offenders must ordinarily receive a custodial sentence for this crime. Nevertheless, their youth deserves consideration as a mitigating factor that counsels towards using the blunt instrument of incarceration with considerable restraint: see R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), at paras. 36-37.
[66] Third, there is the fact that Mr. Yogeswaran is a person of previously good character who, up until the time of these offences, had lived an entirely pro-social life. He is a dutiful and loving son and brother and a hard-working, valued, and respected employee and co-worker. Mr. Yogeswaran's previous good character deserves consideration as a mitigating factor and undoubtedly bodes well for his rehabilitation.
[67] Nevertheless, it would be an error to place excessive weight on Mr. Yogeswaran's previous good character. Unfortunately, it is often people of otherwise good character who inexplicably choose to drive recklessly on our roadways, behaving in an utterly selfish manner that is not in keeping with their behaviour in other facets of their lives. Accordingly, an offender's previous good character must be considered in context when sentencing for a driving-related offence: see R. v. Bigham (1982), 1982 CanLII 3904 (ON CA), 69 C.C.C. (2d) 221 (Ont. C.A.), at p. 223.
[68] Finally, although he did not plead guilty, based on the materials filed on sentencing, it is apparent that Mr. Yogeswaran has accepted responsibility for his offences. In that regard, it is evident that he is genuinely remorseful for his actions and the catastrophic harm occasioned to Khushi Lidhar and her entire family. Mr. Yogeswaran's sincere expression of remorse merits consideration as a mitigating factor: see R. v. Valentini (1999), 1999 CanLII 1885 (ON CA), 43 O.R. (3d) 178 (C.A.), at para. 82.
d) The appropriate sentence in all the circumstances
[69] The court has carefully considered all the circumstances of this case, mindful of the purpose, objectives, and principles of sentencing.
[70] The court is required to impose a sentence that denounces Mr. Yogeswaran's offences and deters others from engaging in similar behaviour in the future. The sentence must send a clear message that driving dangerously on our roadways and jeopardizing the safety of others is unacceptable. And further that when such reckless behaviour leads to injuries, severe punishment will follow.
[71] Specific deterrence is not an operative objective in the circumstances of this case. It has already been more than adequately addressed through Mr. Yogeswaran's involvement in the criminal process. Given that Mr. Yogeswaran is genuinely remorseful, has insight into the magnitude of his offences, and is otherwise a person of good character, he is unlikely to commit another crime in future.
[72] The court has carefully considered the gravity of the offences, including their profound impact on the two victims, especially the life-altering consequences for Khushi Lidhar. At the same time, the court has remained mindful that Mr. Yogeswaran does not bear sole responsibility for the harm caused, although he does share a fair degree of the blame.
[73] Additionally, the court has considered the mitigating factors, including Mr. Yogeswaran's lack of a criminal record and previously unblemished driving record, his youth, that he is a person of otherwise good character, and his remorse.
[74] Finally, the court has considered the range of sentences for dangerous driving causing bodily harm and its obligation to impose a sentence consistent with sentences imposed on similar offenders for similar offences committed in similar circumstances.
[75] Having taken all these factors into account, the court has ultimately concluded that a sentence of ten months of imprisonment, followed by a three-year driving prohibition, is the appropriate sentence in all the circumstances of this case.
[76] A sentence of that duration, followed by a three-year driving prohibition, expresses the court's disapprobation for Mr. Yogeswaran's offences and is of sufficient length to deter others from engaging in similarly reckless driving. Furthermore, it accounts for the gravity of the harm caused to the victims while recognizing that Mr. Yogeswaran's criminal behaviour was not solely responsible for the tragic outcome. Finally, it takes proper account of Mr. Yogeswaran's circumstances, including his prospects for rehabilitation.
Conclusion
[77] For these reasons, the court sentences Mr. Yogeswaran to ten months of imprisonment for counts one and two, with the sentences to run concurrently.
[78] Further, once released from custody, Mr. Yogeswaran shall not operate a motor vehicle on any street, road, highway, or any other public place for three years.
“J. Stribopoulos J.”
COURT FILE NO.: CRIMJ(P) 1861/19
DATE: 20210907
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
GOWSIHAN YOGESWARAN
REASONS FOR SENTENCE
Stribopoulos J.
Released: September 7, 2021