COURT FILE NO.: CR-22-10000334 / CR-22-10000366 / CR-22-10000365

DATE: 20240313

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Demar Alexander KERR

Defendant

K. Visic and M. Goldenberg, for the Crown

S. Taraniuk, for the Defendant

HEARD: February 12, 23, and March 1, 2024

REASONS FOR SENTENCE

PUBLICATION BAN

THERE IS A PUBLICATION BAN UNDER S.486.5 OF THE CRIMINAL CODE

IN RELATION TO ANY INFORMATION THAT COULD IDENTIFY

THE VICTIMS OF THE COLLISION FROM THE M FAMILY,

INCLUDING THEIR DECEASED CHILD, AND THE G FAMILY.

g. roberts, j.:

OVERVIEW

1In the early afternoon of Boxing Day, 2021, an unseasonably warm day, lots of pedestrians were in the area of Yonge and Richmond Streets. This intersection is just a block south of the Eaton Centre and many people were out and about on the holiday. KM and DM were with their father, SM, at the south west corner, waiting for the northbound light to change green. They were going to the Eaton Centre so DM could pick out his Christmas present. Pakpoom and Onlak Ruangsomboon were also standing at the south-west corner, out doing some Boxing Day shopping. The G family was there too with their baby, and a couple of friends. Just after 2 pm, Demar Kerr’s Kia flew into them, crushing KM, and badly injuring DM and SM. The Kia also injured WG and the Ruangsomboons. Mr. Kerr had been driving nearly twice the speed limit westbound along the south curb lane of Richmond Street as he approached the intersection with Yonge Street, far too fast to stop when another driver (in a Hyundai) began to make an illegal left turn from the middle lane, moving into the right curb lane as Mr. Kerr approached the intersection. Mr. Kerr hit the brakes, and reduced his speed, but was unable to stop. The Kia clipped the front driver’s side corner of the Hyundai and flew with lightning speed into the unsuspecting pedestrians standing at the south-west corner of Yonge and Richmond Streets. A jury found Mr. Kerr guilty of one count of dangerous driving causing death and five counts of dangerous driving causing bodily harm.

2The Crown position is that a sentence of seven years in the penitentiary is the fit and appropriate sentence, but it should be reduced to six years because of contributory negligence by the driver of Hyundai, Morris factors, and the mitigating effect of harsh conditions of pre-sentence custody.

3The defence position is that a sentence of four years in the penitentiary is appropriate, but it should be reduced to three years because of the mitigating effects of pre-sentence custody and Morris factors. After the statutory Summers credit is applied, this leaves Mr. Kerr in a time served position.

4After considering all the circumstances, I believe that four years in custody is a fit and appropriate sentence. I believe that this is the shortest possible sentence I can impose that will adequately provide for general deterrence and denunciation, which are the primary considerations on this sentencing.

CIRCUMSTANCES OF THE OFFENCE

5As this was a jury trial, I must begin by determining the material facts required for sentencing: R. v. Ferguson, 2008 SCC 6; R. v. Aragon, 2022 ONCA 244. This is a straight-forward in this case as most of the facts are uncontroversial. The collision, and the events leading up to it and immediately following it, were caught on surveillance video, providing eight different views from four proximate locations. The photographs of the vehicles, the measurements of the scene, and the two-dimensional scale drawing of the scene were conceded to be accurate. The opinion of the mechanic, Jose Nobrega, that the cars involved in the collision were in good working order prior to the collision was accepted to be accurate. The opinions of the collision reconstructionist, DC Harjeet Bhathal, were accepted as accurate, with one exception, whether the long tire mark, which was accepted to show where the Kia began to brake (just east of the intersection of Richmond and Yonge), was caused by the front tires of the Kia or the rear tires. I accept DC Bhathal’s uncontradicted opinion that it was caused by the front tires, as he saw only two tire tracks (not four), and the weight of the Kia would have been transferred to the front during the braking. The exhibits leave no doubt about the facts.

6On Sunday December 26, 2021, at 2:01:13 pm, a Kia Optima driven by Demar Kerr hit a Hyundai Kona driven by Jose Wanderley-Neto. The Kia was proceeding westbound on Richmond, straight through the intersection with Yonge Street, in the south lane. As the Kia entered the intersection, the Hyundai began to make an illegal left turn from the middle lane. The Kia braked but was going too fast to stop, hit the Hyundai, flipped on its side, and slid rapidly into a crowd of pedestrians standing on the south west corner of Yonge and Richmond Streets. Surveillance video from the area showed the following:

• When the Hyundai and the Kia drove westbound on Richmond through the intersection with Victoria, both were in the middle lane, with the Hyundai in front and the Kia behind. There were a couple of cars between them (the first car behind the Hyundai was a Porsche SUV driven by Zachary Crooks).

• As the Kia was leaving the intersection at Victoria it began to change into the south left turn lane (which could also be used to continue straight through the intersection at Yonge).

• At the point that the Kia began to change lanes at the western edge of the intersection with Victoria, the Hyundai was approaching the intersection with Yonge Street, still in the middle lane, with its left indicator on (see slide 29 of exhibit 4A at 2:01:10 pm).

• There were no other cars in the south left turn lane, and the Kia accelerated past the two cars in the middle lane between the Kia and the Hyundai (again the first vehicle behind the Hyundai was the Porsche driven by Zachary Crooks).

• The traffic going west on Richmond had a green light at Yonge Street, beginning around 2:00:53 pm. The Kia entered the intersection of Richmond and Yonge on the green light, around 2:01:13 pm, as the Hyundai began to turn left, into the path of the oncoming Kia.

• The front right tire of the Kia hit the front left tire of the Hyundai. The Hyundai was pushed north and west. The Kia rolled onto its side and slid very quickly into the pedestrians on the south-west corner of Yonge and Richmond and then the building.

7Zachary Crooks was driving the Porsche Cayenne in the middle lane following behind the Hyundai and had a clear view of the Hyundai. There was no issue that he was a credible witness, but the reliability of some of his observations was challenged (for example he could not recall whether the Hyundai had its left signal on or, in his initial statement, whether it had made a turn). I accept the following observations he made as reliable. Mr. Crooks noticed the Kia when he heard it speed past him on his left. It was going fast; not highway speed but very fast. The next thing Mr. Crooks heard was a collision. The Hyundai was driving slowly, but made a sudden turn in the intersection which the Kia could not avoid.

8The surveillance video showed that there was a fair bit of pedestrian and vehicle traffic around the time of the collision, especially at the intersection of Richmond and Yonge Streets. The traffic going north on Yonge was bumper to bumper and initially spilled into the intersection with Richmond, blocking the north lane of Richmond, though it had cleared several seconds before the collision. There were a lot of pedestrians in the area of the intersection, especially on the west side of Yonge.

9There was no issue that the Kia had the right of way, and the collision would not have happened but for the illegal left turn by the Hyundai. It was also accepted that if the Kia had been going at the speed limit, it could have stopped before hitting the Hyundai (based on the tire marks at the scene which showed where the Kia began to brake). The Electronic Data Recorder (EDR or “black box”) for the Kia showed that it accelerated from 36 km/hr as it left the intersection with Victoria up to 79 km/hr as it approached the intersection with Yonge Street. The accelerator was 99% engaged for most of the almost 4 seconds before it was disengaged and the brakes applied 1.1 or 1.2 seconds before the collision. The brakes slowed the Kia to 64 km/hr at the point of the collision. The Hyundai was going a steady speed of about 18 km/hr in the middle lane between Victoria and Richmond, consistent with the traffic in this lane.

10It was uncontroversial that, in general, the faster a vehicle is travelling at the point of a collision, the greater the force it will exert.

11When the Kia hit the Hyundai it rolled onto its side and slid very quickly into the crowd of pedestrians standing at the south west corner of Yonge and Richmond. The whole thing took about two seconds; the videos are shocking to watch. There were 13 people standing on the corner at the time: The G family including their baby and two friends; the M family; the Ruangsomboons, Olivia Machado, and two other people. Everything happened too fast for the pedestrians to move, and six of them were hit by the Kia. KM, who was only 18, ended up dying as a result of his injuries. KM’s younger brother DM, 17 at the time, and his father SM, were seriously injured and hospitalized. WG, and Onlak and Pakpoom Ruangsomboon suffered bodily harm as a result of being hit by the Kia. Pakpoom Ruangsomboon was required to testify at trial. I accept his evidence about his injuries in its entirety. As of the date of the trial, almost two years after the collision, he still did not have full strength and mobility back in his left shoulder, despite extensive physiotherapy.

12The jury concluded that the manner in which Mr. Kerr drove the Kia was dangerous in the circumstances, which included the speed he was travelling, the fact that he was approaching a busy intersection, the fact that it was boxing day and the weather was good and lots of pedestrians could be expected, and were in fact present, particularly around the intersection, and the possibility of someone turning into the south left turn lane.

13There is no question that Mr. Kerr’s manner of driving was a significant contributing cause of the Kia hitting the Hyundai and flying into the pedestrians standing on the south-west corner of Richmond and Yonge Streets, killing KM, and causing bodily harm to DM and SM, WG, and Onlak and Pakpoom Ruangsomboon.

IMPACT ON THE VICTIM AND/OR COMMUNITY

14DM and KM’s mother, JG, their father SM, their extended family, and friends of KM, provided victim impact statements. Their pain was raw and palpable. They will never be the same. As did the Ruangsomboons, a spokesperson for Friends and Families for Safe Streets, and a first responder. To the extent that some of the statements urge that a harsh sentence be imposed, or criticize Mr. Kerr’s decision to have a trial, I consider it as a reflection of the deep pain they have suffered, and the seriousness of the offences, but do not consider these comments in crafting the sentence. It is trite law that an accused cannot be punished for requiring the state to discharge its burden of proof, or for the manner in which a defence is conducted. Further, it is for me to decide what is a fit sentence in all the circumstances.

15Words cannot do justice to the magnitude of the harm caused by the Kia hitting the pedestrians, especially the M family. But they are the best tool I have. Below I quote extensively from the victim impact statements provided during the sentencing hearing.

The M family

16DM, KM’s brother, had his life radically changed. He lost his brother. He could not even say goodbye in person as he was in hospital and in severe pain with his own injuries to his leg, neck and chest. He spent 13 days in hospital. When he was released, he needed help showering, getting dressed, and getting out of bed. He required extensive physical therapy. Mentally he was devasted. It was months before he could return to in-person school. The grief and pain he feels over losing his brother is indescribable. He feels angry, hyper-aware, vulnerable, and acutely sensitive. His sense of safety has been shattered.

17SM, KM and DM’s father, was also physically injured when hit by the Kia. He suffers chronic pain, and can no longer do many physical activities. His greatest pain is the loss of his beloved son. Losing KM has left an indescribable and permanent void that can never be filled and has forever changed his life.

18JG, KM and DM’s mother, was devastated by the crash. She was present every day of the the trial. She provided a harrowing victim impact statement, detailing the 6 days between the crash on Boxing Day, and New Years Day when KM died, explaining that they were pure horror, and are forever etched in her brain. She described her final moments with KM as follows:

On New Year’s Day around 4:15pm, KM passed away after being taken off life support. He was surrounded by most of his family, but unfortunately not his little brother because he was at Sick Kids dealing with his own severe injuries with my mom. KM’s friends all wrote a message for me to read to him.

19When JG left KM’s side, she turned her attention to DM, who was still in hospital. She had to be strong for DM, who required a lot of care after he was released from hospital, all while trying to grieve KM.

20KM had just finished his first semester of university. Losing him was beyond devastating. JG explained:

Everything stopped for us as we dealt with the most traumatic ordeal a family can go through. The pain is immeasurable and most can’t understand. For that, you are lucky.

My home is filled with constant reminders that KM is gone. My memories, his belongings, his room, clothing, his ashes and family pictures are all I have left. I can’t smell his pillows anymore, for so much time has gone by his smell has faded. I watch videos and look at pictures of our life before Boxing Day 2021 desperate to remember a happier time. I miss his silly jokes, the happy faces he would draw on the bathroom mirror after his hot shower. I miss the FaceTimes when he was at university and dinners and movies and most of all family gatherings. Those are not the same now, and bring me a lot of sorrow with the emptiness of his absence. I know my family feels it too. For the first year I avoided family gatherings for it was too painful.

I wake up every morning with a pit in my stomach and sad heartache. I don’t sleep well due to nightmares or just thinking and reliving moments of those nightmarish 6 days and the months after. I now have images of the crash seared forever in my head for we were subjected to viewing them while being dragged through the trial.

My heart wrenches when I see DM struggle with things that never bothered him before. He has gone through more in his teen years than most people do in a lifetime. DM loved being KM’s little brother and being so close in age, they would have had a wonderful adult relationship. Now DM is faced with being the only child when he was always the little brother.

All my dreams of my boys growing old together and having children and big family celebrations with my grandchildren are shattered.

I am told that I need to live my life to the fullest for KM and to honour him, but I don’t know how and some days I don’t want to.

21BC is KM and DM’s grandfather. He recalled moments in KM’s life from the time he was a baby to their last Christmas before the crash. He explained how they avoided people outside of their family for months; a simple “how are you” felt like an assault on their senses. He recalled being so proud of DM graduating from high school, after working so hard to rebuild his physical and emotional health, only to be haunted by the absence of KM during the ceremony. He struggles with anger.

22CC, is KM and DM’s “Nana”. She described the terrible moments between receiving news of the crash, KM clinging to life, and his funeral 6 days later. She noted that she is a different person since that time; cloaked and weighed down with grief; helpless; vulnerable; longing to grab KM and wrap her arms around him.

23KS, is KM and DM’s aunt. She described the agonizing 6 days while KM clung to life, and what a gap his loss leaves in their extended family, and how heartbroken she is for her sister and DM.

24Other family members also wrote about their inexpressible sadness at KM’s senseless and unnecessary death, and the hole it has left in their extended family, including HS (KS’s husband); JC (KM’s uncle); GS (KM’s cousin); LS (KM’s cousin); CM (paternal aunt).

25Friends wrote of the fear and enormous pain at losing KM in such a shocking and senseless crash: AA; AC; BA; DT; JL; LB; SD;

The Ruangsomboons

26Pakpoom Ruangsomboon continues to suffer vertigo and chronic pain and limited strength and mobility in his left shoulder. This is an issue in his work as an orthopaedic hip-knee replacement surgeon, requiring him to compensate with other parts of his body. More significantly, he suffered acute anxiety and depression. Mr. Ruangsomboon was also deeply hurt by the experience of testifying, and being attacked by defence counsel as a malingerer. I recognize that this attack (unwarranted in my view) is part of his pain and experience, but, as I have noted, I cannot take it into account when fashioning a fit sentence.

27Onlak Ruangsomboon described the physical and psychological impact on both her and her husband as leading to a “complex web of emotional challenges”. She suffered a head injury, and retrograde amnesia, an injury to her right hand, pain and headaches, and continues to experience overwhelming fear simply crossing a Street. She and her husband each worry about the other, which has exacerbated the harm each experienced. She explained that the impact of being hit extends well beyond physical injuries, deeply affecting her and her husband’s psychological well-being and sense of self.

28Onlak Ruangsomboonlost lost significant income due to being unable to work for a considerable period of time after being hit. They also lost what they were wearing at the time, including very expensive prescription eyeglasses.

Communty Members

29Jessica Spieker, a spokesperson for Friends and Families for Safe Streets, wrote powerfully of the staggering harm caused by car collisions, including profound physical, mental and emotional pain.

30Alex Brown, one of the first responders at the scene, described the carnage of a mass casualty event and its effect on him. He also described the agonizing sadness of having to find JG and tell her about the catastrophic injuries to her children and their father (SM was himself too injured to make decisions relating to KM and DM). Officer Brown and his partner both had to pause and weep after they accomplished this task. His VIS was a visceral reminder of real harm caused by dangerous driving.

CIRCUMSTANCES OF THE OFFENDER

31Demar Kerr was born on May 13, 1999. He was 22 years old at the time of the offence. He is currently 24 years old. He has a daughter who was born on December 8, 2021. She was only 48 days old when he was arrested on January 26, 2022. He has only seen her once since. He has been devastated to be away from her, and her mother, while in custody. He hopes to be a positive role model in her life, a father he never had.

32I had the benefit of two very detailed and thoughtful Pre-Sentence Reports (PSRs), one from May 2019, prepared when Mr. Kerr was a youth, and one completed for this case, in December 2023. There was also an update in January 2024.

33Mr. Kerr did not testify at the trial, but provided an affidavit at the sentencing, which was uncontested, explaining, among other things, that he was delivering food at the time of the collision. He was driving his grandfather’s car, a car purchased and insured to help Mr. Kerr get work during the pandemic. Mr. Kerr was planning to buy his daughter, his partner, and himself matching pyjamas after he finished work on the day of the collision.

34Mr. Kerr grew up poor without a mother or father. His father was never a part of his life. He was close to his mother, but she died after giving birth when Mr. Kerr was 9. Mr. Kerr and his older brother (by five years) were raised by their grandmother. They lived in downtown Toronto (Regent Park and Bleeker Street), areas which the PSR writer described as “characterized by violence and gang activity” (PSR Jan 2024, p.3). Mr. Kerr is very close to his grandmother, Lunnet Wilson. Like JG, Ms. Wilson was in court throughout the proceedings. She reported to the PSR writer for the 2019 report that Mr. Kerr never recovered from the death of his mother. He was always very sad, kept to himself, and had difficulty eating. Mr. Kerr acknowledged that he struggled with his mother’s death and reported that until he was about 14 years old, he always thought she would return.

35Mr. Kerr was the victim of a very serious offence when he was a young child (approximately three years old). This was a trauma in his life, adding to the trauma of losing his mother, and never having a father (this incident is described in the January 2024 supplementary PSR; the details should not be reported to protect Mr. Kerr’s privacy).

36Mr. Kerr reported to the PSR writer that he was timid and scared as an adolescent. Mr. Kerr struggled both in school and in the community, including coming into conflict with the law. Mr. Kerr recalled a teacher in grade 6 called him stupid, and police targeted him in the community because of his race (Black). From the age of 13 on, he recalled that police would search him even if he said he had nothing. At 14 he was detained and handcuffed in relation to something he was not involved in. It was common to hear gun shots, and witness people using drugs. When he was 12, someone committed suicide by jumping from a balcony, landing on the sidewalk in front of Mr. Kerr.

37Mr. Kerr left school in grade 10. He did not finish high school in the community, but completed his Ontario Secondary School Diploma in custody (in April 2023 while he was awaiting trial on the instant offences). His caseworker reported to the PSR writer that he was always motivated to get his work done, and appeared eager to change his life. Megan MacDonald, Manager of the Education Program at Amadeusz, an organization supporting young people who are incarcerated to upgrade their education, reported:

Throughout his involvement with Amadeusz, Demar has demonstrated that he is a dedicated, capable, and engaged participant. He attends program regularly, completes assignments, takes initiative in his learning, and asks for help when needed. Additionally, Demar maintains a positive attitude toward his work with Amadeusz staff.

38Mr. Kerr has sought counselling from a psychologist in custody. The psychologist reported that he appears genuine in wanting to make change, and seems stable and focused on release. He completed a number of programs in custody, including: overdose prevention, anger management, being an effective father, goal setting, looking for work, maintaining employment, planning for discharge, supportive relationships, and recognizing healthy relationships. The PSR writer noted that Mr. Kerr would “clearly benefit from extended counselling in relation to the traumas he has experienced throughout his life”. The PSR writer also noted that he appears open to counselling and support.

39Mr. Kerr had his first job in grade 7, delivering newspapers. He began to work with a drywall company in 2015, where he was part of a union, until 2020 when the pandemic hit. At the time of the instant offences, he had been working for a food delivery company for about 6 months. He has a job available at M&M Roofing Bros. upon release from custody. The PSR writer noted that Mr. Kerr “views work as an important factor…he is hoping to become a qualified electrician”. To this end, he is studying algebra and the electrical booklet, and has been working with Inside Out (a Black employment support program within the institution). The program will continue to support Mr. Kerr upon his release, when Mr. Kerr plans to take the Master Electrician Exam. One of the Inside Out program facilitator’s who began working with Mr. Kerr in January 2023, Roderick Brereton, wrote glowingly of Mr. Kerr’s involvement in the program:

While in custody Mr. Kerr has successfully completed the 16 week Black Employment Support Program. To date Mr. Kerr continues to meet twice weekly with the writer. (4 hours weekly) Mr. Kerr demonstrates a comprehensive understanding of the material covered. Mr. Kerr practices prosocial behaviour during every interaction. Mr. Kerr has been a role model for other participants in the program and he exhibits a desire to challenge himself and others to embrace positive change. Mr. Kerr actively participates in sessions. Mr. Kerr appears to be retaining and applying the information presented.

From the writer’s perspective Mr. Kerr has professionally grown over the course of the year in which Urban Rez Solutions has been supporting him. Mr. Kerr voices and demonstrates what he has learned and holds himself accountable for his decisions.

In addition Mr. Kerr has taken initiative to study algebra while in custody to prepare for the entrance exam with the International Brotherhood of Electrical Workers. The writer has supplied Mr. Kerr with course related reading material to supplement his learning.

40Mr. Kerr has a criminal history. On June 14, 2019, as a young person, he received time served plus 12 months probation for possession of a loaded prohibited or restricted firearm with readily accessible ammunition, after spending 6 months in youth detention. He had a very positive PSR for the youth sentencing (the 2019 report), which he echoed in his remarks to the youth court that he wanted to do positive things, stay out of trouble and go to school and work. He had a job lined up. Less than six months later, on September 17, 2019, Mr. Kerr committed assault, and possession of property obtained by crime. Mr. Kerr had originally been charged with robbery, but a plea deal was struck, with the Crown asking for a conditional sentence, and defence asking for a suspended sentence and probation. On June 17, 2021, the trial judge jumped below both positions, discharging Mr. Kerr, and placing him on probation for 12 months. Mr. Kerr was on that probation at the time of the instant offences.

41Mr. Kerr was also on bail in relation to four separate counts of dangerous driving at the time of the instant offence. He eventually pleaded guilty to one count of dangerous driving and one count of flight from police, and the facts relating to the other three incidents were read in as aggravating facts pursuant to Garcia and Silva. During the proceedings, defence counsel acknowledged that all the facts were correct, including in relation to the three other incidents, but Mr. Kerr did not personally acknowledge the facts. In these circumstances, the Crown fairly does not seek to rely on the three other incidents of dangerous driving as having been established beyond a reasonable doubt.

42I summarize Mr. Kerr’s adult criminal history as follows:

2021-06-17 – Toronto, ON (offence date 2019-09-23 – plead down from robbery)

(1) Assault (2) Possession of Property Obtained by Crime under $5000

(1-2) Cond’l Discharge & Probation 3 years & Discretionary weapons prohibition for 10 years [Not a criminal record]

2022-06-10 – Toronto, ON (Dec 28/20 near Ryerson; 3 other incidents of dang driving read in, inv’ing flight from police - Nov 28/20 near Mt.Sinai, Mar 11/21 near Regent Park, and Mar 16/21 near Bleeker Street, but Crown does not rely on them.)

(1) Flight while Pursued by Peace Officer (2) Att Obstruct Justice (3) Dangerous Operation of a Conveyance

(1) 1 day (credit for the equivalent of 45 days PSC) & prohibited from operating a motor vehicle for 2 years (2-3) 1 day on each charge conc & prohibited from operating a motor vehicle for 2 years

43Mr. Kerr also has a significant driving record, including:

• Disobeying sign (speeding 134 km/hr in a 90 km/hr zone on the DVP, charged April 20, 2020, and found guilty in April 2021);

• Speeding (149 km/hr on the 401,charged May 24, 2020 and found guilty March 22, 2022);

• Disobeying sign (speeding 80 km/hr in a 50 km/hr zone, charged October 5, 2020);

• Unsafe lane change (resulted in collision on October 14, 2021).

44Mr. Kerr was arrested in relation to the instant offences on January 26, 2022. He has remained in custody since that time. I have noted some of the positive steps he has taken in custody, such as completing high school and beginning vocational training. In addition, however, he has also accumulated 8 institutional misconducts, including four altercations with other inmates. Further information provided by defence counsel indicates that Mr. Kerr was beaten by three men while in custody. Mr. Kerr hit back, but as a defensive measure, while backing up. Defence counsel also provided a statement from Mr. Kerr to correctional authorities explaining that he was being housed with people who posed a danger to him based on the Street where he grew up. The Crown fairly noted in submissions that the institutional misconducts relate to 2022, and not 2023, suggesting that Mr. Kerr’s behaviour in custody has improved.

45Mr. Kerr pleaded not guilty to the offences of dangerous driving causing death and bodily harm at issue in this case, but indicated that he is “very sorry for his part in the accident”. The PSR writer noted that it is “evident” that it has had a significant impact on him.

46Mr. Kerr’s grandmother Lunnet Wilson, and adoptive grandfather Ditmnar Wilson, provided letters of reference and support for Mr. Kerr. They both expressed their enormous sorrow at KM’s death, and noted Mr. Kerr carries immense remorse and grief.

47Ms. Wilson noted Mr. Kerr has suffered loss and hardship throughout his life, his father has been absent since he was 7 and his mother died when he was 9. Ms. Wilson noted that Mr. Kerr’s daughter needs him, so do she and Mr. Wilson. She relies on Mr. Kerr’s assistance with medication and groceries, tasks that are becoming increasingly difficult for her and Mr. Wilson. (She is 68; Mr. Wilson 75.)

48Mr. Wilson noted that Mr. Kerr has faced the challenges and hardships life has thrown him since the death of his mother with remarkable strength and resilience. Mr. Wilson is 75 years old with a pacemaker and several medical conditions and relies on Mr. Kerr to help him with daily needs.

49Both of Mr. Kerr’s grandparents express the view that Mr. Kerr has been treated unfairly by the legal process, noting it was not fair to hold Mr. Kerr responsible, while reducing the charges on the other driver with a plea deal.

50Mr. Kerr’s grand-Aunt (Mr. Kerr is her niece’s son), Lillieth Duffus, wrote a support letter attesting to Mr. Kerr’s sterling character, noting in particular how much he helps his grandparents, his acceptance of responsibility for his mistakes, and his desire to change and improve. Ms. Duffus noted that Mr. Kerr and his family grieve with the M family, and apologized for Mr. Kerr’s part in the accident.

51Mr. Kerr’s cousin Demarco Royes attested to Mr. Kerr’s kindness and compassion. He noted how much Mr. Kerr helps his grandparents, and how hard he is trying to leave his past mistakes behind and improve himself. He noted Mr. Kerr is contrite about his role in the death of KM.

52Catherine Asono, a family friend, attested to Mr. Kerr’s “integrity, compassion, and accountability”, his work ethic and his desire for continuous improvement. She noted that two drivers were involved in the crash and the circumstances leading to it were “complex”. She noted how much Mr. Kerr helps his grandparent. She offered her deepest sympathy and condolence to the victims, especially the M family. She noted that Mr. Kerr wants to give back and make amends for the pain caused by the tragedy of the crash. She committed to supporting Mr. Kerr if he is released from jail.

LEGAL PARAMETERS/RANGE OF SENTENCE FOR DANGEROUS DRIVING CAUSING DEATH & BODILY HARM

53Now, and at the time of the offence, dangerous driving cause death, contrary to s.320.13(3) of the Criminal Code, is a straight indictable offence, punishable under s.320.21 by up to a maximum sentence of life, and, for a first offence, a minimum sentence of a fine of $1000 (30 days for second offence; 120 days for every subsequent offence). Dangerous driving cause bodily harm, contrary to s.320.13(2) is a hybrid offence. Where the Crown proceeds by indictment, as it did here, it is punishable under s.320.2(2) by up to a maximum sentence of 14 years and, for a first offence, a minimum sentence of a fine of $1000 (30 days for second offence; 120 days for every subsequent offence). Section 320.24(4) gives me the discretion to impose a driving prohibition as part of the sentence.

54Sections 320.22 (a) and (d) explicitly provide that it is an aggravating circumstance where the offence “resulted in bodily harm to, or the death of, more than one person,” and the offender was “being remunerated for operating the conveyance”.

55The range of sentence for dangerous driving cause death post Bill C-46 is still being worked out and we do not yet have clear appellate guidance. However, a few things are apparent. First, general deterrence and protection of the public are of paramount importance, and sentences must be sufficient to reflect this. The Court of Appeal has repeatedly noted that the severity of sentences has been trending up in recognition of the importance of these goals: R. v. Regier, 2011 ONCA 557 at para.2; R. v. Linden, (2000), 2000 15854 (ON CA), 147 C.C.C. (3d) 299 (Ont.C.A.) at para.2. Second, the entire range should move up as a result of Parliament increasing the maximum sentence from 14 years to life (in Bill C-46). In R. v. Friesen, 2020 SCC 9, a unanimous Supreme Court explained that an increase to a maximum sentence reflects a recognition of the seriousness of the offence, including the severity of the harm it causes, which should be reflected by an increase in the range of sentence (see paras.100 and 108). Third, the range remains broad in order to reflect the variety of circumstances in which the offence can be committed, including both the circumstances of the offence such as:

• the extent of deviation from driving norms, for example street racing or deliberately engaging in risky behaviour or the consumption of intoxicants prior to or during driving falling at the serious end, and contributory negligence on the part of others tending to decrease the departure from norms;

• the cause of the dangerous driving, such as impairment, speed, inattention, and its duration;

• the driving conditions and context,

• the number of victims and the nature of injuries, including death;

and the circumstances of the offender, such as:

• whether the offender was driving for commercial purposes;

• whether there was a trial or guilty plea;

• acceptance of responsibility and genuine remorse;

• whether there was a criminal or driving record, and if so, what for;

• whether the offender was on judicial interim release or subject to a probation order.

56Post Bill C-46 the range appears to include a conditional sentence at the low end (see eg. R. v. Boutrous, 2023 ONCJ 266) and extends to double-digit penitentiary terms (see eg. R. v. Robertson, 2022 ONCJ 240) at the high end.

57Prior to Bill C-46, the Court of Appeal repeatedly affirmed lengthy penitentiary sentences (six years) in cases not involving alcohol or impairment but which were nonetheless serious (such as multiple deaths, commercial driver, extended period of inattention), eg. R. v. Saini, 2023 ONCA 445, aff’ing 2018 ONSC 7689; R. v. Regier, 2011 ONCA 557, aff’ing 1010 ONSC 1963. The Court of Appeal also affirmed low reformatory sentences, in less serious cases (such as where the collision was not caused by the dangerous driving alone and the offender was enormously remorseful), eg. R. v. Romano, 2021 ONCA 211.

58Once the range of sentence is determined for a particular offence, the sentencing court must impose a fit and proportionate sentence, bearing in mind the range of sentence, the relevant principles and objectives of sentencing, the gravity of the offence and the degree of responsibility of the offender, as reflected by the all the circumstances, including aggravating and mitigating circumstances (aggravating factors increase the gravity of the offence or degree of responsibility of the offender relative to others committing the same kind of offence; mitigating factors reduce the gravity of the offence or degree of responsibility of the offender relative to other offenders committing the same kind of offence): s.718.1 of the Criminal Code; Friesen, 2020 SCC 9 at paras. 37-38, and 96-97; R. v. M.V., 2023 ONCA 724 at paras. 44-52.

PRINCIPLES OF SENTENCING

59The principles of sentencing are now largely codified in ss.718, 718.01-04, 71.1 of the Criminal Code. Though some principles still come from the common law. I will not recite them here, but apply the most relevant below.

60As a general rule, sentences for offences arising from the same transaction or endeavour or “criminal adventure” are concurrent: Friesen, at para. 155; R. v. Li, 2009 BCCA 85 at para. 42. At the same time, harm caused to individual victims of criminal behaviour is usually recognized through consecutive sentences. Here the dangerous driving caused one young man to die, and five others to be hurt, some very seriously. Nonetheless I believe that the principle of totality requires that the sentences be concurrent. In reaching this conclusion I want to be clear that I am not diminishing the magnitude of the harm suffered by each individual and their friends and family. Rather I believe this approach is necessary to craft a fit and proportionate sentence in all the circumstances. Given that I treat the fact that Mr. Kerr was on probation at the time of the offence as an aggravating circumstance, I make the sentence for breach of probation concurrent also.

ANALYSIS - WHAT IS A FIT SENTENCE IN ALL THE CIRCUMSTANCES?

61I will begin by situating the driving in this case within the broad spectrum of dangerousness described in the caselaw. I will then describe the aggravating circumstances, the mitigating circumstances, and the collateral circumstances that have a mitigating effect on sentence (namely the harsh conditions of pre-sentence custody). I will conclude with what I believe is the fit and appropriate sentence in all the circumstances, in light of the range, and the relevant principles of sentencing.

62Mr. Kerr was driving west on Richmond, approaching Yonge Street. At the intersection of Richmond and Victoria, he saw a gap in the traffic in the south curb lane. He moved into the south curb lane and pressed the accelerator to the floor, demanding maximum power from his Kia. He was travelling at 79 km/hr as he reached the intersection of Yonge and Richmond, almost twice the posted speed of 40 km/hr. It was the afternoon of an unseasonably warm Boxing Day, and a lot of pedestrians were at the intersection. It was the uncontested opinion of the expert that Mr. Kerr would have been able to stop before hitting the Hyundai had he been travelling at the speed limit. Had he been speeding less, the force emitted from the collision would have been less. It would have been a fender bender. Not a mass casualty event.

63While the speeding was relatively brief – approximately four seconds – it was the circumstances in which it occurred that made it dangerous, including the fact that traffic headed west along Richmond approaching Yonge Street was moving slowly (the Hyundai was travelling at a consistent speed of 18 km/hr; Mr. Crooks testified that he was driving slowly because of the heavy traffic), and a lot of pedestrians could be expected around the intersection with Yonge Street (and tragically were in fact present).

64Speeding has long been recognized as a serious form of dangerous driving. As the Court of Appeal noted over 30 years ago:

Speeding, when it reaches the level of dangerous driving, poses a potential threat to the safety and lives of other motorists and their passengers. Such drivers must be made to realize that their speeding must stop. The penalty must be such as specifically to deter them. General deterrence is also required so that other drivers will learn that such dangerous conduct will be punished: R. v. Bimm (1989), 17 MVR (2s) 157 (Ont.C.A.).

I would add to this quotation the hard reality that speeding also poses a danger to other users of our streets and sidewalks, including pedestrians, as this case tragically illustrates.

65In terms of situating the driving within the sentencing caselaw, it was not the worst form of dangerous driving. Speed alone did not cause the collision. The driver of the Hyundai made an illegal left turn from the middle lane, failing to do a shoulder check before beginning the turn. The Hyundai had its left turn signal on for the entire time Mr. Kerr was in the block approaching Yonge Street, but it was not clear this was visible to Mr. Kerr because there was another car behind the Hyundai (driven by Mr. Crooks). In addition, the Hyundai failed to move into the south left turn lane prior to the intersection, despite the south left turn lane being clear. When the Hyundai began to turn Mr. Kerr reacted by braking hard (leaving a 12 metre tire track) but he was simply going too fast to stop in time, or to reduce the impact of the collision.

66I see the illegal left turn by the Hyundai as similar to the jay-walker in Romano. It is part of what caused the collision and its horrendous consequences. But it was entirely predictable. It is exactly the sort of thing a driver in downtown Toronto must be prepared to respond to. It is why speed limits are set at relatively slows speeds. Indeed, in this case, as I have noted, Mr. Crooks testified that he was driving slowly because traffic was heavy and moving slowly. The EDR from the Hyundai showed it was travelling at a consistent speed of 18 km/hr as it approached the intersection with Yonge. Mr. Crooks noted that the traffic going north on Yonge had come to a standstill, and was blocking the westbound traffic on Richmond in the north and middle lanes, but acknowledged in cross-examination that, just prior to the collision, it was the Hyundai that was stopping traffic in the middle lane westbound on Richmond.

67The effect of the collision was devastating. The Kia hit the Hyundai and literally flew into the crowd of pedestrians standing at the south-west corner of Yonge and Richmond waiting to cross north. No sentence that I impose could be long enough to adequately reflect the magnitude of the harm suffered by the M family. DM lost his beloved big brother; his rock. SM and JG lost a son, just as he was beginning to embark on his own life (KM had just finished his first semester of university). BC and CC lost their cherished grandson; KS, HS, JC, and CM their nephew; GS and LS their cousin; and AA, AC, BA, DT, JL, LB, SD, JS their treasured friend. Section 320.22(a) explicitly provides that it is an aggravating circumstance where the offence “resulted in bodily harm to, or the death of, more than one person”. What happened at the intersection of Yonge and Richmond Streets on Boxing Day 2021 was a tragedy.

68At the time of the collision, Mr. Kerr was delivering food. Section 320.22 (d) explicitly provides that it is an aggravating circumstance where the offender was “being remunerated for operating the conveyance”.

69At the time of the collision, December 26, 2021, Mr. Kerr had a history of offending: possession of a loaded restricted firearm with ammunition as a young person, and assault and possession of property obtained by crime when he was 20. He was treated leniently on both occasions, based on his difficult upbringing and positive PSR. As an adult, his first disposition was a conditional discharge, resulting in probation only, technically not a conviction or criminal record.

70At the time of the collision, Mr. Kerr stood charged with four separate counts of dangerous driving, all of which were alleged to involve flight from police in busy downtown areas of Toronto. These related to the fall of 2020 and winter of 2021, when Mr. Kerr was 21 years old. On June 10, 2022, Mr. Kerr pleaded guilty to one of these incidents (the December 28, 2021 incident) and the facts relating to the three other incidents were read in pursuant to the principle in R. v. Garcia and Silva (1969), 1976 1387 (ON CJ), 32 C.C.C. (2d) 273 (now codified in s.725(1) of the Criminal Code). As noted above, defence counsel acknowledged that all the facts were accurate, but Mr. Kerr did not personally do the same, and the Crown fairly takes the position they cannot rely on the facts in relation to the other offences as a result.

71“Coke’s principle” prevents me from relying on the December 28, 2020 incident as an aggravating circumstance equivalent to a prior conviction or findings of guilt. It was merely a charge at the time of the instant offence on December 26, 2021. It cannot support a harsher sentence because a prior penalty failed to specifically deter Mr. Kerr. There was no prior penalty. Nor can it enhance the importance of denunciation: R. v. M.V., 2023 ONCA 724 at paras.64-69.

72However, I can and must consider the fact that Mr. Kerr was on judicial interim release in relation to four separate charges of dangerous driving at the time of the instant offences. He was apparently permitted to keep his driver’s licence, and continue to drive, in order to earn a living. But he was clearly on notice that he had to drive carefully. In addition, he was also only six months into a three-year term of probation received in relation to the down-graded charges of theft and possession of property obtained by crime. Both the fact that Mr. Kerr was on bail for dangerous driving, and subject to a probation order, are aggravating circumstances, and suggest caution in terms of Mr. Kerr’s potential for rehabilitation: R. v. Marshall, 2015 ONCA 692. (I will come back to the question of rehabilitation when I consider Morris, however, as the Morris factors pull in the opposite direction, and suggest rehabilitation remains a significant consideration.)

73Turning to mitigating factors, I will begin with a couple of factors often present in sentencing precedents for dangerous driving (see eg. R. v. Currie, 2018 ONCA 218 at paras.11-12) but that are not present in this case. To be clear, their absence is not aggravating. But it is important to note their absence as they are often mentioned in the caselaw as providing significant mitigation. Mitigation that is not present here.

74Mr. Kerr chose to have a trial so he cannot claim the mitigating benefit of a guilty plea.

75Nor can he claim the mitigating benefit of remorse. Mr. Kerr swears in his affidavit that he is very sorry about the collision, and feels terrible guilt about it. He reiterated this in his lengthy remarks at the end of the sentencing submissions. I accept that he is sorry about the collision. It accords with his demeanour throughout the trial. He appeared upset when the footage of the collision was played. However, I do not believe he fully accepts or even appreciates the role his driving played in causing the collision and the devastation that resulted. He continues to focus on the role of the Hyundai, and how he has been treated unfairly as compared to the driver of the Hyundai. He has never mentioned the speed he was going. Instead, he repeatedly referred to the collision as a “freak accident”. I want to say as clearly and emphatically as I can that this was not a freak accident. To the contrary it was the entirely predictable consequence of the basic laws of physics playing out in a downtown space crowded with pedestrians. Given the number of people on the corner, it is fortunate more people were not hurt. I do not believe that Mr. Kerr accepts the role that his speed played in this mass casualty event. An apology without acceptance of wrong-doing is not remorse. It is not even a very satisfying apology.

76Nonetheless, there are some important mitigating circumstances. Mr. Kerr grew up with the love and support of his grandmother, and her partner, and they continue to provide love and support. Mr. Kerr’s grandmother was in court during every moment of the trial, including late into the evening as the jury deliberated. As I have noted, his grandparents provided letters of support, indicating how much they love and support Mr. Kerr and also how much he helps them, and they have come to rely on him. Other family members, and members of the community, also wrote about Mr. Kerr’s good character, and the support they will provide him when he is released.

77Mr. Kerr has a strong work ethic and a solid record of employment. He first began work as a young person, with a paper route. At 15, he got a job as a dry-waller, joining the union. Unfortunately, the pandemic intervened, and the job ended. He then found work delivering food. He was doing this at the time of the instant offences. While the fact that he was driving for work at the time of the instant offences is a statutory aggravating factor, as noted, it also reflects his work ethic, which is a powerful mitigating circumstance. When he is released from custody he apparently has work lined up as a roofer.

78Mr. Kerr has used his time in custody awaiting trial and sentencing to upgrade his education. He has completed his high school degree. He has gone on to begin the work necessary to become an electrician. He has received glowing reports in relation to pursuing and persevering with this work in custody.

79Mr. Kerr has a tragic background, which includes suffering the effects of anti-Black racism. Understanding his background, and the role it should play in fashioning a fit sentence, is one of the most challenging aspects of this sentencing. Ultimately, I am satisfied that Mr. Kerr’s background does not significantly diminish his moral blameworthiness for this offence, but it does highlight the importance of rehabilitation and restraint. I will explain my thinking.

80Information about discrimination suffered by Black offenders and its effect on their background, character, and circumstances, is relevant and important to crafting a fit sentence. The Court of Appeal has been crystal clear that anti-Black racism exists in the criminal justice system and has a “profound and insidious impact on those who endure it”. The Court of Appeal provided a methodology for addressing this reality in the sentencing process: R. v. Morris, 2021 ONCA 680; R. v. Husbands, 2024 ONCA 28 at para.54.

81The gold standard for obtaining background information about Black offenders is an Impact of Race and Culture Assessment (IRCA) prepared by a someone specifically trained about racism and its complex and pernicious effects. However, IRCAs take too long to prepare in many cases, including this case, where Mr. Kerr is in custody pending sentence. (The constitutional deadline for sentencing is five months; in my experience IRCAs are over a year.) As a result, we have obtained the required information from alternate sources. I take judicial notice of anti-Black racism in Toronto. With the consent of both parties, I also consider the “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario”, appended to the trial decision in R. v. Morris, 2018 ONSC 5186. We have two very detailed PSRs, plus an update, which explain Mr. Kerr’s experience growing up Black in a poor neighbourhood, including unfair interactions with police. Finally, I have the benefit of detailed, thoughtful submissions from defence counsel. I have summarized some of this information above in the section about Mr. Kerr’s circumstances. I will not repeat that summary, but note that I have considered all the information I have about Mr. Kerr’s background, including the racism he has suffered growing up.

82Background information about an offender, including how anti-Black racism has impacted the offender cannot diminish the seriousness or gravity of an offence (this is determined by its normative wrongfulness), but it is relevant to the sentencing process in two important ways. First, background information is important in understanding the offender’s moral blameworthiness or responsibility for the offence, something essential to arriving at a proportionate balance between the seriousness of the offending conduct and the moral blameworthiness of the offender necessary to craft a fit sentence. For example, anti-Black racism may inform the choices an offender makes, thus should be considered in assessing the moral blameworthiness of those choices. Second, background information assists in blending the various objectives of sentencing to arrive at a fit and appropriate sanction in all the circumstances.

83In order for background information about an offender to be considered in the sentencing process, there must be “some connection” between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue: Morris at paras. 97, 104. Without some connection, mitigating sentence based on racism would be nothing more that a discount based on colour. In this case, the Crown concedes that “Mr. Kerr’s bad judgment, risk taking attitude, and aversion to following rules is likely correlated to his personal circumstances, which include the Morris factors. This affects his moral blameworthiness to some extent and is a consideration for the court.”

84I accept this very fair concession. But in the particular circumstances of this case, I do not find a significant diminishment of moral blameworthiness. First, dangerous driving is a conduct offence. What is criminalized and punished is not a poor choice or a particular state of mind, but the consequences of mindless action. The offence lies in engaging in obviously dangerous behaviour without thought. While it may be understandable that Mr. Kerr may have less regard for the police and rules because he has been unfairly targeted by police in the past, and he has a high tolerance for risk, but according these things anything beyond the most modest of mitigation risks improperly diluting the seriousness of the offence itself. Second, the fact that Mr. Kerr committed the offence while on bail for four separate counts of dangerous driving effectively negates any significant mitigation of moral responsibility that his background could provide. As noted above, notwithstanding being charged with four separate counts of dangerous driving, Mr. Kerr was permitted to keep his license to earn a living. This was a very significant “break” based on his personal circumstances. But it explicitly put him on notice that he had to drive carefully. I believe this notice negates any significant mitigation of moral blameworthiness that his background could provide.

85Even though the social context evidence does not tend to mitigate Mr. Kerr’s moral culpability, I believe it highlights the importance of rehabilitation and restraint. Understanding Mr. Kerr’s experience of a lifetime of unfairness, including by police, may help understand why he is fixated on his belief that he has been treated unfairly in this process as compared to the driver of the Hyundai. I cannot say for sure. But I can say that he has had to navigate more than his share of obstacles in life. The fact that he continues to try so hard to improve himself in spite of all the hardship he has had, speaks volumes about his potential for rehabilitation. As for restraint, it is particularly important in the case of a young Black man who grew up disadvantaged in Toronto: Morris (C.A.), para.123.

86The sentence I impose must be long enough to provide for general deterrence and denunciation. As I have noted, the Court of Appeal has repeatedly directed that these principles are of paramount importance in sentencing for dangerous driving causing death and bodily harm. The courts must emphasize that dangerous driving hurts and kills, and will not be tolerated in our community. As the Court of Appeal explained in R. v. Rawn, 2012 ONCA 487 at paras.45-48:

An appropriate sentence must give primacy to the objectives of general deterrence and denunciation. To meet the requirements of these principles, the sentence must clearly reflect the seriousness of the conduct and its consequences, both actual and potential. To meet the requirements of denunciation, it is necessary that there be absolutely no ambiguity in the message that such conduct is completely unacceptable….A motor vehicle can, in a moment of recklessness, be transformed into an object capable of destroying lives. (See similar comments by the BCCA in R. v. Bosco, 2016 BCCA 55.)

87Nonetheless, the principle of restraint remains of vital important in this case. Our system of justice is firm but it is also merciful. Mr. Kerr drove dangerously in those four seconds preceding this terrible collision, with utterly tragic consequences. But I cannot loose sight of the fact that he is a young man, with a young child, with his life ahead of him. He has had a very difficult upbringing but has worked hard to improve himself. He has continued that work in custody, and has the love and support of his grandparents and other members of his community. I believe that the principle of restraint requires the sentence to be as short as possible while remaining appropriate and just in all the circumstances: R. v. Hamilton, 68 C.C.C. 3d 128 OCA; R. v. Borde (2003), 2003 4187 (ON CA), 63 O.R. (3d) 417 (Ont. C.A.)

88Mr. Kerr has been in custody at the Toronto South Detention Centre (TSDC) and the Toronto East Detention Centre (TEDC) during the COVID-19 pandemic, albeit after the widespread availability of vaccines. He is asthmatic, and has always needed an inhaler, making Covid-19 a particular concern for him. While in custody he has never been out of his cell for the prescribed 13 hours a day. Rather he has been repeatedly subject to partial and full lock-downs. During partial lock-downs, he basically has to decide whether to access the yard, telephone or shower, as there is competition for the shower and phone during the limited time the range is permitted out to use those things. Mr. Kerr explained the lock-downs in his affidavit, which I summarize as follows:

• Full lock-down for 164 days;

• Partial lock-down for 32 days, during which he was only permitted out of his cell for 20-45 minutes;

• Partial lock-down for 83 days, during which he was only permitted out of his cell for about an hour;

• Partial lock-down for 49 days, during which he was only permitted out of his cell for about two hours each day;

• Partial lock-down for 6 days, during which he was only permitted out of his cell for about three hours each day;

• Partial lock-down for 144 days, during which he was only permitted out of his cell for about 4 hours each day;

• Partial lock-down for 3 days, during which he was only permitted out of his cell for about 7 hours each day;

• Partial lock-down for 55 days, during which he was only permitted out of his cell for about 8-9 hours each day;

• Partial lock-down for 115 days, during which he was only permitted out of his cell for about 10 hours each day.

89The Court of Appeal has repeatedly recognized that particularly onerous conditions of PSC should be recognized as a collateral consequence having a mitigating effect on sentence, and not a specific additional or enhanced deduction from the sentence: R. v. Marshall, 2021 ONCA 344 per Doherty J.A.; R. v. Menezes, 2023 ONCA 838 per Fairburn A.C.J.O. Like other collateral consequences that render a sentence harsher than it otherwise would be, it cannot justify the imposition of an inappropriate or unfit sentence, having regard to the circumstances of the offence and the offender.

90In this case, there can be no question that Mr. Kerr’s time in PSC has been difficult, and effectively renders the ultimate sentence more onerous than it otherwise would have been. I find that the onerous conditions of pre-sentence custody have a significant mitigating effect on sentence. I decline to place a specific number on this mitigation.

91In all the circumstances, I find the fit and appropriate sentence to be four years, broken down as follows: four years on the dangerous driving cause death; three years on each of the five counts of dangerous driving cause bodily harm, all concurrent; three months on the fail to comply probation, concurrent.

92Mr. Kerr has been in custody since he was arrested on January 26, 2022, a total of 2 year 1 month and 16 days. Part of that time (45 of days) is attributable to Mr. Kerr’s sentence for the dangerous driving he pleaded guilty to in 2022, leaving just over two years of presentence custody to be grossed up for the statutory Summers credit, for a total credit of three years. The upshot is that Mr. Kerr has one year left to serve on his sentence.

93I impose a ten-year driving prohibition. Given Mr. Kerr’s lack of insight into his conduct, protection of the public is a particularly important aspect of the sentence. I believe it can largely be accomplished through a lengthy driving prohibition.

94Dangerous driving is a secondary offence in the DNA scheme, pursuant to s.487.051(3)(b). I am satisfied that it is in the best interests of justice to make a DNA order. Should it turn out that the authorities already have a sample from Mr. Kerr they may not need another, but I will leave it to them.

95There will be a weapons prohibition under s.109 for ten years. I agree with the Crown that high speed in close proximity to pedestrians turns a vehicle into a potential weapon.

96There will be an order under s.743.21 precluding Mr. Kerr from communicating with any of the victims or their families while in custody, directly or indirectly, with the exception of their counsel in relation to any civil law suit arising from the collision on December 26, 2021. Their names will be listed in the order.

97There will not be a victim fine surcharge. Mr. Kerr has been in custody for over two years. He will continue to be in custody. He is a young man with a young child with no savings. In these circumstances, I believe that imposing the victim fine surcharge on him will impose an undue hardship.