Court File and Parties

Court File No.: 61/22 Date: 2024/04/11 Ontario Superior Court of Justice

Between: His Majesty the King – and – Evan Beedawia, Defendant

Counsel: S. Monaghan, for the Crown K. Marley, for the Defendant

Heard: February 7, 2024 (via Zoom with the aid of an Arabic interpreter)

Justice A.K. Mitchell (Delivered Orally with the Aid of an Arabic Interpreter)

Reasons for Sentence

Overview

[1] On November 2, 2023, following a 5-day trial, I found Evan Beedawia guilty of both counts on the indictment and entered convictions for (1) count of dangerous driving causing the death of Mariia Bundur contrary to s. 320.13(3) of the Criminal Code of Canada (the “Code”); and (1) count of dangerous driving causing bodily harm to Oksana Pavlenko contrary to s. 320.13(2) of the Code.

[2] Sentencing was adjourned to allow for preparation of a pre-sentence report. Sentencing submissions, the pre-sentence report, victim impact statements and letters of support were received on February 7, 2024, with my reasons for sentence and imposition of sentence ultimately put over to today.

Circumstances of the Offences

[3] The facts of the case are set out in detail in my reported reasons for judgment (reported at R. v. Beedawia, 2023 ONSC 6257). I will not recite the evidence heard at trial. However, a summary of my findings of fact for sentencing purposes is as follows:

(a) At approximately 8:00 p.m. on November 18, 2019, Vitalii Bundur together with his spouse, Oksana, and their 4-year-old daughter, Mariia, were heading home after attending Mariia’s dance lesson at the Ukrainian Centre in London.

(b) Mr. Bundur was driving the family’s Toyota Camry motor vehicle. Oksana was asleep in the front passenger seat and Mariia was asleep in a front-facing car seat in the rear seat behind her mother. They were travelling westbound on Glendon Drive heading towards Glencoe.

(c) At the same time, Mr. Beedawia, a commercial driver operating a tractor trailer unit, was travelling southbound on Melbourne Road approaching its intersection with Glendon Drive from the north. There was no artificial lighting at the intersection. The posted speed limit on both Glendon Drive and Melbourne Road was 90 km/h.

(d) The intersection of Glendon Drive and Melbourne Road is controlled by two stop signs on Melbourne Road with motorists on Glendon Drive having the right of way.

(e) Mr. Beedawia was operating his truck in the course of his employment duties as a commercial truck driver. He was carrying a trailer loaded with automotive parts. He was alone in his vehicle. He was not intoxicated by alcohol or other drugs.

(f) Mr. Beedawia failed to stop at the stop sign and entered the intersection at the same time as the Bundur vehicle. The two vehicles collided. Immediately prior to the point of impact, both vehicles were travelling at the posted speed of 90 km per hour. Neither Mr. Bundur nor Mr. Beedawia applied their brakes prior to impact.

(g) The collision caused fatal injuries to Mariia and serious injuries to Oksana.

(h) I found that prior to the night of the collision Mr. Beedawia had travelled Melbourne Road on many occasions albeit never in darkness.

(i) I further found that at the point at which his vehicle was 100 meters from the intersection, Mr. Beedawia had a clear, unobstructed view of westbound traffic on Glendon Drive.

(j) At the time of the collision, Mr. Beedawia had been on duty for almost 14 hours. He was upset with his employer for requiring that he return to Strathroy and transport a second load of auto parts to Windsor and that because of these factors he was distracted in the moments prior to the collision.

(k) It was dark and Mr. Beedawia had encountered fog as he was travelling southbound toward the intersection. Notwithstanding the darkness and the presence of fog, Mr. Beedawia did not reduce his speed prior to the collision.

(l) Mr. Beedawia was an experienced commercial driver. He had special training and held a special license permitting him to operate a transport truck. He testified that he understood the enhanced dangers a transport truck presented to the public given its size and weight relative to the average motor vehicle used for personal use travel on public roadways.

(m) I found that Mr. Beedawia was familiar with the route he was travelling along Melbourne Road and was aware of the existence of the controlled intersections along the route albeit unaware of their precise location. In the context of this finding, I found the following conduct constituted dangerous driving:

(i) his failure to adjust his manner of driving, and specifically the speed at which he was travelling, to account for fog conditions and his reduced visibility;

(ii) his failure to heed the road signs warning of an upcoming stop sign and a controlled intersection ahead;

(iii) his failure to observe the position and movements of other motor vehicles travelling on Glendon Drive and vehicles stopped facing north on Melbourne Road as he approached the intersection;

(iv) his failure to observe/detect rumble strips indicating a controlled intersection ahead because he was distracted; and

(v) his failure to apply the brakes of his truck prior to the collision.

Circumstances of the Offender

[4] Mr. Beedawia is presently 32 years of age and at the time of the offences was 27 years of age. He is married and has two children - three years and nine months of age. He has no prior criminal or driving record.

[5] I have had the benefit of a pre-sentence report authored by probation and parole officer, Vanessa Mineau. Ms. Mineau conducted interviews with Mr. Beedawia, his wife, Revan Al-Daem, his mother, Khany Badawee, his brother, Talal Beedawia, as well as the victims, Vitalii Bundur and Oksana Pavlenko.

[6] According to the pre-sentence report:

• Mr. Beedawia was born in Baghdad, Iraq and is the youngest of three children. As a result of the war in Iraq, Mr. Beedawia, his parents and siblings fled to Syria in 2004. He returned to Iraq in 2005 only to leave again in 2007 eventually immigrating to Canada in 2011.
• Growing up, Mr. Beedawia enjoyed a loving and supportive home free of any abuse or conflict. He continues to enjoy the love and support of his parents and siblings and has regular, consistent communication and contact with his family.
• Mr. Beedawia married his wife, Revan Al-Daem, in 2017. They share two children together with their youngest child born in June of last year. Ms. Al-Daem describes Mr. Beedawia as a wonderful husband and father who provides emotional support for his young family.
• Mr. Beedawia withdrew from secondary school in grade 10. He did not obtain his high school diploma. After immigrating to Canada in 2011 he began working in a factory as a general labourer to provide financial support for his family. In 2016 he obtained his commercial truck license and worked in the trucking industry until the offences in November 2019. After the offences, Mr. Beedawia remained unemployed for approximately one year and returned to employment in 2020 as a cashier at a local convenience store. Since 2023, Mr. Beedawia has been employed as a delivery driver for an auto parts company on a full-time basis. At present, he is the sole financial provider for his young family.
• Alcohol and other drug use has never been an issue for Mr. Beedawia.

[7] Sixteen (16) letters were filed in support of Mr. Beedawia on the sentencing hearing. These letters were received from various family members including his aunt, father, wife, sister, cousin, brother-in-law, sister-in-law and mother-in-law. In addition, his current employer as well as two former employers, a neighbour and various family friends spoke to his good character. These letters also attest to the obvious close bonds within Mr. Beedawia’s extended family and his community.

[8] In these letters, Mr. Beedawia is consistently described as:

(a) compassionate, honest, loyal, loving and reliable;

(b) a devoted and dedicated father and husband;

(c) a good, hard-working man who adores his family; and

(d) someone who gives freely of his time to help relatives in need and who puts the needs of his family and others ahead of his own.

[9] His employer and former employers described him as hard-working, responsible, dedicated to his professional duties, honest, and respectful.

[10] A consistent thread woven among these letters, is that Mr. Beedawia is an honest, hard-working, caring and compassionate individual; a loving and devoted husband and father; and someone committed to helping others.

[11] It was emphasized in various letters of support as well as in the presentence report that Mr. Beedawia is extremely remorseful, has experienced overwhelming feelings of guilt and has suffered from extreme emotional distress following the offences. His lawyer advised the court that Mr. Beedawia has, himself, suffered the loss of a child and submits that this experience allows him to empathize with the Mariia’s parents and enable him to understand the profound grief and feelings of loss experienced by them.

Victim Impact

[12] Mariia’s father, Vitalii Bundur, prepared a victim impact statement on behalf of himself and Mariia’s mother which statement speaks to the incredible and near-indescribable grief they have suffered following Mariia’s death. This statement was filed as an exhibit at the sentencing hearing.

[13] Mr. Bunder is a native of the Ukraine. Notwithstanding that English is not his first language, Mr. Bundur did an exemplary job describing for the court the devastating impact of Mariia’s death. At the time of the collision, Mariia was Mr. Bundur’s and Ms. Pavlenko’s only child. Mr. Bundur heart-wrenchingly described how after losing Mariia his family was completely destroyed and that he and Oksana felt “lost in this world”. He says they both fell into a deep depression. He explained how they lost their ability to communicate with each other and their relationship became broken for a period of time as they learned to adjust to a life without their beloved daughter.

[14] He spoke of all the milestones Mariia will miss – school graduation, getting married and having children. He stated that the pain of losing Mariia is almost more than he and Oksana can bear, and the wounds inflicted by the death of Mariia have not healed.

[15] Mr. Bundur says he understands that no matter what sentence the court may impose, it cannot bring Mariia back to them. He asks only that the court be fair. Notwithstanding the loss of their child on Canadian soil, he and Oksana remain proud to be a part of Canada which he described as a “great country”.

[16] Oksana did not testify at trial and she did not choose to make a victim impact statement on her own behalf. With respect to the injuries, she suffered in the collision, medical records entered into evidence at trial establish that as a result of the collision, Oksana suffered a spinal fracture, kidney laceration, liver hematoma and fractures to the fingers of her left hand.

[17] In his victim impact statement, Mr. Bundur advised that both he and Oksana continue to receive chiropractic care for the injuries they suffered in the collision.

Positions of the Crown and Defence

[18] The Code provides for a maximum sentence of life imprisonment for a conviction for the offence of dangerous driving causing death. A conviction for the offence of dangerous driving causing bodily harm carries a maximum term of imprisonment of 14 years.

[19] On behalf of the Crown, Mr. Monaghan seeks a 4–6-year penitentiary sentence.

[20] The Crown also seeks collateral orders including a driving prohibition order (pursuant to s. 320.24 of the Code) in the range of 5 to 10 years to take effect upon completion of the custodial sentence together with a secondary DNA order. The Crown also asks that a (s. 743.21) non-communication order with respect to the victims be imposed during the period of custody.

[21] Having regard to Mr. Beedawia’s particular antecedents, Mr. Marley on behalf of Mr. Beedawia is opposed to the imposition of a penitentiary sentence and seeks a sentence of two years less a day to be served in the community followed by a three-year period of probation. The defence is unopposed to the imposition of a driving prohibition for a period of five years; a non-communication order between Mr. Beedawia and the victims during the conditional sentence and during the term of probation; and a secondary DNA order.

Principles of Sentencing

[22] The fundamental purposes of sentencing are set out in s. 718 of the Code.

[23] They are: to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: to denounce unlawful conduct, to deter the offender and other persons from committing offences, to assist in rehabilitating offenders, to separate offenders from society, where necessary and to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

[24] Other principles set forth in ss. 718.1 and 718.2 of the Code also apply. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[25] The parity principle requires that the sentence imposed should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[26] The primary focus of sentencing in cases involving dangerous driving causing death and/or serious bodily harm, is denunciation and general and specific deterrence.

Aggravating and Mitigating Factors

[27] Aggravating factors are essentially factors that lead to a heavier sentence within the range of appropriate sentence. Here, the aggravating factors include, among others, those found in s. 320.22 of the Code. I am mindful that I must not consider as aggravating the conduct found to establish the essential elements of the offence of dangerous driving. That is, I cannot punish Mr. Beedawia twice for the same behaviour.

[28] Pursuant to s. 320.22, when sentencing an offender for an offence under s. 320.13, the court must consider, in addition to any other aggravating circumstances, whether:

(a) the commission of the offence resulted in bodily harm to, or the death of, more than one person: this aggravating circumstance applies. Mr. Beedawia’s dangerous driving resulted in the death of Mariia and serious injuries to Oksana;

(b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on the street, road or highway or in another public place: this aggravating circumstance does not apply;

(c) a person under the age of 16 years was a passenger in the conveyance operated by the offender: this aggravating circumstance does not apply;

(d) the offender was being remunerated for operating the conveyance: this aggravating circumstance applies. At the time of the offence, Mr. Beedawia was driving a transport truck in the course of his employment duties;

(e) the offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood: this aggravating circumstance does not apply;

(f) the offender was operating a large motor vehicle: this aggravating circumstance applies. Mr. Beedawia was operating a transport truck with attached fully loaded trailer at the time of the offence; and

(g) the offender was not permitted, under a federal or provincial act, to operate the conveyance: this aggravating circumstance does not apply.

[29] In addition to those statutory aggravating circumstances, the significant emotional impact on the victims brought about by the death of their child, is an aggravating factor in this case.

[30] I must now consider any mitigating factors. Mitigating factors are essentially factors that should lead to a lighter sentence. Here, the important mitigating factors are as follows:

(a) Mr. Beedawia has no prior criminal record. Moreover, as a licensed commercial truck driver he has no driving record or any history of failing to abide by safety regulations imposed on commercial truck drivers;

(b) at 32 years of age presently and 27 years of age at the time of the offences, Mr. Beedawia is relatively youthful thereby increasing his chances of rehabilitation;

(c) he comes from a strong and supportive immediate and extended family;

(d) during his interview with Ms. Mineau, Mr. Beedawia expressed remorse and accepts full responsibility for his actions. He described the offences as “horrible” and expressed regret for the harm he has caused to the victims. These offences have caused Mr. Beedawia to suffer from feelings of extreme guilt. He explained that the emotional trauma from the collision resulted in him being incapable of working for approximately a year following the offences; and

(e) he is employed on a full-time basis and is the primary financial support for his young family.

[31] Since shortly after being charged, Mr. Beedawia has been free on his own recognizance. There has been no report of any breach of that recognizance.

[32] Although not mitigating, the collateral deportation consequences must be taken into consideration. Mr. Beedawia is a permanent resident of Canada. I was advised at the sentencing hearing that, before these offences, Mr. Beedawia had begun the process of obtaining his Canadian citizenship. However, the citizenship process was halted by immigration officials in the face of these charges. Section 36(1) of the Immigration and Refugee Protection Act makes him subject to deportation having been convicted of an offence punishable by a maximum term of imprisonment of at least 10 years. Because in this case, immigration consequences are triggered upon conviction, and not sentencing, they are not relevant for purposes of determining a fit sentence. However, these potential consequences neutralize the significance of Mr. Beedawia failing to enter a guilty plea and the absence of this mitigating factor in this case. Simply stated, he had no choice but to proceed to a trial given the seriousness of the charges and their impact on his immigration status.

Analysis

[33] Being a first-time offender, in addition to principles of denunciation and general deterrence, I must also turn my mind to the principles of individual deterrence and rehabilitation.

[34] I am also guided by the principle of restraint. In crafting a fit and appropriate sentence I am mandated pursuant to ss. 718.2 (d) and (e) of the Code to consider and impose all sanctions other than imprisonment that are reasonable in the circumstances. I am reminded that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.

[35] With respect to these particular offences, Pratt J. in the recent Ontario Court of Justice decision in R. v. Obermok (September 20, 2023 unreported decision Windsor 21 – 11740) summarized the 2018 legislative changes and their impact on sentencing for dangerous driving convictions. At para. 53 the court wrote:

[53] Firstly, Parliament changed how these offences can be punished. As of 18 December 2018, a whole new regime governing driving offences came into effect. Among the myriad (sic) changes, maximum sentences for dangerous driving causing bodily harm or death were increased. Prior to the changes, the maximum sentences were 10 years and 14 years, respectively. Under the new legislation, the maximums have increased to 14 years and life imprisonment. While no one is advocating for the maximum sentences in the present case, the changes are still important because they signal Parliament’s wishes. As stated by Justice Watts in R. v. Lis, 2020 ONCA 551 at paragraph 49:

Maximum sentences determine the objective gravity of an offence by indicating its relative severity. Parliament’s decision to increase the maximum sentence for a crime demonstrates its intention that the offence be punished more harshly. This shifts the distribution of proportionate sentences for the offence: Lacasse, at para. 7; Friesen, at paras. 96–97. To respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than those imposed in cases that preceded the increase in the maximum sentence: Friesen, at para. 100.

[36] Counsel referred me to caselaw in support of their respective positions on sentence. I will deal first with the caselaw to which the Crown referred in support of a penitentiary sentence.

[37] The case that is the closest to the facts of the present case is R. v. Bhangal, 2016 ONCA 857. As in the present case, this case involved a commercial truck driver who violated their duties relating to the safe operation of their large and potentially dangerous motor vehicle. In Bhangal, the accused drove on insufficient sleep and apparently fell asleep. His truck drifted into oncoming traffic, and he killed the driver of a minivan who was hit head-on. He falsified his records and he had previously received a warning about driving on insufficient sleep. In Bhangal, Hourigan J. (as he then was) imposed a five-year sentence and a 15-year driving prohibition which was upheld by the Court of Appeal. The sentencing judge concluded that the offender’s deliberate course of conduct of doctoring his logbooks to avoid his rest obligations was a significant aggravating factor.

[38] Although the circumstances in Obermok did not involve a commercial transport truck operator, the circumstances of the collision and the victims were otherwise very similar to those in this case. The offender was travelling well in excess of the posted speed limit when he entered the intersection without stopping or slowing down at the stop sign. Upon entering the intersection, his vehicle struck a motor vehicle killing the 2-year-old child buckled into a front-facing car seat in the rear seat of the vehicle, and severely injuring the child’s mother who was driving the vehicle. The evidence established that the offender had consumed alcohol prior to the offence. The sentencing judge found the presence of alcohol in the offender’s blood to be a significant aggravating factor and imposed a sentence of five years with a driving prohibition of 15 years.

[39] In the case of R. v. Singh, 2019 ONCA 872 the Ontario Court of Appeal upheld a sentence of three years imprisonment and a five-year driving prohibition in the case of an offender who, on two occasions, pulled his tanker truck out into the oncoming lane intending to pass slower moving vehicles in his own lane. On his second attempt, the offender struck a minivan head-on killing its driver. The offender was 31 years of age with no criminal or driving record.

[40] In R. v. Pandher, 2021 ONSC 5787 the defendant truck driver became distracted while driving and did not pay attention to construction markers even though he was aware of an upcoming construction zone having driven through it multiple times in preceding days. The offender’s failure to remove his cruise control thereby exceeding the speed limit as he entered the construction zone, led to a multi-vehicle collision resulting in the death of a young mother of three and serious injury to two others. The defendant did not follow safety regulations regarding hours of driving and hours of rest and was found to have falsified his logbooks by reporting only half of his actual driving hours. The young first-time offender was given a three-year sentence followed by a three-year driving prohibition.

[41] In the recent sentencing decision in R. v. Chrisjohn, 2023 ONSC 6299, the offender and her cousin, Marcus Summers, operated vehicles while unlicensed; at night; after consuming alcohol and marijuana; at high speed; and with their vehicles occupying both lanes of the road. While “street racing” (which is a statutory aggravating factor), Ms. Chrisjohn blocked Mr. Summers from returning to his proper lane causing his vehicle to collide head-on with an oncoming vehicle. The driver of this vehicle was killed. Ms. Chrisjohn, a youthful first-time indigenous offender, was sentenced to a custodial sentence of four years followed by a three-year driving prohibition. It is notable that Mr. Summers who was found to have a lower level of blameworthiness for the same conduct, was granted a conditional sentence of two years less a day.

Conditional Sentence

[42] Pursuant to s. 742.1 of the Code, if a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, if

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;

(b) the offence is not an offence punishable by a minimum term of imprisonment; and

(c) the offence is not one of the enumerated offences.

[43] Before considering whether a conditional sentence is an appropriate disposition in the circumstances of this case, I must first determine the appropriate length of sentence. A conditional sentence is only available where the appropriate length of sentence is less than two years.

[44] The Crown seeks a custodial sentence in the range of 4 to 6 years - well in excess of the two-year precondition set forth in section 742.1.

[45] I acknowledge that the 2018 legislative amendments were intended as a clear direction to trial judges that the range of sentence for convictions for dangerous driving offences must increase. However, had Parliament intended to remove the availability of a conditional sentence altogether, it would have done so expressly by providing for a minimum term of imprisonment. It did not do so. A conditional sentence remains available if the circumstances establish that same would be fit and appropriate.

[46] Sentencing is more art than science; it is not a mathematical or formulaic process. The determination of an appropriate penalty involves a delicate balancing of contrasting considerations, all rooted in the unique and individual facts before the court.

[47] As was borne out in my review of the comparative caselaw, the offence of dangerous driving can encompass a wide spectrum of conduct on the part of the offender. The consequences of such conduct are often tragic as was the case for Mr. Beedawia, but the degree of moral blameworthiness will vary depending on the particular circumstances of the offending conduct.

[48] The Ontario Court of Appeal commented upon blameworthy conduct for dangerous driving offences in R. v. L. (J.) at para. 3 where it was stated:

...the particular offence is very much driven by individual factors, especially the blameworthiness of the conduct. The more that the conduct tends towards demonstrating a deliberate endangerment of other users of the road and pedestrians, the more serious the offence and the more likely that a lengthy prison term will be required.

[49] Here, Mr. Beedawia’s liability is not based on him having acted intentionally which conduct caused or contributed to the collision. By that I mean, Mr. Beedawia did not: (i) consume alcohol or other drugs prior to the collision; (ii) drive at a speed in excess of the posted speed limit; (iii) engage in “street racing” (iv) intentionally and deliberately falsify his logbooks; (v) exceed the permitted daily limit for on-duty hours; or (vi) operate a commercial vehicle knowing it failed to comply with safety regulations.

[50] The evidence at trial established that Mr. Beedawia was upset with having to transport a second load of parts from Strathroy to Windsor. Because he was upset and admittedly tired after almost 14 hours on duty, he was distracted. Because he was distracted, he failed to reduce his speed in foggy conditions; he failed to keep a look out for a controlled intersection which he knew existed along the route he was travelling; and he failed to react to the cues which were visible to him as he neared the intersection which signaled that he was approaching a controlled intersection requiring him to stop. These failures were not conscious decisions. Rather, his offending conduct was comprised of various acts of omission or negligence. Considered in the context of his enhanced duties as a commercial truck operator, this conduct attracted criminal liability. However, I find that acts of omission attract less moral blameworthiness thereby reducing the length of sentence within the range of appropriate sentence for offences involving dangerous driving.

[51] Consequently, having regard to the principles of sentencing and, in particular, the paramount objectives of denunciation and general deterrence, and adjusting for the mitigating and aggravating circumstances present in this case, I find that a penitentiary term is not required to address the objectives of sentencing in this case.

[52] I will now address the final issue to be considered. That is, whether a conditional sentence would in this case be appropriate as being consistent with the purposes and principles of sentencing and, in particular, the paramount objectives of denunciation and deterrence.

[53] Having found that a conditional sentence is available as a sentencing option, I must first satisfy myself that service of Mr. Beedawia’s sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Code and specifically the paramount principles, in this case, of denunciation and specific and, more importantly, general deterrence.

[54] In R. v. Proulx, 2000 SCC 5, the Supreme Court of Canada compared conditional sentences with incarceration. Lamer C.J.C. writing for the court at paragraphs 40-41 had this to say about conditional sentences:

40 Although a conditional sentence is by statutory definition a sentence of imprisonment, this Court, in R. v. Shropshire, [1995] 4 S.C.R. 227 (S.C.C.) at para. 21, recognized that there "is a very significant difference between being behind bars and functioning within society while on conditional release". See also Cunningham v. Canada, [1993] 2 S.C.R. 143 (S.C.C.) at p. 150, per McLachlin J. These comments are equally applicable to the conditional sentence. Indeed, offenders serving a conditional sentence in the community are only partially deprived of their freedom. Even if their liberty is restricted by the conditions attached to their sentence, they are not confined to an institution and they can continue to attend to their normal employment or educational endeavours. They are not deprived of their private life to the same extent. Nor are they subject to a regimented schedule or an institutional diet.

41 This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration. As this Court stated in Gladue, supra, at para. 72,

in our view a sentence focussed on restorative justice is not necessarily a "lighter" punishment. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.

A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.

[55] Coincidentally, Proulx was a case involving offences of dangerous driving causing death and dangerous driving causing bodily harm. Of particular note, was the comment of the Supreme Court of Canada after setting aside the conditional sentence imposed by the Court of Appeal and reinstating the trial judge’s imposition of an 18-month sentence of incarceration for Mr. Proulx. At paragraph 130, Chief Justice Lamer (as he then was) wrote: “these comments should not be taken as a directive that conditional sentences can never be imposed for offences such as dangerous driving or impaired driving. In fact, were I a trial judge, I might have found that a conditional sentence would have been appropriate in this case. The respondent is still very young, he had no prior record and no convictions since the accident, he seems completely rehabilitated, he wants to go back to school, he has already suffered a lot by causing the death of a friend and was himself in a coma for some time. To make sure that the objectives of denunciation and general deterrence would have been sufficiently addressed, I might have imposed conditions such as house arrest and a community service order requiring the offender to speak to designated groups about the consequences of dangerous driving…”.

[56] In this case, rehabilitation is not the focus. The risk of recidivism is extremely low. Arguably, Mr. Beedawia was rehabilitated mere moments after the collision when the tragic consequences of his offending conduct became known to him. I note that he has the love and support of his immediate and extended family, and they are committed to support his further rehabilitation if needed.

[57] Similarly, specific deterrence is not the focus in this case. The defendant has a deep sense of remorse and has and continues to have feelings of overwhelming guilt.

[58] Unlike other offences involving death and serious personal injury, dangerous driving offences are often committed in circumstances where the offender behaves recklessly and negligently without any intention of causing harm or injury to others. It is not unusual to find an offender convicted of offences such as these, to be an otherwise law-abiding, pro-social, productive member of society. This is true of Mr. Beedawia.

[59] The evidence before me does not persuade me there are any safety concerns should Mr. Beedawia serve his sentence in the community. Accordingly, I find that a global conditional sentence of two years less a day is a fit and appropriate sentence in the circumstances of these offences and the circumstances of Mr. Beedawia.

[60] I wish to emphasize that there is nothing the court can do to redress the wrong that was done to Mariia Bundur, Oksana Pavlenko and Vitalii Bundur. I promise that if there was, I would do it. However, I believe I am in the best position to assist Mr. Beedawia to continue in society as a capable, contributing member of his community. In my view, this can best be achieved by imposing a conditional sentence followed by the maximum period of probation.

[61] It may be difficult for the Bundur family and others to understand the approach that I have taken today to sentencing Mr. Beedawia for these offences. Mr. Beedawia’s negligent conduct was sufficient to attract criminal liability in this case. The law has determined it to be a crime when one drives in a manner which is a marked departure from that which can be expected of a reasonable driver, in the circumstances, and in this case a marked departure from that expected of a reasonable commercial driver. Mr. Beedawia did not intend to hurt anyone. Rather, he was distracted which led him to take unacceptable risks resulting in tragic consequences for the Bundur family and conduct attracts criminal liability.

[62] The problem in crafting an appropriate sentence in a case like this is that the court is faced with, on the one hand, the untimely and tragic death of a young child. The experience of losing a child in these circumstances is beyond the imaginable. On the other hand, the court must impose a sentence on a relatively youthful, extremely remorseful offender having low moral blameworthiness, with a young family who are dependent on his emotional and financial support, and who comes before the court for the first, and what I anticipate will be the last, time.

[63] In his victim impact statement, Mr. Bundur makes no mention of a desire to avenge Mariia’s death through the imposition of an unduly harsh penalty. In fact, he asks only that the court be fair. Mr. Bundur’s compassion in this respect and his understanding is admirable. The imposition of a fair sentence is the primary objective of the sentencing process. Through the sentencing process, the justice system does not purport to or even attempt to make up for the loss of life. Such would be an unattainable goal. However, it is my hope that at the conclusion of this process, Mariia’s family will believe that their voices have been heard, and that justice has been done.

Imposition of Sentence

[64] Mr. Beedawia please stand.

[65] In this case, I find that a fit and appropriate sentence for your convictions for the offences of dangerous driving causing death and dangerous driving causing bodily harm, is the imposition of a conditional sentence for a global term of two years less a day followed by a 3-year period of probation.

[66] The sentence is broken down as follows:

(a) for the offence of dangerous driving causing the death of Mariia Bundur, a conditional sentence of two years less a day is imposed; and

(b) for the offence of dangerous driving causing bodily harm to Oksana Pavlenko, a conditional sentence of 18 months is imposed, to run concurrent.

Conditional Sentence Order

[67] In addition to the statutory terms and conditions, I impose the following additional terms:

1. For the duration of your sentence, you shall be subject to house arrest and remain within your residence daily except in the following circumstances:

   (a) attendance for medical/dental appointments and scheduled court attendances, and travel related to such appointments;

   (b) meetings with the conditional sentence order supervisor or treatment/counselling sessions as directed by your supervisor;

   (c) on Saturdays between 10 AM and 2 PM to shop for the necessities of life; and

   (d) in relation to any other matter as may be pre-approved in writing by the conditional sentence order supervisor.

2. You shall carry the conditional sentence order with you whenever you are outside of your residence;

3. You shall reside at a location approved by your conditional sentence order supervisor and advise of any change of address;

4. You shall not contact or communicate, directly or indirectly, with Vitalii Bundur and/or Oksana Pavlenko; and

5. You shall not be within 200 meters of any place where Vitalii Bundur and/or Oksana Pavlenko live, work, go to school, frequent or any place you know them to be.

Probation

[68] With respect to the period of probation, in addition to the statutory terms and conditions, I impose the following additional terms:

1. You shall, within two business days after completing your conditional sentence, report in person to your probation officer and thereafter continue to report as directed by your probation officer;

2. You shall notify your probation officer, in advance of any change of name or address and promptly notify the Court or your Probation Officer of any change of employment or occupation;

3. You shall reside where approved by your Probation Officer;

4. You shall not contact or communicate, directly or indirectly, with Vitalii Bundur and/or Oksana Pavlenko; and

5. You shall not be within 200 meters of any place where Vitalii Bundur and/or Oksana Pavlenko live, work, go to school, frequent or any place you know them to be.

[69] With respect to ancillary orders, the following shall issue:

(a) a driving prohibition order for a period of seven (7) years to run concurrent with the conditional sentence;

(b) a secondary DNA order;

(c) a 10-year weapons prohibition order (s. 109 of the Code); and

(d) a victim fine surcharge of $400 payable within 60 days.

[70] Last the conditional sentence and probation orders shall be transferred to Windsor Ontario where the defendant resides.

[71] I will endorse the indictment accordingly.

“Justice A.K. Mitchell” Justice A. K. Mitchell Delivered Orally: April 11, 2024