COURT FILE NO.: CR-23-10000570-0000
DATE: 20240619
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
NITAN THAKUR
Anita Leggett and Andrew Gibbons, for the Crown
Rupinjit Singh Bal, Ahbinav Dang and Jimmy Malhi, for Nitan Thakur
HEARD: December 6, 2023, and April 18, 2024
REASONS FOR SENTENCE
HIMEL J.
[1] Nitan Thakur entered pleas of guilty to the following charges: impaired operation of a motor vehicle causing death contrary to s. 320.14(1) of the Criminal Code of Canada, R.S.C., 1985, c. C-46 and five counts of impaired operation of a motor vehicle causing bodily harm contrary to s. 320.14(2) of the Code. He had elected to be tried by a judge sitting alone.
[2] The plea inquiry pursuant to s. 606(1) of the Criminal Code was satisfied. Mr. Thakur confirmed that he was entering these pleas voluntarily, that he understood that the pleas were an admission of the essential elements of the offences, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the pleas, and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence.
[3] Following the pleas of guilty, I ordered that a pre-sentence report be prepared. The report has now been received and reviewed by counsel. Counsel have made their submissions on sentence. The following are my reasons for sentence.
FACTUAL BACKGROUND
[4] On Friday, July 1, 2021, at approximately 11:40 p.m., Nitan Thakur was driving a red 2014 Jeep Grand Cherokee with licence plate CWAJ 885 westbound on Wellington Street West towards University Avenue in the City of Toronto. Mr. Thakur is the registered owner of this vehicle. Wellington Street is a 40 km/hr. zone and consists of an undivided roadway with four lanes for westbound traffic. University Avenue is a 40 km/hr. zone and consists of a divided roadway with two lanes for northbound and two lanes for southbound traffic. The intersection of Wellington Street West and University Avenue is controlled by automatic traffic lights. At the time, the roadways were partly wet.
[5] On this Canada Day evening, a statutory holiday, and the first day of a long weekend, this area of downtown Toronto was busy with pedestrian and vehicular traffic. There are many bars and restaurants in the area, including Moxie’s at the northwest corner of the intersection which has an outdoor patio adjacent to the street. Prior to driving, Mr. Thakur had been at a restaurant with his passenger, Olivia Monisse, a friend of a few years. After eating, they went to a lounge and bar on Front Street East in the City of Toronto. There, they both consumed alcohol. Ms. Monisse recalls consuming four to five alcoholic drinks. She does not know how many drinks Mr. Thakur consumed.
[6] As Mr. Thakur approached the intersection, Carlos Bastarrachea-Gallardo and his wife Emilia Ballester, who had been walking northbound on the west side of University Avenue, were stopped at the southwest corner of the intersection. Mr. Bastarrachea-Gallardo is 32 years old. At the same time, Gregory Girgis was walking northbound on the west side of University Avenue across Wellington Street West with the pedestrian right of way. Mr. Girgis was 26 years old. He worked as a bartender and had just left work at a nearby Jack Astor’s restaurant.
[7] Mr. Thakur approached the intersection at a high rate of speed. Witnesses saw and heard the Jeep accelerate loudly as it approached University Avenue and observed the Jeep enter the intersection contrary to a red traffic signal. The traffic signal had been red for a minimum of 3.5 seconds prior to Mr. Thakur entering the intersection. As Mr. Thakur entered the intersection on the red signal, Fekadu Hedego, who was driving a white 2022 Honda CRV with three passengers in the rear, and Mohashir Khokhar, who was driving a black 2020 Toyota Corolla with one passenger in the rear, had already begun to proceed northbound on University Avenue with the right of way on a green traffic signal. Mr. Khokhar and Mr. Hedego are both Uber drivers and their passengers were their Uber customers.
[8] When the Honda and the Toyota proceeded through the intersection on the green signal and Mr. Thakur entered the intersection at a high rate of speed contrary to the red signal, Mr. Thakur’s vehicle collided with the front passenger side of the Honda and the rear passenger side of the Toyota. Mr. Thakur’s Jeep then barreled into the northwest corner of the intersection and collided with a cement structure. The impact between Mr. Thakur’s Jeep and the Honda had enough force to send the Honda spinning towards the southwest corner of the intersection where it struck and severely injured Mr. Bastarrachea-Gallardo.
[9] After colliding with two vehicles in the intersection, the Jeep continued travelling with enough speed that the force of the impact with the northwest corner of the intersection caused the safety frame of the vehicle to become damaged. Mr. Girgis was caught in the path of the Jeep. He was struck and crushed when Mr. Thakur’s Jeep collided with the cement structure.
[10] The street was filled with people and many bystanders rushed to the assistance of those involved in this collision. Many people called 911. Police and emergency services quickly arrived at the scene. Emergency services rushed to assist Mr. Bastarrachea-Gallardo who was bleeding profusely and suffering from severe injuries including a severed leg. Paramedics took Mr. Bastarrachea-Gallardo to St. Michael’s Hospital for emergency treatment. Emergency personnel also rushed to assist Mr. Girgis and attempted to perform CPR. Their efforts were to no avail. Mr. Girgis was pronounced deceased at the scene at 12:01 a.m. on July 2, 2022. His cause of death was blunt force torso trauma.
[11] Witnesses at the scene identified Mr. Thakur as the driver of the red Jeep. Witnesses also told officers that they saw a beer can being thrown out of the Jeep after the collision. A silver tall can of beer was found at the scene. Police spoke to Mr. Thakur and the woman who had been the passenger in his vehicle, Olivia Monisse. When police asked if Mr. Thakur was the driver, he said, “Yeah”. When police asked Mr. Thakur which vehicle he was driving, he said, “This red vehicle”. When police asked Mr. Thakur what happened, he said, “The light turned red, I wasn’t able to stop, and I hit a vehicle”. Mr. Thakur advised police that he had consumed a couple of drinks. Ms. Monisse also confirmed that Mr. Thakur was the driver of the Jeep.
[12] The investigating officer observed that Mr. Thakur appeared dazed, and the officer smelled a strong odour of alcohol coming from Mr. Thakur’s breath. The investigating officer arrested Mr. Thakur for the offence of impaired driving causing death. He read Mr. Thakur his right to counsel, cautioned him and made the breath demand.
[13] Mr. Thakur was taken to Traffic Services to comply with the demand. A Qualified Breath Technician administered breath tests using an Approved Instrument with the following results: the first sample taken at 1:26 a.m. showed 160 mg of alcohol in 100 ml of blood; the second sample taken at 1:49 a.m. showed 150 mg of alcohol in 100 ml of blood.
[14] Following the collision, police canvassed for and obtained surveillance video from the area and cell phone video from bystanders, including surveillance video from 18 Wellington Street East, from 53 Wellington Street West, from 40 University Avenue, from 55 University Avenue and cell phone video from a bystander on scene. Surveillance video depicts Mr. Thakur’s red Jeep driving westbound along Wellington Street from the area of Church Street and Wellington Street East. Witnesses observed the vehicle swerving in its lane. At various points, the Jeep can be seen accelerating quickly westbound on Wellington Street East and West. Surveillance video also captures the collision. From each vantage point, the video shows Mr. Thakur’s Jeep entering the intersection on a red light. The surveillance also shows Mr. Thakur’s Jeep colliding with the Honda and the Toyota before barreling into the northwest corner of the intersection. The cell phone video shows the aftermath of the collision, including the moment when Ms. Monisse and Mr. Thakur exit the red Jeep.
[15] Police also photographed the scene, including the Honda CRV and the location where it struck and injured Mr. Bastarrachea-Gallardo, as well as Mr. Thakur’s red Jeep and where it struck and killed Mr. Girgis.
[16] On July 6, 2022, police investigators sought and obtained judicial authorization to seize and search the red Jeep’s event data recorder (“EDR”). An EDR records data about the vehicle including information about vehicle speed, acceleration and braking in the 5 seconds prior to an event like a collision. In this case, the EDR on Mr. Thakur’s Jeep recorded data for two impact events. The EDR data reveals the following information regarding the first impact with Mr. Hedega’s Honda:
At 5 seconds before the initial impact, Mr. Thakur’s Jeep was travelling at 99 km/hr. Mr. Thakur was engaging the accelerator pedal at 26% and the engine throttle was engaged at 27%. He had accelerated to 99 km/hr. after being stopped at the intersection of Bay and Wellington Street West.
At 4 seconds before the initial impact, Mr. Thakur’s Jeep was travelling at 104 km/hr. Mr. Thakur was engaging the accelerator pedal at 77% and the engine throttle was engaged at 56%.
At 3 seconds before the initial impact, Mr. Thakur’s Jeep was travelling at 110/km/hr. through the intersection of Wellington Street West and York Street. Mr. Thakur was engaging the accelerator pedal at 77% and the engine throttle was engaged at 65%.
At 2 seconds before the initial impact, Mr. Thakur’s Jeep was travelling at 129 km/hr. Mr. Thakur was engaging the accelerator pedal at 0%, and the engine throttle was engaged at 59%. This is the first moment when Mr. Thakur fully takes his foot off the gas pedal.
At 1.5 seconds before the initial impact, Mr. Thakur’s Jeep was travelling at 114 km/hr. Mr. Thakur was engaging the accelerator pedal at 0% and the engine throttle was engaged at 12%. This is the first moment when the vehicle’s brakes are engaged. The automated braking system (“ABS”) was not yet activated.
At 1 second before the initial impact, Mr. Thakur’s Jeep was travelling at 103 km/hr. Mr. Thakur was engaging the accelerator pedal at 0% and the engine throttle was engaged at 11%. The vehicles brakes are engaged. This is the first moment when the ABS is active, meaning the vehicle is skidding.
At 0.1 seconds before the initial impact, Mr. Thakur’s Jeep was travelling at 93 km/hr.
[17] The EDR data indicates that the second impact with Mr. Khokhar’s Toyota occurred 2.8 seconds after the initial impact with the Honda. The EDR data captures the following information regarding the second impact:
- At 2.1 seconds before the second impact, Mr. Thakur’s Jeep was travelling at 49 km/hr. the brake is disengaged at this point and remains disengaged until the second impact.
At 0.1 seconds before the second impact, Mr. Thakur’s Jeep was travelling at 29 km/hr.
[18] Several people were injured as a result of this collision.
[19] Carlos Bastarrachea-Gallardo’s left leg was amputated below the knee. His femur was fractured, and he sustained bruises and cuts to his right arm. He suffers from phantom limb pain, pain in his left thigh, disrupted sleep, flashbacks, anxiety, depression and is traumatized. He continues to receive treatment including physiotherapy, occupational therapy, and pain medication. He requires a prosthesis and retrofitting for his home.
[20] Fekadu Hedego, the driver of the Honda CRV, sustained a broken left ankle that required open surgery to repair. His right elbow was also broken, and he had a cut on his forehead above his right eyebrow. He suffered a concussion. He required the use of crutches or a walker to walk. He has difficulty sleeping and suffers from depression, anxiety, memory issues and his pain continues.
[21] Johanna Mallo was a passenger in the Honda CRV. Her pelvis and nine ribs were fractured, and her range of motion was impacted which may require further surgery. She was unable to walk. She sustained a possible mild traumatic brain injury in light of memory impairment, headaches and dizziness from which she now suffers. She has increased anxiety following the collision.
[22] Rocel Calero was a passenger in the Honda CRV. She had numerous cuts to her arms and legs from broken glass. She experiences back pain and occasional headaches. She, too, sustained a minor brain injury and has been traumatized as a result of the collision.
[23] Olivia Monisse was the passenger in the front passenger seat of the red Jeep driven by Mr. Thakur. As a result of the collision, she sustained multiple fractured ribs and bruised knees after hitting her knees into the dashboard. The injuries to her knees are ongoing. The fractured bones near the top of her chest cause her breathing to be laboured.
[24] Gregory Girgis did not survive the blunt force torso trauma caused by the collision and was pronounced deceased at the scene.
[25] On the basis of these facts and the admission of the defence, I found Mr. Thakur guilty on the charges of impaired operation causing death and impaired operation causing bodily harm (5 counts). It was also admitted by the Crown and defence that on July 1, 2022, Mr. Thakur was on a Form 9 Promise to Appear for outstanding charges of assault cause bodily harm and mischief under $5,000 arising from an incident in downtown Toronto on May 29, 2022. He also had outstanding charges under the Highway Traffic Act for speeding and stunt driving alleged to have occurred on September 26, 2020.
EVIDENCE AT THE SENTENCING HEARING
[26] Crown counsel filed a copy of the Agreed Statement of Facts along with a video compilation of the collision, two video chronology packages and photographs displaying the damage to the various vehicles as a result of the collision. Crown counsel also submitted the records from the Ministry of Transportation which show that Mr. Thakur had a driving record under the Highway Traffic Act for speeding in 2014 by driving 57 km in a 40 km/h zone and speeding in 2015 by driving 88 km in a 60 km/h zone and for fail to yield in 2022. He had a number of other infractions, for example, driving without a permit plate displayed, driving without a valid driver licence or improper class of licence and failing to have an insurance card. These infractions resulted in licence suspensions and reinstatements.
[27] The pre-sentence report was filed as an exhibit, and it will be referenced below.
[28] Crown counsel filed 21 Victim Impact Statements which were made exhibits at the sentencing hearing. A number of Greg Girgis’ relatives read the statements aloud to the court as did his close friends. It is difficult to summarize all that the statements said but what they demonstrate is the extent of the large close-knit family of which Greg was a part and how his death has been devastating for each of them. They have suffered physically, mentally, emotionally, and financially. Their loss is indescribable. Greg’s friends of more than 20 years expressed the pain and trauma they have experienced as a result of his death. Crown counsel also read some statements on behalf of those who were injured as a result of the collision including the two Uber drivers and their passengers. They have suffered physical pain, financial and mental instability. Their lives, too, have been forever changed. The statement of one of the first responding firefighters expressed how the images of this horrific event were some of the worst emergency scenes in his experience.
[29] Crown counsel also submitted a Community Impact Statement by Carolyn Swinson from Mothers Against Drunk Driving (MADD) as well as a chart showing the prevalence of drinking and driving offences in the City of Toronto. The number of arrests increased significantly from 2020 to 2023.
[30] Counsel for the defence submitted records from the Toronto South Detention Centre where Mr. Thakur was incarcerated since his arrest on July 1, 2022, on these charges for the period July 3, 2022, until January 6, 2023. During that time, there were 95 lockdowns (partial and full) due to staff shortages/isolation protocols. There is no evidence, that Mr. Thakur was the cause of the lockdowns.
[31] Counsel also filed the records from the Toronto East Detention Centre. The records cover the period from December 14, 2022, through to April 14, 2024. They note that for 480 nights, he was in a dorm placement and institutional lockdowns do not affect inmates when they are housed in the dorm. They have access to showers, telephones and television throughout the day. For his unit, however, there were a number of days when he did not receive fresh air or yard access because of lockdowns. He was offered yard access 42% of the time. There was no record of misconduct findings in the records. Mr. Thakur was cleared to work in the institutional work program which is restricted to inmates deemed lower security. He volunteered to work in the kitchen program and assist with housekeeping whenever asked.
[32] Mr. Thakur has been detained since his arrest on July 1, 2022, which is a total of 719 days.
[33] Counsel also submitted Certificates of Completion of various courses taken while Mr. Thakur has been in custody, 23 reference letters of support and a letter with a job offer to Mr. Thakur.
[34] At the conclusion of the sentencing hearing, Mr. Thakur spoke. He said that he has a heavy heart and is deeply sorry for his actions. He takes full responsibility and says that he makes no excuses for his reckless behaviour. He is committed to taking counselling and to his ongoing growth. He said he “humbly asks for mercy” and apologizes to the court and to the victims and their families.
ISSUES
[35] What is the appropriate sentence in this case? What is the appropriate credit given for pre-sentence custody?
POSITIONS OF THE PARTIES ON SENTENCE
[36] Mr. Gibbons on behalf of the Crown seeks a sentence of 11 years’ imprisonment for the impaired driving causing death count and 6 years for the remaining counts of impaired causing bodily harm imposed on a concurrent basis. He also requests a driving prohibition order for 15 years from the date of Mr. Thakur’s release from prison, a non-communication order under s. 743.21 with members of the family and the victims, an order that a sample of his DNA be taken pursuant to s. 487.051(3)(b) as these are secondary designated offences and an order of forfeiture of the Jeep pursuant to s. 490.1(1)(a) of the Code.
[37] Crown counsel highlighted some of the facts in the case to support his position: that the driving took place on Canada Day, a statutory holiday, at 11:40 p.m. in the heart of downtown Toronto where there were high rise residences and businesses. The area could expect to be busy, and it was that day. Mr. Thakur drove at a speed that reached as high as 129 km per hour and he had a blood alcohol level at 1:26 a.m. of 160 mg in 100 ml of blood and 150 mg. of alcohol in 100 ml of blood at 1:49 a.m. He had a driving record for speeding, operating a vehicle without a permit, operating a vehicle without insurance and had been charged with stunt driving. The consequences of Mr. Thakur’s actions for these offences are enormous.
[38] Mr. Gibbons submits that the sentencing objectives in cases of this kind, particularly where significant injury or death is involved are denunciation and deterrence. The range of sentence was set out in the case of R v. Altiman, 2019 ONCA 511, where Brown J.A. reviewed the case law for sentences for impaired driving causing death and wrote that a sentence of 4 to 6 years was appropriate unless the offender had a previous criminal record or driving record and that a sentence of 7.5 to 12 years was appropriate where the offender had such a record.
[39] In Altiman, the appellant was driving in the early morning hours in London, Ontario while heavily intoxicated. He had been at the Legion Hall where he got into a heated argument with his wife and drove away at 2:00 a.m. He ran a red light at a high rate of speed and collided with another vehicle. The two passengers in the rear seat of that vehicle were killed; the driver and another passenger were injured. The appellant pleaded guilty to two counts of operating a motor vehicle while impaired and causing the death of another person, two counts of criminal negligence causing death, two counts of operating a motor vehicle while impaired and causing bodily harm and two counts of criminal negligence causing bodily harm.
[40] Mr. Altiman was 31 years old at the time of the offences. He had been married for 14 years, had three children and was a member of the Walpole Island First Nation. The sentencing hearing had been conducted in a Gladue court. At that court, Mr. Altiman was sentenced to 10 years imprisonment and a 15-year driving prohibition and victim fine surcharges. He appealed the custodial portion of the sentence. The Court of Appeal reduced the sentence to 7 years.
[41] Brown J.A. noted that there has been an upward trend in the range for impaired driving causing death offences and cited the cases of R. v. Ramage, 2010 ONCA 488, R. v. Niganobe, 2010 ONCA 508; R. v. Junkert, 2010 ONCA 549 and R. v. Kummer. 2011 ONCA 29. In Ramage, the court upheld a four-year sentence for impaired driving causing death to one person and impaired driving causing bodily harm to another. In Niganobe, the Aboriginal offender was sentenced to five years of imprisonment for impaired driving causing death and impaired driving causing bodily harm. He had a prior criminal conviction for impaired driving. In Junkert, the Court of Appeal upheld a five-year sentence for the offence of impaired driving causing death where the offender was speeding and killed a jogger. In Kummer, the court upheld an eight-year sentence for impaired driving causing the death of three persons.
[42] Brown J.A. summarized that since Ramage, sentences for impaired driving causing death have clustered around the five-to-six-year mark with the exception of Kummer and the case of R. v. Bush, 2012 ONCA 743 where higher sentences were imposed (8 years in Kummer and 12 years in Bush). A significant factor has been that the offender had a significant driving record.
[43] Crown counsel submits that there are significant aggravating factors in this case: (1) that there were other transportation options available to Mr. Thakur in downtown Toronto; (2) that Mr. Thakur’s blood/alcohol concentration was 160 and 150 mg of alcohol in 100 ml of blood, almost two times the legal limit which is a statutorily aggravating factor where it exceeds 120 mg of alcohol per 100 ml of blood at the time of the offence: see s. 320.22(e) of the Code; (3) that Mr. Thakur drove three times the posted speed and in the seconds leading up to the collision was accelerating aggressively rather than reducing speed in the face of an amber and then a red light and that he was driving in a four block stretch at speeds where he accelerated aggressively showing that he drove in a highly dangerous manner for an extended period of time; (4) that he drove dangerously and while impaired on busy streets in downtown Toronto on a holiday weekend; (5) that he had a significant driving record with speeding convictions and had been arrested recently for stunt driving; (6) that Mr. Thakur worked for six years as a mechanic and he had knowledge of motor vehicles and how they work and he would have known the risks associated in travelling at high speeds and (7) that his driving caused the death of one person and injuries to several others. Section 320.22(a) says that it is a statutorily aggravating factor that the commission of the offence resulted in bodily harm to or the death of more than one person. The number of victims is highly aggravating, and the offences have had a catastrophic impact on the victims.
[44] Crown counsel acknowledges the following mitigating factors: (1) that Mr. Thakur entered a plea of guilty although the Crown says the plea came relatively late and the case is overwhelming; (2) that he is a relatively youthful first offender and (3) that he has family support and a positive work history. Crown counsel submits that the mitigating factor of having a positive upbringing is tempered by the fact that despite this, he did not make good decisions and second, that the court should not give too much weight to prior good character in respect of driving related offences: see R. v. Yogeswaran, 2021 ONSC 5920 at para. 67.
[45] Counsel for the Crown also argues that the frequency of a type of offence in the geographic region can be a relevant factor on sentencing and points to the evidence concerning the increase of drinking and driving offences in the City of Toronto.
[46] Crown counsel submits that the most relevant case to Mr. Thakur’s is R. v. Kummer. In that case, as noted above, the offender had two passengers, drove with over two times the legal limit of blood/alcohol level, was driving at 122 km in a 70 km zone and collided with the victim’s vehicle killing three people. He did not have a criminal record but had a driving record for careless driving.
[47] Mr. Gibbons referenced the case of R. v. Hayatibahar, 2002 CanLII 41625 (ONCA) where following a trial, DeLuca J. imposed a nine-year sentence for a 19-year-old impaired driver who drove at 170 km/hour. One person died and others were injured. The offender was not licenced at the time.
[48] In R. v. Muzzo, 2016 ONSC 2068, Fuerst, J. imposed a 10-year sentence when the offender drove through a stop sign and hit a vehicle at 85 km per hour. Four people died and others were injured as a result. His blood/alcohol level was between 190 to 245 mg. of alcohol in 100 ml of blood. The aggravating factors were that he drove at a high rate of speed while impaired and did not stop at a stop sign. He had a driving record with 10 infractions for speeding. He had many letters of support and no prior criminal record.
[49] Other cases relied upon by the Crown include R. v. Luskin, 2012 ONSC 1764 where Trotter J. imposed a sentence of 8 years following a guilty plea. The driver was driving at 150 km in a 60 km/hour zone and struck a car while turning left. The offender had a blood/alcohol level of 122 and 157. He had a dated criminal record.
[50] Crown counsel argues that, like some of the cases cited above, Mr. Thakur was impaired, drove at a high rate of speed on a busy street and the consequences were that one person died and five were badly injured. Mr. Gibbons submits that denunciation and deterrence are paramount given the magnitude of harm caused when someone choses to drive this dangerously.
[51] Responding to jurisprudence cited by the defence, Crown counsel pointed out that in R. v. Johnson, 2022 ABPC 122, the offender had driven at 160 km per hour and attempted to commit suicide. He suffered from depression and there were documented mental health problems. He did not have a driving record. The court sentenced him to six years of imprisonment. Crown counsel submits that Mr. Thakur’s case is at a higher end of moral culpability than in Johnson. In the case of R. v. Byrne, 2021 ONCJ 86, the offender did not have a driving record and there was a joint submission for a five-year period of imprisonment and a 13-year driving prohibition following a guilty plea. In R. v. Ashton, 2021 ONSC 1994, the court sentenced the offender to six years of imprisonment for driving while operating a motor vehicle with methamphetamine in his blood where the offender was on bail and did not have a valid driver’s licence. He had numerous convictions for driving while suspended. The court referenced R. v. Altiman but, in the Crown’s submission, the sentence was admittedly light following a guilty plea. In R. v. Leis, 2021 ONCJ 86, the court sentenced a 24-year-old first offender whose personal circumstances were outlined in a Gladue Report, and who pleaded guilty to four counts of impaired driving causing bodily harm for three years imprisonment and a three-year driving prohibition. In R. v. Ferguson-Kellum, 2023 ONCJ 119, the court sentenced the offender who was 21 years old at the time of the offence to 21 months’ imprisonment served as a conditional sentence and a driving prohibition period of three years. The latter two cases address sentences for impaired driving causing bodily harm.
[52] Ms. Leggett reviewed the pre-sentence report and notes that it is positive. Mr. Thakur had been gainfully employed. He has supportive family and friends. While incarcerated, he was in a work program. He has attended a substance abuse treatment program and received an Alcoholics Anonymous certificate. He has rehabilitative potential and some insight into these offences. He was using alcohol to deal with the stresses caused by a break-up with his girlfriend. However, she says that there is moral blameworthiness. An intelligent person would have called an Uber or a taxicab rather than driving.
[53] Crown counsel points out that in R. v. Lacasse, 2015 SCC 64 the court noted that it is often ordinary law-abiding citizens who commit these offences: at para. 48. However, denunciation and deterrence are the paramount objectives: see paras. 79 and 100. While the pre-sentence report and letters of support are helpful, they should not decrease the sentence where there has been such disregard for the rules of the road and no insight or explanation into why Mr. Thakur would drive in these circumstances. Ms. Leggett says that the support letter from Jyoti Dubey who is a registered nurse says that Mr. Thakur perhaps suffers from Post Traumatic Stress Disorder. There is no evidence of such a diagnosis and no evidence of mental health problems. As for the offer of employment at an automotive mechanic shop, Crown counsel says this would not be appropriate for someone who will be on a driving prohibition. She says that as for the Certificates of Achievement filed, they were completed after the guilty plea was entered in anticipation of the sentence.
[54] Ms. Leggett submitted to the court that the offences before the court were completely avoidable. She cites the case of R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 SCR 254, where at para. 16, Cory J. described the devastation caused by drunk driving as follows:
Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.
[55] In this case, Ms. Leggett argues, a young man was taken from family and friends and five people are permanently physically and emotionally damaged. Their medical consequences include loss of hearing, fractures, pain, headaches and other conditions. Section 718.1(1) (3.1) states that this is an aggravating factor. She argues that the sentence she has proposed to the court balances the competing interests.
[56] While Mr. Thakur has no previous criminal record, according to the jurisprudence, the sentencing objectives for offences of this kind are general deterrence and denunciation. She points to the number of victims affected by these criminal offences and the pain and suffering caused to the families of these victims as outlined in the Victim Impact Statements. She references the increase in the prevalence of impaired driving in Toronto. Mr. Thakur has shown moral blameworthiness and a degree of responsibility for the offences. Since 2012, he has shown disregard for the responsibilities as a driver. He appreciated the risk and chose to drive while his ability to do so was impaired at three times the speed limit. She argues it was not a momentary lapse. She acknowledges the mitigating factors and that the pre-sentence report commented that Mr. Thakur does accept responsibility and expresses remorse for the death and injuries he caused. In the circumstances of this case, Crown counsel seeks a sentence of 11 years of imprisonment. She also seeks a driving prohibition of 15 years following the date of his release from custody.
[57] Crown counsel made submissions regarding the lockdown records filed. At the Toronto South Detention Centre, there were 95 lockdowns (partial and full). At the Toronto East Detention Centre, Mr. Thakur was housed in a dorm except for a few days and did not experience many lockdowns, such that there should not be additional credit.
[58] In summary, Crown counsel submits that a sentence of 4 to 6 years proposed by the defence is not appropriate considering Mr. Thakur’s driving record. Rather, a sentence in the range of 11 years is in keeping with the jurisprudence. Counsel argues that given the high degree of moral blameworthiness and the devastating consequences, a sentence at the high end of the 7.5-to-12-year range as identified in Altiman should be imposed.
[59] As of the date of the sentencing hearing, there were 658 days of pre-sentence custody which at 1.5:1 in accordance with R. v. Summers, would equal 987 days. She argues that the jail records do not support a further reduction and that quantifying the credit for harsh conditions would skew the sentence. Counsel says that there is no evidence filed concerning the impact of the conditions on the accused. He enjoyed freedom in the work programs, and she submits that the court should not award additional credit for “exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody”: see R. v. Marshall, 2021 ONCA 344 at para. 50; R. v. Duncan, 2016 ONCA 754. She asks the court to simply consider any conditions of incarceration as a factor in imposing sentence.
[60] Defence counsel submits to the court that a sentence of 4 to 6 years of imprisonment is an appropriate sentence in this case. Mr. Thakur is 28 years old, was born in Mississauga, attended T.L. Kennedy School, and graduated in 2012. He dropped out of Sheridan College in electrical to help his mother with her business. Then he got a call from Luxury Auto for a part-time mechanic and worked there eventually on a full-time basis. In April 2022, he opened his own business in car wraps and detailing. He continued to work part-time at Luxury Auto. Mr. Thakur is very close to his family. He has no criminal record. He has a job offer when he completes his custodial sentence. Although Crown counsel has said that it is not realistic given a driving prohibition, Mr. Dang says the job can be done to repair cars without driving a car.
[61] Mr. Thakur started drinking when he was 16 years old. In the month leading up to these events, he was drinking daily trying to deal with business stress and the stress of the break-up with his girlfriend. While in custody, he has completed courses and he has been attending counselling for his substance abuse problem. He has received certificates in communication courses, stress management, substance use and anger management programs. He has been working on the range in kitchen/housekeeping. The letter filed speaks to his role in assisting with supplies, inventory, and cleaning in the kitchen. He has a good work ethic and is reliable. He has no misconducts while in custody.
[62] Counsel recognizes the aggravating factors such as the high rate of speed that Mr. Thakur drove after consuming alcohol and that one person has died and five were injured. However, he asks the court to consider the mitigating factors which include that he has entered an early guilty plea (there was no preliminary hearing), he is a youthful first offender, he has saved valuable court resources as this would have been a lengthy trial, he has support from family and friends, he was gainfully employed and is eager to attend counselling.
[63] Mr. Dang filed a number of reference letters each of which I have read. Without reviewing specifically, the contents of each letter, I note the overall themes: that Mr. Thakur has been an important father figure in his family as a result of his father’s untimely death and the death of his grandfather such that he had to help in the family business. He has been a support to his sister, his cousins, his aunt, his grandmother and his uncle. His employer wrote that he was hardworking and loyal. His friends described him as a “pillar of strength” and a “role model”. Others spoke to Mr. Thakur having a strong work ethic, that he is honest and responsible, “respectful” and that these offences are “totally out of character.”
[64] Counsel for the defence submits that the objectives of sentencing must take into account that a sentence be proportionate to the offences: see s. 718.2(b). Defence counsel cited a number of cases from the Alberta courts. In R. v. Johnson, the Alberta Provincial Court sentenced the offender to 3 years and 3 months imprisonment. He was 25 years old at the time of the offence, was single and did not have a criminal record. He was a cabinet maker and had been working since 2019 following training for this trade. His blood/alcohol readings were 120 mg and 130 mgs of alcohol in 100 ml of blood. He had consumed alcohol and when he left the golf club, he was proceeding in the eastbound lane, crossed over the solid yellow line and entered the westbound lane colliding with a bicyclist in that lane. The cyclist was pinned into the guardrail and was pushed over it. The cyclist died at the scene.
[65] In the case of R. v. Gibson, 2015 ABCA 41, the Alberta Court of Appeal upheld a sentencing judge’s decision of two years and eight months imprisonment where the offender was driving with two times the legal limit of alcohol, was 22 years old at the time, had no criminal record and a minor driving record, had studied petroleum engineering, and was gainfully employed. He had pleaded guilty to one count of impaired driving causing death and one count of impaired driving causing bodily harm. He had driven in the wrong lane forcing a vehicle into the ditch and striking a second on-coming vehicle causing it to drive into the ditch where it rolled several times. Then he continued on the wrong side of the road until he collided head-on with a car driven by a 17-year-old who died at the scene.
[66] In R. v. York, 2015 ABCA 129, the Alberta Court of Appeal upheld the trial judge’s sentence of six years’ imprisonment and a ten-year driving prohibition where the appellant crossed the centre line, was driving on the wrong side of the road and collided with the deceased who was driving a motorcycle. The appellant walked away from the scene. His blood/alcohol level was 240 milligrams of alcohol per 100 millilitres of blood. He had a prior related criminal record with two prior convictions for impaired driving and two convictions for driving while disqualified. The court acknowledged that there have been statutory increases to the sentencing provisions and that the jurisprudence has recognized higher sentences.
[67] In R. v. Olsen, 2011 ABCA 308, the Alberta Court of Appeal allowed a Crown sentence appeal and sentenced a 22-year-old offender who pleaded guilty to two counts of impaired driving causing death to three and a half years. He was driving with a blood/alcohol level almost three times the legal limit, he was speeding, drove through a red light and hit a vehicle making a left turn. The two occupants were killed instantly. The offender had a grade 12 education, was gainfully employed and had a happy upbringing. The court said that the trial judge should have considered his driving record which consisted of 16 convictions in five years before the accident with many for speeding and disobeying traffic control signs. His licence had been suspended four times.
[68] Finally, in R. v. Devarajah, 2015 ABQB 693, the Court of Queen’s Bench of Alberta sentenced the offender who had steady employment, raised his daughter who is now 21 years old as a single parent, had a minimal criminal record which was dated but had one count of driving while impaired, to three and a half years of imprisonment and a 5-year driving prohibition. He had been at a Super Bowl party at a friend’s house, consumed alcohol and drove a half-ton pick-up truck in a negligent manner as he completed a left turn and struck a pedestrian. His blood/alcohol level was 150 milligrams in 100 millilitres of blood at the time.
[69] Counsel for Mr. Thakur points out that in R. v. Altiman, the offender was convicted of two counts of impaired driving causing death, two counts of criminal negligence causing death, two counts of impaired driving causing bodily harm and two counts of criminal negligence causing bodily harm. He had a blood/alcohol level of 175 mg in 100 ml of blood and his driving speed at the point of impact was 187 km /hour. The Court of Appeal reduced the sentence from 10 years to 7 years and reduced the driving prohibition from 15 years to 8 years. In R. v. Ashton, 2021 ONSC 3994, the offender had a previous criminal record for fail to appear and mischief in 2005 and a prior driving while impaired in 2007. He was sentenced to six years for the offence of impaired driving causing death and received a 12-year driving prohibition.
[70] As for the offence of impaired driving causing bodily harm, counsel points to R. v. Leis, 2021 ONCJ 86 where the offender had a blood/alcohol level of 200 and was driving in the wrong direction. He was sentenced to three years. In R. v. Byrne, 2021 ONCJ 711, the 29-year-old offender who was on bail at the time and his licence required that he have an interlock device installed as a result of a 2007 conviction for impaired driving. He was also a suspended driver for unpaid fines and was sentenced to five years on a joint submission.
[71] In the case at bar, counsel submits that the driving record is dated, there is no prior criminal record, there was an early guilty plea and a demonstration of remorse. The offender has taken responsibility and he is working on improving himself by taking courses while in jail. In light of the work, he has already done to rehabilitate himself, a sentence of four to six years is appropriate.
[72] Defence counsel submits that as of the date of the sentencing hearing, Mr. Thakur has been in custody for 658 days. Because of staffing shortages and the COVID-19 pandemic, there were 95 days in lockdown at Toronto South Detention Centre, and 16 days in COVID lockdown in Toronto East Detention Centre. Counsel submits that Mr. Thakur should receive enhanced credit of 2:1 for lockdowns at the Toronto South Detention Centre and the Toronto East Detention Centre in what has been described in the jurisprudence as deplorable conditions: see R. v. Hassan, 2023 ONSC 5040 and 1.5:1 for the balance.
[73] Regarding the cases relied upon by Crown counsel, Mr. Dang submits that in R. v. Kummer, there were aggravating factors and completely different circumstances. In R. v. Hayatibahar, the sentence followed a trial rather than a guilty plea. In R. v. Muzzo, there were four fatalities. In R. v. Luskin, the court imposed an 8-year sentence where the offender had a prior criminal record. In R. v. Robertson, 2022 ONCJ 240, the offender was fleeing police, he had a suspended licence and there were four fatalities. He was sentenced to a 17-year prison sentence.
[74] Mr. Dang asks the court to impose a 10-year driving prohibition under s. 259(2)(a)(1). He does not oppose the other ancillary orders, that is, an order for a DNA sample under s. 487.051 and a s. 109 order for ten years.
ANALYSIS AND THE LAW
[75] Before turning to the specific circumstances of this case, I first consider the general sentencing principles which apply. The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code. It is to ensure respect for the law and to promote a just, peaceful, and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section. They are denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.
[76] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh. The offender should not be deprived of liberty if less restrictive sanctions are appropriate and all available sanctions other than imprisonment, that are reasonable in the circumstances, should be considered for all offenders, particularly Aboriginal offenders.
[77] In cases where there has been drinking and driving, especially where the offence is impaired driving causing death, the courts have emphasized the objectives of denunciation and deterrence. As Feurst J. described in R. v. Muzzo at para. 58, denunciation involves society’s condemnation of the criminal conduct: see R. v. M. (C.A.) 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 at para. 81. Deterrence means sending a message to discourage others who might be inclined to engage in similar conduct in the future: see R. v. P. (B.W.), 2006 SCC 27, [2006] 1 S.C.R. 941, at para. 2. As was noted in R. v. Lacasse, at para. 73, drinking and driving offences are often committed by “ordinarily law-abiding people” who are more likely to be deterred by the prospect of severe penalties.
[78] In the case of R. v. McVeigh, 1985 CanLII 115 (ONCA), MacKinnon A.C.J.O. wrote as follows:
No one takes to the road after drinking with the thought that someone may be killed as a result of his drinking. The sentences should be such as to make it very much less attractive for the drinker to get behind the wheel of a car after drinking. The public should not have to wait until members of the public are killed before the courts’ repudiation of the conduct that led to the killing is made clear. It is trite to say that every drinking driver is a potential killer.
Members of the public when they exercise their lawful right to use the highways of this province should live in fear that they may meet with a driver whose faculties are impaired by alcohol.
[79] There has clearly been a shift in the sentences imposed by the Ontario Court of Appeal for offences of this kind particularly where there is an absence of remorse and a poor driving record. The decisions recognize the need for deterrence and denunciation when dealing with terrible consequences and a senseless death caused by dangerous driving, particularly where there is a driving record.
[80] In addition to the jurisprudence, in 2000, Parliament increased the maximum punishment for the offence of impaired driving causing death from 14 years to life imprisonment which signaled Parliament’s intention that drinking and driving offences be treated “with utmost severity by the courts and mandate an extension of the sentencing continuum in appropriate cases.”: see R. v. Mascarenhas, 2002 CanLII 41625 (ON CA), 2002 CanLII41625(ONCA) at paras. 24-25. Brown J.A. said in Altiman at para. 49, “An offender’s level of moral blameworthiness for impaired driving causing death will vary significantly depending on the aggravating and mitigating factors in any given case.” As discussed above, he reviewed the case law and noted that there has been a move toward increased sentences which he said is traced back to four cases: R. v Ramage, R. v. Niganobe, R. v. Junkert, and R. v. Kummer,
[81] In these cases, the courts have demonstrated that a substantial penitentiary sentence is appropriate for even a first offender. In Ramage, the offender’s car crossed four lanes of traffic and struck two oncoming vehicles. The passenger in his car was killed and the driver of the other car was killed. The offender’s blood/alcohol level was twice to three times the legal limit. He was convicted following a trial. He had no prior criminal record. He was an outstanding member of the community and was deeply remorseful. He received a sentence of four years of imprisonment and a five-year driving prohibition.
[82] In Junkert, the offender drove at a high rate of speed in a residential neighbourhood (between 90 and 93 km/h in a 50 km/h zone). His car struck a car and a lamp pole and killed a jogger. His blood/alcohol level was in the range of 130 to 170 mg of alcohol per 100 ml of blood. He had no criminal record. He was convicted following a trial and was sentenced to five years imprisonment and a 10-year driving prohibition which was upheld on appeal. A.C.J. O’Connor wrote at para. 46 that the reason for the upward shift in sentencing was to reflect: “society’s abhorrence for the often-tragic circumstances that result when individuals choose to drink and drive, thereby putting the lives and safety of others at risk.”
[83] In Kummer, the first-time offender who pleaded guilty, had driven at a high rate of speed, failed to stop at a stop sign and struck a pick-up truck. Both vehicles caught on fire. The driver of the truck was badly injured. He was able to get out of the truck, but his son and his son’s friend, both 12 years old, were trapped in the burning truck and died. The offender’s passenger also died. The offender had twice the legal limit of alcohol in his blood. He had a driving record for careless driving and fail to report an accident. He was sentenced to eight years and a 12-year driving prohibition. The Ontario Court of Appeal found that the sentencing judge’s decision was not manifestly unfit and that there was no error in principle in the sentence imposed of eight years.
[84] In R. v. Karafa [2014] O.J. No. 3013 (Sup. Ct.), Trotter J. sentenced an offender who was convicted of impaired driving causing death, driving with more than 80 mg. of alcohol, dangerous driving causing death and criminal negligence causing death. The offender, who was 19 years old at the time of the offences, had been drinking and had a blood/alcohol level of between 200 and 270 mg. of alcohol, drove at twice the speed limit, lost control of the car and crashed into a pole. His friend died instantly. The offender had no criminal record and demonstrated remorse. The court sentenced him to five years’ imprisonment for criminal negligence causing death and four years’ imprisonment concurrent for impaired driving causing death, less credit for pre-trial custody and a 15-year driving prohibition. The aggravating circumstances were the high blood/ alcohol level, the egregious driving and that the driving was senseless. Mitigating factors were that he was a youthful first offender who was otherwise of good character and was remorseful.
[85] In R. v. Muzzo, as discussed above, the offender pleaded guilty to four counts of impaired driving causing death and two counts of impaired driving causing bodily harm. His blood/alcohol concentration was well over twice the legal limit, and he drove at an excessive speed, failed to stop at a stop sign and collided with a van killing four people and injuring two others all members of a family. He had no prior criminal record but a lengthy driving record with ten convictions for speeding. Fuerst J. noted that Mr. Muzzo pleaded guilty at a very early stage indicating his deep remorse. He was a person of good character and had many letters of support showing that he was a hard worker who also made a positive contribution to the community. He had very strong family support as well as support from friends. Justice Fuerst emphasized “that the enormous harm caused by Mr. Muzzo is extraordinary.” She sentenced him to ten years imprisonment and credit of eight months of pre-sentence custody at 1.5:1 and a 12-year driving prohibition.
The issue of credit for pre-sentence custody
[86] In the case of R. v. Summers (2014), 2014 SCC 26, 308 C.C.C. (3d) 471 (S.C.C.), the Supreme Court held that the “circumstances” justifying enhanced credit under s. 719(3.1) of the Code permits a judge to credit pre-sentence custody up to a maximum of 1.5 to 1 for each day in pre-sentence custody, where in considering all relevant circumstances, “enhanced credit” is necessary to achieve a fair and just sanction. Lack of remission and loss of early release will generally be a sufficient basis to award credit at the rate of 1.5 to 1 even if the conditions of detention are not particularly harsh. The court concluded that a rule that resulted in longer sentences for offenders who do not obtain bail compared to otherwise identical offenders would be incompatible with the sentencing principles of parity and proportionality.
[87] In R. v. Duncan, 2016 ONCA 754, the Ontario Court of Appeal held that in appropriate circumstances, particularly harsh presentence incarceration conditions, enhanced credit may be given for harsh conditions in the jail during pre-sentence custody and the impact of those conditions on the accused: see Duncan, at para. 6. In R. v. Marshall, 2021 ONCA 344, at paras. 50-53, however, Justice Doherty wrote at para. 52:
Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.
[88] In the case before me, the information concerning the harsh conditions is referenced from the lockdown records of the jail. Mr. Thakur did not submit an affidavit outlining the impact of such conditions on him. However, in R. v. Bristol, 2021 ONCA 599, the Ontario Court of Appeal wrote at para. 52:
We are of the view that some impact is self-evident. Lockdowns involve lack of showers and loss of physical activity. They also mean that prisoners are restricted to their cells for long periods of time. Individual evidence is not required to establish those basic effects which go beyond the difficult and restrictive circumstances offenders often encounter during pretrial custody and which are accounted for by the Summers credit.
[89] There is considerable jurisprudence on the impact of harsh conditions of pre-sentence custody and courts have expressed concern about the number of lockdown days and the conditions of incarceration at the Toronto South Detention Centre in particular: see R. v. Persad, 2020 ONSC 188; R. v. Spicher, 2020 ONCJ 340 at paras. 59-68; R. v. Jama, 2021 ONSC 4871 at paras. 51, 53, 55. In R. v. Steckley, 2020 ONSC 3410, Justice Kelly gave 10 months of Duncan credit where the accused spent 132 days in lockdown with 57 days during the pandemic. In R. v. Baldwin, 2021 ONSC 7025, Maxwell J. deducted one year for harsh circumstances involving 124 days in lockdown.
RESULT
[90] Sentencing involves the exercise of discretion and requires the sentencing judge to consider the individual circumstances of the offender, the circumstances of the offence and the need for the sentence to meet the sentencing objectives outlined by Parliament. The goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence: see R. v. Wust 2000 SCC 18, [2000] 1 S.C.R. 455 at para. 44.
[91] What occurred on July 1, 2022, was a huge tragedy for the Guergis family and friends. Those actions have also had enormous consequences for those injured and their families as a result of the driving of Mr. Thakur. The victims cannot turn the clock back. Their lives have been irretrievably affected. The criminal justice system cannot right the wrong that occurred by undoing these events nor can a sentence compensate for the loss of Mr. Guergis’ life and for the impact of the injuries caused to the other victims. A sentence must reflect the principles of sentencing set out in our Criminal Code and take into account the specific circumstances of the offence and the specific circumstances of this offender. The following is what I consider relevant in my assessment of the appropriate sentence.
[92] In considering both the circumstances of the offence and the circumstances of this offender, I consider the relevant aggravating and mitigating circumstances. I must also consider that like offenders should be treated alike. In the case of Mr. Thakur, I consider the following circumstances to be relevant:
Mr. Thakur is 28 years of age. He was born on August 1, 1995, in Mississauga, Ontario. He was 26 years old at the time of the offences.
Mr. Thakur is single and at the time of these offences, he resided at his family’s home. He had a close relationship with his parents and his sister. He described his parents’ relationship as “healthy and normal” and never witnessed or experienced any abuse in the home.
Mr. Thakur’s father died suddenly in 2010 following a massive heart attack. Mr. Thakur was affected by this and began to assume more responsibility in the family as a result. He worked in his business while attending school and attempted to help support the family. He did not attend counselling at the time of his father’s death but attended therapy ten years later when his grandfather died.
Mr. Thakur is close to his mother and sister, and they visit him in custody. He plans to live with his mother upon his release from imprisonment.
Mr. Thakur is currently in a relationship with a girlfriend and has been in this relationship for more than seven months.
Mr. Thakur completed high school and attended a college course for electrical. He has not yet completed the courses. He was suspended twice for bad behaviour (skipping classes) while in school. He received grades in the mid-seventies. He plans to attend a mechanics course and write the automotive technician test. He says he was never diagnosed with a learning disability.
Mr. Thakur worked as a mechanic for six years and has stayed in contact with his employer, Harjeet Tumber, who confirmed that he hired Mr. Thakur in 2017 as an automotive technician and he worked up until his incarceration. He says he worked full-time until he started his own business and then Mr. Thakur worked part-time. Mr. Tumber confirmed that Mr. Thakur will be able to return to his employment upon his release from custody. Mr. Thakur worked in the business he started for four months before his incarceration. This was a vehicle wrapping and customization business. Before this, he was working with his mother in her printing, design, and signs business where he worked up until his father’s passing. He has no savings and no debts.
Mr. Thakur has been working in the work program at the Toronto East Detention Centre since December 2022 and wants to continue. Suzanne Murase, Rehabilitation Officer/Work Range Coordinator at the Toronto East Detention Centre confirmed in a letter dated April 5, 2024, that Mr. Thakur has been participating in the Work Range Program since December 21, 2022, and currently works in the kitchen. He has also completed numerous programs and his counsel filed Certification of Achievement in a Communication Skills Workshop, Stress Management, Life Skills, Goal Setting, Anti-Criminal Thinking, Substance Abuse, Understanding Feelings, Supportive Relationships, Recognizing Healthy Relationships, Looking for Work, Goal Setting, and Changing Habits, substance Use, Thoughts to Action, Anger Management and Use of Leisure time.
Since his arrest on July 1, 2022, Mr. Thakur has been in custody and details of his time spent and the conditions of his incarceration are outlined above.
Mr. Thakur has no criminal record. He has a driving record which is detailed above and includes two speeding convictions as well as other infractions.
The probation officer discussed Mr. Thakur’s use of alcohol in the past with him. Mr. Thakur said he consumed alcohol for the first time when he was sixteen years old and continued but it did not affect school or employment. However, in the month leading up to the offence, he was drinking almost every day to cope with stress. The stress was as a result of his business and that he was going through a break-up with his girlfriend of four and a half years. He said that some of his family members and friends had expressed concern that he was drinking too much but he did not think that he had a problem. Now he accepts that he did and is attending Alcoholics Anonymous meetings in custody. He also used marijuana from time to time in high school. He tried MDMA and cocaine but denied any previous drug addiction. Shannon Mason, Addiction Counsellor, Toronto East Detention Centre told the probation officer that Mr. Thakur has been working with her on a bi-weekly basis since May 4, 2023, in addition to attending Alcoholics Anonymous. He has actively participated in her program and is working on “relapse prevention strategies”. She said he seems motivated to change his use of alcohol and drugs and to participate in programming. Mr. Thakur’s mother said that her son had a problem with alcohol consumption approximately one year to six months prior to the offences but continued to function at work.
The probation officer said that Mr. Thakur presented himself “in a cooperative and respectful manner” and that he was polite and forthcoming with his background information. She said he had stated that he had not been thinking clearly and that he takes responsibility for his actions. The probation officer said that he is remorseful.
Mr. Thakur told the probation officer that he had met with a therapist in November 2021 due to the breakup with his long-term girlfriend. He had stopped because of financial constraints. He said he had used alcohol as a coping mechanism.
Counsel for Mr. Thakur submitted a number of letters of support. These were from close family members, friends and those who knew him because of his work. They were uniformly shocked by the offences and believed that his conduct was completely out of character. There were similar themes in the many letters submitted and I have noted above what those themes were. In summary, he was described as “responsible and conscientious”, a person of strong character, a mentor, a devoted son, and grandson, “hardworking, loyal, honest and dedicated towards his work ethic.” The other significant theme is that he is “extremely remorseful and takes full responsibility” and “wishes he could go back fix everything.” He has learned from his experiences and is committed to making amends and moving forward in a positive direction.”
[93] With respect to the circumstances of the offences, Mr. Thakur has pleaded guilty to several extremely serious crimes. As a result of his driving while impaired, he caused a horrific collision which resulted in the death of Mr. Guergis and significant injuries to five others. The evidence was that Mr. Thakur was speeding on a busy street in downtown Toronto and travelled through a red light at an intersection and it was Mr. Thakur’s driving which was the cause of the collision. He had twice the legal limit of alcohol in his blood.
[94] As I have mentioned above, the Victim Impact Statements prepared by family and friends of Mr. Guergis describe the terrible pain and profound sense of loss that they have endured as a result of his untimely death. Unfortunately, no sentence will undo the wrong nor fill the void that has been created. The Victim Impact Statements of those injured described horrific consequences as a result of Mr. Thakur’s driving offences. They will live with those consequences for the rest of their lives.
[95] The jurisprudence emphasizes that general deterrence and denunciation are of paramount concern for offences of this kind. The statutory provisions list aggravating circumstances when sentencing for offences under sections 320.13 to 320.18 and they include that the commission of the offence resulted in bodily harm to or the death of more than one person (s. 320.22(a) and that 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 (s. 320.22(e). However, the cases also recognize that each case must be considered in light of its circumstances and the aggravating and mitigating factors. The objective of rehabilitation and the other objectives of sentencing must also be considered. As stated above, the court in Altiman provided a general range of sentence of the offence of impaired driving causing death. But such a range is only a guideline to assist sentencing judges in following the principle of parity. They are not to be straightjackets or “hard and fast rules”: see R. v. Lacasse at paras. 57 and 60.
[96] As the Court of Appeal has said and is outlined above, the more the conduct tends toward 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 needed. While Mr. Thakur has no previous criminal record, he has a driving record involving speed which demonstrated disregard for other users of the road. That driving record is rather dated. However, he consumed twice the legal limit of alcohol and made a decision to drive. His high degree of moral blameworthiness and the extremely grave consequences of his offences are exceptionally aggravating factors. That he was a relatively youthful offender (26 years old at the time of the offences) who had no previous criminal record and was of previous good character as well as his background including strong family support and good prospects of employment in the future are among the mitigating factors. He has entered a guilty plea and taken responsibility for his actions and demonstrated much remorse. Crown counsel submits that the guilty plea was rather late in the process and that the case was overwhelming. However, I note that he waived the preliminary inquiry, saved judicial resources and spared witnesses from having to testify.
[97] Accordingly, I am of the view that an appropriate sentence in this case is a sentence of 8 years of imprisonment for the offence of impaired driving causing death. I sentence Mr. Thakur to 4 years for each count of impaired driving causing bodily harm all to be served concurrent to the sentence for impaired driving causing death offence. This is in keeping with the principle of totality. The nature of Mr. Thakur’s driving record, although the two speeding offences are quite dated, but there is also evidence of disrespect for highway traffic laws including suspensions for non-payment of fines, fail to carry insurance and fail to have a valid driver’s licence. In my view, the courts must show society’s condemnation of Mr. Thakur’s actions and deter such conduct in the future. However, I must also recognize that this is Mr. Thakur’s first penitentiary sentence and a sentence for these offences should not be longer than necessary to satisfy the applicable principles of sentencing and certainly not so long as to be crushing for this particular offender. Finally, I again note the support he has from his family and friends and his community as well as his excellent efforts at rehabilitation since his incarnation. They are unfailingly positive and contrary to the Crown submission and are to be commended and encouraged. They represent the best evidence of his potential for rehabilitation and a successful return to the community following his years in custody.
[98] This sentence meets the objectives of general deterrence and denunciation and reflects society’s abhorrence of this type of crime and its devastating consequences to those specifically affected and the community at large. It also balances the prospect of rehabilitation. I am satisfied that Mr. Thakur will be a productive citizen in future. The evidence is very strong that he is capable of pursuing education or employment and that he will contribute to society once again. He has a great deal to be hopeful for in the years ahead and can be a positive influence with the support he has from family and friends.
[99] I now turn to the issue of credit for pre-sentence custody. I apply the provision of s. 719(3.1) in accordance with R. v. Summers and credit Mr. Thakur with 719 days at 1.5:1 for a total of 1,079 days. I turn to the conditions of Mr. Thakur’s incarceration since the date of arrest. I consider that during some of the time that Mr. Thakur has been in custody since his arrest he has endured some extremely difficult conditions following the COVID-19 pandemic and the precautions taken at the jail as well as due to numerous staff shortages. For the 111 days of lockdown, I credit him with .5 for each day which equals 55.5 or 56 additional days of credit. The total credit for pre-sentence custody is 1,135 days. The balance of the time to be served from the 8-year sentence is 1,785 days or 4.9 years.
[100] I now turn to the question of the driving prohibition. Under s. 320.24(1) of the Code, where an offender has been convicted of impaired driving causing death committed by means of a motor vehicle, the sentencing judge may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle for “any period that the court considers proper”. In the case of R. v. Holm, [2003] O.J. No. 5385 (S.C.), Justice Nadeau considered the driving prohibition as part of the punishment and at para. 28, said that it is “to be included as a factor in the totality of the punishment imposed.” Nonetheless, he imposed a lifetime ban on driving. It is a privilege to possess a driver’s licence to operate a motor vehicle. Mr. Thakur abused that privilege through speeding convictions. He was charged but not convicted of stunt driving at the time of these offences. The privilege of driving was violated on July 1, 2022, when he drove a car while impaired which resulted in the death of Mr. Guergis and the harm caused to the five others.
[101] In light of his driving record and the circumstances of the offences, I view this case as an appropriate one for a 12-year driving prohibition. In keeping with R. v. Lacasse at para. 109, the driving prohibition commences at the end of the period of imprisonment. The driving prohibition is ordered under s. 320.24 of the Criminal Code. There will also be an order under s. 487.051(3) that a DNA sample be taken. There will be a s. 109 order for ten years. There will be an order of forfeiture of the motor vehicle.
Himel J.
Released: June 19, 2024
COURT FILE NO.: CR-23-10000570-0000
DATE: 20240619
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
NITAN THAKUR Defendant
REASONS FOR JUDGMENT Himel J.
Released: June 19, 2024