R. v. Kalyan Trivedi, 2024 ONSC 3936

COURT FILE NO.: CR-22-50000420-0000

DATE: 20240712

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

KALYAN TRIVEDI

Defendant

Michael Wilson, for the Crown

Ravin Pillay, for the Defendant

HEARD: May 8, 2024

MOLLOY J.:

REASONS FOR SENTENCE

A. INTRODUCTION

[1] Kalyan Trivedi was charged with dangerous driving causing death and dangerous driving causing bodily harm after he drove his Audi at an extreme rate of speed on the Gardiner Expressway and collided with the rear end of a Nissan driving ahead of him at the speed limit. Mr. Trivedi and his passenger in the Audi were unharmed. The occupants of the Nissan he hit were not so fortunate. Roberto Navarro Vega (the 61-year-old driver of the Nissan) (“Mr. Navarro”) sustained serious injuries, with life-long impact. The front-seat passenger was Mr. Vega’s 58-year-old wife, Norma Buendia Flores (“Ms. Buendia”). She was killed. The crash happened at 1:30 a.m. on October 3, 2021. Mr. Trivedi lingered in the area for about 15 minutes, but then left the scene without ever identifying himself to anyone there.

[2] Mr. Trivedi had to abandon his car at the scene because it was not drivable as a result of the damage from the collision. After the police traced Mr. Trivedi as the owner of the car, they contacted him and he then turned himself in, but not before. He was charged on October 21, 2021, eighteen days after the collision, and was released on bail the next day.

[3] On the eve of trial, two and a half years later, Mr. Trivedi pleaded guilty to both charges. On the basis of the plea and the Agreed Statement of Fact placed before me, I convicted Mr. Trivedi on both dangerous driving counts. There was no joint submission as to the appropriate sentence. The Crown seeks a sentence of between 5 and 5 ½ years for dangerous driving causing death, and a concurrent 3-year sentence for dangerous driving causing bodily harm to Mr. Navarro. The Crown also seeks ancillary orders including a driving prohibition for 10 years and a DNA order. Mr. Pillay, for the defence, submits that the appropriate sentence is 3 years. There is no objection to the DNA order, but the defence argues that a driving prohibition for 5 years is sufficient. When combined with the time spent on bail, which also included a driving ban, the total period of prohibited driving would be just over 7 ½ years.

[4] After hearing submissions, and Mr. Trivedi’s own statement to the court, I reserved my decision, indicating that I would provide written reasons on July 12, 2024. Having considered the matter, I agree with the sentence proposed by the Crown of 5 years for dangerous driving causing death and 3 years concurrent for dangerous driving causing bodily harm. There will be a DNA order, and a driving prohibition for 10 years, plus the entire period of his prison sentence. My reasons for that conclusion follow.

B. GENERAL PRINCIPLES OF SENTENCING

[5] The Criminal Code of Canada provides that the fundamental purpose of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society.”[^1] The Criminal Code further provides that this is to be accomplished by imposing “just sanctions” bearing in mind the objectives of: denunciation of the conduct involved; specific deterrence of the individual offender from reoffending; general deterrence of others in the community who might be tempted to commit similar offences; separating the offender from society, where necessary; rehabilitation of the offender; reparations for harm done; and the promotion of a sense of responsibility in offenders, while acknowledging the harm done to victims and the community. [^2]

[6] In addition, there are established principles I am required to take into account. An important and overarching principle, is the requirement of proportionality – the sentence must be proportionate to the seriousness of the offence and the degree of culpability of the offender.[^3]

[7] I must also consider any aggravating and mitigating circumstances. Aggravating factors will result in moving the sentence higher, whereas mitigating factors will have the opposite impact.[^4]

[8] A sentence should only be as strict as is required to reflect the objectives of sentencing. An offender should not be deprived of liberty if less restrictive sanctions would be appropriate in the circumstances and all available sanctions other than imprisonment have been considered, provided that it is reasonable in the circumstances and consistent with the harm done.[^5]

[9] Finally, consistency in sentencing is an important principle. Ideally, similar offenders should receive similar sentences for similar offences committed in similar circumstances. This can be one of the most difficult principles to apply. No two offenders are ever exactly the same, and the circumstances in which offences are committed can vary widely. This is particularly the case for dangerous driving, which can encompass a vast range of offending conduct. However, the principle remains an important one, requiring a review of sentences imposed in other cases in order to achieve, as close as is possible, parity in sentencing.[^6]

C. CIRCUMSTANCES OF THE OFFENCE

[10] At 1:30 a.m. on October 3, 2021, Mr. Vega was driving his Nissan, at the speed limit, in the center lane of the Gardiner Expressway, heading east. He was on his way to pick up his son from a friend’s house. When his son called for a ride at 1:00 a.m., Mr. Navarro intended to go alone to pick him up, as his wife, Ms. Buendia, was already in her pajamas and heading for bed. However, she insisted on accompanying him so that she could use the GPS on her phone to help him with directions.

[11] Meanwhile, Mr. Trivedi was also out on the roads in his Audi, with a male friend in the front passenger seat. His manner of driving was markedly different from that of Mr. Navarro. The first observation of Mr. Trivedi’s car is at 1:23 a.m. as it was driving south on Highway 427, just north of Highway 407. Video from the Ministry of Transportation (“MTO”) traffic cameras show the Audi travelling at a considerably higher rate of speed than other traffic. A witness who was driving south on Highway 7 at 130 kph observed that as the Audi passed his car it was going “much faster” than his vehicle. He said the driver then slowed down slightly and then really “gun[ned] it, describing the speed as “really flying.” The speed limit on that highway is 100 kph.

[12] At 1:28 a.m., the Audi reached the ramp to merge from Highway 427 onto the eastbound Gardiner Expressway. On the ramp, Mr. Trivedi was flashing his high beams to get the car ahead of him to move out of his way. He then headed east on the Gardiner. Multiple witnesses saw him weaving between other cars on the highway at a high rate of speed. Those witnesses estimated the speed of the Audi at between 150 and 200 kph. One of them described it as being “like watching a NASCAR vehicle go by.” At approximately 1:30 a.m., Mr. Trivedi slammed his vehicle into the rear of the Nissan driven by Mr. Navarro.

[13] The force of that collision drove the Nissan forward and then both cars started to spin, the Nissan clockwise and the Audi counterclockwise, still skidding east on the Gardiner. As they rotated, the two cars collided again. At this second point of impact, the speed of the Audi was 122 kph. Its speed at the point of the first impact would obviously have been considerably more than that, but cannot be pinpointed. From the second impact with the Audi, the Nissan was pushed north, where it hit the concrete barrier separating the east and west bound lanes, and then flipped over onto its roof.

[14] Emergency crews had considerable difficulty extracting Mr. Navarro and Ms. Buendia from their vehicle. Mr. Navarro was removed first. He was experiencing severe pain, but stayed at the roadside waiting for his unconscious wife to be extricated, desperately concerned for her welfare. He had a fractured pelvis and injuries to his back and knees. When Ms. Buendia was removed from the car, she had no pulse. Heroic efforts from a doctor and paramedics were unable to revive her.

[15] Mr. Trivedi’s passenger walked away from the scene right after the collision. He has been identified, but has refused to provide a statement to the police. Mr. Trivedi walked back and forth between his vehicle and the side of the Nissan a few times, but then also left the scene. He did not identify himself to any police officers or emergency personnel on scene.

[16] The Crown provided a breakdown of the public resources required to respond to this collision within the 12-hour period after it occurred. The impact is staggering. All Gardiner Expressway express lanes remained closed for 11 hours, although the collector lanes remained open. Police officers were required to block the highway, divert traffic, investigate the scene, and provide escort for emergency runs by ambulances. There were four Toronto Paramedic Services ambulances, along with a total of eight paramedics. Four fire trucks also responded to the emergency call, with a total of 16 firefighters. Three City of Toronto Highway Safety Trucks attended to assist with closing and reopening the highway. One Toronto City Street Sweeper truck was required to clean the debris from the scene. Two police investigative vans and two unmarked police cars from the reconstruction unit attended along with five detective constables and a detective, to examine the scene in preparation for preparing a reconstruction report. In addition to the reconstruction team vehicles and those 6 officers, there were 24 marked police scout cars from various divisions and 28 police officers of various ranks.

D. CIRCUMSTANCES OF THE OFFENDER

[17] Kalyan Trivedi was born on October 11, 1990. He was about to turn 31 at the time of the collision. He is single and has no children. He has three siblings and appears to have a close relationship with all of them. His mother and father immigrated to Canada from India and have worked hard their whole lives. His father works in construction and is a Hindu priest. His mother is the manager of a daycare. Mr. Trivedi graduated from high school and started a business program at Seneca College, but did not finish it. Thereafter he was employed in the fitness industry and in a company that supplies labour. He started up his own labour supply company with two partners in 2021, but it has not done well. Mr. Trivedi reported to the author of the pre-sentence report that the company was initially quite successful, but that employees and customers left as a result of the criminal charges against him, and that his two partners did not do what was necessary to keep the business going while he was attending to these charges.

[18] Mr. Trivedi is Hindu and attends temple regularly, both for services and as a volunteer. He also does extensive other volunteer work in his community.

[19] Mr. Trivedi has a criminal record, having been convicted of fraud in 2013. He was sentenced to an 18-month conditional sentence and ordered to pay $5000 in restitution. I note that the criminal record is minor and unrelated.

[20] Mr. Trivedi’s driving record is nothing short of shocking. To demonstrate the extent to which Mr. Trivedi has completely disregarded driving rules for his entire driving history, I will list each infraction, by the date of the offence.

Date of Offence

Infraction

January 17, 2008

• Improper/insufficient driving lamps

March 20, 2008

• Following another vehicle too closely

May 6, 2008

• Removed, modified or rendered seat belt inoperative
• Driving a motor vehicle without a valid permit

November 7, 2008

• Speeding (110 kph in 70 kph zone)
• Fail to have insurance card

December 16, 2008

• Speeding (89 kph in a 60 kph zone)

February 15, 2009

• Speeding (143 kph in 100 kph zone)

March 23, 2010

• Drive vehicle without a valid permit

March 30, 2010

• Drive vehicle without a valid permit

August 17, 2010

• Drive vehicle without a valid permit

May 21, 2013

• Removed, modified, or rendered seatbelt inoperative

September 12, 2013

• Removed, modified, or rendered seatbelt inoperative

September 29, 2013

• Drive motor vehicle without valid permit
• Fail to have insurance card
• Fail to produce driver’s licence

March 6, 2014

• Speeding (75 kph in a 60 kph zone)

September 15, 2014

• Speeding (119 kph in a 60 kph zone)

March 21, 2015

• Speeding (90 kph in a 50 kph zone)

December 2, 2015

• Speeding (149 kph in a 100 kph zone)

June 25, 2017

• Speeding (129 kph in a 100 kph zone)

January 14, 2018

• Drive vehicle without valid permit

February 3, 2018

• Drive vehicle without valid permit

March 8, 2018

• Drive vehicle without valid permit

November 3, 2019

• Disobey legal sign

February 20, 2020

• Drive vehicle without valid permit

February 1, 2021

• Speeding (128 kph in a 100 kph zone)

May 10, 2021

• Speeding (85 kph in a 70 kph zone)

June 24, 2021

• Speeding (60 kph in a 40 kph zone)

[21] Mr. Trivedi first obtained a licence on his 16th birthday, in 2006. His first driving offence was committed on January 17, 2008, when he would have been 17 years old. Between then and October 22, 2021, when he was prohibited from driving as a term of his bail, he amassed 29 convictions on his driving record, including 11 convictions for speeding (which I have highlighted above). I also note that there were three separate speeding offences within eight months of this dangerous driving offence and that many of the speeding offences involve speeds that were grossly in excess of the speed limit.

E. PROPORTIONALITY

[22] Section 718.1 of the Criminal Code requires that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” It is important to focus not solely on the consequences of the offence, as by definition dangerous driving causing death will always involve a death. Rather, what is critical is the degree of moral culpability to be attributed to the offender. This principle is aptly described in the Supreme Court of Canada’s decision in R. v. M.(C.A.).[^7] In the course of distinguishing between vengeance and retribution, the court held as follows:

Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. As R. Cross has noted in The English Sentencing System (2nd ed. 1975), at p. 121: "The retributivist insists that the punishment must not be disproportionate to the offender's deserts."

Gravity of the Offence

[23] The maximum sentence for dangerous driving causing death is life imprisonment, reflecting the very serious nature of the crime involved. Previously, the maximum sentence was 14 years, but that was amended in 2018 to bring it in line with the life sentence which is also the maximum sentence for impaired driving causing death.

[24] There is a broad range of conduct capable of meeting the parameters of this offence. For purposes of sentencing, it is necessary to place the subject conduct within that broad continuum.[^8] This was not a case of a moment’s inattention, or conduct which was not itself extremely dangerous, but nevertheless had an outcome that was severe, but unexpected. This was a pattern of driving sustained over a period of time along two busy thoroughfares, first on Highway 427 and continuing on the Gardiner Expressway. The speed was grossly excessive, as was the manner of driving. There was no excuse for it whatsoever. The lives of everyone on those highways were endangered. The results were predictable, perhaps even inevitable. Further, given Mr. Trivedi’s prior speeding convictions, it would appear that this manner of driving was not unusual for him. I find that Mr. Trivedi’s offence is at the high end of the spectrum.

Moral Blameworthiness

[25] The consequences of Mr. Trivedi’s offending conduct are entirely his fault. There were no other contributing factors. He has offered no explanation for driving in the manner he did, and I find no circumstances to justify it. His driving was inherently dangerous, and he had to have known that. His disregard for the safety of innocent members of the public is disgraceful. Mr. Trivedi’s moral blameworthiness is also at the high end of the scale for offences in this category.

F. AGGRAVATING FACTORS

[26] Mr. Trivedi has a criminal record for fraud. He therefore does not quite get the same benefit as a first-time offender, nor would I consider him “youthful” in this context. However, this is the absence of a mitigating factor rather than an aggravating factor. The nature of the fraud conviction is unrelated to the offences now before me, except to the limited extent that it provides another example of Mr. Trivedi not being a rule-follower.

[27] There are three seriously aggravating factors on sentencing:

(1) The dangerous driving in this case was egregious and was sustained over a considerable period of time and distance. Many lives were endangered, in addition to the two victims here;

(2) Mr. Trivedi has a deplorable driving record, which includes numerous speeding violations as well as persistently driving without a valid permit, even after recently receiving tickets for that same offence. He simply refuses to follow the rules. He is a menace on our streets and highways; and

(3) In the face of what must have looked to be catastrophic injuries to the two people in the Nissan, Mr. Trivedi simply walked away from the scene. No explanation for that cowardly behaviour was ever presented.

[28] The Supreme Court of Canada held in R. v. Lacasse (an impaired driving case) that it is relevant to treat a bad driving record as an aggravating factor on sentence in driving cases, even in the absence of a criminal record. Wagner J. (as he then was and writing for the majority) held:

As to the fact that the respondent did not have a criminal record, Judge Couture was right to point out that his driving record was not clean. He had been convicted three times for speeding. This showed that he was irresponsible when behind the wheel, and his convictions under the Highway Safety Code were all the more relevant given that speeding had played a part in the accident in this case. The respondent repeatedly and frequently drove irresponsibly.[^9]

[Emphasis added.]

[29] To this I would add, Mr. Trivedi’s driving record was far more egregious than that of Mr. Lacasse.

[30] The information filed by the Crown about the disruption and costs in terms of public services, and emergency and police personnel and vehicles, is something we do not often hear about. However, Mr. Trivedi’s irresponsible and criminal behaviour resulted in the diversion of an incredible amount of human and financial resources, that could have been more usefully deployed elsewhere, but for the catastrophe Mr. Trivedi created. I consider this to be an aggravating factor.

[31] Finally, I have taken into account the devastation caused by Mr. Trivedi to this family and those that loved them, as demonstrated in the Victim Impact Statements filed on sentencing. I recognize that the offence of dangerous driving causing death already carries within it the most horrific consequence of having killed someone. Nevertheless, it remains relevant to reflect on the impact of this offence. Also, the degree of injury caused to Mr. Navarro is a factor that aggravates the offence of dangerous driving causing bodily harm.

[32] Mr. Navarro was in the hospital for two months after the collision. After a battery of tests and assessments by a team of doctors from various disciplines, a comprehensive 65-page report was generated on March 27, 2024 confirming that Mr. Navarro sustained physical and psychological injuries that constitute “a catastrophic impairment.” This is expected to be permanent.

[33] Physically, Mr. Navarro sustained the following injuries from the collision: multiple fractures of his pelvic bones; several fractures of bones in his spinal column; a tear in the MCL ligament in his left knee; a tear in his left rotator cuff; a traumatic brain injury; and, a tear to the carotid artery in his neck causing thrombosis. He lives in constant pain, particularly in his back and legs, and also experiences feelings of numbness in his hips. He is unable to stand or sit in the same position for extended periods of time. He walks with the assistance of a cane, and with considerable difficulty (as I was able to observe in court at the sentencing hearing). He has been unable to work since the collision, and this will not change. He is also unable to do household chores or outdoor maintenance. He is no longer able to engage in physical activities he used to enjoy such as camping, canoeing, and playing soccer.

[34] The psychological impact of the collision has been devastating for Mr. Navarro. He has been diagnosed with: post-traumatic stress disorder; prolonged grief disorder; major depressive disorder (moderate); and somatic pain disorder with predominant pain that is both moderate and persistent. He has had extensive therapy for these conditions, but his doctors consider his impairments will be permanent. Mr. Navarro grieves the loss of his wife and is lost without her. He has withdrawn from social and family activities. He is unable to drive any distance, limiting himself to just around the block. His family members drive him wherever he needs to go, but he is too fearful, even as a passenger, to travel on a highway. He has written extraordinarily touching letters about his love for his wife and the impact her death has had on his life. He also spoke to me about his wife during the sentencing hearing, and again his comments were very moving. He is haunted by the fact that he did not have a chance to tell his wife that he loved her one last time before she was taken from him.

[35] In addition, Victim Impact Statements were filed by the son and daughter of Mr. Navarro and Ms. Buendia and their daughter’s fiancé, as well as five relatives of Ms. Buendia who live outside Canada. It is apparent from these statements that Norma Buendia was, as one of them described her, “the glue that held the family together.” Her daughter and her fiancé (who has been like a member of the family for eight years) will have their wedding, but without their beloved mother and their children will never meet their grandmother. Her son described their former loving and vibrant home as having “no light, no warmth” and said that “a darkness…grew over everything my mother once shed light on.” In addition to losing their mother, the “cornerstone” of the family, the children are left with a father who is himself grieving deeply, and is a shadow of his former self.

[36] Ms. Buendia’s sisters Charo and Cecelia still lived in Peru but were in touch with her almost daily, including within hours of her death. A day or two before the collision, Charo was diagnosed with colon cancer. She was shocked and devastated by her sister’s death. Her own health declined sharply, and she was dead within nine months. Cecelia lost both her sisters in a nine-month period. Norma Buendia was described by her nieces (Charo’s daughters) as being like another mother – one they lost in addition to their own mother. The entire extended family has grieved deeply for their sister, sister-in-law, aunt, and godmother.

[37] The loss this family has sustained has been profound.

G. MITIGATING FACTORS

[38] Mr. Trivedi pleaded guilty to these charges. That is a mitigating factor. However, it would have more impact if he had done it earlier, rather than at the last minute. As stated in Lacasse:

The trial judge was also right to attach less weight to the remorse expressed by the respondent and to his guilty plea because of the lateness of that plea. A plea entered at the last minute before the trial is not deserving of as much consideration as one that was entered promptly: R. v. O. (C.), 2008 ONCA 518, 91 O.R. (3d) 528, at paras. 16‑17; R. v. Wright, 2013 ABCA 428, 566 A.R. 192, at para. 12.[^10]

[39] Also, this was an overwhelming Crown case. It was his car, an eyewitness could identify him as the driver, and his DNA was on the airbag. The nature of the driving was caught on video for part of the time, and there were also numerous eyewitnesses who came forward. A conviction was inevitable. A guilty plea in that situation carries less mitigating force.

[40] Typically, a guilty plea is accepted as an indication of remorse. In this case, I do not treat it as such. Mr. Trivedi did not testify, but he did speak to me at the end of the sentencing hearing, apologizing to the court and the family of the victims for his conduct. He said that he thinks about the collision every day, and that he will be forever haunted by the tragedy. He accepted full responsibility. He said he is a different person now, turning more to spiritual things and to his family and friends. In addition to Mr. Trivedi’s own words, the author of the pre-sentence report and many of his friends and family members who filed letters in support of him attested to the impact the collision had on him and how remorseful he has been. I have no doubt Mr. Trivedi regrets his actions on October 3, 2021. I am not completely convinced that his regret is focused on the devastation he caused to others and the dangerous nature of what he was doing, as opposed to it being more about the impact the criminal charges have had on his own life. However, remorse is a mitigating factor and I am satisfied that the defence has established it to the requisite standard of a balance of probabilities.

[41] The defence filed a very favourable pre-sentence report, along with approximately 30 letters of support from friends, family, and people who have attested to his generous nature in volunteering his time for many charitable causes. These volunteer efforts preceded the accident, and I am satisfied they are genuine, and not merely window-dressing for purposes of sentencing. He has been a loyal and kind friend to many people. There are a number of common themes including: honesty; integrity; empathy; and kindness.

[42] However, I also note that those friends and relatives who filed letters of support testifying to Mr. Trivedi’s “honesty,” “integrity,” and “sense of duty” either know nothing of his criminal conviction (which makes me question how well they know him) or do not think it matters (which makes me question their judgment). Also, nobody referred at all to his driving record, choosing to paint him as an individual who has heretofore led a completely blameless life. I also have to wonder at the empathy, kindness, and sense of duty possessed by a person who simply walked away from his two victims, and never turned himself in until the police contacted him, after having traced his car.

[43] In speaking about his remorse, Mr. Trivedi said that every year, on the anniversary of Norma Buendia’s death, he makes a $1000 donation in her memory to a Hindu temple. She was not Hindu. That donation is not a tribute to her; it is a message to his own community about what a great guy he is. I consider it more self-centered than truly remorseful.

[44] Mr. Trivedi’s counsel referred to him as a “youthful first offender.” He was nearly 31 at the time of the offence, and he had a criminal record, as well as an atrocious driving record. I do not consider him to fit into the “youthful first-offender” category, although his relative youth might be a factor that could distinguish his situation from other comparable cases where the driver was significantly older.

H. INCREASE IN MAXIMUM SENTENCE

[45] Before December 18, 2018, the maximum sentence for dangerous driving causing death was 14 years. On this date, the Criminal Code was amended to increase the maximum penalty to one of life imprisonment and, in the very same section of the Criminal Code, to impose that same maximum penalty for impaired driving causing death.[^11] The amendments clearly link dangerous driving and impaired driving. The first two points listed in the Preamble of Bill C-46 (which brought in the amendments) state:

Whereas dangerous driving and impaired driving injure or kill thousands of people in Canada every year;

Whereas dangerous driving and impaired driving are unacceptable at all times and in all circumstances;[^12]

[46] The Supreme Court of Canada held in R. v. Freisen,[^13] that when Parliament increases the maximum penalty for an offence, courts should interpret this as reflecting Parliament’s recognition of the seriousness of the offence and the harm it causes. Accordingly, after such an amendment the range of sentence previously imposed for this offence must be re-examined to bring it in line with the intention of Parliament.[^14] Likewise, in Lacasse, the Supreme Court noted, “[t]he increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wanted such offences to be punished more harshly.”[^15] That same principle applies to sentences for dangerous driving.

[47] The Court of Appeal for Ontario applied those same principles in R. v. Lis, dealing with a case of a mother failing to provide the necessities of life for her disabled daughter. Watt J.A. held:

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.[^16]

[48] In my view, the fact that Parliament sought to link dangerous driving causing death and impaired driving causing death in this way is also important. It indicates that sentences for these two offences should be more in alignment generally, depending on the individual circumstances of each case.

I. REHABILITATION, DETERRENCE AND DENUNCIATION

[49] The principles of deterrence and denunciation are the most important factors informing sentencing in cases of this nature. The Supreme Court of Canada held in Lacasse:

While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinarily law‑abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences. Impaired driving offences are an obvious example of this type of offence, as this Court noted in Proulx:

. . . dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law‑abiding persons, with good employment records and families. Arguably, such persons are the ones most likely to be deterred by the threat of severe penalties: see R. v. McVeigh (1985), 1985 CanLII 115 (ON CA), 22 C.C.C. (3d) 145 (Ont. C.A.), at p. 150; R. v. Biancofiore (1997), 1997 CanLII 3420 (ON CA), 119 C.C.C. (3d) 344 (Ont. C.A.), at paras. 18‑24; R. v. Blakeley (1998), 1998 CanLII 6218 (ON CA), 40 O.R. (3d) 541 (C.A.), at pp. 542‑43. [para. 129][^17]

[50] The Court of Appeal for Ontario strongly endorsed that same principle in R. v. Rawn (a dangerous driving causing bodily harm case):

General deterrence and denunciation are the most important factors in the determination of a sentence in a case such as this one: see R. v. Nusrat, 2009 ONCA 31, 244 O.A.C. 241. Other, like-minded people need to know that irresponsible use of a motor vehicle on our highways will not be countenanced. A sentence can only denounce conduct and deter others to the extent that it is punitive. The essence of general deterrence, is, therefore, punishment: R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at paras. 2-5.[^18]

It is worth repeating - dangerous driving causing bodily harm is a serious offence. An appropriate sentence must give primacy to the objectives of general deterrence and denunciation. To meet the requirements of these principles, the sentence must clearly reflect the seriousness of the conduct and its consequences, both actual and potential. To meet the requirements of denunciation, it is necessary that there be absolutely no ambiguity in the message that such conduct is completely unacceptable.[^19]

[51] That is not to say that there is no place for rehabilitation in determining a fit sentence. Rehabilitation is always important, particularly for a young man in his thirties. It is also important that the sentence imposed for the purpose of emphasizing deterrence and denunciation should not be so severe as to be crushing, thereby undermining the prospects of rehabilitation. However, deterrence is foremost. In terms of specific deterrence, the sentence must be sufficiently severe to bring home to Mr. Trivedi the criminal nature of his actions, and to deter him from returning to the manner of driving that seems, based on his driving record, to have characterized his entire driving history. General deterrence is also critical. The message must be sent, strong and clear, that this conduct will not be tolerated. Motor vehicles, when misused, can be lethal weapons. Dangerous drivers turn a mode of transport into a killing machine, without regard to the carnage they cause. This is a serious danger to the public and must stop.

J. PARITY IN SENTENCING

[52] The principle of parity requires that similar offenders receive similar sentences for offences committed in similar circumstances. This is a difficult principle to apply. No two offenders are ever the same and the variety of surrounding circumstances is infinite, particularly for the offence of dangerous driving, which can be committed in a widely varying number of ways. However, the principle remains important as there should be consistency in sentencing. Sentences seen as arbitrary or anomalous do not instill confidence in the justice system.

[53] In reviewing similar cases, I must also be mindful that any sentence imposed prior to December 18, 2018 must be considered in light of the subsequent amendment increasing the maximum sentence.

[54] The Crown has drawn to my attention the following cases, which he submits support the range of the 5 to 5 ½ year sentence he has asked me to impose:

Case Name

Sentence – Trial/Guilty plea – Death/Injuries

R. v. Reiger (ONCA 2011)

• Sentence: 6 years jail
• Post trial
• Two people killed and one injured

R. v. Bhangal (ONCA 2016)

• Sentence: 5 years jail
• Post trial
• One person killed

R. v. Durani (ONCA 2022)

• Sentence: 5 years jail
• Post trial
• One person killed

R. v. Robertson (ONCJ 2022)

• Sentence: 17 years jail
• Guilty plea
• Four people killed

R. v. Obermok (ONCJ 2023)

• Sentence: 5 years jail
• Guilty plea
• One person killed and one injured

R. v. Park-Romain (ONCJ 2023)

• Sentence: 3 years jail
• Guilty plea
• One person killed

R. v. Kerr (ONSC 2024)

• Sentence: 4 years jail
• Post trial
• One person killed and five injured[^20]

[55] Defence counsel also relied on the decision of my colleague, Roberts J. in Kerr. In addition, he cited the following cases in support of his submission that 3 years is the appropriate sentence for Mr. Trivedi:

Case Name

Sentence – Trial/Guilty plea – Death/Injuries

R. v. Tabanao (ONCA 2023)

• Sentence: 5 years jail
• Post trial
• Four people killed and three injured

R. v. Precup (ONCA 2016)

• Sentence: 18 months (for dangerous driving simpliciter) plus 6 months for failing to remain
• Post trial

R. v. Christink (ONCA 2012)

• Sentence: 2 years less 1 day
• Post trial
• Two people killed

R. v. Akhtar (ONSC 2018)

• Sentence: 30 months
• Post trial
• One person killed and two injured

R. v. Paul (ONCJ 2022)

• Sentence: 2 years
• Guilty plea
• One person killed

R. v. Kerr (ONSC 2024)

• Sentence: 4 years
• Post trial
• One person killed and five injured[^21]

R. v. Kerr

[56] I will deal first with Kerr, which is cited by both the Crown and defence. In that case, two cars had been proceeding west along Richmond Street, which is a three-lane, one-way street in downtown Toronto. One of the cars (a Kia) was driven by Mr. Kerr. He was in the lane closest to the south curb. The other car was a Hyundai. It was in the middle lane, some distance ahead of the Kia. The two cars were near the intersection with Yonge Street. It was 2:00 p.m. on Boxing Day and many pedestrians were on the sidewalks in the immediate area. As he approached the intersection with Yonge Street, Mr. Kerr was driving twice the speed limit. The light at the intersection was green. Mr. Kerr was intending to go straight through. However, just at that point, the Hyundai made an illegal left turn from the middle lane, directly across the lane Mr. Kerr was travelling on. Given his speed, Mr. Kerr was unable to stop the Kia. He hit the Hyundai, at which point the Kia rolled onto its side and slid into a group of 13 pedestrians on the sidewalk. Six of those pedestrians were hit by the Kia: one was killed (an 18-year-old) and five were injured, including the deceased’s younger brother and father.

[57] Roberts J. of this court sentenced Mr. Kerr to four years and imposed a 10-year driving prohibition. There are some features of Mr. Kerr’s circumstances that are more aggravating than those of Mr. Trivedi. Mr. Kerr had a youth criminal record for possession of a loaded firearm and a disposition as an adult for assault and possession of property obtained by crime, for which he received a conditional discharge and a period of probation. He was still subject to that probation order when he committed the subject offence. Also, he was on bail for four separate dangerous driving charges, which apparently did not deter him from driving in a dangerous manner once again. At the time of the offence, Mr. Kerr was driving for a food delivery company. The Criminal Code stipulates that driving for remuneration at the time of the dangerous driving offence is an aggravating factor.

[58] On the other hand, there were mitigating factors applicable to Mr. Kerr that are not available to Mr. Trivedi, in particular a very favourable Morris pre-sentence report attesting to his excellent prospects for rehabilitation notwithstanding a difficult and traumatic childhood. Also, he was 22 years old at the time of the offence, younger than Mr. Trivedi. More importantly, Mr. Kerr was not the sole cause of this collision. Roberts J. found that the driver of the Hyundai made an illegal left turn immediately in front of Mr. Kerr, and that but for the Hyundai’s action, Mr. Kerr would have passed through the intersection without incident. If Mr. Kerr had not been driving at an excessive speed, he would have been able to stop without hitting the Hyundai, which is why he was convicted of dangerous driving. However, clearly the Hyundai was at least a contributing factor to the collision. That is quite a different scenario from the type of aggressive driving engaged in by Mr. Trivedi, for no apparent reason apart from his own enjoyment or whim.

[59] Another strong distinguishing factor is that Mr. Kerr was in custody for two years from the date of his arrest to the date of sentencing. He served part of that time during COVID conditions, which was particularly problematic for him because he has asthma and uses an inhaler. Throughout his two-year stay at the Toronto South Detention Center (“the Toronto South”) there were repeated lockdowns, including 164 days of full lockdowns and 487 days of partial lockdowns (varying in length). The trial judge found that Mr. Kerr was entitled to some recognition for these onerous pre-sentence custody conditions. She held that these circumstances had a “significant mitigating effect on sentence,” but declined to “place a specific number on this mitigation,”[^22] citing the Court of Appeal for Ontario’s decision in R. v. Marshall.[^23] In that case, the Court of Appeal dealt with the so-called “Duncan credit,” which had previously been a deduction from sentence as a result of the harsh circumstances of pre-sentence custody. The Court of Appeal held that this is more correctly treated as a mitigating factor in sentencing, rather than a deduction from the sentence, although acknowledging that it was still permissible to quantify it and deduct it from the sentence that would otherwise be imposed.

[60] I, and other judges, have been critical of not quantifying the amount of the deduction, in part because it distorts the actual sentence imposed and makes it difficult to compare similar cases when doing exactly the analysis I am engaged in here.[^24] This is a good illustration of the problem. I do not know what the “real” sentence for Mr. Kerr would have been, but for the “credit” for the time he served in custody. I can make an educated guess based on many decisions of my colleagues who awarded an extra credit of 0.5 to 1 for time served at the Toronto South during this period of time. If that was the approach taken by Roberts J., there would have been an additional credit of 1 year. I could extrapolate that to mean that the effective sentence was 5 years, from which 4 years were deducted for both the Summers and Duncan credit (2 x 2 years served), leaving 1 year remaining to be served. However, Roberts J. followed the guidance of the Ontario Court of Appeal and made an “invisible” reduction in the sentence because of the “significant” mitigating effect of the unduly harsh conditions at the Toronto South. Having made that reduction, she arrived at a sentence of 4 years, from which she deducted the customary Summers credit of 1:5 to 1, arriving at 1 year remaining to be served. However, I consider it to be inappropriate to guess at the amount of credit Roberts J. allowed for the harsh conditions. I could easily be wrong. All I am able to say is that the sentence for Mr. Kerr would have been higher than 4 years, but for the “significant” mitigating impact of the pre-sentence custody, but I am unable to be more precise than that. That makes it difficult to use this case for purposes of parity in sentencing.

[61] Mr. Trivedi was older, his driving on this occasion was worse, and he was also the sole cause of the collision that killed Ms. Buendia and seriously injured her husband. Although Mr. Kerr had a bad driving record including three convictions for speeding and one for an unsafe lane change, Mr. Trivedi’s driving record was even worse. Mr. Trivedi did not have the “significant” mitigating factor of the harsh conditions at the Toronto South nor the difficult childhood and adversity of Mr. Kerr, as shown in the Morris report. Even though Mr. Kerr injured more people, I consider Mr. Trivedi’s moral culpability to be higher. On the other hand, I did find Mr. Trivedi to be remorseful, which is a mitigating factor found not to be present for Mr. Kerr, who persisted (not without some reason) in blaming the collision on the driver of the Hyundai. I also note that Mr. Kerr did not flee the scene, which is more than can be said for Mr. Trivedi. There are also other differences between the two cases. I do not intend to list them all. Suffice to say that there is some similarity, except for the mitigating impact of the difficult time served by Mr. Kerr at the Toronto South.

R. v. Tabanao

[62] The defence relies on the Court of Appeal for Ontario’s decision in Tabanao. However, I find that case was so different from this one that it is unhelpful in determining a fit sentence in this case. Mr. Tabanao was driving a tractor-trailer on Highway 401 and was operating on cruise control at 100 kph, which is the speed limit. He was distracted by something in the cab of his truck and was looking down or elsewhere for a period of time of up to 55 seconds. As a result, he failed to see that the traffic ahead had come to a virtual standstill and did not apply his brakes. He smashed into a Ford Focus causing it to burst into flames and forcing it under an armoured Garda truck in front of it. All four occupants of the Ford Focus were killed. The Garda truck was destroyed and its three occupants were injured. The impact caused a six-vehicle pile-up. Mr. Tabanao was charged with criminal negligence causing death and criminal negligence causing bodily harm. He was convicted at trial and was sentenced to 7 years in jail by the trial judge. The Court of Appeal found this sentence to be unfit and reduced it to 5 years.

[63] Mr. Tabanao had significant mitigating factors in his favour. He had no criminal record and no driving record, notwithstanding 13 years’ driving experience. Although he did not plead guilty, he did not dispute his role in the collision, and was found to be deeply remorseful. There was no pattern of unlawful, aggressive or dangerous driving prior to the collision; there was merely inattention. I note he was charged with criminal negligence rather than dangerous driving, so it was at least arguable that his conduct did not amount to the “wanton and reckless disregard” standard required for criminal negligence. The Court of Appeal deferred to the trial judge’s factual findings in this regard and upheld the criminal negligence convictions. However, the failure to plead guilty in these circumstances did not negate remorse, as was found by the Court of Appeal. Mr. Tabanao was found to have led a blameless life for his 30 years in Canada before this, and to be a person of good character. He was married, with three children, for whom he was the primary breadwinner.

[64] There were also aggravating factors not present for Mr. Trivedi: Mr. Tabanao was a professional truck driver and operating a massive tractor-trailer at the time; and he killed and injured more people. On the other hand, Mr. Trivedi’s manner of driving and his driving record were manifestly worse than that of Mr. Tabanao, notwithstanding the fact that he was only charged with dangerous driving. For me, the deliberate and reckless manner of driving by Mr. Trivedi is the most significant aggravating factor, along with leaving the scene of the collision. He did not kill as many people and he was not driving a truck. Perhaps those differences balance out, such that 5 years is appropriate for both. However, I find it difficult to compare the two.

R. v. Paul

[65] In this 2022 case, the 22-year-old first-time offender was sentenced by Rose J. to a total of two years: 18 months for dangerous driving causing death and 6 months consecutive for leaving the scene. A police officer clocked Mr. Paul going 125 kph on a rural road with a posted limit of 60 kph. The officer made a U-turn and pursued Mr. Paul’s car with emergency lights activated. Not only did Mr. Paul fail to stop, he drove even faster. The officer discontinued the chase because he considered it unsafe, at which point Mr. Paul’s car was estimated to be going 130-140 kph. Predictably, Mr. Paul eventually lost control of his car and it went into a skid, striking a cyclist before it finally rolled over an embankment. The cyclist was killed. Mr. Paul had a head injury and some bruises, but he was able to get out of his car and leave the scene by hiking through fields and woods. When identified by police and charged, Mr. Paul pleaded guilty at an early stage and expressed remorse. The trial judge noted him to have had a difficult upbringing, but that he was now gainfully employed and doing well, with good prospects for rehabilitation. Mr. Paul had no criminal record and only one speeding ticket on his driving record (for driving 10 kph over the speed limit). However, he had been driving his car for two years prior to this offence without any insurance, which was found to be an aggravating factor.

[66] In my view, even with these mitigating factors, this sentence is quite lenient. The trial judge referred to a number of cases, all but one of which preceded the amendment to the Criminal Code increasing the maximum sentence to one of life imprisonment. The trial judge made no reference to the amendment, nor to the maximum sentence, but did mention that deterrence and denunciation were paramount principles. I do note, however, that the Crown’s position in that case was that the appropriate global sentence was 30 months; the defence submission was for 18 months; and, the trial judge chose 24 months, which is the midway point between the two submissions. Given the Crown position, I do not feel that too much can be read into this lenient sentence in terms of its precedential value. However, in any event, I note that there was only one victim, whereas Mr. Trivedi has two, and also that there were more mitigating factors for Mr. Paul.

R. v. Precup

[67] I would distinguish the decision in Precup on two bases. First, it preceded the increase in the maximum sentence. Second, it was a retrial, and but for that, the sentence would have been higher. At the first trial, the trial judge convicted Mr. Precup of dangerous driving causing death and failing to remain at the scene and sentenced him to a global sentence of 2 years. There were significant mitigating issues relating to Mr. Precup’s mental health. There were also serious aggravating factors, although the driving conduct that gave rise to the charge was very brief. The Court of Appeal ordered a new trial. At the second trial, Mr. Precup was again convicted, but the second trial judge sentenced him to four years. The Court of Appeal reinstated the initial two-year sentence in a very brief endorsement, ruling that the trial judge failed to give proper deference to the original sentence. I would also note that Mr. Trivedi’s driving caused two people to be injured, one of them fatally, and also that his driving was worse than that of Mr. Precup.

R. v. Christink

[68] Frankly, I do not know what to take from the Court of Appeal’s decision in Christink. The trial judge sentenced the offender to a conditional sentence of two years less a day and a five-year driving prohibition for dangerous driving causing two deaths. It appears from the Court of Appeal’s brief endorsement that the issue on appeal was only whether the sentence should have been a conditional one to be served in the community. The Court of Appeal accepted the submission of the Crown that a conditional sentence did not meet the requirements of proportionality, denunciation, and deterrence and directed that the remaining portion of the sentence be served in actual custody. Also, the driving prohibition was increased to 7 years. There was no discussion of whether the sentence should have been more than 2 years. Again, this case was decided in 2018, before the maximum sentence was increased.

R. v. Akhtar

[69] Mr. Akhtar was convicted of criminal negligence causing death and two counts of criminal negligence causing bodily harm. He and his co-accused had been street racing for a distance of just under a kilometer at speeds of up to 144 kph westbound on Ellesmere Road, where the posted speed limit was 60 kph. As they were approaching a hill, they were not visible to the driver of a car travelling towards them in an eastbound lane, and who therefore proceeded to turn across the westbound lanes to enter the driveway of a nursing home. Because of the speed of the approaching vehicles and the hill, by the time they could be seen it was too late. A multi-car collision resulted with one fatality and two people seriously injured. The Crown sought a sentence of 3-4 years. The defence argued that the appropriate sentence was 2 years less a day. Garton J. sentenced Mr. Akhtar to 30 months concurrent on all counts. Mr. Akhtar was 20 years old at the time of the collision, and at the time of trial was attending university, studying engineering. He had a strong work history and excellent character references. The trial judge found he had strong prospects for rehabilitation. He had no criminal record and no driving record. Initially, he took no responsibility for the collision, but by the time of sentencing had acknowledged his responsibility and was extremely remorseful, to the point of being suicidal. The trial judge accepted he was genuinely remorseful, but held that she was giving it less weight because it only appeared at a late stage in the proceedings (which is also the case here, although Mr. Trivedi did plead guilty, which distinguishes him somewhat from Mr. Akhtar).

[70] While the “gravity and moral blameworthiness of the offences” called for a term of imprisonment in the penitentiary range, the youth of the accused and the potential for rehabilitation were influential factors for Garton J. imposing what she described as being a sentence that “should be as short as possible” for a first sentence of imprisonment.[^25] Mr. Trivedi was a decade older than Mr. Akhtar. Even though these convictions were for criminal negligence rather than dangerous driving, the nature of the driving was similar. I note as well that this decision was in 2018, before the amendments raising the maximum sentence to life imprisonment. The mitigating factors in terms of community support and prospects for rehabilitation were also similar, although it seems that Mr. Akhtar’s rehabilitation potential was slightly better. Mr. Trivedi’s driving record is a seriously aggravating factor in this case, as is the fact that he failed to remain at the scene. These were not factors for Mr. Akhtar. In my view, the sentence for Mr. Trivedi should be higher than the sentence imposed on Mr. Akhtar.

R. v. Bhangal

[71] The offender (Mr. Bhangal) was a truck driver. He fell asleep at the wheel while driving. His truck drifted into oncoming traffic and collided head-on with a minivan, killing the driver. Mr. Bhangal deliberately breached the regulations governing sleep requirements for truck drivers and falsified his driving logs about how much sleep he had before driving that day. He was convicted of criminal negligence causing death and sentenced to 5 years and a 15-year driving prohibition. The Court of Appeal for Ontario upheld that sentence as fit, noting that this was a commercial driver and that he deliberately ignored safety rules to avoid his rest obligations, thereby placing “his economic interests ahead of public safety.”[^26] The offender had previously received a warning at work about excess driving just a few days before this collision. This was also considered aggravating.

[72] I find this case to be a more helpful guide to the appropriate sentence for Mr. Trivedi. This was a commercial driver, which is an aggravating factor not present for Mr. Trivedi. However, he did not have a criminal record or driving record, which puts him in a better position than Mr. Trivedi. Mr. Bhangal had been given one warning about excess driving, which was treated as aggravating. I compare this to the multiple speeding tickets received by Mr. Trivedi, which could also be considered as warnings that he ignored. Mr. Bhangal deliberately put his own economic interest above public safety and Mr. Trivedi also put his own interests (whatever they were) above public safety. Moreover, Mr. Trivedi deliberately engaged in a highly dangerous pattern of dangerous driving over an extended period of time. Also, although Mr. Bhangal did not have the advantage of a guilty plea, he did remain at the scene. Mr. Trivedi’s guilty plea was slow in coming, and his failure to remain at the scene is highly aggravating. When these various factors are weighed in the balance, it seems to me that the circumstances merit similar punishment. I do note that this was a sentence for criminal negligence (rather than dangerous driving), but it was prior to the life sentence potential for dangerous driving, and the gravity of the offence and moral blameworthiness for Mr. Trivedi are equivalent, in my view. Also, Mr. Trivedi was responsible not only for one death, but also for the catastrophic injuries to another person.

R. v. Durani

[73] Mr. Durani and a co-accused (Lewis) were street racing at 5:30 p.m. on a busy Hamilton street, driving at high rates of speed and completing dangerous manoeuvres requiring drivers to take evasive action. They reached speeds of up to 130 kph in a 50 kph zone. In the course of this pattern of driving, Mr. Lewis hit another car, killing the driver. Both were charged with criminal negligence causing death. Mr. Durani was also charged with leaving the scene. Mr. Lewis was also charged with impaired driving causing death and breaching a probation order. They were tried together and both were convicted by a jury. The trial judge sentenced Mr. Durani to 5 years and Mr. Lewis to 8 years. Both appealed their sentences.

[74] In Durani, the Court of Appeal upheld the sentence, noting that “[a]lthough relatively young, [he] was not a first offender and the pre-sentence report indicated he had no insight into his behaviour.”[^27] I was not provided with the trial judge’s decision, and it does not appear to have been reported. There is no information in the Court of Appeal endorsement as to the nature of the prior record or the specific age of the offender. The Court of Appeal found the sentence to be fit and held that there was “no basis to interfere with the trial judge’s decision to highlight denunciation and deterrence.”[^28]

[75] In a separate decision, the Court of Appeal dismissed Mr. Lewis’ appeal from his 8-year sentence.[^29] One of the arguments advanced by Mr. Lewis was that the 8-year sentence breached the parity principle because it was so divergent from the 5-year sentence imposed on his co-accused. The Court of Appeal rejected that argument, holding that the higher sentence was appropriate given the different circumstances which were that he was impaired by alcohol and that he had longer and more aggravating criminal and driving records. Also, he was on probation from an unspecified offence at the time this one was committed.

[76] These were 2022 appeal decisions following a 2020 trial decision and therefore may be seen as an indication of the courts moving towards higher sentences for offences of this nature. However, it is difficult to draw more from them as the particulars are not provided in the Court of Appeal endorsement. I do note that only one person was killed, as compared to Mr. Trivedi who had two victims. However, Mr. Durani was found to lack insight, which I think is not a correct assessment of Mr. Trivedi. I find the nature of the driving to be quite similar, along with the additional aggravating factor of leaving the scene. It sounds as if Mr. Trivedi’s driving record was more aggravating than that of Mr. Durani, but it is impossible to be sure about that because of the lack of information. All in all, I do not find this case to be particularly helpful.

R. v. Obermok

[77] This is an Ontario Court of Justice (“OCJ”) decision and is therefore not binding on me. Nevertheless, it is relevant in applying the principle of parity of sentence. Mr. Obermok was convicted of one count of dangerous driving causing death and one count of dangerous driving causing bodily harm. He was sentenced to 5 years in prison and given a 15-year driving prohibition. Mr. Obermok was driving at a speed of 105 kph (which was determined to be “excessive”) and failed to stop at a stop sign at the point where the road he was on intersected with a highway.[^30] Cars on the highway had no stop sign and had the right of way. Mr. Obermok went straight across the highway without stopping or slowing and smashed into a car driven by a mother, with her 2-year-old strapped into a child seat in the rear. Mr. Obermok was wholly responsible for the collision. The mother was seriously injured and the child was killed. Mr. Obermok was also seriously injured. At the hospital, police officers detected the smell of alcohol on him and a blood sample was taken. Analysis showed that at the time of the collision Mr. Obermok’s blood/ alcohol concentration was between 30 mg and 90 mg of alcohol in 100 ml of blood. The legal limit is 80 mg of alcohol in 100 ml of blood. Mr. Obermok pleaded guilty to both charges and was found to be genuinely remorseful. In the absence of any explanation for why Mr. Obermok did not even slow down at the stop sign, the trial judge made a finding that alcohol must have been a factor, and determined that to be aggravating on sentencing. Mr. Obermok had a difficult childhood and suffered from post-traumatic stress disorder, a major depressive disorder, adjustment disorder, and cervical fractures at C-1 and C-2 that had been fused. He had a history of alcohol abuse, which his doctor said was in remission. Mr. Obermok was 56 years old at the time of sentencing and had one criminal conviction from 40 years before. There was no mention of a driving record, from which I conclude that if there was one it was insignificant. In imposing the sentence he did, Pratt J. noted the change in the maximum sentence requiring an increase over sentences imposed in the past. While recognizing the mitigating factors present, he held that deterrence and denunciation mandated a penitentiary term.

[78] Comparing that case to this one, I note that the two offenders pleaded guilty and were remorseful, but that Mr. Obermok pleaded guilty at an early stage and did not seek to change that plea even after the Crown resiled from an agreed upon joint submission on sentencing. There was no evidence that Mr. Obermok was actually impaired by alcohol, but that he was at least under the influence of alcohol at the time, and this was an aggravating factor. Mr. Trivedi’s state of impairment cannot be known. However, the fact that he left the scene is equally aggravating in my view. In addition, Mr. Trivedi’s driving record is an aggravating factor not present for Mr. Obermok. Mr. Trivedi’s younger age is somewhat mitigating. However, the nature of his driving was far worse than Mr. Obermok’s and was not a matter of a few moments’ inattention, but rather a deliberate course of highly dangerous driving over a period of time. Comparing the two, I would say Mr. Trivedi is deserving of at least the equivalent sentence, and perhaps higher.

R. v. Park-Romain

[79] Ms. Park-Romain pleaded guilty in the OCJ to one count of dangerous driving causing death. She had been driving in an egregiously bad manner for a considerable period of time, a portion of which was recorded by the dash-cam on a truck that was directly behind her. She was speeding and veering from one side of her lane to the other, sometimes straddling the center line, and other times straying onto the gravel shoulder. She had been drinking and acknowledged that she was under the influence of alcohol, but the precise blood/alcohol level was not provided to the sentencing judge. She crossed a street without stopping at the stop sign, also ignoring the large warning sign that preceded it, and crashed into another car. That car was forced under a truck ahead of it, and the driver of the car was killed. Ms. Park-Romain was also seriously hurt and spent several months in hospital. She pleaded guilty and was very remorseful. She had led an exemplary life, including years of volunteer work assisting children with disabilities. She was 80 years old at the time of the offence; 82 years old at the time of sentencing. Notwithstanding the strong mitigating factors and the age of the offender, O’Donnell J. sentenced her to three years in prison, stating that this was the “lowest fit sentence that [he] could reasonably impose,” adding that if it were not for her age, the sentence would be 4 years or more.[^31] General deterrence and denunciation were cited as the primary factors in sentencing. O’Donnell J. held:

It is the job of courts to help to make society safe. I would suggest that the area of dangerous and impaired driving is one where we have not done a particularly good job, especially since these are for offences where general deterrence is considered a driving principle and where the typical potential offender is considered likely to respond to general deterrence.

In the context of non-impaired serious driving offences that result in injury or death, the culture of inappropriately low sentences for calamitous consequences also puts the public at risk over time because there is no clear message from the courts that when otherwise good people injure or kill fellow users of the roads by criminally dangerous driving, the price will be significant and will actually bear some meaningful relationship to the damage they have caused, be that injury or death. Otherwise good people, so the theory goes, are precisely the target market for messages of general deterrence and they are very, very often the perpetrators of this carnage, the people who deprive families of their parents or who injure young people and force them to endure many decades of a life now characterized by ongoing pain and suffering, by severe limitations on their potential and by the denial of the enjoyments that people take for granted when they have not been the victims of a serious driving offence.[^32]

[Emphasis added and footnote omitted.]

[80] The reasoning of O’Donnell J. is sound and I agree with it. In my view, Mr. Trivedi’s driving was worse. His mitigating factors are less forceful, and he has more aggravating factors, most notably the horrific driving record and the fact that he failed to remain at the scene. He deserves a far harsher sentence than was meted out to this 82-year-old woman with no prior record.

R. v. Robertson

[81] This is another OCJ decision. I include it, not because I consider Mr. Trivedi’s circumstances to be equivalent to those of Mr. Robertson, but for the general principles it applies and the eloquent observations of Caponecchia J. about the need for exemplary sentences in cases of this nature. The circumstances of Mr. Robertson’s offence were worse. He pleaded guilty to four counts of dangerous driving causing death, and was also convicted of four counts of causing death while having more than the legal limit of THC (from smoking cannabis) in his system. On the afternoon of these eight offences, Mr. Robertson was fleeing from police at a high rate of speed, going 134 kph in a 70 kph zone. He also drove at a high rate of speed through residential streets for approximately 2 km and ultimately went through a red light at an intersection. He smashed into a car, killing all four occupants: a mother and her three young children. Mr. Robertson had also been convicted of dangerous driving in relation to another collision two days earlier. He had a terrible driving record with multiple convictions for speeding, as well as one for stunt driving. His license had been suspended several times, and he continued to drive while suspended. He also drove without insurance. He was 20 years old, and had a very disadvantaged youth. He had no adult criminal record, but some youth dispositions for unrelated matters. After a thorough review of the case law, Caponecchia J. held that the circumstances of the case before her and the importance of denunciation and deterrence required that she step away from the range of sentences imposed in prior cases. She referred to Mr. Robertson as having “gambled with other people’s lives,” noting that the “consequences were predictable, yet they did not deter him.”[^33] She sentenced Mr. Robertson to 17 years in prison. The foremost factor supporting that sentence was the principle of deterrence and the necessity for trial judges to send a clear message that such conduct is criminal and will not be tolerated. I agree entirely with Caponecchia J.’s conclusion as follows:

The danger created by Mr. Robertson on both June 16 and 18 is not unlike that created by a person who takes control of a different weapon and walks down a busy street firing a handgun at random. The community, quite properly, demands that the courts denounce and deter such reckless and dangerous conduct. Significant incarceration is the remedy that most emphatically achieves those goals.[^34]

R. v. Lacasse

[82] I have also found the Supreme Court of Canada’s decision in Lacasse to be instructive. It is a decision most often referred to as upholding the trial judge’s consideration of the prevalence of a particular crime in the local area as a relevant factor in sentencing. However, it is also helpful in this case in a number of ways (to which I have referred above) and on the appropriate range of sentencing. In Lacasse the offender was 20 years old at the time of sentencing, and 18 years old at the time of the offence. He pleaded guilty to two counts of impaired driving causing death. He was drunk and speeding on a country road in Quebec. His car was doing 130 kph when he encountered a curve that was marked as 75 kph. He failed to negotiate the turn and his car went off the road, rolling several times. The two teenaged girls who were passengers in his backseat were killed. Mr. Lacasse pleaded guilty and was found to have been deeply remorseful. He had no prior criminal record, but had received three convictions for speeding. The trial judge sentenced him to 6 ½ years. On appeal by the defence, the Quebec Court of Appeal found that this sentence fell above the range set in two earlier decisions[^35] and reduced the sentence to 4 years. On further appeal to the Supreme Court of Canada, the trial judge’s sentence was restored. Wagner J. wrote:

In this case, even though the sentence fell outside one of the categories of sentences that have been established since Comeau, this did not mean that it was manifestly excessive. Terms of imprisonment of six years or more have in fact been imposed on people without criminal records who were convicted of impaired driving causing death. For example, in Kummer, the Ontario Court of Appeal upheld an eight‑year prison sentence imposed on a driver with no criminal record who had caused the deaths of three people while driving under the influence of alcohol. In R. v. Wood (2005), 2005 CanLII 13779 (ON CA), 196 C.C.C. (3d) 155, the Ontario Court of Appeal upheld a nine‑year sentence imposed on a person who had no criminal record for impaired driving but had caused the deaths of three people and caused permanent injuries to another. In Morneau, the Quebec Court of Appeal upheld a six‑year term of imprisonment on a charge of impaired driving causing the death of one person. Although the offender in that case already had a criminal record consisting of three convictions, the convictions all dated back more than 10 years. In light of the foregoing, therefore, the sentence of six and a half years imposed in the instant case on an offender who caused the deaths of two young girls was not disproportionate.[^36]

[83] Although Lacasse is an impaired driving case, I agree with those judges who have ruled that since the 2018 amendments to the sentencing provisions in the Criminal Code, sentences for impaired driving causing death and dangerous driving causing death should be largely in line with each other, barring unusual circumstances. The consequences of the offences in Lacasse were somewhat worse than the case before me, in that Mr. Lacasse killed two people, whereas Mr. Trivedi killed one person and caused catastrophic injury to another. On the other hand, Mr. Lacasse was only 18 years old, over a decade younger than Mr. Trivedi and his driving record was not as egregious. Also, Mr. Trivedi has the additional seriously aggravating factor of having left the scene. I see the two situations as being within the same range for sentencing purposes.

R. v. Hall

[84] Finally, I refer to a case I decided nearly 20 years ago. Shawn Hall was 25-year-old man with a previous conviction for impaired driving. He worked as a tow truck driver and was driving the tow truck at the time of the offence, although he was not working. He had gone out for drinks with some friends and they were then headed for a beach to continue the party. He was driving on the Lakeshore in Toronto at an excessive rate of speed (between 80 and 100 kph in a 50 kph zone) and he was impaired by alcohol. At a minimum, his blood/alcohol level was 100 mg and it could have been as high as 133 mg. As he was driving in this manner, a group of young men were crossing Lakeshore Blvd. after having attended a charity event at a venue there. They tried to take evasive action as Mr. Hall bore down on them, but one of them was struck and killed. I found Mr. Hall guilty of both impaired driving causing death and dangerous driving causing death. I noted the maximum penalty of life imprisonment for impaired driving causing death. I also noted that Mr. Hall had made significant efforts since the offence to turn his life around and was truly remorseful. After reviewing similar cases, I concluded that the range of sentence for this type of offence in these circumstances was between 4 and 8 years. I sentenced Mr. Hall to 5 years and a driving prohibition for 10 years. On appeal, Mr. Hall argued that this range was wrong for this type of offence and that the sentence itself was excessive. The Court of Appeal held, “[e]ven if the trial judge incorrectly considered the range of sentence for similar offences, she nevertheless rendered a fit and proper sentence in this case. The sentence was warranted for this offender and these offences.”[^37]

[85] Here I am 20 years later, still unclear on the appropriate range of sentence. However, I consider the moral blameworthiness of Mr. Trivedi to be equivalent to the offence committed by Mr. Hall, even though Mr. Hall was impaired by alcohol at the time. Mr. Hall was driving a commercial vehicle, which is aggravating, and also had a prior impaired driving conviction. However, Mr. Trivedi’s driving was actually worse, and for a longer period of time. He also had the additional aggravating factors of his bad driving record and failing to remain at the scene of the collision. Also, in addition to killing one person, Mr. Trivedi injured another. If 5 years was a fit sentence for Mr. Hall, it seems to me that it is also a fit sentence for Mr. Trivedi.

K. CONCLUSIONS

[86] It is essential to treat dangerous driving as the crime that it is. Dangerous driving is not the same thing as having caused an accident by mere negligence or inattention. Rather, it is a deliberate criminal act, a decision to drive in a manner that endangers members of the public with complete disregard for their safety. The consequences can be horrific, as they were in this case. I agree with the many judges at all levels of court who have emphasized that deterrence and denunciation must be the principal focus on sentencing. Mr. Trivedi killed an innocent person, and grievously injured another. A penitentiary sentence is called for, as indeed is recognized by his own counsel.

[87] Mr. Trivedi does have some mitigating factors in his favour, but they pale in comparison to the enormity of what he has done. He does not get a significant discount because he is a “good guy” who just did a “bad thing.” What he did was not out of character. It was entirely consistent with his driving record. It cannot be tolerated and is deserving of a sentence that sends that message loud and clear both to Mr. Trivedi and to other like-minded individuals.

[88] I echo the observation of my colleague Roberts J. in Kerr that “the range of sentence for dangerous driving cause death post Bill C-46 is still being worked out and we do not yet have clear appellate guidance.”[^38] However, having considered the relevant case authority, particularly those that are more recent and were decided since the increase in the maximum sentence, I find that the range suggested by the Crown is correct. There is no one case that is on all fours but when the whole of the case authority is taken into account, I conclude that a 5-year global sentence for Mr. Trivedi on the two dangerous driving charges falls within the range of sentences imposed in similar cases for individuals with similar circumstances to his. I would apportion that as being 5 years for dangerous driving causing death and 3 years concurrent for dangerous driving causing bodily harm.

[89] In my view, anything less than 5 years would not reflect Mr. Trivedi’s moral blameworthiness and the gravity of his crimes and their consequences. I agree with the opinions of many judges who have written on this subject that this is the kind of offence where harsh penalties will likely have a real deterrent impact on other drivers. That message needs to be sent on a consistent basis.

[90] I do not consider that the conditions of Mr. Trivedi’s bail were sufficiently onerous to warrant any reduction in sentence. However, he is entitled to a credit of two days for the one day served in custody before his release on bail.

[91] I am also imposing a 10-year driving prohibition, plus the entire period to which the offender is sentenced to imprisonment, pursuant to ss. 320.24(4) and (5)(a) of the Criminal Code. This is necessary for the protection of the public. He is a menace on our streets. I am not prepared to reduce that by the period of time Mr. Trivedi was on bail and subject to a driving prohibition as part of his bail conditions.

[92] Dangerous driving causing death and dangerous driving causing bodily harm are both secondary offences in the DNA scheme pursuant to s. 487.051(3)(b). In this case, Mr. Trivedi left the scene of a serious collision without identifying himself to anyone, notwithstanding his obligation to remain. I will issue a DNA order as I find it is in the best interests of justice to make one.

MOLLOY J.

Released: July 12, 2024.

COURT FILE NO.: CR-22-50000420-0000

DATE: 20240712

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

KALYAN TRIVEDI

Defendant

REASONS FOR JUDGMENT

Molloy J.

Released: July 12, 2024

[^1]: RSC, 1985, c. C-46, s. 718 [Criminal Code]. [^2]: Ibid, s. 718(a)-(f). [^3]: Ibid, s. 718.1. [^4]: Ibid, s. 718.2(a). [^5]: Ibid, s. 718.2(d) and (e). [^6]: Ibid, s. 718.2(b). [^7]: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at pp. 557-558. See also R. v. Hall, [2008] O.J. No. 1965 (S.C.J.), at paras. 8-9, aff’d 2010 ONCA 498 [Hall]; and R. v. Grimmer (1999), 1999 CanLII 32818 (NB QB), 219 N.B.R. (2d) 150 (Q.B.), at paras. 5-8. [^8]: Hall, supra note 7. [^9]: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, para. 80 [Lacasse]. [^10]: Ibid at para. 81. [^11]: Ibid at para. 7. [^12]: An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21, Preamble. [^13]: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 100-108. [^14]: See R. v. Kerr, 2024 ONSC 1514 [Kerr], and the cases cited therein. [^15]: Lacasse, supra note 9 at para. 7. [^16]: R. v. Lis, 2020 ONCA 551, 152 O.R. (3d) 125, at para. 49. [^17]: Lacasse, supra note 9 at para. 73. [^18]: R. v. Rawn, 2012 ONCA 487, 294 O.A.C. 261, at para. 33. [^19]: Ibid at para. 45. [^20]: R. v. Reiger, 2011 ONCA 557, 282 O.A.C. 392 [Reiger]; R. v. Bhangal, 2016 ONCA 857, 100 M.V.R. (6th) 173 [Bhangal], R. v. Durani, 2022 ONCA 17, 85 M.V.R. (7th) 1 [Durani]; R. v. Robertson¸ 2022 ONCJ 240 [Robertson]; R. v. Obermok, 2023 ONCJ 401 [Obermok]; R. v. Park-Romain, 2023 ONCJ 302 [Park-Romain]; Kerr, supra note 14. [^21]: R. v. Tabanao, 2024 ONCA 85, 94 C.R. (7th) 112 [Tabanao]; R. v. Precup, 2016 ONCA 669 [Precup]; R. v. Christink, 2012 ONCA 141 [Christink]; R. v. Akhtar, 2018 ONSC 6191, 44 M.V.R. (7th) 234 [Akhtar], R. v. Paul, 2022 ONCJ 102, 90 M.V.R. (7th) 345 [Paul]; Kerr, supra note 14. [^22]: Kerr, supra note 14 at para. 90. [^23]: R. v. Marshall, 2021 ONCA 344. [^24]: See R. v. Shaikh and Tanoli, 2024 ONSC 774, at paras. 16-31, where I address this issue in detail. See also R. v. Ahmed, 2021 ONSC 8157, at para. 42; R. v. Bernard, 2021 ONSC 5817, at para. 32; R. v. Hassan, 2023 ONSC 5040, at paras. 45-46; and R. v. Kongolo, 2022 ONSC 3891, at paras. 82-84. [^25]: Akhtar, supra note 21 at para. 101. [^26]: Bhangal, supra note 20 at para. 13. [^27]: Durani, supra note 20 at para. 20. [^28]: Ibid. [^29]: R. v. Lewis, 2021 ONCA 597, 78 M.V.R. (7th) 183. [^30]: Obermok, supra note 20 at para. 13. [^31]: Park-Romain, supra note 20 at para. 52. [^32]: Ibid at paras. 49-50 [^33]: Robertson, supra note 20 at para. 107. [^34]: Ibid at para. 117. [^35]: R. v. Comeau, 2008 QCCQ 4804, and R. v. Paré, 2011 QCCA 2047. [^36]: Lacasse, supra note 9 at para. 70. [^37]: R. v. Hall, per Molloy J. oral reasons for sentence November 24, 2004, unreported; (2007), 2007 ONCA 8, 83 O.R. (3d) 641, at para. 31. [^38]: Kerr, supra note 14 at para. 55.