COURT FILE NO.: CR-20-10764 DATE: 20241213 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – GIANMARCO DI LUCIANO Defendant

Counsel: Philip Hsiung for the Crown Michael Lacy for Mr. Di Luciano

HEARD: Sentencing Submissions heard October 11, 2024

REASONS FOR SENTENCE

C. Boswell J.

[1] Mr. Di Luciano is before the court to be sentenced for two convictions: dangerous driving causing bodily harm and refusing to provide a sample of his breath following a lawful demand by a police officer. Mr. Di Luciano was convicted of the dangerous driving offence by a jury on November 24, 2023. I subsequently convicted him of the refusal offence on June 17, 2024 following a judge-alone trial that proceeded in April 2024. Sentencing submissions were delayed for some considerable period of time for reasons that are reflected in the record. I need not go into them here. They proceeded on October 11, 2024 and Mr. Di Luciano was remanded to today’s date for judgment on sentence.

The Circumstances of the Offences

[2] The charges arise from a collision that occurred at about 10:45 p.m. on Christmas night in 2019 at an intersection on Major MacKenzie Drive in Vaughan, Ontario. There has never been any dispute that Mr. Di Luciano caused the collision. He went through a red light at a high rate of speed and “T-boned” another vehicle in the intersection.

[3] The jury concluded that Mr. Di Luciano’s driving was a marked departure from the standard of care which a reasonable driver would have exercised in the circumstances. Because juries do not give reasons for their decisions, however, the factual findings that supported their conclusion about the nature of Mr. Di Luciano’s driving are not clear. It is left to the court to make those findings for sentencing purposes.

[4] Seven eyewitnesses testified about the manner of Mr. Di Luciano’s driving on the occasion in issue, including Mr. Di Luciano. In addition, data downloaded from the Airbag Control Module (“ACM”) of his vehicle was entered into evidence.

[5] The eyewitnesses were consistent that Mr. Di Luciano’s vehicle was travelling at a high rate of speed prior to the impact. Their estimates covered a range from about 90 km/hr up to about 120 km/hr. The ACM data reflected that 4.4 seconds prior to impact, Mr. Di Luciano was travelling at 118 km/h. At 3.4 seconds prior to impact, he appeared to take his foot off the throttle. At 2.4 seconds prior to impact, he applied the brakes. The vehicle had slowed to a speed of 68 km/hr at the time of impact. Mr. Di Luciano did not dispute the accuracy of the ACM data.

[6] There was general agreement among the eyewitnesses that Mr. Di Luciano entered the intersection where the collision occurred against a red light. A videorecording of the intersection prior to the collision indicates that the light had been red for 9 or 10 seconds prior to the impact.

[7] Major MacKenzie Drive has three eastbound lanes in the area where the collision occurred. There was also general agreement among the eyewitnesses that Mr. Di Luciano’s vehicle swerved in and out of those three lanes, moving around slower vehicles, as he approached the intersection where the collision occurred. Mr. Di Luciano acknowledged in his trial evidence that he was switching lanes as he drove.

[8] The one notable point on which there is an inconsistency in the eyewitness testimony is whether Mr. Di Luciano at any time crossed a median and drove eastbound for any distance in the westbound lanes. Only one witness – Stefania Boyne – testified that she observed him proceeding eastbound in the westbound lanes. Mr. Di Luciano denied doing so.

[9] I am not satisfied, on the evidentiary record adduced at trial, that Mr. Di Luciano drove in the westbound lanes at any point. The weight of the eyewitness evidence does not support such a conclusion. Moreover, there is a substantial median between the eastbound and westbound lanes of Major MacKenzie Drive in the area in question. It would have been extremely difficult for Mr. Di Luciano to have crossed that median, particularly given the speed at which he was driving. No physical evidence was adduced to support the assertion that Mr. Di Luciano’s vehicle had at any time crossed over that median.

[10] I am satisfied that Mr. Di Luciano was driving at speeds up to 120 km/hr in an area with a posted limit of 60 km/hr, weaving in and out of traffic, and that he entered the intersection in issue against a light that had been red for at least 9 seconds prior to the collision.

Bodily Harm Caused by the Collision

[11] The collision resulted in significant injuries to Clarice Abdulla, an elderly woman who was one of occupants of the vehicle Mr. Di Luciano struck.

[12] Ms. Abdulla suffered several broken ribs on her left side, as well as bruising of her lungs. She was admitted to hospital immediately after the collision. She died roughly a month later of a heart attack while still in hospital.

[13] Ms. Abdulla had a number of underlying health problems, including heart, kidney, and liver disease. The jury was unable to conclude, to the reasonable doubt standard, that the collision caused her death. It was conceded by Mr. Di Luciano, however, that it caused her bodily harm.

The Charges

[14] Mr. Di Luciano was arrested at the scene of the collision and charged with impaired driving and driving with an unlawfully high blood alcohol content – conventionally referred to as “Over 80”. A roadside breath demand was made and he refused to comply. In the result, he was additionally charged with refusing to provide a breath sample. I determined in a pre-trial ruling that the roadside breath demand was unlawful. That said, I was satisfied that a subsequent demand for a breath sample made at the police station was lawful. It too was refused.

[15] Over time, the charges against Mr. Di Luciano evolved. As his trial in this court approached, in the fall of 2023, he faced three counts of impaired operation of a motor vehicle (impaired operation simpliciter, impaired operation causing bodily harm, and impaired operation causing death), three counts of dangerous operation of a motor vehicle (dangerous operation simpliciter, dangerous operation causing bodily harm, and dangerous operation causing death), and three refusal counts (refusal simpliciter, refusal causing bodily harm, and refusal causing death).

[16] A number of applications proceeded prior to the trial. In the course of those applications, I severed the refusal counts from the balance of the charges. The impaired operation and dangerous operation counts proceeded to trial before a jury. The jury acquitted Mr. Di Luciano of all of the impaired operation charges and convicted him of two counts of dangerous operation simpliciter and one count of dangerous operation causing bodily harm. On the consent of counsel, I stayed the convictions for the two dangerous operation simpliciter counts, given that all three of the dangerous operation convictions arose from the same delict.

[17] As I noted, the refusal counts proceeded to trial before me in April 2024. At that time, the Crown proceeded on only the refusal simpliciter and refusal causing bodily harm counts, given the jury’s finding in relation to whether the collision caused Clarice Abdulla’s death. I acquitted Mr. Di Luciano of refusal causing bodily harm but convicted him of refusal simpliciter, for having refused to comply with an approved instrument demand made by a breath technician at the police station.

Circumstances of the Offender

[18] Mr. Di Luciano is 41 years old. He has a criminal record which reflects just one dated conviction for assault in March 2006, for which he was sentenced to two years probation.

[19] He has a somewhat unenviable driving record with 13 unique entries for convictions under the Highway Traffic Act between May 2001 and June 2023. Eight of those convictions are for speeding, including two entered at dates after the collision involved in this case.

[20] Subsequent to the events that gave rise to the charges before the court, Mr. Di Luciano entered into a common law relationship with J.M., with whom he has a child who is just under two years old. He and J.M. subsequently separated. I am not clear on the date of the separation, but it appears to have been in the spring of 2024.

[21] Mr. Di Luciano was criminally charged on May 22, 2024 with two counts of assault, which are domestic in nature. He was released on an undertaking, which included a condition that he not have any contact with JM or her two children from a prior relationship. He was also prohibited from attending a residence in King Township where JM and the children were residing, though the home has been owned by Mr. Di Luciano for some 13 years.

[22] It appears that, notwithstanding the terms of the undertaking, Mr. Di Luciano moved back into the King Township home. I am not clear on the circumstances under which he returned to the home. Whatever they were, they quickly soured and Mr. Di Luciano was charged on August 11, 2024 with another count of domestic assault as well as uttering threats and four counts of breaching his May 22, 2024 undertaking. He was again released, this time on a release order that included a condition that he not be within 500 metres of the King Township home (though technically the condition was that he not be within that proximity of one identified child of his ex-partner).

[23] On August 16, 2024 Mr. Di Luciano was again arrested at the King Township property and charged with one count of breaching the May 22, 2024 undertaking and one count of breaching the release order in relation to the August 11, 2024 charges. He was ordered detained in custody on these charges. I released him, however, after a bail review on August 30, 2024. Since that time he has been on a house arrest provision, requiring him to reside with his mother in Grimsby, Ontario, together with a number of other conditions. To my knowledge, he has been compliant with those conditions.

[24] Despite the legal troubles Mr. Di Luciano has found himself in, he has otherwise been a hardworking, pro-social, charitable person, who is much loved by family, friends and those he has worked with over the years.

[25] Mr. Di Luciano was born in Venezuela. He came to Canada at eight years old. He obtained a diploma from Seneca College in business administration in 2003. He has worked successfully as a general contractor and property manager and continues to do so.

[26] His counsel filed some 20 letters of support from family, friends and co-workers. They consistently describe Mr. Di Luciano as hardworking, dependable, reliable, generous and compassionate. He is a consummate family man. He works hard to maintain contacts with extended family. He gives generously of his time to help family and friends alike. And he has been a devoted son and caregiver to both his parents.

[27] Most of the authors of the reference letters filed with the court speak to how devastated Mr. Di Luciano was as a result of the collision and the injuries suffered by Ms. Abdulla. They describe him as deeply remorseful.

[28] When given his right of allocution, Mr. Di Luciano expressed that he was tormented by what happened to the Abdulla family. He expressed the hope that they have found some peace and closure now that the trial is over.

Impact of the Offences

[29] I have already described the impact of the collision on Clarice Abdulla. Though no victim impact statements were filed by the Crown, I am able to assess at least some of the ways the collision impacted on Ms. Abdulla’s husband, Yardali, and her son, Ian, who were both involved in the collision and who both testified at trial.

[30] Yardali testified that he was shocked and frightened by the impact of the collision. He suffered minor injuries including soreness in his shoulder and neck. He was left in shock and unable to assist his wife and son.

[31] Ian was similarly left in shock as a result of the collision. He described suffering depression and anxiety since it occurred. He has frequent nightmares about it. He has become socially withdrawn and has found it difficult to cope in social settings and in life in general.

Legal Parameters

[32] Pursuant to s. 320.2 of the Criminal Code, a person convicted of dangerous operation of a motor vehicle causing bodily harm is liable to imprisonment for a maximum of 14 years and to a minimum punishment of a fine of $1,000 for a first conviction.

[33] Pursuant to s. 320.24(4) a person convicted of dangerous driving causing bodily harm is subject to a discretionary driving prohibition. The length of the prohibition is provided for in subsection (5), subsection (b) which provides that where, as here, the offender is liable to imprisonment for between five years and life, the prohibition may not be more than 10 years, plus the entire period to which the offender is sentenced to imprisonment.

[34] Pursuant to s. 320.19(1) of the Criminal Code, a person convicted of refusing to comply with a breath demand is liable to imprisonment for a maximum of 10 years and to a minimum punishment of a fine of $1,000 for a first conviction. Section 320.19(4) of the Criminal Code provides, however, that despite what s. 320.19(1) says, everyone convicted of refusing to provide a breath sample on demand is liable, for a first offence, to a fine of not less than $2,000.

[35] Pursuant to s. 320.24(1) of the Criminal Code, a person convicted of refusing to comply with a breath demand is liable to the imposition of a mandatory driving prohibition. Pursuant to s. 320.24(2) the prohibition period is, on a first conviction, to be not less than one year and not more than three years, plus the entire period to which the offender is sentenced to imprisonment.

Positions of the Parties

[36] Crown and defence counsel are not close in terms of their positions on sentencing.

[37] For the conviction for dangerous driving causing bodily harm, the Crown seeks a prison sentence of three years, together with an 11-year driving prohibition (8 years, plus the 3 years in custody), a s. 109 weapons prohibition, and a DNA order.

[38] For the refusal simpliciter conviction, the Crown seeks a 6-12 month jail sentence, consecutive to the sentence imposed for dangerous driving causing bodily harm, plus a 2-year concurrent driving prohibition.

[39] Defence counsel submits that a fit and just sentence for the dangerous driving causing bodily harm conviction is a conditional sentence of two years less one day, together with a period of probation if the court considers it appropriate. In terms of the refusal offence, defence counsel urges the court to impose the minimum sentence of a $2,000 fine pursuant to s. 320.19(4). A driving prohibition in the range of 2-3 years is suggested as appropriate.

Discussion

The Principles and Purposes of Sentencing

[40] Sentencing is an inherently individualized exercise. There are certain principles, however, that guide sentencing judges. They have long been known to the common law and are now codified in Part XXIII of the Criminal Code.

[41] Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: the denunciation of unlawful conduct, deterrence - both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims and the community, and the promotion of a sense of responsibility in offenders and an acknowledgment of the harm done.

[42] The importance of these individual objectives, and how they interact, varies from case to case. Counsel are agreed that, given the nature of the offences here, the principal drivers of any sentence imposed are denunciation and deterrence – both specific and general. Section 320.12 of the Criminal Code underscores these objectives by noting, at subsection (b) that “the protection of society is well served by deterring persons from operating conveyances dangerously or while their ability to operate them is impaired by alcohol or a drug, because that conduct poses a threat to the life, health and safety of Canadians.”

[43] The central question is what sentence is required to meet those objectives? In making that assessment the court is guided by the overarching principle of proportionality. Section 718.1 of the Criminal Code directs that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[44] The principle of proportionality takes into account and balances the concepts of censure and restraint. Any sentence imposed must promote justice for victims and enhance public confidence in the administration of justice. At the same time, it should not exceed what is appropriate in light of the moral blameworthiness of the offender. The restraint principle directs the court to impose the least intrusive sentence and the shortest duration necessary to achieve a just, fit and proportionate sentence.

[45] Landing on a proportionate sentence in any serious criminal case is challenging. The Supreme Court recognized in R. v. Lacasse, 2015 SCC 64 that sentencing is one of the most delicate stages of the criminal justice process.

[46] It is an acutely difficult exercise here. Mr. Di Luciano is a very pro-social person. He works hard and has been successful in business. He has many letters of support from family and friends who describe him in glowing terms. He has been and continues to be a wonderful son, brother, friend, father, and a charitable member of society. At the same time, the offences he has been convicted of are quite serious. His driving on the occasion in issue was egregious and it had very serious consequences. And he refused to provide a sample of his breath when demanded to do so, which deprived the police and the public at large of knowing for certain whether alcohol consumption had any role to play in the collision he caused.

The Applicable Range

[47] Inherent in the concept of proportionality is the principle of parity. Imposing sentences proportionate to the gravity of offences and the moral blameworthiness of offenders requires the court, on the one hand, to recognize where there are material differences between different offenders and different offences. On the other hand, s. 718(2)(b) of the Criminal Code requires that any sentence imposed must be similar to sentences imposed on offenders who have committed similar offences with equivalent moral blameworthiness. Parity, in other words, is an expression of, and gives meaning to, proportionality. Sentencing “judges calibrate the demands of proportionality by reference to the sentences imposed in other cases.”

[48] The search for a proportionate sentence, therefore, frequently begins with an examination of sentences imposed in similar cases, with a view to identifying the appropriate range of sentence applicable in the circumstances. A subsequent examination of any aggravating and mitigating circumstances aids in situating the sentence in issue within the identified range, recognizing of course that ranges are not written in stone and that any given sentence may, depending on the prevailing circumstances, fall above or below the identified range.

[49] Identifying an applicable range is made difficult in this instance because of two factors.

[50] First, the Crown’s submission that, notwithstanding the jury’s verdict, this is “still a drinking and driving case”. Crown counsel is not asking the court to find that Mr. Di Luciano was impaired at the time of the collision. He accepts that he is bound by the jury’s decision. He submits, however, that the refusal conviction is a drinking and driving offence and that it is inextricably bound up with the dangerous driving offence. He contends that Mr. Di Luciano should be sentenced as though equally morally blameworthy to an offender who was impaired and driving dangerously.

[51] Second, the fact that recent amendments to the Criminal Code have increased the maximum sentences for both dangerous driving and refusing to comply with a breath demand.

[52] I will briefly consider each of these factors in turn.

The Interplay Between the Offences

[53] Crown counsel made compelling submissions regarding Parliament’s intent when it harmonized the offences for impaired operation and refusal. Those offences now attract identical punishments. The clear intent was to disincentivize refusals. As Crown counsel argued, it makes no sense that a person who co-operates and provides a breath sample should be punished more harshly than a person who refuses to comply with a lawful demand for a sample and thereby deprives the police and the public with the most reliable evidence of impairment, or the lack thereof.

[54] In my view, however, in the circumstances of this case, it would be wrong to punish Mr. Di Luciano on the basis that his moral blameworthiness is equivalent to a person who has driven dangerously while impaired by alcohol.

[55] The jury was thoroughly instructed about the issue of impairment, including the standard from R. v. Stellato (1993), 12 O.R. (3d) 90 (ONCA), aff’d [1994] 2 S.C.R. 478 to the effect that the offence is made out if the Crown establishes any degree of impairment ranging from slight to great. The jury was clearly not satisfied beyond a reasonable doubt that even slight impairment had been made out.

[56] To now punish Mr. Di Luciano as though he were impaired while driving dangerously would fly in the face of the jury’s decision. They clearly rejected that theory of the case.

[57] The hypothetical offered by the Crown is not an exact fit. While I agree that a person who refuses to provide a breath sample should not be treated more leniently than a person who provides a sample that establishes impairment, that does not mean a person who refused a breath sample should be punished as though impaired when a jury has rejected the assertion that he was driving while impaired.

[58] While Crown counsel provided the court with a number of sentencing cases involving a combination of dangerous and impaired driving, no cases were provided where a refusal was used as a proxy for impairment where a jury expressly rejected the assertion of impairment advanced by the Crown.

[59] Crown counsel referred the court to the Supreme Court’s decision in R. v. Suter, 2018 SCC 34 for instruction on the interplay between refusal and impairment offences. What I take from Suter is that Mr. Di Luciano should receive little mitigation on any sentence imposed for the refusal conviction on the basis that the jury acquitted him of all impaired operation offences.

[60] Mr. Di Luciano will yet be punished for the refusal. And that punishment, as a first refusal conviction, will be the same that would be imposed on a first conviction for impaired operation.

Bill C-46

[61] I turn now to the amendments ushered in by Bill C-46, which came into force on December 18, 2018.

[62] Prior to Bill C-46, the maximum sentence for dangerous driving causing bodily harm was 10 years. The maximum sentence for refusing a breath demand was 5 years. As a result of Bill C-46, those maximum sentences were increased to 14 years and 10 years respectively.

[63] The Supreme Court instructed in R. v. Friesen, 2020 SCC 9 that the gravity of an offence includes both subjective and objective elements. Subjective gravity is a function of the circumstances surrounding the commission of the offence. Objective gravity is reflected in the maximum sentence established by Parliament for the offence in issue. Maximum sentences indicate the “relative severity of each crime” and thereby aid in assessing the gravity of the offence and the proportionate sentence to be imposed.

[64] A decision by Parliament to increase the maximum sentence for an offence reflects the desire that offenders committing the offence should be punished more harshly. The increase “should be understood as shifting the distribution of proportionate sentences for [the] offence.”

[65] The upshot of the amendments is that sentences for dangerous driving causing bodily harm imposed for offences committed prior to December 18, 2018 must be considered cautiously, and in light of the increased maximums. The yardsticks, in other words, are moving.

[66] In 2007, in R. v. Van Puyenbroek, 2007 ONCA 824 the Court of Appeal for Ontario identified the range of sentence for impaired driving causing bodily harm and dangerous driving causing bodily harm, with aggravating features, as running from a conditional sentence to two years less a day in prison. That range was re-affirmed by the Court of Appeal in 2012 in R. v. Rawn, 2012 ONCA 487. It is fair to say that the impact of Bill C-46 is to push the range upwards, though the Court of Appeal has yet to provide any direction on the issue.

[67] Crown counsel provided a sampling of trial-level cases where sentences have been imposed for the offence of dangerous driving causing bodily committed after Bill C-46 was enacted in December 2018. They include R. v. Weir, 2024 ONCJ 161, R. v. Refaeh, 2024 ONSC 1604, R. v. Lindsay, 2020 ONCJ 467, R. v. Bogacz, 2023 ONCJ 451, R. v. Pollak.

[68] Weir is a 2024 decision of Justice Konyer of the Ontario Court of Justice. Mr. Weir – a 19-year-old first time offender – entered a guilty plea to 3 counts of dangerous driving causing bodily harm. He rear-ended another vehicle while doing 137 km/hr in a residential neighbourhood with a posted speed limit of 50 km/hr. The victims, a mother and her two children, suffered serious injuries. The Crown sought a 30-month jail sentence, while defence counsel urged the court to impose a conditional sentence. The trial judge imposed a jail sentence of 12 months concurrent on each count, together with 24 months probation and a 4-year driving prohibition.

[69] Refaeh is a 2024 decision of Justice Petersen of this court. Mr. Refaeh – a 19-year-old first time offender – was convicted by a jury of dangerous driving causing bodily harm and failing to remain at the scene. He engaged in a street race with another vehicle over 20 blocks in downtown Guelph. The other vehicle struck an oncoming car head-on, causing serious injuries to a 13-year-old passenger. Despite having no criminal record, Mr. Refaeh had 6 prior speeding tickets and one conviction for failure to stop at a stop sign. Since the charges were laid, he was charged on two further occasions with breaching an undertaking not to operate a motor vehicle. The Crown sought a 30- to 36-month jail sentence and a 3-year driving prohibition. Defence counsel urged the court to consider a conditional sentence of 12 to 18 months. The trial judge imposed a sentence of 15-months, representing 12 months for the dangerous driving conviction and 3 months, consecutive, for failing to remain at the scene. A 3-year driving prohibition was imposed.

[70] Justice Petersen rejected the request for a conditional sentence given concerns about community safety and the need to strongly denounce the offender’s conduct and deter others from engaging in similar conduct.

[71] Lindsay is a 2020 decision of Justice March of the Ontario Court of Justice. Mr. Lindsay – a 27-year-old, first time offender with mental health issues – entered a guilty plea to dangerous driving causing bodily harm. He turned his vehicle into the path of an oncoming tractor-trailer in an attempt to commit suicide. The driver of the truck suffered serious injuries. The Crown sought a 3-year penitentiary sentence and a 10-year driving prohibition. The defence proposed a jail sentence of 3 to 9 months. The trial judge imposed a sentence of 9 months in custody, followed by 3 years of probation. A driving prohibition of 7 years was also imposed.

[72] Bogacz is a 2023 decision of Justice Newton-Smith of the Ontario Court of Justice. Mr. Bogacz – a 37-year-old, first time offender, entered a guilty plea to one count of dangerous driving causing bodily harm. He drove at a high rate of speed on the Gardiner Expressway, weaving in and out of traffic. He struck a taxi, which lost control and flipped. The taxi driver and his passenger were both seriously injured. Mr. Bogacz had three convictions for speeding on his driving record, entered between 2006 and 2021. The Crown sought a sentence of 12 months in jail, 18 months probation and a 5-year driving prohibition. Defence counsel proposed a 12-month conditional sentence, with 3 years probation. A sentence of 9 months in custody was imposed, together with a 5-year driving prohibition.

[73] Pollak is a 2024 decision of Justice Rutherford in the Ontario Court of Justice. Mr. Pollak – a 20-year-old first offender was convicted, after a trial, of dangerous driving causing bodily harm. He engaged in street racing with two other males along Don Mills Road in Toronto. One vehicle lost control and smashed into a bus station, catastrophically injuring a man. The Crown sought a 30-month penitentiary sentence. The defence urged the court to impose a conditional sentence. The trial judge imposed a sentence of 20 months. He rejected the suggestion that a conditional sentence would be appropriate on the basis that it would not adequately address the principles of general deterrence and denunciation.

[74] Interestingly, as Crown counsel pointed out, none of the cases cited by him reference the impact of Bill C-46 on sentences for dangerous driving causing bodily harm.

[75] Crown counsel cited a number of pre-Bill C-46 decisions where sentences were imposed on convictions for dangerous driving causing death. He submitted that they are instructive because the maximum sentence for that offence, prior to December 2018, was 14 years imprisonment – the same maximum sentence now available for dangerous driving causing bodily harm. The cases he referred to reflect sentences imposed in the range of 22 months to 3 years in custody.

[76] It is not possible, given the limited case law available, to confidently reach any conclusion about what the appropriate range of sentence is for dangerous driving causing bodily harm post-Bill C-46. As Roberts J. recently observed in R. v. Kerr, 2024 ONSC 1514, the range for this offence is “still being worked out”.

[77] I accept that, in light of Parliament’s decision to increase the maximum penalty for the offence from 10 to 14 years, sentences must increase. The range referred to in Van Puyenbroek is now likely too low. My sense is that the penalty advocated by the defence – a conditional sentence – remains the floor of the range, given that it remains a legally available sentence. The sentence advocated by the Crown – 3 years in custody – is probably near the upper end of the range, though again, the caselaw will have to develop well beyond its current state before the applicable range may be confidently proclaimed.

[78] Where Mr. Di Luciano falls within the range advocated by the parties turns on the aggravating and mitigating circumstances of the case.

Aggravating and Mitigating Circumstances

[79] I consider the following features of the case to be aggravating:

(a) The particular manner of Mr. Di Luciano’s driving. He was travelling at up to twice the posted limit, weaving in and out of traffic. Doing 120 km/hr in a 60 km/hr zone is egregious. And he did it over a considerable distance. This is not a case where there was a moment of distraction. Mr. Di Luciano was clearly prepared to risk his own safety and that of everyone else on the road that Christmas night;

(b) Mr. Di Luciano crossed through a red light that had been red for some 9-10 seconds. Again, this was far from a momentary lapse of attention; and,

(c) The consequences of the driving were quite significant. Mrs. Abdulla was very badly injured. Her husband and son were significantly traumatized.

[80] There is some debate about whether alcohol consumption – short of impairment – might constitute an aggravating circumstance. Mr. Di Luciano admittedly consumed alcohol before driving. Doing so demonstrates a willingness to take a certain level of risk. It may, in certain cases, be an aggravating factor. But it is a factor the jury has already considered in assessing whether Mr. Di Luciano had the mens rea for dangerous driving. And the evidence of alcohol consumption in this case was not such that I would consider it particularly aggravating, over and above any role it may have played in establishing the offence of dangerous driving causing bodily harm. This is not a case like R. v. Ferns, 2019 ONSC 3000, where alcohol consumption was considered as part of the mens rea for dangerous driving causing death, but also considered to be particularly aggravating because the offender had only a G2 license and should have had no alcohol in his system while driving.

[81] By way of mitigation, Mr. Di Luciano has been a pro-social person who has substantial support from his extended family and friends. And I am satisfied that he is deeply remorseful for the harm he caused to the Abdulla family.

[82] Defence counsel urged the court to consider two collateral consequences as mitigating. The first, he suggests, reflects a certain level of punishment that Mr. Di Luciano has already suffered. The second relates to the impact of any sentence imposed on Mr. Di Luciano’s infant daughter.

[83] Defence counsel provided the court with a sampling of media coverage about the collision. He decribed the coverage as inaccurate because it characterized the incident as “another instance of drunk driving in York Region.” Mr. Di Luciano was, counsel argued, stigmatized and humiliated in an unwarranted manner, given that he was ultimately acquitted of impaired driving.

[84] I am not persuaded that any mitigation should be afforded to Mr. Di Luciano as a result of media coverage of his case. The fact is, he was driving like a maniac and caused a significant collision that resulted in serious personal injury. There was evidence to support the charge of impaired operation, though it was ultimately found by the jury to be insufficient. I note as well that the police and public were deprived of the best evidence of Mr. Di Luciano’s level of impairment because he refused to provide a sample of his breath on lawful demand.

[85] I am similarly not persuaded that any significant mitigation should be afforded as a result of the fact that Mr. Di Luciano has a young child. The child is in the care of his former partner. I am satisfied that she will receive adequate care regardless of any sentence imposed on Mr. Di Luciano. It is unfortunate that offenders’ family members tend to suffer as a result of their actions. But where, as here, the principal sentencing objectives are denunciation and deterrence, the fact that Mr. Luciano fathered a child post-offence can have little impact on the length of the sentence to be imposed. I accept that it remains a factor to be accounted for in the overall context of the case when the court comes to consider whether a conditional sentence would be appropriate.

The Appropriate Sentence

[86] Fixing the appropriate length of sentence for the driving offence in this case is very difficult. Mr. Di Luciano’s driving was acutely dangerous. The gravity of the offence is significant and his moral blameworthiness high. He had zero excuse for driving in the manner he did. Moreover, his driving record suggests that he has historically not been a particularly careful and prudent driver. On this occasion his risk-taking resulted in tragic consequences for others. His behaviour must be strongly denounced and any sentence imposed must send a clear message to other like-minded drivers that they will pay a serious price for taking unacceptable risks with the safety of other motorists using the roads.

[87] At the same time, Mr. Di Luciano has been a very pro-social person. He has strong support in his family and in his community. And he is deeply remorseful. While his driving was inexcusable, it was not at the worst end of the spectrum. He was not street-racing, nor operating a large commercial vehicle, nor was he driving dangerously in an area with high pedestrian traffic.

[88] In all the circumstances, I believe an 18-month custodial sentence will be sufficient to meet the applicable sentencing objectives and at the same time give effect to the mitigating circumstances here.

[89] In terms of the refusal conviction, given that it is a first offence for refusal, it is, in my view, appropriate that the minimum sentence be imposed, which is a $2,000 fine and a driving prohibition, which I will return to in a moment.

[90] Because the custodial portion of the sentence is below 2 years, it is necessary to consider whether it would be appropriate that Mr. Di Luciano serve his sentence in the community under a Conditional Sentence Order. In my view, it would not. I accept that there are numerous examples of cases where conditional sentence orders were made in circumstances arguably similar to those here. Indeed, defence counsel provided the court with a number of cases where conditional sentences have been imposed in cases involving convictions for dangerous driving causing death. At the same time there are numerous examples of cases where conditional sentences have been rejected in circumstances arguably similar to those here. Crown counsel cited a number of such cases to the court. With each of the cases cited by counsel there are similarities and there are differences. Each case must obviously turn on its own facts.

[91] As Paccioco J.A. noted in R. v. R.S., 2023 ONCA 608, a conditional sentence may be imposed where four factors are present: (1) no minimum period of incarceration; (2) a sentence of less than 2 years less a day has been imposed; (3) serving the sentence in the community would not endanger the safety of the community; and (4) a conditional sentence would be consistent with the fundamental principles and purposes of sentencing.

[92] In the circumstances here, the first two factors are resolved in favour of a conditional sentence. The latter two are not.

[93] Mr. Di Luciano has incurred two further convictions for driving infractions – both speeding – between the commission of the index offences and the time of trial. One must seriously question whether a conditional sentence order will be sufficient to deter Mr. Di Luciano from speeding if the consequences of his driving on the occasion in issue were not sufficient.

[94] I appreciate that there will be a driving prohibition in place as a result of the sentence imposed today. That would certainly go a long way to protecting the public. But I have concerns about Mr. Di Luciano’s willingness to abide by court orders. He faces a number of charges for breaching court orders made at a time when he was already facing sentencing on serious criminal charges. I appreciate that he has not been convicted of those charges, but given that, on at least one occasion he was arrested at the very location he was ordered not to attend, the Crown appears to have a most compelling case.

[95] Ultimately, however, I am not satisfied that a conditional sentence would offer sufficient denunciation and deterrence in the circumstances of this case. Mr. Di Luciano is not a youthful offender. He was an experienced driver with a poor driving record. He chose to drive in a reckless and highly dangerous manner, endangering not only himself but his passenger and others using the road that night. His moral blameworthiness is high.

[96] It almost goes without saying that roadways are critically important to economic and social activity. Driving is a daily activity for a great many Canadians, both for work and for personal endeavours. The roadways around the GTA are particularly busy, as anyone who has driven them knows. Driving carries with it certain inherent risks. Everyone knows about and accepts those risks when they take to the roads. But people do not accept – and should not have to accept – the risk of others driving in a criminally reckless fashion. Parliament has recognized the gravity of the offence, given the all-too-common consequences that dangerous driving leads to. And Parliament has seen fit to signal that sentences for dangerous driving causing bodily harm should increase to reflect the gravity of the offence and the danger that it poses to everyday Canadians using the roads to go about their daily activities.

[97] In my view, the circumstances here call for a sentence that strongly denounces the conduct in question and provides a clear message to others inclined to operate their vehicles in a similar manner.

[98] In the result, I reject the request that the sentence be served in the community.

[99] I turn now to the question of the driving prohibition. I confess that I do not find the jurisprudence particularly helpful in assessing the length of the prohibition to be applied. The cases tend to reflect the imposition of prohibitions with little explanation as to how the length was arrived at.

[100] I must impose a prohibition of at least a year, given the mandatory minimum for the refusal offence. And I may impose a prohibition of up to 10 years, in relation to the conviction for dangerous operation causing bodily harm. These time periods are on top of the 18-month custodial sentence.

[101] The Crown seeks an 8-year prohibition, which would be a total of 9 ½ years when the custodial sentence is factored in. I consider that request to be somewhat bloody-minded and befitting a case with far more aggravating features.

[102] Mr. Di Luciano’s profession requires him to do a great deal of driving. A driving prohibition will be particularly punitive on him. In my view, a three-year prohibition, on top of his custodial sentence, is more than sufficient to achieve all of the sentencing objectives in play here.

[103] In accordance with the principles enunciated by the Supreme Court in R. v. Basque, 2023 SCC 18, Mr. Di Luciano is entitled to a credit against that prohibition for the period of time that he was subject to a driving prohibition as part of his release conditions. He was initially released on an undertaking which included a provision that he was not to be in the driver’s seat of a motor vehicle. That provision remained in place from the date of his arrest on December 25, 2019 to June 15, 2020 when it was varied to provide that he could operate a vehicle between 6:00 a.m. and 6:00 p.m., provided it was equipped with an Interlock breathalyzer device.

[104] Mr. Di Luciano was subject, however, to a 90-day suspension of his license under s. 48.3 of the Highway Traffic Act as a result of refusing to comply with a demand for a sample of his breath. Defence counsel concedes he does not receive a credit for that period of time. The credit sought, and granted, is 2 ½ months, for a net driving prohibition of 2 years, 9 ½ months plus the custodial period imposed.

[105] There was some suggestion that perhaps Mr. Di Luciano ought to receive further mitigation against his sentence for the restriction imposed on his ability to drive between June 15, 2020 and August 2024. I am not inclined to further mitigate his sentence for that reason. In my view, the conditions were not sufficiently stringent or punitive to warrant any further reduction in sentence.

[106] In summary, I sentence Mr. Di Luciano as follows:

(i) For the offence of dangerous driving causing bodily harm, 18 months in custody, together with a driving prohibition of 2 years, 9 ½ months plus the entirety of the custodial sentence, together with a DNA order, which was not opposed.

The Crown sought a weapons prohibition order under s. 109 of the Criminal Code. I do not see how that prohibition is available in the circumstances here. Even if it is available, I see no reason to grant it.

(ii) For the offence of refusing to provide a breath sample, a $2,000 fine is imposed, payable within 2 years, together with a 1-year driving prohibition, concurrent.

C. Boswell J. Released: December 13, 2024

[1] This written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral and written versions, it is this official written Ruling that is to be relied upon.

[2] See reasons reported as 2024 ONSC 3254.

[3] See R. v. Ferguson, 2008 SCC 6, especially paras. 16-18.

[4] See R. v. Ipeelee, 2012 SCC 13, at para. 37.

[5] See R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.) at paras. 95-96.

[6] 2015 SCC 64.

[7] See R. v. Friesen, 2020 SCC 9, at paras. 32 and 33.

[8] Ibid.

[9] (1993), , 12 O.R. (3d) 90, aff’d , [1994] 2 S.C.R. 478.

[10] 2018 SCC 34, at paras. 77-85.

[11] See fn 7, at para. 96.

[12] Ibid., at para. 97.

[13] 2007 ONCA 824, at para. 59.

[14] 2012 ONCA 487, at para. 43.

[15] 2024 ONCJ 161.

[16] 2024 ONSC 1604.

[17] 2020 ONCJ 467.

[18] 2023 ONCJ 451.

[19] Unreported decision of Rutherford J., dated January 29, 2024 in Ontario Court of Justice file no. 4810-998-23-48101962-01.

[20] 2024 ONSC 1514, at para. 55.

[21] [2019] O.J. No 2654.

[22] 2023 ONCA 608, at para. 68.

[23] 2023 SCC 18.

[24] R.S.O. 1990, c. H.8.