Reasons for Sentence

Introduction

Date: January 9, 2025
Court: Ontario Superior Court of Justice
Between:
His Majesty the King (Crown)
Counsel: A. Bernstein and J. White
-and-
Renzo Gomez (Defendant)
Counsel: L. Riva
Sentencing Heard: December 6 and 13, 2024
Judge: L. Ricchetti

Table of Contents

• Background
• The Facts
• Circumstances of the Offender
  • Background
  • Forensic Psychologist Report
  • HTA Record
• Impact on the Victim and/or Community
  • Kalayn and his family
  • Madeleine Fletcher
  • The Community
• Legal Parameters
• Positions of Crown and Defence
• Case Law
  • Dangerous Driving Sentences
• Mitigating and Aggravating Factors
  • Aggravating Factors
  • Mitigating Factors
• Principles of Sentencing
• Reasons
  • The April 8, 2022 Speeding Ticket
  • Conditional Sentence Not Appropriate
  • Custodial Sentence
• Ancillary Orders
• Final Decision

Background

[ 1 ] Shortly before trial, Mr. Gomez pled guilty to:
a) Dangerous driving causing the death of Kaylan Reddy Krishnareddygari (“Kaylan”),
b) Dangerous driving causing bodily harm to Madeleine Fletcher (“Madeleine”).

THE FACTS

[ 2 ] On July 2, 2022, at 10:36 p.m., Mr. Gomez was driving a 2020 Corvette (“Corvette”) westbound on Derry Road, in Mississauga. It was a clear night. The roads were dry. The visibility was good. There was other vehicular traffic on Derry Road at that time.

[ 3 ] Mr. Gomez came out of a side street, Rosehurst Drive, and made a “coasting” right hand turn onto Derry Road towards Ninth Line. Ninth Line is only a few hundred meters, possibly 300-500 meters (estimated from a map in evidence), away from Rosehurst Drive. There is a traffic light at the intersection of Derry Road and Ninth Line.

[ 4 ] Mr. Gomez rapidly accelerated his Corvette along Derry Road. The sound of the acceleration of the Corvette was very loud and was heard by other persons, who were outside, in a neighbouring residential area.

[ 5 ] During the 8 seconds prior to the accident:

a) The Corvette’s throttle was open 99% for a significant portion of that time period;
b) The lowest speed recorded during that time was 99 km/h;
c) Shortly before the collision and approaching the intersection, Mr. Gomez’s Corvette accelerated to 162 km/h;
d) At approximately 1 second before impact, the Corvette’s throttle was reduced to 31% and Mr. Gomez turned the steering wheel 9 degrees, in what appears to be an unsuccesful effort to avoid the collision with the Volkswagen Passat (“Passat”) turning left;
e) Mr. Gomez’s Corvette collided with the Passat attempting to turn left onto Ninth Line. The front of the Corvette hit the passenger side of the Passat.
f) At the time of the collision with the Passat in the intersection, Mr. Gomez was travelling at 147 km/h;

[ 6 ] Madeleine was driving the Passat, travelling eastbound on Derry Road West, and was attempting to turn left at the intersection to go northbound on Ninth Line. Madeleine’s passenger, Kalyan, a 20 year old male, was seated in the front passenger seat.

[ 7 ] As captured on video, Mr. Gomez’s Corvette entered the intersection at Derry Road and Ninth Line on a red light. Madeleine had started to turn left.

[ 8 ] Mr. Gomez’s Corvette hit Madeleine ’s Passat on the passenger side, the side where Kaylan was seated. The collision was extremely violent. There was extensive debris. There was very serious damage to both vehicles.

[ 9 ] It was an agreed fact: “If the accused was travelling at or near the posted speed limit, the collision could have been avoided.”

[ 10 ] Mr. Gomez smelled of alcohol on his breath. Mr. Gomez had between 53-105 mgs of alcohol in 100 mls of blood at the time of the accident.

[ 11 ] Mr. Gomez’ Corvette had a radar detector in the vehicle, but it is not known whether it was or was not operating that evening.

[ 12 ] Madeleine was trapped in her vehicle for a period of time and sustained serious injuries, including blood/air around her right lung, rib fractures, fracture of the sacrum and part of her pelvis.

[ 13 ] Kaylan suffered extreme whiplash, causing a hyperextension of the neck where the brain connects to the spinal cord, servering the brain stem from the spinal cord. It was immediately fatal.

CIRCUMSTANCES OF THE OFFENDER

Background

[ 14 ] Mr. Gomez immigrated to Canada in 1993.

[ 15 ] Mr. Gomez is a university graduate. Mr. Gomez owns a consulting business for food safety and processing.

[ 16 ] Mr. Gomez is now 46 years old. He and his common law partner, Maria, have a 3 year old daughter and a 6 year old son from Maria’s prior relationship.

[ 17 ] Mr. Gomez lives in Milton, a short distance from the accident site.

[ 18 ] While Mr. Gomez’ father died when he was young and there were integration challenges upon arrival to Canada, I am not persuaded that are relevant to sentencing.

[ 19 ] Mr. Gomez has no criminal record.

[ 20 ] Mr. Gomez’ HTA driving record is set out below.

[ 21 ] Since this accident, Mr. Gomez’ contact with his previous small group of “high quality” friendships has declined.

[ 22 ] Mr. Gomez continues to have strong support from his common law partner, Maria, his mother and his two brothers.

[ 23 ] Shortly after this accident, Mr. Gomez and his partner, Maria, attended life coaching/psychotherapy sessions, but there is no report from this physchotherapist provided to this court.

Forensic Psychologist Report

[ 24 ] Dr. Nina Vitopoulos is a clinical and forensic psychologist. Dr. Vitopoulos was retained by the Defence to provide this report for sentencing.

[ 25 ] There are two cautions which respect to Dr. Vitopoulos’ report:

a) The first is that Dr. Vitopoulos met with Mr. Gomez for a total of 5.5 hours and, except for reviewing this court’s Reasons for Judgment and Mr. Gomez’ HTA driving record, relied entirely on test results administered to and statements made by Mr. Gomez and interviews with Maria during that short period of time.

b) The second is the following excerpt from Dr. Vitopoulos’ report:

Renzo completed the Paulhus Deception Scales (PDS). The PDS is a 40-item self report inventory that measures an individual's tendency to give socially desirable responses on self-report instruments. Two subscales are reported - Self-Deceptive Enhancement (SDE) examining the tendency to give honest but inflated selfdescriptions reflecting a lack of insight and an unconscious bias toward favourable selfportrayal, and Impression Management (IM) examining the conscious tendency to

present in a positive light or give inflated self-descriptions. The Impression Management scale is thought to indicate hypersensitivity to situational demands (e.g., a purposeful manipulation of results due to external gain or reward). Renzo did not respond to one question on the questionnaire, and this was pro-rated based on his responses.

Renzo’s pattern of responses on the PDS were consistent with a “repressor pattern,”

generally associated with individuals who are restrained and well-socialized, but when

they do have problems, may lack the insight to deal with them. This means that Renzo

may have an unintentional tendency towards self-enhancement, as well as a tendency

to be influenced by situational demands, leading him to respond in a socially acceptable

manner. Thus, some caution may be warranted in understanding his reports.

(emphasis added)

[ 26 ] As for this second concern, I recognize that Dr. Vitopoulos went on to say “while indicative of a strong desire to appear social desirable across contexts, are not believed to invalidate current assessment results and are not understood to be and indicator or purposeful misdirect on Renzo’s part”. Dr. Vitopoulos then went on to administer another test – Personality Assessment Inventory, which also measure forthrightness and bias in reporting. Eventually, with this additional test, Dr. Vitopoulos concluded that the scores “ suggesting that Renzo answered in a reasonably forthright manner and did not attempt to present an unrealistic or inaccurate impression that was either more negative or more positive than the clinical picture would warrant.” (emphasis added).

[ 27 ] Had it just been the above, perhaps the concern would be not be that significant. However, when reviewing the balance of Mr. Gomez’ reported statements to Dr. Vitopoulos, set out below, I approach Dr. Vitopoulos’ report with serious caution.

[ 28 ] Mr. Gomez reported no “chronic medical concerns”.

[ 29 ] Mr. Gomez has suffered from depression since 2010, as a result of going through a divorce and custody issues at that time. He commenced taking anti-depressant medication at that time. His medication was reduced until this accident occurred.

[ 30 ] Mr. Gomez also has anxiety attacks (or panic) when describing this accident.

[ 31 ] Dr. Vitopoulos reports that Mr. Gomez currently meets the “Major Depressive Disorder – Moderate (in partial remission)”. I note that, currently, much of Mr. Gomez’ depression relates to this accident and the potential consequences to Mr. Gomez, his family and his career as Dr. Vitopoulos reported that some of Mr. Gomez’ anxiety surrounds the “uncertainty of legal proceeding and what impact this may have on his ability to provide for his family”.

[ 32 ] Dr. Vitopoulos reports that Mr. Gomez experienced panic attacks and some PTSD arising from this accident. This lead Dr. Vitopoulos to conclude Mr. Gomez meets the DSM-5- criteria for “Post Traumatic Stress Syndrom (with panic attacks)”. These symptoms were most intense 6 months after this accident but the intensity and frequency has reduced over the last year and ½ .

[ 33 ] And then there are Mr. Gomez’ alcohol issues reported by Dr. Vitopoulos. Dr. Vitopoulos conducted an AUDIT test, which led her to report that Mr. Gomez, before this accident , was indicative of potential alcohol dependence but reports that he is now in the low-risk category for alcohol problems.

[ 34 ] Dr. Vitopoulos relied on the following:

It should be noted that, based on recent court judgements, it is understood that alcohol impairment was judged to not play a significant role in the accident and charges currently before the court. Nevertheless, as a part of a comprehensive mental health assessment, Renzo was asked to discuss the impact of alcohol use on his life.

[bold in original report]

[ 35 ] Two other charges, Impaired driving causing death and impaired driving bodily harm, went to trial. A review of my Reasons for Judgement show that Mr. Gomez had a blood alcohol between .053 and .0105. This was agreed by experts from both the Crown and Defence. The onus at trial, on these charges, was on the Crown to prove Mr. Gomez was “impaired” while driving beyond a reasonable doubt. The Crown failed to meet its onus. What is important is that Mr. Gomez had at least a blood alcohol level of .053, which on a roadside could have resulted in a “WARN” and an immediate temporary driving suspension. At the other end, a blood alcohol level of .105 would have been sufficient for an over 80 conviction, if this result had been found during a breathalyzer test. Without a doubt, Mr. Gomez has consumed a significant amount of alcohol before driving. Mr. Gomez should not have been driving at the time.

[ 36 ] Mr. Gomez was asked by Dr. Vitopoulos about his alcohol use. Dr. Vitopoulos reported that Mr. Gomez acknowledged significant amounts of alcohol leading up to the accident (3-4 tall cans of beer on weekdays and 6 drinks a day on weekends), although, Mr. Gomez stated that three or four months prior to this accident, he stopped drinking on weekdays. Mr. Gomez stated that:

With regards to negative qualities, he described himself as, at times, stubborn, noting that he should have listened to his mother and Maria sooner about the drinking habit that had been developing during the pandemic, noting he has been happy with the positive changes he has seen from shifting this habit. He shared that he had been more liberal with drinking habits prior to the accident, sharing a belief that two drinks would be “safe” in regard to driving but now feeling quite differently, given the time he has had to reflect on the potential risk of alcohol while driving . He noted that though he was not impaired during the accident, he now better comprehends the risk of having any alcohol in one’s system while driving. He described his alcohol use prior to the accident as one of his negative qualities that he has worked on. He also reflected on the connection between depression and alcohol use, noting the need for further support around this as he is aware of previous use of alcohol as a coping mechanism (i.e., relaxing, destressing at the end of the night and on weekends in the past). (emphasis added)

[ 37 ] I am troubled by Mr. Gomez’ description of this accident to Dr. Vitopoulos. Below, I note Dr. Vitopoulos’ reported statements by Mr. Gomez and some of my comments:

a) Mr. Gomez was at a family gathering at his father in law’s home, a three minute drive from Mr. Gomez’ home,

b) Mr. Gomez said he had two to two and a half drinks over the course of the event. I note that he earlier said that he had been drinking 6 drinks a day on weekends, and July 2, 2022 was a Saturday.

c) Mr. Gomez made a right turn, but said “a car on the road” was “seemingly kind of close” to his car as he drove”. This is what Mr. Gomez says “caused” him to accelerate. I note my findings that Mr. Gomez essentially did a running stop and, as this court found, cut off a car that was going straight on Derry Road, causing that driver to brake to avoid an accident.

d) Mr. Gomez was “aware that he may have been over the speed limit, possibly at 80 km/hr.” Then Mr. Gomez noted a “slow car was in front of him”, so he switched lanes. I note that he knew he may have already been speeding when he encountered this “slow” car and then decided to switch lanes.

e) Mr. Gomez said that “the kind of car he was driving, a corvette, the acceleration in the vehicle was often quite fast and sometimes difficult to gauge by feeling.” I note Mr. Gomez, while acknowledging he may have been “already speeding”, now appears to blame the type of vehicle he chose to drive for accelerating very fast.

f) With this background, Mr. Gomez said that, looking at the pedestrian crossing time, he made a decision “that I can beat it” [the yellow light]; he said he was going 80-90 kph, the light was yellow, and he accelerated further as he thought “he could clear the intersection safely and accelerated rapidly”. I note that Mr. Gomez knew he may have been speeding and decided to “beat it” – how? – by accelerating even further! I also note that this description of the Corvette’s acceleration is inconsistent with Mr. Gomez’ description. Mr. Gomez had literally “floored” the Corvette, with almost continuous full acceleration by Mr. Gomez after the right turn onto Derry . Eventually Mr. Gomez described his action as a “lapse of judgment”.

g) Mr. Gomez said that he “was given a lecture” by the officer (Constable Lobelio). Later in the report, Dr. Vitopoulos reported that Mr. Gomez felt “talked down to” or “scolded” by the police resulting in “his trust in law enforcement has been reduced”.

h) Mr. Gomez became distressed that the media was releasing videos of this accident, his name and business name resulting in him having panic attacks.

i) Mr. Gomez was surprised when he was charged saying that he was “thrown for a loop”, compounded by being sued, so that he might “lose everything” and the experience was “very degrading”.

[ 38 ] When discussing with Mr. Gomez and “risk taking”, Dr. Vitopoulos reported:

When asked about risk taking, Renzo described that he does not see himself as a “risky” person per say. He described that he did enjoy having a nice car, and at times enjoyed driving fast, but that generally he would not describe himself as an “adrenaline junky” or “thrill seeker .” He reported instances of other drivers trying to race him on the road that he would avoid.”

(emphasis added)

[ 39 ] One comment attributable to Mr. Gomez’ partner, Maria, reported by Dr. Vitopoulos is noteworthy and indicative of Mr. Gomez’ reports to Dr. Vitopoulos:

“that sometimes he can externalize blame, sharing an example of him blaming certain problems “on the pandemic” initially, rather than taking accountability for his own pattern of behaviour. She noted that since the accident, he has been more irritable and that he can be initially defensive when criticized.

(emphasis added)

[ 40 ] When discussing prior speeding convictions, Dr. Vitopoulos reported Mr. Gomez as saying:

About speeding while driving, of which Renzo has some history of prior to the charges currently before the court, Renzo reported a sense of regret, noting that he plays through the events of the day of the accident frequently wishing he had not accelerated into the intersection. His and his partner’s reports suggest he is not generally a “risk taker,” nor does he enjoy taking unwarranted risks across life domains. On the contrary, the safety of his family, as well as his own safety to provide them with security, is quite important to him. His speeding behaviour, based on interviews and his broad psychological profile, is likely aligned, rather, with a self-image of being a “good” and competent driver who should be able to avoid risks, such as collisions, by his skillful maneuvering of his car. This is understood, psychologically, to have been a likely overestimation of his driving skill (i.e., skill so strong that collisions could be avoided) and an underestimation of the risk of speeding broadly.

(emphasis add)

[ 41 ] Dr. Vitopoulos recommendations include Mr. Gomez continuing to receive appropriate psychoatherapeutic supports.

HTA Record

[ 42 ] Mr. Gomez’ HTA driving record shows the following:

i) Convictions for Speeding:

a) 2019-12-12: Speeding 108 km/h in 90 km/h zone
b) 2019-10-4: Speeding 115 km/h in 100 km/h zone
c) 2016-09-20: Speeding 69 km/h in a 50 km/h zone
d) 2016-07-05: Speeding 136 km/h in 100 km/h zone
e) 2010-11-03: Speeding 110 km/h in 80 km/h zone
f) 2005-11-08: Speeding 60 km/h in a 50 km/h zone

ii) 7 day suspension after receiving WARN.
2021-04-20

iii) Driving Motor vehicle without a validated permit.
2019-12-12

iv) Driving without a license plate.
2021 -08-12

v) Driving without validation on plate.
2020-01-28
2012-02-21
2012-02-14

vi) Driving while holding a hand-held communication device.
2014-11-05

vii) Failing to have proof of insurance while driving.
2011-02-07

viii) A significant number of unpaid fines some resulting in suspensions.

[ 43 ] There is also agreement by the Crown and Defence counsel that, on April 8, 2022, Mr. Gomez received a speeding ticket for going 168 kph in a 100 kph. I will deal with this issue below.

IMPACT ON THE VICTIM AND/OR COMMUNITY

Kalayn and his family

[ 44 ] Kalyan, a 20 year old male, was seated in the front passenger seat at the time of this accident. Kaylan died.

[ 45 ] This accident has had devasting impacts on his family. Kaylan was the sole child of Uma Krishnareddygari (“Uma”) and Srinath Krishnareddygari (“Srinath”).

[ 46 ] Uma has suffered emotionally with the loss of her only son. Uma feels the grief daily and her sense of stability, security and ability to plan for the future have been impacted. Kaylan’s loss has robbed her of a “sence of normalcy” with a feeling of frustration and helplessness. She experiences restlessness, sleeplessness, stress and anxiety.

[ 47 ] Uma fears for those who travel in public worrying that events and consequences of cannot be “avoided entirely”, like the events that resulted in the loss of Kaylan.

[ 48 ] According to Uma, Srinath lost his job because of the impact of this accident and remained unable to work for nearly a year. This impacted the family financially and placed additional stress, financially and otherwise, on Uma.

[ 49 ] Srinath was also devastated with the loss of Kaylan, “who was our world”. Srinath has become very lonely, with sadness, despair, vulnerability, anxiety, panic and hyper vigilance. He continues to cry at night with the loss of his only child and worries about the uncertainty of the future without him.

Madeleine Fletcher

[ 50 ] Madeleine was 20 years old at the time of this accident. Madeleine was seriously hurt as a result of this accident. Madeleine was trapped in her vehicle for a period of time and sustained serious injuries, including blood/air around her right lung, rib fractures, fracture of the sacrum and part of her pelvis.

[ 51 ] Kaylan and Madeleine were best friends. They had a future planned together, post graduation. The death of Kayla left a “gaping hole” in Madeleine’s life. Emotionally, the loss of Kaylan was nothing short of “devastating” to Madeleine – which emotional impact continues to date.

[ 52 ] As a result of her injuries, Madeleine underwent extremely painful surgeries. Madeleine was in the hospital for a significant period of time. Shortly after the accident, surgery included the fixation of an external device, secured to her hip bones, with screws, for 7 weeks. During this time, Madeleine was essentially largely immobilized. Madeleine has scars on her hip and pelvis area as well as her side.

[ 53 ] Madeleine could not walk for two months without significant assistance. This affected Madeleine’s posture and mobility for a considerable time resulting in physiotherapy.

[ 54 ] Madeleine has not been able to her previously enjoyed physical activities. Madeleine continues to experience residual pain and discomfort.

The Community

[ 55 ] I would be remiss not to repeat the essence of Parliament’s intention and purpose in enacting C-46 to amend the Criminal Code – namely – Dangerous driving has devastating affects the entire community, occurs all too often, with devasting consequences on the innocent, their family and friends. Those who choose to drive dangerously, unnecessarily put the public at serious risk of death and harm.

[ 56 ] Traveling at high speeds, such as the approximately 100 kph over the speed limit in traffic and through an intersection, is dangerous driving. The driver deliberately ignores the rules of the road, designed to keep the public as safe as possible on or near roadways. The risk created by such speeds increases when there are other vehicles on the road or when going through an intersection.

[ 57 ] Driving at such speeds, creates an extremely dangerous situation, which no driver can control or makes it difficult, if not impossible, to avoid unexpected road conditions, even the most minor of unexpected road conditions, thereby turning the vehicle into a potentially deadly instrument, as it did here.

LEGAL PARAMETERS

[ 58 ] Section 320.12 of the Criminal Code provides:

It is recognized and declared that

(a) operating a conveyance is a privilege that is subject to certain limits in the interests of public safety that include licensing, the observance of rules and sobriety;

(b) 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;

(c) the analysis of a sample of a person’s breath by means of an approved instrument produces reliable and accurate readings of blood alcohol concentration; and

(d) an evaluation conducted by an evaluating officer is a reliable method of determining whether a person’s ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug.

[ 59 ] Sections 320.13 of the Criminal Code provides:

(1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.

(2) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes bodily harm to another person.

(3) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes the death of another person.

[ 60 ] Section 320.2 of the Criminal Code provides:

Every person who commits an offence under subsection 320.13(2), …… is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of,

(i) for a first offence, a fine of $1,000,

[ 61 ] Section 320.21 of the Criminal Code provides:

Everyone who commits an offence under subsection 320.13(3), …. is liable on conviction on indictment to imprisonment for life and to a minimum punishment of,

(a) for a first offence, a fine of $1,000;

[ 62 ] Section 320.22 of the Criminal Code provides:

A court imposing a sentence for an offence under any of sections 320.13 to 320.18 shall consider, in addition to any other aggravating circumstances, the following:

(a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;

[ 63 ] Section 320.24 of the Criminal Code provides:

(4) If an offender is found guilty of an offence under section 320.13 , subsection 320.14 (2) or (3), 320.15(2) or (3) or under any of sections 320.16 to 320.18, the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating the type of conveyance in question during a period to be determined in accordance with subsection (5).

(5) The prohibition period is

(a) if the offender is liable to imprisonment for life in respect of that offence, of any duration that the court considers appropriate, plus the entire period to which the offender is sentenced to imprisonment;

[ 64 ] To summarize:

a) Dangerous driving cause death, contrary to s.320.13(3) of the Criminal Code , is a straight indictable offence, punishable under s.320.21 by up to a maximum sentence of life, and, for a first offence, a minimum sentence of a fine of $1,000.

b) Dangerous driving cause bodily harm, contrary to s.320.13(2) of the Criminal Code is a hybrid offence. Where the Crown proceeds by indictment, as it did here, it is punishable under s.320.2(2) by up to a maximum sentence of 14 years and, for a first offence, a minimum sentence of a fine of $1,000.

c) Section 320.24(4) of the Criminal Code provides the court with a broad discretion to impose a driving prohibition as part of the sentence.

d) It is an aggravating factor when more than one person is killed and/or harmed.

POSITIONS OF CROWN AND DEFENCE

[ 65 ] The Crown submits that, in the circumstances of this case, a fit and appropriate sentence is the imposition of:

a) An 8 year custodial global sentence,

b) A 10 year driving prohibition from the date of completion of Mr. Gomez’ custodial sentence (or a total of 18 years from sentencing), and

c) A DNA order.

[ 66 ] The Defence submits that, in the circumstances of this case, a fit and appropriate sentence is a conditional sentence of 2 years less a day, conditional upon Mr. Gomez being subject to strict house arrest, including GPS monitoring.

CASE LAW

[ 67 ] The preamble to Bill C-46 described Parliaments motivation for the amendments to the Criminal Code , including that:

a) Dangerous driving and impaired driving injure and kill “thousands of people in Canada every year”;

b) The need to denounce dangerous driving and impaired driving as “unacceptable at all times and in all circumstances”; and

c) The importance of simplifying the procedures around detecting impaired and dangerous driving and deterring people from engaging in this conduct.

[ 68 ] In Bill C-46, Parliament enacted legislation demonstrating that it considered dangerous driving to be an offence that should be treated as equivalent in severity to impaired driving as the penalty provisions for dangerous driving were brought in line with impaired driving offences.

[ 69 ] Section 320.12 of the Criminal Code – a statement of principles – is thematically consistent with the preamble to Bill C-46, and emphasizes the fact that:

a) Driving is a “privilege that is subject to certain limits in the interests of public safety”.

b) “The protection of society is well served by deterring” drivers from operating conveyances in a way that is dangerous to the public or while impaired “because that conduct poses a threat to the life, health and safety of Canadians”.

[ 70 ] I entirely agree with the comments made by Justice Molloy in R. v. Georgopoulos , 2024 ONSC 5922 regarding the impact of C-46 on the gravity of dangerous driving and the degree of responsibility the driver for this serious offence.

Gravity of the Offence

[24] I wish to be very clear on this point. Dangerous driving is a criminal offence that is extremely serious, particularly when it causes bodily harm or death, which is all too frequently the case. For far too many years, we have failed to appreciate the gravity of this offence. Decades ago, the criminal nature of impaired driving was not fully appreciated by the public. Nearly 30 years ago, in R. v. Bernshaw , Cory J. underscored the seriousness of impaired driving as follows:

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.

[25] Seeking to curb the carnage caused by drunk drivers, Parliament increased the penalties for impaired driving. For example, in 2000 the maximum sentence for impaired driving causing death was increased from 14 years to imprisonment for life. The Supreme Court found in R. v. Lacasse that this increase in the maximum sentence signals to sentencing judges that more significant penalties should be imposed for this offence than had previously been the norm. The Court held:

The increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wanted such offences to be punished more harshly. Despite countless awareness campaigns conducted over the years, impaired driving offences still cause more deaths than any other offences in Canada: House of Commons Standing Committee on Justice and Human Rights, Ending Alcohol‑Impaired Driving: A Common Approach (2009), at p. 5.

[26] In 2018, Parliament enacted legislation demonstrating that it considered dangerous driving to be an offence that should be treated as equivalent in severity to impaired driving. Prior to December 18, 2018, the maximum sentence for dangerous driving causing bodily harm was 10 years, and the maximum sentence for dangerous driving causing death was 14 years. On this date, the Criminal Code was amended to increase those penalties to 14 years and life imprisonment, respectively. These increases brought the penalties for dangerous driving in line with the equivalent impaired driving offences. That was deliberate. 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;

[27] At the same time, Parliament added a highly unusual provision immediately prior to the dangerous driving provisions, under the heading “Recognition and Declaration,” which states (in part):

320.12 It is recognized and declared that

(a) operating a conveyance is a privilege that is subject to certain limits in the interests of public safety that include licensing, the observance of rules and sobriety;

[28] Not only does this enactment signal Parliament’s view that sentences for dangerous driving had previously been too lenient, it also demonstrates the clear direction of Parliament to the courts that the gravity of this offence must be recognized.

[29] I think we have, as a society, come to a recognition of the criminal nature of impaired driving. We refer to someone being “killed by a drunk driver” as opposed to being “killed in an accident.” To be clear about this case, Stefanie Backer was not injured in a car “accident.” She was injured as a result of the deliberate criminal conduct of Jason Georgopoulos. He is just as much criminally responsible as he would be if his weapon was a firearm instead of a car. Indeed, in this country, cars kill more people than guns. Parliament has emphasized that operating a vehicle is a privilege. It is licensed by law, as is the possession of guns. If somebody deliberately operates a car in a manner that is dangerous to the public, that person is just as deserving of punishment as somebody who randomly discharges a firearm, reckless as to the life or safety of another person . Indeed, a person who discharges a firearm while being reckless as to the safety of another person is subject to a maximum sentence of 14 years, just as is the case for dangerous driving causing bodily harm.

[30] On this point, I am in complete agreement with Caponecchia J. of the Ontario Court of Justice in R. v. Robertson. In that case, she sentenced the offender to 17 years on four counts of dangerous driving causing death, in circumstances where the conduct was more egregious than the driving in the case before me. Although the sentence is deservedly higher than would be appropriate in this case, the underlying principles still apply. Caponecchia J. referred to Mr. Robertson as having “gambled with other peoples lives,” noting that the consequences were “predictable, yet they did not deter him.” She emphasized the importance of deterrence and the necessity for trial judges to send a clear message that such conduct is criminal and will not be tolerated, and concluded 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.

[31 ] I agree entirely about the gravity of this offence and the importance of treating it as the criminal offence it is, rather than a mere driving violation .

[32] The other aspect of proportionality is the degree of responsibility of the offender. Mr. Georgopoulos is solely responsible for this offence. He had no reason whatsoever to act in the manner he did, other than that he was showing off his high-performance car and perhaps thrill-seeking.

(emphasis added)

Dangerous Driving Sentences

[ 71 ] Given the above comments by Justices Molloy and Caponecchia, authorities which predate the Criminal Code amendments on December 18, 2018, must be carefully considered in light of the amendments. Prior to the amendments, dangerous driving offences, including causing death, generally resulted in sentences that were more lenient that impaired driving offences with the same consequences.

[ 72 ] To date, the appropriate impact and the range for sentencing for dangerous driving offences has little appellate guidance. See R. v. Trivendi 2024 ONSC 3936 at para 88 and R. v. Kerr , 2024 ONSC 1514 .

[ 73 ] The circumstances in a dangerous driving causing death or bodily harm can and do vary significantly. The responsibility and moral blameworthiness of a dangerous driving offender covers a very broad spectrum.

[ 74 ] It is also a principle of sentencing that offenders should received similar sentences for the same offence committed in similar circumstances.

[ 75 ] As Lamer C.J.C. said in R. v. M. (C.A.) , [1996] 1 S.C.R. 500, at para. 92 : "Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction."

[ 76 ] Nevertheless, it remains a goal of the sentencing process to ensure that "similar sentences are imposed on similar offenders for similar offences committed in similar circumstances": Lacasse , at para. 2 .

[ 77 ] While parity with other offenders, in similar circumstances, is a principle of sentencing, given this broad spectrum of offenders and circumstances of the offence, fashioning a comparable sentence in dangerous driving cases presents a particularly difficult challenge for trial judges.

MITIGATING AND AGGRAVATING FACTORS

Aggravating Factors

[ 78 ] 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.”

[ 79 ] There are two convictions here for sentencing, arising from the one accident, a statutory aggravating factor.

[ 80 ] The gravity of the offence is very high, carrying with it a possible sentence of life imprisonment. Clearly any dangerous driving causing death, is a very serious and grave offence. The death of an innocent member of the public is one of the most serious and grave consequences of any criminal behaviour.

[ 81 ] As to the degree of moral culpability to be attributed to the offender, I find that the degree of responsibility and moral blameworthiness of Mr. Gomez’ conduct is at the high end of responsibility and moral blameworthiness.

a) It was an admitted fact that, if Mr. Gomez had been travelling at or near the speed limit, the collision could have been avoided. Mr. Gomez was solely responsible for the consequences of the accident.

b) This was not a short moment of inattention, but rather a deliberate and calculated manner of driving that evening by Mr. Gomez, albeit lasting for at least the last 8 seconds before the accident occurred – but those 8 seconds describe a shocking period of dangerous driving given the circumstances.

c) Mr. Gomez was driving a Corvette sports car. A car he acknowledged that the speed was difficult to gauge how fast he was going, despite the fact the Corvette no doubt had a speedometer. Yet, Mr. Gomez explained to Dr. Vitopoulos that knowing he was already speeding, he changed lanes and accelerated even further to “beat” the yellow light. All to get to his home that was just a few minutes away. There was no reason to speed as he did.

d) Mr. Gomez had been drinking alcohol. While he may not have exhibited any signs of impairment, he had a considerable amount of alcohol in his system. The degree it may have impacted his driving is not known. But having alcohol, a consider amount of alcohol, is an aggravating factor. Even if Mr. Gomez’s driving ability was not legally impaired, then his actions and manner of driving that night would have been a clear, a conscious and deliberate decision to drive in dangerous manner imperilling the safety of the public and users of the road. In my view, either is equally morally blameworthy.

e) Mr. Gomez’ driving that night was a pattern of extremely dangerous without regard to the safety of anyone on the road. Getting onto Derry Road, he “cut” off another driver causing the driver to brake to avoid an accident. But Mr. Gomez chose to blame his failure to stop and pull into traffic on the other driver and attempted to use it as an excuse to explain why he accelerated. But Mr. Gomez continued with his dangerous, aggressive driving. Mr. Gomez accelerated in his fast car to the point he was speeding until there was a car, which he decided was slow and to change lanes and pass – despite already speeding. He had his foot completely down on the accelerator for most of the 8 seconds – 99% - and only tried to avoid the accident at the very last moment. He took a chance by thinking he could beat the yellow light – at 162 kph. A risk that Mr. Gomez took but the rest of the users of the road were unknowingly forced to accept. But speeding at 162 kph, decelerating quickly and avoiding the Passat turning was an impossibility. Mr. Gomez was still 31% depressed on the accelerator. Mr. Gomez could only reduce the speed of his vehicle to 147 kph at the time he hit the Passat in a “T Bone” type of accident.

f) This was a busy area that evening at that time (as can be seen from the video). The number of the members of the public that Mr. Gomez put at risk, solely for the purpose of going fast and risking the public’s safety for whatever reason; he enjoyed accelerating fast, going fast or just getting home quickly – it matters not.

g) Mr. Gomez has a history of speeding. He simply hasn’t learned his lesson. Equally important, he appears to disregard even the most basic administrative driving obligations imposed by law.

h) Mr. Gomez had a radar detector, (which may or may not have been operational that night) but it shows that Mr. Gomez knew that he could and might speed in that car and wished to avoid detection. Trying to avoid the risk of getting caught does not suggest a high level of respect for the rules of the road, the safety of others using the road and the potential for rehabilitation. It shows that the previous speeding convictions were insufficient to change Mr. Gomez’ conduct while behind the wheel.

i) Mr. Gomez takes risks, and admittedly took risks that night, because he thought he was a better driver than he was. And Mr. Gomez’ risk, imperilled the life of numerous members of the public, killed one person and caused serious permanent injuries to another person.

[ 82 ] Mr. Gomez’ had a devasting impact on, two young victims, Kaylan’s death and the permanent physical impairment to Ms. Fletcher, all of which is described above. The consequences to Kaylan’s and Ms. Fletcher’s family, are nothing short of life changing. They will never return to the normalcy before this accident.

Mitigating Factors

[ 83 ] The Defence submits that Mr. Gomez’ guilty plea on these charges is a mitigating factor. In my view, it is not a significant mitigating factor. The plea on these dangerous driving charges was taken on June 17, 2024. The trial had originally been scheduled to start on June 10, 2024 but proceeded to deal with Charter applications on related impaired charges. This delayed the trial on these charges until after the applications were decided. The trial proceeded on July 17, 2024.

[ 84 ] When one considers that the offence took place on July 22, 2022 and the Crown’s Accident Reconstruction disclosure was delivered in October 2023 showing the speed of Mr. Gomez’ vehicle immediately prior to the accident and that Mr. Gomez went through a red light, it should have been apparent, at that time, the Crown’s case was overwhelming. Nevertheless, some mitigation is attributed to the guilty plea rather than a trial.

[ 85 ] I accept that Mr. Gomez is remorseful for the consequences of his driving that night and he seeks forgiveness from the family of the victims. However, offsetting his statements to Dr. Vitopoulos and to this court of “remorse” is that, during his meetings with Dr. Vitopoulos, Mr. Gomez said he blames law enforcement and he has lost confidence in law enforcement. I can’t even begin to understand Mr. Gomez’ logic in coming to that conclusion, other than blaming “others” also made “mistakes” that night or being “scolded” by the police that night for his driving. Let there be no mistake, the only person responsible for the accident and the consequences that night is Mr. Gomez.

[ 86 ] The Defence submits that Mr. Gomez’ mental health requirements should mitigate the sentence to be imposed, albeit not as a mitigating factor, but that Mr. Gomez’ mental health requirements can better be dealt with out of custody. For the reasons that follow, an “out of custody” sentence is not appropriate nor reasonable for this offence and this offender. There is no evidence that the psychological services will not be available in a federal custodial sentence.

[ 87 ] Mr. Gomez does not have a criminal record.

[ 88 ] Mr. Gomez has a family which will be seriously impacted by ANY sentence imposed by this court, in particular, any custodial sentence. I accept that Mr. Gomez’ family will suffer significantly if a custodial sentence is imposed. But the court cannot and should not disregard the consequences to Kaylan’s family and Madeleine over the past 2 ½ years and going forward and put them ahead of the consequences to Mr. Gomez’ family.

[ 89 ] Mr. Gomez has been a productive member of society, having established a successful business in the food industry.

PRINCIPLES OF SENTENCING

[ 90 ] The Criminal Code provides the following guidance on the sentencing principles applicable to this case:

S. 718 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:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

S. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

S . 718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[ 91 ] In dangerous driving offences, the most significant factors are general deterrence and denunciation.

REASONS

The April 8, 2022 SpeedingTicket

[ 92 ] It is admitted as a fact by both parties that:

a) On April 8, 2022, P.C. Clarke was conducting radar enforcement on southbound Hwy 400;

b) P.C. Clarke pulled Mr. Gomez over for speeding;

c) Mr. Gomez was informed he was traveling at 168 kph in a 100 kph zone;

d) P.C. Clarke explained to Mr. Gomez that he could suspend Mr. Gomez for 30 days and impound his vehicle for 14 days.

e) P.C. Clarke chose not to do so.

f) P.C. Clarke gave Mr. Gomez a ticket for speeding at 168 kph in 100 kph zone.

g) Mr. Gomez doesn’t recall this but doesn’t dispute that it occurred.

h) there is nothing further known about what happened with the the ticket. There is no conviction. There is no finding that Mr. Gomez was in fact going that fast, or fast at all.

[ 93 ] The Crown submits this was a “wake up call” for Mr. Gomez just a few months before this accident and should be considered as a factor in sentencing.

[ 94 ] The Defence submits, without further proof, no weight can be attached to this fact.

[ 95 ] I agree with the Defence that this cannot be considered like a conviction Without a conviction, this is nothing more than an unproven allegation that Mr. Gomez was speeding that day.

Conditional Sentence Not Appropriate

[ 96 ] The Defence seeks a conditional sentence.

[ 97 ] I have considered the appropriateness of a conditional sentence. Section 742.1 of the Criminal Code provides:

742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if.

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

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

(c) the offence is not an offence under any of the following provisions:

o (i) section 239, for which a sentence is imposed under paragraph 239(1)(b) (attempt to commit murder),

o (ii) section 269.1 (torture), or

o (iii) section 318 (advocating genocide); and

(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more.

[ 98 ] A conditional sentence is available in this case, but only where the court is satisfied that the service of the sentence in the community “would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2”.

[ 99 ] Although conditional sentences, with strict conditions, can have a denunciatory and deterrent effect, they do not have the same denunciatory effect as a period of actual imprisonment.

[ 100 ] The Supreme Court of Canada in R. v. C.A.M. , [1996] 1 SCR 500, stated that the objective of denunciation mandates a sentence that should communicate society’s condemnation of a particular offender’s conduct. It represents a symbolic collective statement that the conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive law. Society, through the courts, must show abhorrence for particular types of crime.

[ 101 ] The most significant factor in fashioning an appropriate sentence in dangerous driving cases is general deterrence and denunciation. See R. v. Rawn 2012 ONCA 487 at para 33 .

[ 102 ] The conduct of Mr. Gomez was very serious. He was solely responsible for the accident and its consequences. This conduct was devastating to say the least. Mr. Gomez’ moral blameworthiness is very high.

[ 103 ] Service of this sentence in the community would be and is inconsistent with the fundamental purpose and principles of sentencing of the offence and this offender, given his historical driving offences, his actions that night and the circumstances of the offence. It would send the wrong message to drivers that deliberate and flagrant dangerous driving, even when causing the death of an innocent person and serious bodily harm to another person, will not likely or necessarily result in a custodial sentence. Such conduct, as in this case by this offender , is completely unacceptable, will and should not be tolerated. By imposing a conditional sentence, it would seriously undermine the need for general deterrence and denounciation in cases such as this.

[ 104 ] I conclude, that a custodial sentence is necessary to reflect the primary sentencing objectives of deterrence, and denunciation.

Custodial Sentence

[ 105 ] I have taken into account that Mr. Gomez is a first offender, and hence considered the principle of restraint.

[ 106 ] While denunciation and general deterrence are paramount factors in fashioning an appropriate sentence, rehabilitation is also a factor that must be considered, especially given that Mr. Gomez has no prior criminal record. The Defence submits that Mr. Gomez is has excellent prospects for rehabilitation and points to his reduced consumption of alcohol post accident and acknowledgment of the consequences of his driving habits. Again, I am not persuaded of Mr. Gomez’ “excellent prospects” for rehabilitation. I point to several parts of Dr Vitopoulos’ reports where Mr. Gomez:

a) two years after the accident, continued to take exception to the “lecturing” and scolding” by the police after his dangerous driving had just killed one person and left another person trapped in the vehicle with serious injuries.

b) Two years after the accident, considered that, not only had he made a “mistake” for the accident, so had others.

c) After receiving numerous speeding tickets in the past and having a radar detector in his sports vehicle (whether or not it was operational that evening), Mr. Gomez continued with his dangerous driving habits.

d) Mr. Gomez admitted to Dr. Vitopoulos that he liked, on occasion to drive fast. That is evident from his record, his car and his description of the vehicle.

[ 107 ] All of the above, leaves me with serious reservations about Mr. Gomez’ prospects for rehabilitation of his old driving habits, if he is allowed to drive again.

[ 108 ] R. v. Lacasse 2015 SCC 64 – this was an impaired causing death X 2 conviction. The offender was speeding at 130 kph in a 75 kph road. Two passengers died. The Supreme Court restored a 6.5 year custodial sentence and an almost 9 year driving prohibition.

[ 109 ] R. v. Lewis 2021 ONCA 597 – this was an impaired causing death, Crim. Neg. causing death. The offender was driving 130 kph in a 50 kph road when the offender struck someone pulling out of a lot. The offender had both a criminal record and driving record. The Court of Appeal affirmed an 8 year custodial sentence and 10 year prohibition.

[ 110 ] R. v. Randhawa 2020 ONCA 39 – this was an impaired causing death X 3 and one count of Impaired causing bodily harm. The offender was driving through a residential neighbourhood at a high rate of speed, hit another car. Three persons died and the offender suffered traumatic brain injury. Given the mitigating factor of the offender’s own injury, the Court of Appeal reduced the sentence to 7 years.

[ 111 ] R. v. Altiman 2019 ONCA – the offender was convicted of Impaired causing death X2 and Crim. Neg causing death X2 and Impaired CBH X2 and Crim. Neg. CBH X2. The offender ran a red light doing 187 kph colliding with another car killing two passengers and seriously injuring 2 passengers. The offender had no criminal record, no driving history. The Court of Appeal reduced the sentence to 7 years custody and 8 years driving prohibition. There was an early guilty plea.

[ 112 ] In R. v. Wall, unreported February 6, 2024, an impaired driving causing death (with no criminal or driving record), a custodial sentence of 5 years was imposed.

[ 113 ] Impaired causing death sentences have been in the range of 4 to 6 years where there is no prior criminal record nor a driving record; and 7.5 to 12 years where there is a prior criminal or driving record or egregious circumstances. See Altiman at para 12.

[ 114 ] Turning now to Dangerous driving causing death.

[ 115 ] R. v. Obermok, 2023 ONCJ 401 - the offender was convicted of dangerous driving causing death for speeding through a read light at approximately 105 kph in a 60 kph road. This was a guilty plea. The offender had no criminal nor driving record. The offender had a BAC of between 30-90 mg of alcohol in 100 ml. A sentence of 5 years and a 15 year driving prohibition was imposed.

[ 116 ] R. v. Park-Romain 2023 ONCJ 302 – the offender proceed through a T instection into a truck. The driver of the truck died. The 82 year old offender suffered injuries which left her hospitalized for 3 months and left her with cognitive decline. The offender was convicted of Dangerous Driving causing death. The offender had no record. A three year custodial sentence with an 8 year driving prohibition was imposed.

[ 117 ] R. v. Hyde [2023] OJ 6119 – after consuming cannabis, the offender drove at approximately 90 kph in a kph road onto a pedestrian pather and killed a pedestrian. The offender was convicted of both Impaired and Dangerous driving causing death. A 6.5 year custodial sentence and 10 year driving prohibition was imposed.

[ 118 ] R. v. Robertson 2022 ONCJ 240 – the 20 year old offender, after smoking cannibas, drove 134 iph in a 70 kph road, through a red light into a vehicle carrying a woman and her three young children. All four died. The offender pled guilty to Dangerous driving causing death X 4 and challenged the new impaired provisions of the Criminal Code (which challenge was not successful) and therefore was convicted of Impaired driving causing death X 4. A sentence of 17 years was imposed along with a 34 year driving prohibition.

[ 119 ] R. v. Kerr 2024 ONSC 1514 – the offender drove at twice the speed limit in downtown Toronto, and hit a vehicle making an illegal turn, which resulted in Kerr’s vehicle going into pedestrians on the crowded sidewalk. After a trial, the offender was found guilty of Dangerous Driving causing death and 5 counts of dangerous driving CBH. The offender had a criminal record and a driving record. There was an aggravating factor that the offender was driving for remuneration and was on bail for other dangerous driving offences. On the other hand, the offender was black and sentencing took into account a favourable R. v. Morris 2021 ONCA 680 report. Further, the vehicle making a left turn that hit the offenders vehicle was a contributory cause of the offence and there was a significant mitigation on sentence due to a presentence custody issue. A 4 year sentence was imposed along with a 10 year driving prohibition .

[ 120 ] R. v. Munoz 2024 OCJ May 31, 2024 – the offender was driving a vehicle pulling a trailer. The offender was travelling faster than traffic, when the offender changed lanes, resulting in the back corner of his trailer hitting a vehicle causing the other vehicle to lose control. The driver of the other vehicle died. The offender pled guilty to dangerous driving causing death. There was no criminal record and no driving record. No alcohol involved. A joint submission for a two years less a day conditional sentence was accepted and imposed by the court with terms.

[ 121 ] R. v. He, 2022 ONSC 2100 – the 60 year old offender was driving at the speed limit but drove through a red light hitting a pedestrian killing the pedestrian. Neither alcohol nor drugs were involved. The offender was distracted. The Crown sought a one year custodial sentence. The Defence sought a suspended sentence. The court imposed an 18 month conditional sentence and a total 5 year driving prohibition.

[ 122 ] R. v. Beedawia 2023 ONSC 1898 – after trial, the offender was found guilty of dangerous driving causing death and dangerous causing bodily harm. The offender was driving a tractor trailer and failed to stop at an intersection at a dark night with no lighting, hitting another vehicle killing one person and seriously injuring another. No speed, no alcohol, no drugs were involved. The offender was tired and was distracted. The offender had no criminal nor driving record. The court imposed a conditional sentence of 2 years less a day and a further 3 year driving prohibition.

[ 123 ] R. v. Linton 2022 ONCJ 197 - the 27 year old offender was driving and decided to pass a line of cars in front of him in a 70 kph road on a curve with a double solid line. The offender was driving at 100 kph. The offender hit an oncoming vehicle killing the driver and injuring two passengers. Road conditions, alcohol, drugs, fatigue were not involved. The offender had no criminal nor a driving record. The offender pled guilty. The Crown sought a sentence of 3-4 years. The Defence a conditional sentence. The court imposed a 16 month conditional sentence.

[ 124 ] R. v. Hutchinson 2022 ONCJ 276 – the offender was exceeding the speed limit, increased the speed to pass a car at 131 kph and then when passing another car by moving into the right lane, collided into an E-bike in the right lane at 112 kph. The E-bike rider died after 2 ½ years. The offender had no criminal record but had one entry on a driving record. The offender was convicted of dangerous driving causing death. The Crown sought a sentence of three years. The Defence sought a conditional sentence. The court imposed a conditional sentence.

[ 125 ] R. v. Boutrous 2023 ONCJ 266 – the offender was driving at more than two times the 60 kph speed limit in the left lane. When another vehicle attempted a u-turn from the right lane crossing right in front of the offender’s vehicle, the offender’s vehicle struck struck the vehicle making the u-turn at 151 kph. The driver of the vehicle making the u-turn died. The offender was convicted of Dangerous Operation Causing Death. The Crown sought a 15-24 month custodial sentence. The Defence sought a conditional sentence. The court imposed a conditional sentence of two years less a day along with a 5 year driving prohibtion.

[ 126 ] I find the range for dangerous driving causing death is between a conditional sentence to double digit custodial sentence. Where a particular sentence falls within this range is entirely dependent on the circumstances of the offence and the offender. While it is impossible to define a bright line range or exact reasons for disparate sentences for dangerous driving causing death, some general propositions from the legal authorities to date can be gleemed:

a) sentences at the lower end of the range were generally due to a finding of momentary inattention, contributory cause by some third party or road conditions, age of the offender (very young or old), and/or serious injury to the offender.

b) sentences at a higher end generally involve multiple deaths/ serious injuries, racing, excessive speed, alcohol consumption, and/or an extensive driving record.

c) Sentences for dangerous driving causing bodily harm are less than dangerous driving causing death.

d) Where the accident involves a death(s) and bodily harm, the sentences are generally imposes concurrently.

[ 127 ] In this case the accident was entirely the fault of Mr. Gomez. Further, the responsibility and moral blameworthiness of this offence, require this sentence to be at a higher end of the range:

a) Mr. Gomez chose to drive a high performance sports car – a Corvette. And to some extent, blamed the vehicle’s high performance in part for his speed and the accident.

b) Mr. Gomez consumed a considerable amount of alcohol prior to driving that night,

c) There were no contributing causes such as roadway condition or the driving of others,

d) There were many vehicles on the road that night, and he was going through a signalled intersection, an area requiring particular attention and caution by drivers,

e) From the time he left his father in law’s home, his driving was dangerous and simply got more dangerous as he accelerated faster and faster, eventually through an intersection, trying to “beat” a yellow light at an astounding speed.

f) Mr. Gomez chose to cut off, pass other “slow” vehicles and then go through an intersection at a speed that is just absolutely, unbelievably shocking, continuing to accelerate because he believed he could beat the yellow light,

g) Mr. Gomez was, just before the accident, going more than 100 kph above the speed limit and still had the accelerator depressed somewhat ,

h) The impact at 147 kph, into the passenger side of the VW, was so fierce, it caused Kaylan’s whiplash to severe his spinal cord and immediate death.

i) The impact at 147 kph, in the the VW, trapped Ms. Fletcher and caused her to have serious injuries that have remained.

j) Kaylan’s family and Ms. Fletcher’s lives are forever changed.

[ 128 ] I am not persuaded that the circumstances of the offender, Mr. Gomez, result in a significant reduction in the sentence imposed because:

a) Mr. Gomez is not a youthful offender. He was 44 years old at the time of the accident.

b) Mr. Gomez, while not having a criminal record, has a serious and significant driving record, in particular for speeding,

c) Mr. Gomez occasionally liked to speed and took risks because of his confidence in his driving ability. His risk this evening was a fatal, life-changing risk with consequences for others and for himself,

d) Mr. Gomez blames others, at least in part, for this accident. As his wife put it to Dr. Vitopoulos “and that sometimes he can externalize blame, rather than taking accountability for his own pattern of behaviour”. Mr. Gomez did so for this accident.

e) Mr. Gomez is remorseful but it is difficult to accept true remorse when he says to Dr. Vitopoulos that other persons made mistakes “too” that night or is upset that the police scolded or lectured him, after he had just killed a person and seriously injured another.

f) As for rehabilitation, Mr. Gomez has expressed an openness about attending treatment and phychotherapy. However, so much of Dr. Vitopoulos’ Clinical Impression relates to how and what the consequences are and will be of this dangerous driving. Having carefully read Dr. Vitopoulos’ report several times, I simply not have sufficient confidence that Mr. Gomez would not speed, take risks or drive after drinking alcohol.

[ 129 ] In my view, an appropriate sentence in these circumstances, is a 6 year custodial sentence and a 16 year driving prohibition (commencing on the imposition of this sentence) for the dangerous driving causing death.

[ 130 ] In addition, an appropriate sentence for the dangerous driving causing bodily harm is 4 year custodial sentence to be served concurrently. A driving prohibition of 14 years will also be part of this sentence.

ANCILLARY ORDERS

[ 131 ] The Crown seeks a 10 year driving prohibition after the completion of Mr. Gomez’ custodial sentence and a DNA order.

[ 132 ] The Defence made no submissions on the length of a driving prohibition nor on the imposition of a DNA order. I am satisfied and will issue a DNA order as I find it is in the best interests of justice to make one.

[ 133 ] 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) of the Criminal Code .

[ 134 ] I agree that a 10 year prohibition, beyond the custodial portion of the sentence, is necessary given Mr. Gomez’ driving record, the circumstances of this accident, Mr. Gomez’ alcohol issues, Mr. Gomez’ speed and risk taking. Quite frankly, an accident like this accident was just inevitable and becomes a very serious risk of being repeating should such a lengthy driving prohibition not be imposed. So ordered.

[ 135 ] 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.

FINAL DECISION

[ 136 ] Mr. Gomez is hereby sentenced as follows:

a) A custodial sentence of 6 year custodial sentence for dangerous driving causing the death of Kaylan plus a 16 year driving prohibition;

b) A custodial sentence of 4 year custodial sentence for dangerous driving causing bodily harm to Madeline plus a 14 year driving prohibition; and

c) A DNA order.

L.Ricchetti J.

Released: January 09, 2025

DATE: 01 09 2025

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING Respondent/Crown - and – Renzo GOMEZ Applicant/Defendant REASONS FOR SENTENCE L. Ricchetti J .

Released: January 9, 2025