Court File and Parties

Court File No.: CR-22-10000592
Date: 2025-04-17
Ontario Superior Court of Justice

Between:
His Majesty the King – and – Arthur Kotula

Appearances:
M. Goldenberg and A. Serban, for the Crown
J. Marchand, for Mr. Kotula

Heard: 28 March 2025
Judge: S.A.Q. Akhtar

Factual Background and Overview

Introduction

[1] On the afternoon of 12 October 2021, a grey BMW was travelling southbound on Parkside Drive, near the intersection of Spring Road in Toronto. Artur Kotula was the driver and according to witnesses, he was driving his car at a very high speed. The drive ended in tragedy: Mr. Kotula’s BMW collided with the rear of a red Toyota Matrix travelling in the same direction. The collision caused a "chain reaction" which led to the four cars ahead of the BMW smashing into each other.

[2] The driver of the Toyota, Valdemar Avila, was pronounced dead on scene. His wife, Fatima, who was sitting in the passenger seat was taken to hospital but died soon after her arrival. The occupants of the car in front of them, Celestino and Olinda Ferreira, sustained injuries because of the crash.

[3] The accused was subsequently charged with two counts of dangerous operation causing death contrary to s. 320.13(3) of the Criminal Code, R.S.C., 1985, c. C-46, and two counts of operating a conveyance in a dangerous manner causing bodily harm contrary to s. 320.13(2) of the Code.

[4] At his criminal trial, I found Mr. Kotula guilty of the offences.

[5] Mr. Kotula advanced a defence that he had suffered a seizure whilst driving his car and did not have the necessary mens rea to commit the offence.

[6] I rejected that argument and found that the Crown had proven beyond a reasonable doubt that Mr. Kotula did not suffer any loss of consciousness whilst driving. I also agreed with the Crown’s alternative argument that, in the alternative, even if Mr. Kotula had suffered a seizure he was guilty of the offences charged because he should not have been driving the car as he was fully aware of the risks that he might suffer a seizure.

[7] He now stands to be sentenced.

Personal Circumstances

[8] Mr. Kotula is now 41 years old and immigrated to Canada from Poland in 2008. He was brought up by his father in Poland when his mother emigrated to Canada, but he and his brother joined her after she obtained a visa to live here. His parents separated when his mother came to Canada, but when he arrived in Canada he lived with her and her boyfriend in Toronto.

[9] He has been in a relationship with his common law partner, Justyna Palusiak, for approximately six years. They have a son together. She remains supportive of him despite his convictions. Mr. Kotula was detained in custody when his son was three months old.

[10] Mr. Kotula completed his education in Poland, where he finished high school. He was streamed into construction as a vocation and undertook two years of school in this area. He considered accounting but has not yet graduated from that programme. He was required to register in the Polish army but was released after nine months. He worked construction in Poland from the age of 18 until he moved to Canada.

[11] Prior to his detention on these offences, Mr. Kotula was working in construction with a company for approximately four to six months as a general labourer.

[12] In his comments to the author of his pre-sentence report, Mr. Kotula said that he consumed too much alcohol prior to his detention. He claimed that he had been emotionally overwhelmed and stressed and turned to alcohol to ease his burdens. Following the offences, he has attended an anonymous support group for alcoholics. With respect to drugs, Mr. Kotula stated that he was only a casual marihuana user.

[13] Mr. Kotula is not a permanent resident of this country and arrived in Canada in 2008 on a work permit. His application to renew this authorisation was refused in 2010, but Mr. Kotula failed to leave Canada. His application to regularise his status in Canada through a Humanitarian and Compassionate Grounds Application was refused in 2016. He has been in custody on an immigration hold since 2021 when these offences brought him to the attention of the Canadian Border Services Agency.

[14] It appears that his conviction would impact his immigration status. It could lead to his deportation or negatively impact his application to stay in Canada if sponsored by his common law partner.

[15] Evidence adduced during his trial showed that Mr. Kotula had suffered a brain seizure in February 2020. That was diagnosed as being related to alcohol consumption. His driving licence was suspended as a result, but he managed to regain it in January 2021.

[16] In September 2021 Mr. Kotula became subject to a 90 day Administrative Licence Suspension after he was charged with the offences of impaired driving and driving with excess alcohol in his blood. Accordingly, on the day of the offences, Mr. Kotula was suspended from driving. The suspension arose from his admission to hospital three days earlier, after he had blacked out at his brother’s house. However, he chose to drive because he did not want to lose his employment.

Positions of the Parties

[17] Ms. Goldenberg, on behalf of the Crown, submits that Mr. Kotula should be sentenced to 10 years on the dangerous operation counts with both running concurrently to each other. Ms. Goldenberg submits that the dangerous operation causing bodily harm counts should attract a sentence of 6 years concurrent to each other and the dangerous operation causing death counts. The Crown also seeks ancillary orders which include the taking of a DNA sample from Mr. Kotula, a 15 year driving prohibition, a s. 109 order prohibiting the possession of weapons for 10 years, and non-contact conditions with members of the deceased’s family and injured parties.

[18] In response, Mr. Marchand, on behalf of Mr. Kotula, argues for a global sentence of 54 months to 60 months imprisonment. He also concedes the DNA order is appropriate but argues for a lower driving prohibition period of 8 years.

The Victim Impact Statements

[19] I received a Victim Impact Statement from Ashley Avila, daughter of Valdemar and Fatima Avila. She and her children were very close to Valdemar and Fatima Avila. She describes a “void” left behind by their absence which is overwhelming and laments the lost experiences of her children caused by the premature death of their grandparents.

[20] I also received evidence from Raquel Linhares, the Ferreiras' daughter, who speaks of the physical injuries that still affect them. As well, Lauren Hoefner and Barry Carolan, residents of the area, who witnessed the incident and still relive the trauma.

Aggravating and Mitigating Features

[21] Dealing first with the aggravating factors in this case, there is no doubt that the speed at which Mr. Kotula drove his car—at one stage at 124 km/hour in a 50 km/hr zone—is a highly aggravating factor. As noted, Mr. Kotula knew he was suspended from driving three weeks before the offences. He was told not to drive three days prior to the collision but chose to do so anyway. The scene of the collision was also a busy residential area, heavily populated by both human and vehicular traffic.

[22] I agree with Mr. Marchand that the number of deaths in this case goes to the gravity of the offence rather than an aggravating factor: R. v. Goodstoney, 1999 ABCA 110, para 18(b). In practical terms, this is a distinction with very little difference.

[23] In mitigation, it is very significant that Mr. Kotula has no prior driving infractions or any criminal record. He has the support of Ms. Palusiak and has a history of employment, albeit one that was not authorised by the Canadian authorities.

[24] Having read his pre-sentence report, I acknowledge that Mr. Kotula had a troubled background; including, being abandoned by his mother when he was in Poland and the impact of his father’s death.

[25] He is also at risk of being deported from Canada because of this conviction, which is a factor to be considered when deciding sentence: R. v. Suter, 2018 SCC 34, para 48. By the same token, the impact of immigration consequences cannot be used to make an otherwise fit sentence unfit: R. v. Pham, 2013 SCC 15, para 19.

[26] I also note that in R. v. Morgan, 2021 ONCA 812, para 22 the court rejected the argument that the risk of deportation should reduce a sentence. At para. 22, the court in Morgan noted that:

No one knows what immigration consequences will flow when the appellant is released. More to the point, those consequences are not dictated by the Criminal Code or the applicable principles of sentencing, but are instead reflective of principles and policies applicable to immigration. The trial judge did not err in failing to reduce the period of incarceration imposed to take into account the risk the appellant would be deported when released.

[27] Nor is it clear to me how the length of sentence will impact Mr. Kotula’s immigration status. The defence argues for a sentence of 4-5 years, which is well in excess of the threshold contained in s. 36(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 that removes his right of appeal if found to be “criminally inadmissible” by the immigration authorities. That will be the case even if I accede to the defence position.

[28] I also note, however, that Mr. Kotula continues to deny committing the offence and maintains that he suffered a blackout even though I rejected his account. Whilst Mr. Kotula has every right to continue maintaining his innocence and that cannot be treated as an aggravating factor, his failure to acknowledge guilt means that he is not entitled to the significant discount in sentence afforded to a remorseful offender. It also speaks to his potential for rehabilitation and the risk of reoffending.

The Range of Sentencing

[29] The seriousness of dangerous driving causing death and/or bodily harm cannot be understated. In R. v. Rawn, 2012 ONCA 487, para 45, the court remarked:

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

[31] In R. v. Bosco, 2016 BCCA 55, para 38, the court underlined the principles of deterrence and denunciation in dangerous driving cases where bodily harm ensued:

Dangerous driving causing bodily harm is widely recognized as an offence of considerable gravity. … When an offender drives dangerously the public is needlessly placed at great risk of harm, sometimes with life-altering consequences.

While the consequences are unintended, the risk-taking that produced them is undertaken by choice: Rawn at para. 41; R. v. Gill, 2010 BCCA 388, para 25.

General deterrence and denunciation are the primary sentencing goals in dangerous driving cases. Members of the public share its highways and are entitled to do so in the expectation of reasonable safety based, in part, on responsible use of motor vehicles by all concerned. As Madam Justice Epstein emphasized in Rawn at paras. 49-50, driving is a privilege that can wreak great havoc when it is exercised recklessly. Accordingly, sentences for dangerous driving must unambiguously express society's condemnation of the conduct and serve to warn like-minded others that it will not be tolerated.

Driving offences are unusual in that otherwise law-abiding citizens like Mr. Bosco may be inclined to commit them without fully appreciating their criminality. Driving is a commonplace activity, and, to varying extents, human frailties like impatience, inattentiveness and impulsivity are ubiquitous. When drivers irresponsibly indulge such frailties from behind the wheel they imperil others in their orbit, sometimes with catastrophic consequences. All drivers are expected to know this and govern themselves accordingly. When they do not and harm ensues, the result is no mere accident. It is a true crime: R. v. Giles, 2012 BCSC 775, para 25; Johnson at para. 30.

[32] In support of its position, the Crown relies upon the 2018 amendments to the Criminal Code where Parliament increased the maximum sentence for dangerous driving causing death from 14 years to life imprisonment. Ms. Goldenberg points to the Supreme Court of Canada’s direction in R. v. Friesen, 2020 SCC 9, para 108, where the court indicated that when Parliament increases a maximum sentence for an offence, a sentencing court should depart from prior sentencing ranges.

[33] Here, the ranges for dangerous driving causing death are very broad, ranging from conditional sentences (see e.g., R. v. Ryazanov, 2008 ONCA 667; R. v. Christink, 2010 ONSC 2396; R. v. Linton, 2022 ONCJ 197; R. v. Hutchinson, 2022 ONCJ 276; R. v. He, 2022 ONSC 2100; R. v. Paul, 2022 ONCJ 102) to lengthy penitentiary sentences (see e.g., R. v. Boukchev; R. v. Ramage, 2010 ONCA 488; R. v. Niganobe, 2010 ONCA 508; R. v. Junkert, 2010 ONCA 549; R. v. Lewis, 2021 ONCA 597).

[34] In this case, Mr. Marchand points out that there are no aggravating features such as alcohol or drug impairment, which distinguishes this case from cases such as R. v. Robertson, 2022 ONCJ 240; R. v. Mascarenhus; R. v. Regier, 2011 ONCA 557; and R. v. Altiman, 2019 ONCA 511 where sentences of six years or more were imposed. In Altiman, a seven year sentence was imposed on an indigenous offender after a plea of guilt.

The Applicable Sentence

[35] This was an act of dangerous driving that cost two lives and injured two others. The Victim Impact Statements disclose the life-long effects of the collision caused by Mr. Kotula’s actions.

[36] Although I found that Mr. Kotula was fully conscious when driving his vehicle, the sentence I pronounce applies equally to the situation where he suffered a blackout. In both situations, he was subject to an administrative suspension and should not have been behind the wheel of his car. He had also been told by a doctor that he was not to drive due to his medical condition.

[37] Whilst I agree with the Crown that the Parliamentary amendment to the Criminal Code increasing the maximum penalty for dangerous driving should be acknowledged as raising the range of sentences for this type of offence, I am not persuaded that a ten year sentence is appropriate in this case. As I have noted, in the cases cited above, the offenders were intoxicated and had a prior criminal record.

[38] Here, neither of these factors apply. The most telling feature is Mr. Kotula’s lack of any prior criminal or driving record. Mr. Kotula was guilty of driving in a dangerous manner by travelling close to three times the speed limit in a residential area. He should not have been in the driver’s seat of the car and should never have driven anywhere close to that speed.

[39] I find that the appropriate sentence in this case is six and a half years. That sentence will apply to count 1 and run concurrently with count 2 (the two dangerous driving causing death offences). I impose a 4 year sentence on counts 3 and 4 (dangerous driving to run concurrently with count 1).

[40] He will be given pre-sentence custody credit pursuant to R. v. Summers, 2014 SCC 26. This credit is the equivalent of 76 months in custody. Accordingly, he has 533 days remaining on his sentence.

[41] I also impose a DNA order pursuant to s. 487.051(3)(b) of the Criminal Code, and a 15 year driving prohibition. There is also a s. 109 order for 10 years prohibiting Mr. Kotula from possessing any weapons defined by the Criminal Code, and a non-communication order pursuant to s. 743.21 of the Criminal Code meaning Mr. Kotula cannot communicate directly or indirectly with Ashley Avila and her immediate family, Celestino Ferreira and Olinda Sousa Ferreira.

S.A.Q. Akhtar
Released: 17 April 2025