R. v. Kuzio, 2025 ONSC 2654

Court File No.: CR-23-327
Date of Judgment: 2025-05-05
Heard: 2025-03-12
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Clay Kuzio

Appearances:
Jeremy Carnegie, for the Crown
Katie Heathcote, for the Defendant

Justice K. Tranquilli (Orally)

Introduction

[1] Rachel Stapleton had just finished work for the day and was on her way home. She stopped first at the grocery store to pick up the ingredients for her favourite meal that her partner would cook in honour of her birthday the next day. She was driving in rush hour traffic on Southdale Road East in the late afternoon of January 6, 2022.

[2] Tragically, she did not live to celebrate her 37th birthday. She never made it home that evening. An eastbound BMW travelling at a high rate of speed lost control, suddenly entered the oncoming westbound lane and struck her vehicle. The catastrophic collision instantly killed her and seriously injured the BMW driver.

[3] The driver of the BMW, Clay Kuzio, was convicted on one count of dangerous operation of a conveyance causing death, contrary to s. 320.13(3) of the Criminal Code, following a five-day judge-alone trial.

[4] Mr. Kuzio now comes before the court for the imposition of sentence.

[5] The Crown seeks a five-year custodial sentence followed by a 10-year driving prohibition. The Crown notes that the increase to the maximum sentence for this offence from 14 years to life signals our recognition of the gravity of this offence and Parliament’s intention that sentences must increase. A significant custodial sentence is the only appropriate outcome given the circumstances of this collision and the primary sentencing goals of denunciation and deterrence.

[6] Mr. Kuzio proposes a sentence of two years less a day to be served in the community under strict terms of house arrest with GPS ankle monitoring, followed by three years probation and a five-year driving prohibition. He submits a conditional sentence recognizes the important sentencing principles of restraint and rehabilitation and his circumstances as a youthful first offender. The court must not lose sight of the fact that a conditional sentence is a punitive sanction capable of achieving the sentencing objectives of denunciation and deterrence: R. v. Proulx, 2000 SCC 5 at paras. 17.

[7] This significant difference between the positions of the parties illustrates the tension between the relevant sentencing principles engaged in this decision, and why it is that sentencing is the most delicate stage in the criminal justice process. The court must exercise its broad discretion to fashion a fit and appropriate sentence that balances all relevant factors and meets the sentencing objectives for this offence: R. v. Lacasse, 2015 SCC 64 at para. 1.

Circumstances of the Offence

[8] My reasons for judgment detail the evidence and findings and will not be repeated at length in this decision: R. v. Kuzio, 2024 ONSC 6429.

[9] The court heard evidence from several motorists who were travelling on Southdale Road East shortly before the collision. Eyewitness accounts variously described hearing, feeling, and seeing Mr. Kuzio’s white BMW and a white Nissan GTR speeding through the eastbound traffic on Southdale Road East. Some witnesses estimated that Mr. Kuzio was travelling at least 100 km/hr. The two vehicles were speeding in close proximity to one another, making quick lane changes and appearing to follow one another through the flow of the traffic. The driver of the white Nissan GTR did not stop at the collision scene and was never identified or located.

[10] Police were unable to determine the precise speed of the BMW at the time of impact. However, in their view, the available evidence from the heavily damaged vehicles, the tire marks and the sizeable debris field were consistent with the conclusion that the BMW was travelling at a speed well over 100 km/hr and that there was a sudden hard acceleration before it lost control.

[11] The Crown’s theory was that the excessive speed and aggressive acceleration of the BMW caused it to lose control and go into a side slip into the oncoming path of travel of Ms. Stapleton’s vehicle. Mr. Kuzio submitted there was reasonable doubt as to whether his manner of driving caused the collision. He contended there was compelling evidence that pointed to mechanical failure through the loss of a front tire and wheel assembly as being the cause of the tragic collision.

[12] I found that the loss of control was caused by Mr. Kuzio’s driving and not a mechanical failure. His manner of driving was a marked departure from the standard of care expected of a reasonably prudent driver. He was travelling at a speed and accelerating in a manner significantly greater than the posted speed limit and the surrounding traffic, where he added to the danger to himself and others in making quick and aggressive lane changes within the traffic flow and with improper use of turning lanes. While the evidence demonstrated that this conduct occurred over the course of a few city blocks, I was satisfied this collision did not involve a momentary lapse in attention or judgment. Rather, it was a course of sustained and deliberate conduct in maneuvering the vehicle at an excessive rate of speed while closely following another speeding vehicle around other motorists who were traveling at or near the substantially lower speed limit. This demonstrated unrestrained disregard for the consequences of his actions and the safety of others.

Circumstances of the Victim

[13] Rachel Stapleton’s family and friends faithfully attended each day of this trial. Several of them provided victim impact statements to the court. Some of Ms. Stapleton’s loved ones managed to read their statements personally to the court and to Mr. Kuzio at the sentencing hearing. These statements were all entered as exhibits at the hearing.

[14] Their pain was palpable and difficult to witness. But witness their grief we must. Their powerful statements bring home the terrible consequences of dangerous driving and its devastating costs to our society. Their anger at this avoidable tragedy is understandable. Their descriptions of their traumatic loss was as if it had just happened. It was obvious that her loved ones continue to suffer and that their lives will never be the same. It was most troubling to hear that some are profoundly haunted. They struggle to find meaning in life and have even attempted suicide.

[15] I am all too aware that there is no sentence that I can impose on Mr. Kuzio that will reflect the magnitude of their loss or bring them solace. I hope today will play a part in bringing them some much needed closure. The court thanks each of them for telling us about who Rachel Stapleton was, her generous spirit, her hopes for the future and what she meant to them.

Circumstances of the Offender

[16] The court has the benefit of a pre-sentence report dated March 7, 2025, which was also entered as an exhibit at the sentencing hearing.

[17] The report writer related that Mr. Kuzio was cooperative and prepared for the interview, although he showed some reluctance in sharing information surrounding his difficult childhood.

[18] Mr. Kuzio is 26 years old and was 23 years old at the time of the collision. He has no prior criminal record. I was also not made aware of any previous driving record.

[19] Although Mr. Kuzio said he had a happy childhood, I would note this sentiment appears to arise from the close bond he shares with his maternal grandmother who has stood in a parental role throughout his young life. He otherwise faced significant challenges in his upbringing. He has a younger half-brother. His biological father has not been involved in his life and Mr. Kuzio is not interested in making that connection. As a child Mr. Kuzio witnessed his mother experience intimate partner violence at the hands of other domestic partners. Child welfare was involved. His maternal grandmother assumed formal custody of Mr. Kuzio when he was 12 years old because his mother and her partner were challenged by opioid addiction. Mr. Kuzio has some ongoing contact with his mother, who reportedly continues to struggle with her addiction.

[20] He has no formal education beyond grade 10 or 11. He described an unspecified learning disability that required accommodation and medication when he was in school. Despite his lack of education, he has been gainfully employed since leaving school. His current employer and a former employer each confirmed Mr. Kuzio is a good employee, happy to take on extra responsibility. His current employer related that Mr. Kuzio occasionally asked for time off so he could support his grandmother in attending her appointments.

[21] Mr. Kuzio expressed interest in completing his high school credits, pursuing a mechanics licence, and purchasing a rental property.

[22] He denied any issues with substance use; he drinks alcohol occasionally but uses marijuana daily.

[23] Mr. Kuzio was seriously injured in the collision. Information about the extent of his injuries, any residual impairments and any ongoing treatment or rehabilitation needs are not in evidence. The court was told that he was in a coma for approximately a month following the catastrophic collision. I also understood from the evidence that charges were not laid until it was determined he would survive.

[24] Mr. Kuzio told the pre-sentence report author that he experienced a brain injury and multiple fractures in the collision. He has lost his memory for the few months surrounding the collision and struggles to find words at times. He required physical rehabilitation for two years following the incident. His grandmother is concerned that he continues to struggle with significant memory loss and impulse control. He had previously declined the opportunity for counselling, but he acknowledged that he has been struggling with depression since the collision. The report writer suggested he may benefit from counselling, including anger management counselling and/or other supports for individuals with brain injury. I endorse that recommendation.

[25] Mr. Kuzio acknowledged that Ms. Stapleton’s family has lost a loved one. He described hatred for himself and said he would trade places with Ms. Stapleton if he could. He has no memory of the accident; however, he maintained that “my tire came off, it was an accident.”

[26] The report writer advised that Mr. Kuzio appears to be a suitable candidate for community service hours.

Principles of Sentencing

[27] The Criminal Code sets out the purposes, objectives and principles that must guide this court in determining a fit and appropriate sentence for this offence: ss. 718, 718.2.

[28] The fundamental purpose of sentencing is to impose just sanctions to protect society, to contribute to respect for the law and the maintenance of a just, peaceful, and safe society.

[29] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A proportionate and just sentence must have one or more of the following objectives: 1. To denounce unlawful conduct; 2. To deter the offender and others from committing offences; 3. Where necessary, to separate offenders from society; 4. To assist in rehabilitating offenders; and 5. To promote a sense of responsibility in those who commit criminal offences and to acknowledge the harm done.

[30] The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. An offender should not be deprived of his liberty if less restrictive measures may be appropriate in the circumstances.

[31] A sentence should also be increased or reduced to account for any relevant aggravating or mitigating circumstances.

[32] The process is highly individualized. The sentence imposed must be tailored to the individual offender and the specific offence: R. v. Morris, 2021 ONCA 690, para. 56.

[33] Vengeance has no role in our sentencing assessment. The focus of sentencing is retribution. Retribution represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. Unlike vengeance, retribution incorporates a principle of restraint. Retribution requires the imposition of a just and appropriate punishment, and nothing more: R. v. M. (C.A.), para. 80.

[34] In summary, the court’s determination of a fit and appropriate sentence for this offender entails consideration of the range of sentence for the offence, the relevant principles and objectives of sentencing for that offence and the degree of responsibility of the offender as reflected by all the circumstances, including aggravating and mitigating factors which may either increase or decrease the gravity of the offence or degree of responsibility of the offender relative to other offenders committing the same kind of offence: s. 718.1; R. v. Friesen, 2020 SCC 9 at paras. 37-38 and 96-97; R. v. M.V., 2023 ONCA 724 at paras. 44-52.

Assessment

[35] Sentencing ranges are summaries of the minimum and maximum sentences imposed in the past and which serve as guidelines for a sentencing court in the application of all the relevant sentencing principles and objectives for that offence: Friesen, at paras. 36-37.

[36] Sentencing courts currently lack clear appellate guidance on the sentencing range for this offence. However, for two reasons, I am satisfied there is no confusion or uncertainty that sentences for dangerous operation of a motor vehicle causing death are expected to increase.

[37] First, the offence of dangerous operation of a conveyance causing death now carries a maximum sentence of life imprisonment: s. 320.21. The maximum sentence was previously 14 years. This important change was part of a comprehensive revision to the driving-related offences in the Criminal Code that came into force in December 2018 in an effort to reflect a greater understanding of the harms caused by driving-related misconduct: R. v. Wolfe, 2024 SCC 34 at paras. 10-13.

[38] Parliament’s decision to increase the maximum sentence is a clear signal that our legislature views the gravity of the offence as more serious than it did in the past. Parliament therefore expects such offences to be punished more harshly. An increase in the maximum sentence should thus be understood as shifting the distribution of proportionate sentences for an offence. Courts are expected to generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences: Friesen, at paras. 97-100.

[39] Second, even before these amendments, sentences in this area have increased over the years because of the court’s heightened recognition of the need for general deterrence and the protection of the public: R. v. Regier, 2011 ONCA 557 at para. 2. Courts have repeatedly emphasized that an appropriate sentence must give primacy to the sentencing objectives of general deterrence and denunciation.

[40] Counsel each filed several cases in support of their respective positions. I have reviewed and considered each precedent in the context of the circumstances of this tragic case. The sentences for this offence are driven by the almost infinite variety of circumstances in which dangerous operation causing death can be committed. The differences in sentence appear to reflect factors such as the extent of deviation from driving norms, the cause or causes of the dangerous driving, such as whether it was due to impairment, speed, or inattention and its duration, the driving conditions, and the number and state of the victims. Also relevant are the offender’s circumstances such as whether there was a guilty plea, a criminal or driving record and the acceptance of responsibility or remorse. The sentences imposed in a number of those decisions filed by counsel also predated the increase to the maximum sentence and therefore arguably would have shifted upwards if before the court today. In all, I agree with my colleague’s recent assessment that the sentencing continuum since these amendments appears to include a conditional sentence at the low end and extends to double-digit penitentiary terms at the high end: R. v. Kerr, 2024 ONSC 1514 at paras. 55–56. However, I would say that a sentencing range for this offence otherwise continues to be elusive. In all, the cases filed by both counsel illustrate my earlier point that sentencing is an individualized exercise.

[41] I now consider where Mr. Kuzio’s operation of his BMW is situated within this broad spectrum of driving conduct. The conduct does not involve evidence of impairment, racing or deliberate driving into oncoming traffic. However, it was also not a matter of an error in judgment or momentary distraction. The driving involved deliberate and aggressive speed, accelerations, and lane changes in moderate traffic flow during rush hour on Southdale Road East, a major undivided multi-lane road within our city, where various motorists were stopping or slowing down to make turns onto residential streets or at the various businesses situated along the thoroughfare. Mr. Kuzio was driving faster than the surrounding traffic flow and significantly above the posted speed limit of 60 km/hr. The investigation conclusion that he was travelling in excess of 100 km/hr is entirely consistent with eyewitness testimony. While the evidence is that it took place over a relatively brief duration, it was nevertheless excessive and sustained over the course of several blocks. It commanded the attention of several motorists who were also sharing the roadway at the time. The inherent risk to this conduct on a road that had no barriers between the opposing traffic lanes was increased through his operation of the BMW in coordination with the white Nissan, that was similarly speeding and making abrupt lane changes through the traffic flow. This was not a virtual reality game or an escapist action film. The potential for a collision resulting in bodily harm and death was real, if not inevitable. This deliberate manner of driving demonstrated a reckless and irresponsible gamble with the lives and safety of other motorists, their passengers and pedestrians. It carries a high degree of moral blameworthiness.

[42] There is an absence of statutory aggravating factors to consider. While I found there was excessive speed and that Mr. Kuzio’s operation of his BMW was coordinated or involved with the similarly speeding Nissan, I did not find that racing was involved. I have already noted the speed and manner of driving in considering the degree of moral blameworthiness. However, I would also add that the impact of this tragic incident on the community is an aggravating circumstance. The collision involved a road closure and diversion of law enforcement resources for several hours. Some of the eyewitnesses who testified to their observations were clearly affected and were haunted by their efforts to assist Ms. Stapleton and Mr. Kuzio.

[43] There are several mitigating circumstances to consider. Mr. Kuzio is youthful with no prior criminal record. I was also not made aware of any relevant driving record.

[44] His pre-sentence report was largely positive. He was disadvantaged as a child, with an unstable family, child welfare involvement and did not finish high school. Despite this, it is to his credit that he has been gainfully employed. He has the love and support of his family, particularly his maternal grandmother. I note his family have regularly attended court as a constant support for him throughout this trial. He also has the support of a small circle of prosocial friends. He has expressed plans to finish high school and pursue a trade as a mechanic. I fully support and encourage him to pursue those worthwhile goals.

[45] Mr. Kuzio has also expressed remorse for the tragic consequences of this collision. He apologized to the court and directly to Ms. Stapleton’s loved ones in the courtroom. He expressed that he would trade places with Ms. Stapleton if he could. While Mr. Kuzio did not testify, I had the opportunity to observe his subdued demeanour throughout trial and his visible pain while he listened respectfully to the victim impact statements. It was evident to me that he appreciates the gravity of this horrific incident and that he is sincere in his regret and his apology. That said, his regret falls short of taking responsibility. He did not acknowledge that it was his deliberate speed that caused the collision. Although he reportedly does not have a memory of the incident, the pre-sentence report repeats his theory, which I rejected at trial, that the collision was an accident caused by his car losing a tire. Whether this is a steadfast belief or a way of coping with responsibility for this senseless incident I cannot say.

[46] Accordingly, while I allow that rehabilitation should be promoted as a sentencing objective, there is a question as to whether he has gained insight as to his choices that led to this tragic outcome.

[47] I have not lost sight of other collateral consequences for this young man. He sustained life threatening injuries and apparently has some ongoing impairments as result of this event, although again, I do not have a fulsome understanding of his ongoing needs and current prognosis, if any. As with his grandmother and the pre-sentence report writer, I strongly encourage Mr. Kuzio to engage in counselling and to investigate all supports to assist him in managing any lasting effects or impairments from his injuries and in particular, his head injury.

[48] Balancing all these various factors and determining the appropriate sentence for any offender is one of the most difficult tasks facing any trial judge.

[49] There is no doubt that a conditional sentence is recognized as capable of achieving the objectives of denunciation and deterrence. The option for a conditional sentence was specifically enacted as a meaningful alternative to incarceration for less serious and non-dangerous offenders. It still restricts the offender’s liberty and has a punitive quality as it entails strict surveillance in the community, stigma and the threat of incarceration in the event of non-compliance with those strict conditions: R. v. Proulx, 2000 SCC 5 at paras. 21-22. There are four criteria that must be met for a conditional sentence to be imposed. The two criteria which I must consider is whether the fit and appropriate term of imprisonment for this offence is less than two years and whether I am satisfied that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in the Code.

[50] After a long and difficult reflection on Mr. Kuzio’s situation and the circumstances of this offence, I find that a conditional sentence is not fit and appropriate. Notwithstanding his youthfulness and lack of criminal record, I find that a term of imprisonment is necessary.

[51] Speeding has long been recognized as a serious form of dangerous driving that engages the sentencing principles of specific and general deterrence. Speeding poses a potential threat to the safety and lives of motorists and their passengers. Such drivers must be made to realize that their driving must stop. The penalty must be such as to specifically deter both them and other drivers with the message that such dangerous conduct will be punished: R. v. Bimm, (1989), 17 MVR (2d) 157 (Ont. C.A.); R. v. Kerr, 2024 ONSC 1514 at para. 64.

[52] The appellate courts have also advised sentencing courts that there must be no ambiguity in the court’s message that such driving misconduct is completely unacceptable. A motor vehicle can, in a moment of recklessness, be transformed into an object capable of destroying lives: R. v. Rawn, 2012 ONCA 487 at paras. 45-48. Driving in this fashion on a major thoroughfare, endangering the lives of others and taking the life of one of them warrants a severe custodial sanction: R. v. Nusrat, 2009 ONCA 31 at para. 55.

[53] Accordingly, I find that these circumstances require a period of imprisonment to meet the objectives of denunciation and deterrence: Proulx, at paras. 6, 107.

[54] Moreover, the gravity of the offence as emphasized with the increase in the maximum sentence, coupled with Mr. Kuzio’s moral blameworthiness, also requires a term of imprisonment beyond a reformatory term.

[55] The Crown’s proposal for a five-year term of imprisonment is grounded in principle. It links the circumstances of the offence with Parliament’s expectation that sentences for this offence should increase. That said, I am concerned that such a sentence risks over-emphasizing general deterrence in the context of Mr. Kuzio’s circumstances. It would overwhelm his real prospects for rehabilitation and the principle of restraint. A first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused, rather than solely for the purpose of general deterrence. The emphasis on individual deterrence rather than general deterrence is particularly applicable in the case of a youthful first offender: R. v. Priest, 30 O.R. (3d) 538 (C.A.) at 545-546.

Disposition

[56] After careful reflection on the relevant sentencing principles, including the nature and circumstances of the offence, Mr. Kuzio’s responsibility for his actions, his prospect for rehabilitation and the devastating impact of his conduct on Ms. Stapleton and her loved ones, I have concluded that a fit and proportionate sentence for dangerous operation of the conveyance, causing the death of Rachel Stapleton, contrary to s. 320.13(3) of the Code is a period of imprisonment of three and ½ years, or 42 months.

[57] I understand there are no credits to apply to this sentence.

[58] The Crown seeks a 10-year driving prohibition plus the entire period of Mr. Kuzio’s imprisonment. The defence proposed a five-year driving prohibition.

[59] In these circumstances I am persuaded that a five-year driving prohibition plus the entire period of his imprisonment is fit and appropriate, pursuant to s. 320.24(4) and (5) of the Code. This again reflects the circumstances of the offence but also his youth and his lack of a prior criminal or driving record. Further, I find a 10-year driving prohibition would severely curtail his prospects of rehabilitation on release and his ability to work.

[60] Mr. Kuzio has been convicted of a secondary designated offence. There will be an order in Form 5.04 requiring the taking of bodily substances that is reasonably required for the purpose of forensic DNA analysis as being in the best interests of the administration of justice, pursuant to s. 487.051(3) of the Code.

[61] I agree with the Crown that this offence does not engage consideration of a weapons prohibition and no such order shall be made.

[62] In the circumstances, any victim surcharge is waived.

Justice K. Tranquilli

NOTE: As noted in court, on the record, this decision in writing is to be considered the official version of the Reasons for Sentence and takes precedence over the oral Reasons read into the record.

Released: May 5, 2025