Reasons for Sentence

Court File No.: CR-23-17
Date: 2025-02-18
Ontario Superior Court of Justice

Between:
His Majesty the King
and
Milton Urgiles, Defendant

Appearances:
Indy Kandola and Raffi Dergalstanian, for the Crown
Alonzo Abbey, Counsel for Mr. Urgiles

Submissions Heard: December 3, 2024

Reasons for Sentence
M.E. Vallee

Introduction

[1] On July 10, 2024, this court entered a conviction against Mr. Urgiles on an indictment alleging that by criminal negligence he caused the death of Denis Garant, contrary to s. 220(b) of the Criminal Code.

[2] In the verdict, I reviewed the evidence in detail. I do not intend to repeat it. Rather, I will provide a brief synopsis.

Facts

[3] In order to operate a commercial trucking company, a person must hold a CVOR—a Commercial Vehicle Operator Record. Mr. Urgiles’ common law spouse, Janeth Zambrano, held the CVOR for Ecuacan Excavating Inc. Her first language is Spanish. She spoke very little English. Mr. Urgiles was extensively involved in operating the company. He hired the deceased, Denis Garant, to work as a truck driver for Ecuacan and was his supervisor. He directed Mr. Garant in the performance of his truck driving work. Mr. Garant’s first day of work was September 4, 2020. He received a few days of training from Mr. Urgiles and then drove Ecuacan’s Freightliner truck.

[4] Mr. Garant and Mr. Urgiles used their phones to send SMS messages to each other. On September 21, 2020, the day before the collision, Mr. Garant’s phone sent a message to Mr. Urgiles’ phone which stated: “The steering while turning with the wheels up cuts in and out like standard steering.” Mr. Urgiles’ reply was to advise him of the next day’s work. He stated, “Tomorrow At Hwy 27/finch job site 6:00 am tandem ticket thanks”.

[5] After Mr. Garant returned the Freightliner to the yard, Mr. Urgiles got in it to check the steering. The engine was turned off. He moved the steering wheel to see if it was working. He admitted that the truck should have been taken to a mechanic to have the steering assessed. Mr. Urgiles directed Mr. Garant to drive the truck the next day. As it was proceeding along the highway, its left front tire exploded, causing it to veer across the oncoming lane and go into the ditch. It struck a tree; and Mr. Garant died instantly. The front tires on the truck were practically bald. A qualified expert stated that the truck should not have been on the road with tires in that condition. Some time would be required for the tires to wear down to that extent. It would not happen overnight.

[6] On submissions, the following documents were made exhibits: four victim impact statements; three Ministry of Transportation documents including Mr. Urgiles’ CVOR record, his driving record and his suspensions record. A letter from his doctor regarding sleep apnea was also made an exhibit.

Victim Impact Statements

[7] The four victim impact statements were read into the record.

[8] Matthew Heidiman, who witnessed the crash, was driving on the road toward the Freightliner and was seconds away from its path when it crossed into the oncoming lane and went into the ditch. This has created stress and anxiety for him. He is now anxious about on-coming commercial vehicles when he is driving and has concerns about his family members when they are on the road.

[9] Mr. Garant left behind his mother Ghysline Garant, his wife Aileen, two children one of whom has autism, and extended family.

[10] Ghysline stated that Mr. Garant’s siblings are: a brother Rene, a sister Janette and a half-brother Wenser. He was close to all of them. Together they are a close family and celebrated every occasion together. They all miss him dearly.

[11] Aileen Garant stated that Mr. Garant was the heart and soul of the family—a devoted husband, a loving father and a pillar of strength and kindness in the community. Since his passing, financial ruin has loomed over the family. Ms. Garant had to leave her job to care for the child with special needs. Previously, Mr. Garant shared in the care. The associated challenges have been overwhelming. Ms. Garant cannot return to work. The family has experienced a profound loss and has been shattered. The children have lost their father who was their hero. Ms. Garant has lost her partner in life. As a result, Ms. Garant has suffered from mental health issues. Ms. Garant and her son have required therapy.

[12] Aileen Garant stated that members of the Garant family do not feel safe. They are concerned that Mr. Urgiles or a member of his family will come and harm them.

Principles of Sentencing

[13] In determining a just sentence, I must be mindful of the purposes of sentencing as defined by the Criminal Code. Section 718 states that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

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

[14] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[15] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It also requires that the sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

[16] In R. v. Nasogaluak, 2010 SCC 6, para 42, the court held that the principle of proportionality:

…requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the “just deserts” philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused (R. v. M. (C.A.), para 81; Re B.C. Motor Vehicle Act, pp. 533-34, per Wilson J., concurring). Understood in this latter sense, sentencing is a form of judicial and social censure (J.V. Roberts and D.P. Cole, “Introduction to Sentencing and Parole”, in Roberts and Cole, eds., Making Sense of Sentencing (1999), 3, at p.10). Whatever the rationale for proportionality, however, the degree of censure required to express society’s condemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

Pre-sentence Report

[17] A pre-sentence report was prepared to assist the court. It was generally positive. Mr. Urgiles, who was born in Toronto, is 47 years old. According to the pre-sentence report, he lived in Ecuador from age 3 to 18 and was raised in a rural area. He had a happy childhood. There was no abuse, violence or neglect. He did not finish high school. He wanted to work as a mechanic; however, he has never been a licensed mechanic. He has no substance abuse issues. He continues to work as an excavation broker and has no financial concerns. He has no criminal record. He has lived with his common law spouse Janeth Zambrano for six years.

[18] One item in the pre-sentence report is the fact that when discussing the offence, Mr. Urgiles maintained his innocence, expressed that the charge is unjust and stated that he would never have wanted this to happen.

Legal Parameters

[19] Regarding the offence, s. 220 of the Criminal Code states that every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable to imprisonment for life.

The Crown’s Position

[20] The Crown requests a six year sentence on the basis that there are a significant number of aggravating factors which are set out below. Denunciation and deterrence are particularly relevant.

The Defence’s Position

[21] The defence states that an appropriate sentence for Mr. Urgiles is a conditional sentence of two years less a day with three years of probation. There are mitigating factors. He has secure accommodation. There may be hope for rehabilitation. He does not require incarceration.

Mitigating Factors

[22] Mr. Urgiles has no criminal record.

[23] The offence was not a targeted crime.

[24] There was evidence that some work had been done on the truck. It had new brake lines.

[25] Mr. Urgiles apologized to this court and to Mr. Garant’s family. He stated that he never wanted this accident to occur and took full responsibility for it.

Aggravating Factors

[26] Mr. Urgiles trained Mr. Garant; however, Mr. Urgiles’ MTO record was egregious as was his suspension record. He should not have been training anybody. In 2006, prior to his common law spouse obtaining a CVOR for Ecuacan Excavating Inc., Mr. Urgiles held a CVOR for his own company, Milton Transporting Services Inc. The CVOR record for that company showed a number of convictions for various offences and unpaid fines. In 2014, Mr. Urgiles’ CVOR was cancelled because of the company’s unsatisfactory safety rating and outstanding fines. According to the Ministry of Transportation witness, anyone who is directly or indirectly affiliated with a carrier that has a conditional safety rating may not apply for a CVOR. She stated that this applies to spouses.

[27] Nevertheless, Ms. Zambrano applied for a CVOR. After she received the CVOR for Ecuacan, Mr. Urgiles essentially ran the company because her English was poor.

[28] Ms. Zambrano was substitutionally served with a summons to appear at the trial. She did not attend. I issued a warrant for her arrest as a material witness. Law enforcement searched for her including making inquiries at border departure points. She could not be found. The pre-sentence report notes that Mr. Urgiles and Ms. Zambrano have been living together for six years. Surprisingly, she was also interviewed for the report. She confirmed that she lives with him. While defendants are not obliged to provide witnesses for the Crown, during the trial Mr. Urgiles stated that he did not know where she was. The warrant was issued in his presence. The Oxford English Dictionary defines fugitive as “…a witness in a criminal case who…evades… the giving of testimony, esp. by fleeing the jurisdiction or by hiding”. [1] Mr. Urgiles harboured a fugitive.

[29] The truck tires did not become practically bald the night before or on the day of the collision. They had worn down over a period of time to the point that they became unroadworthy. Mr. Urgiles’ conduct was part of an on-going course of negligent conduct.

Authorities Provided

[30] In support of its position that Mr. Urgiles should receive a conditional sentence, the defence provided R. v. Proulx, 2000 SCC 5, para 114 which sets out the requirements that must be met for a conditional sentence. The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; the sentence imposed must be less than two years; the offender’s serving the sentence in the community would not cause any safety issues; and, it must be consistent with the fundamental principles of sentencing in s. 718 to s. 718.2 of the Code. Of note are the court’s comments at para 114. It stated, “Where the punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction.”

[31] Both the Crown and the defence provided and made submissions on a number of cases regarding sentences for this court’s consideration. Many of them concerned defendants who were driving cars or motorcycles at high speeds. Some were impaired. Their actions killed other people; and they were charged with criminal negligence causing death. [2] I have considered them but find they are less helpful. This offence is not about a negligent driver; rather, it is about negligent direction of the work in an employment context. I will focus on the cases in which this was an issue.

[32] R. v. Kazenelson, 2016 ONSC 25, para 27 concerned a swing stage that was being used for balcony repairs. Workers were already on it. As the offender project manager was about to get on the swing stage with them to descend from 100’, he noticed that there were only two lifelines when there should have been six. Only one person was tied off. The swing stage collapsed; and four people fell to their deaths. The person who was tied on and the project manager, who managed to grasp the other line, survived. The project manager was convicted of criminal negligence causing death.

[33] Mr. Kazenelson’s circumstances were different from Mr. Urgiles’. The court noted that his breach of duty was not part of an on-going course of negligent conduct in relation to fall protection but it was more than a momentary lapse. He had been with the workers for at least half an hour. He knew that workers were on the swing stage without an adequate number of lifelines. Mr. Kazenelson was a person of good character. The defence suggested that a term of imprisonment was not necessary to deter the defendant from committing further offences, to promote a sense of responsibility in him or to assist with his rehabilitation. In para 27, the trial judge stated,

Notwithstanding that, it is common ground that a term of imprisonment is necessary to adequately denounce Mr. Kazenelson’s conduct and to deter other persons with authority over workers in potentially dangerous workplaces from breaching the legal duty set forth in s. 217.1 of the Code to take reasonable steps to prevent bodily harm from befalling those workers.

[34] Mr. Kazenelson received a sentence of three and a half years.

[35] R. v. King, 2023 NBBR 156 concerned a supervisor charged with criminal negligence causing death. An employee was working in a confined space made of concrete where the exit hole was over his head. A rubber plug that was in an adjoining pipe let loose, allowing a force of water to rush in and pin the employee against the wall. He drowned. The defendant’s pre-sentence report was positive, noting his contributions to the community. He expressed remorse to the author of the report and to the court. He received a three year sentence.

Analysis

[36] Specific deterrence, general deterrence and denunciation are important factors here. In addition to the aggravating factors set out above, two facts are also important because they relate to Mr. Urgiles’ moral blameworthiness.

[37] Unlike Kazenelson, Mr. Urgiles’ conduct was part of an on-going course of negligent conduct. The tires on the Freightliner had worn down over a period of time to the point where they were unroadworthy. They did not become unroadworthy immediately before the collision. Mr. Urgiles’ moral blameworthiness is much higher than was Mr. Kazenelson’s.

[38] Mr. Urgiles conceded that the Freightliner should have been taken to a mechanic for a steering assessment. If this had been done, the truck would not have been on the road that day and the collision would not have occurred.

[39] Ecuacan’s compliance with the CVOR process was poor. There was no structured record keeping system. The log books were not properly maintained. Mr. Urgiles himself made improper entries. There were no personal employment records for Mr. Garant even though he had been driving for Ecuacan for a week. It did not have a copy of his driver’s licence. After the collision, in order to identify him and obtain his address, the police had to locate Mr. Garant’s car at the yard and run a vehicle licence plate inquiry.

[40] Truck drivers are required to do circle checks of vehicles before they drive them. They are to note any defects. One could say that Mr. Garant ought to have noticed the terrible condition of the front tires and ought to have refused to drive the truck. In Kazenelson, the court addressed victim blaming. In para 28, it stated,

…to mitigate the breach on the basis of the victims’ awareness of the danger or the absence of overt coercion would ignore the reality that a worker’s acceptance of dangerous working conditions is not always a truly voluntary choice. It would also tend to undermine the purpose of the duty imposed by s. 217.1 of the Criminal Code, which is to impose a legal obligation relating to workplace safety on management.

[41] Mr. Urgiles apologized to Mr. Garant’s family members and expressed remorse to this court that the collision occurred. Although he stated to the author of the pre-sentence report that he believes the charge is unfair, he stated that he takes full responsibility for it.

[42] As I stated earlier, one principle of sentencing is to express society’s condemnation of the offence. Another is to acknowledge the harm done to victims and the community. No period of incarceration that I can impose will restore the shattered Garant family or ease the trauma that they have suffered. Mr. Urgiles bears a high degree of moral culpability for this grave offence.

[43] A significant penitentiary sentence is required to meet the principles of sentencing.

Sentence

[44] Mr. Urgiles, I sentence you to five years of imprisonment.

[45] On consent of the Crown and the defence, I order you to provide a sample of your DNA to the police.

[46] Pursuant to section 743.21 of the Criminal Code, you are prohibited from communicating, directly or indirectly, with Aileen Garant, Ghysline Garant, and/or any member of the immediate family, during the custodial period of your sentence.

[47] Pursuant to s. 109 of the Code, you are prohibited from owning any weapons for life.

[48] The victim surcharge fine is waived.

Justice M.E. Vallee
Released: February 18, 2025

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral and written versions, the official written Ruling is to be relied upon.

[1] Concise Oxford English Dictionary, 11th ed. revised (Oxford University Press, 2008), at p. 573

[2] They are R. v. Bhangal, 2016 ONCA 857, R. v. Spears, 2010 ONSC 5710, R. v. Carreira, 2015 ONCA 639, R. v. Osman, 2019 ONSC 327, R. v. Ross, 2008 ONCA 667, R. v. Hoang, 2024 ONCA 361, R. v. Romano, 2021 ONCA 211.