R. v. Domonchuk, 2018 ONCJ 909

ONTARIO COURT OF JUSTICE CITATION: R. v. Domonchuk , 2018 ONCJ 909 DATE: December 17, 2018 COURT FILE No.: 17-918 BETWEEN: HER MAJESTY THE QUEEN — AND — HUBERT PATRICK DOMONCHUK Before Justice G. Orsini Reasons for Sentence - Released on December 17, 2018 Craig Sigurdson.................................................................................. counsel for the Crown Thomas Brock………………..counsel for the defendant Hubert Patrick Domonchuk Orsini J.: 1 .

On September 12 of this year, Hubert Patrick Domonchuk pled guilty before me to the following offences arising out of a head on motor vehicle collision: Count 1 Impaired Driving Causing Death to Sarah Payne, contrary to section 255(3) of the Criminal Code of Canada ; Count 2 Impaired Driving Causing Death to Freya Payne, contrary to section 255(3) of the Criminal Code of Canada ; Count 3 Impaired Driving Causing Bodily Harm to William Payne, contrary to section 255(2) of the Criminal Code of Canada , Count 4 Dangerous Driving Causing Death to Sarah Payne, contrary to section 249(4) of the Criminal Code of Canada ; Count 5 Dangerous Driving Causing Death to Freya Payne, contrary to section 249(4) of the Criminal Code of Canada ; Count 6 Dangerous Driving Causing Bodily Harm to William Payne, contrary to section 249(3) of the Criminal Code of Canada ; and Count 7 Possession of a Controlled Substance to wit: Cannabis Resin, contrary to section 4(1) of the Controlled Drugs and Substances Act . 2 .

An Agreed Statement of Facts was read into the record and filed as an exhibit, together with a copy of Mr. Domonchuk’s prior criminal record and Highway Traffic Act record. 3 . A three year driving prohibition was imposed and the Court adjourned the matter of sentencing for the preparation of a Pre-Sentence Report, which has now been reviewed by counsel and is also an exhibit in these proceedings.

Circumstances of the Offences 4 . On Tuesday August 29, 2017, at approximately 4:24 PM, Sarah Payne was driving a Honda Odyssey minivan travelling westbound on Highway 401 in the County of Elgin. Travelling with her, and buckled securely in the rear seat of the minivan, were her two children, five-year-old Freya Payne and six-year-old William Payne. 5 . At the same time and location, Mr. Domonchuk was driving a Ford F250 pick-up truck travelling eastbound on Highway 401.

His truck gradually drifted to the left from the passing lane, through the grass median, and then into the oncoming westbound lanes of the highway. 6 . Mr. Domonchuk’s truck struck the minivan operated by Sarah Payne head-on. At the point of impact, his vehicle was travelling at a speed of 120 km/h in the posted 100 km/h zone. 7 . Sarah Payne was pronounced dead at the scene of the collision. The immediate cause of death, as indicated in the post-mortem examination, was multiple trauma. 8 . Five-year-old Freya Payne was transported to the Children’s Hospital in London where she was pronounced dead at 5:37 PM. 9 .

Six-year-old William Payne, was also transported to hospital. Although he survived the accident, he suffered significant bodily harm including a left temporal bone fracture, tearing of his scalp, bilateral clavicle fractures, arm fractures and numerous abrasions and lacerations to his face, arms, torso and legs. He was discharged from the hospital on September 9, 2017 with follow-up appointments for plastic surgery, neuropsychology, orthopedics, ophthalmology and neuro​surgery. 10 . Alcohol and “zig zag” rolling papers were seized from Mr. Domonchuk’s truck.

There was a 40 ounce bottle of Smirnoff vodka that was one third full, found under the front passenger seat. There were two bottles of Crown Royal whisky seized from the front passenger foot-well and a two litre bottle of Diet Coke in the rear passenger seat. 11 . At the time of the collision, Mr. Domonchuk was driving to his residence in Cambridge from a work-site in Windsor. Approximately one hour prior to the collision, he was observed driving in an erratic manner on Highway 401, tailgating another motorist.

He subsequently gave this motorist “the finger”, and jerked the wheel of his truck, causing it to enter the other lane and forcing that motorist to take evasive action to avoid a collision. His truck was also observed swerving between the lanes. 12 . Mr. Domonchuk was also transported to the London Health Sciences Centre for emergency room treatment, where a nurse discovered a vile in his pocket. The contents of this vile were analysed by Health Canada on November 23, 2017 and found to be cannabis resin. 13 . While at the hospital, blood was drawn from Mr. Domonchuk for medical purposes.

An analysis of that blood conducted by hospital staff revealed an ethanol concentration of 16.6 mmo/L., the equivalent of 66 mg of alcohol in 100 mL of blood. Based on this, the Centre of Forensic Sciences projected that Mr. Domonchuk’s blood-alcohol concentration at the time of the collision was between 66 mg and 96 mg of alcohol in 100 mL of blood. 14 . Police also obtained a warrant to seize a sample of Mr. Domonchuk’s blood at the hospital. This blood sample was analysed by the Centre of Forensic Sciences and found have a blood-alcohol concentration of 70 mg of alcohol in 100 mL of blood.

According to their report, Mr. Domonchuk would have had a blood-alcohol concentration of between 60 mg and 90 mg of alcohol in 100 mL of blood at the time of the collision. 15 . Based on these readings, Dr. Daryl Mayers, a toxicologist from the Centre of Forensic Sciences, opined that Mr. Domonchuk’s ability to operate a motor vehicle was impaired by alcohol at the time of the collision. Circumstances of Mr. Domonchuk

16 . Mr. Domonchuk is now 54 years old. He was 52 years old at the time of the offences. 17 . As indicated in the Pre-Sentence Report, he had a very stable upbringing. He did not disclose any issues of concern within the family unit during his upbringing. He has been in a common-law relationship for the past four years and also shares a close relationship with his 25-year-old daughter from a previous marriage. He has been gainfully employed throughout his adult years.

He operated his own trucking business for a period of time and has otherwise been consistently employed in the construction industry throughout his adult life. 18 . Mr. Domonchuk indicated to the author of the Pre-Sentence Report that he has consumed marijuana in the past to assist with sleeping. He presented himself as a “social drinker”. He does not consider himself to have a problem with alcohol or substances. He stated that they have never caused him to miss a day of work or otherwise impacted upon his relationships. 19 .

He indicated that he had been drinking the night before the collision and admitted to having a few drinks on the day of the collision, prior to driving, He said he could not recall the amount consumed on either occasion. 20 . When speaking about the offence, Mr. Domonchuk stated, “I did not consider myself to be drunk when choosing to drive that day”. He has not undergone any counselling for alcohol or drug use prior to, or since, the offence date.

He also told the author of the Report that he takes responsibility for his actions, wishes he had made the decision not to drive and that the consequences of his actions “rips my guts out”. 21 . It does not appear from the Pre-Sentence Report, or otherwise, that Mr. Domonchuk suffered any lasting physical injuries as a result of the collision. 22 . Since the date of these offences, he says his ability to find work has been significantly impacted by media reports of the offence details and that many of his friends have disowned him.

He spends most of his time at home where he continues to have the support of his immediate family, including his common-law spouse who describes him as a “good person, great friend and great father.” 23 . Mr. Domonchuk’s criminal record contains one prior conviction in 2006 for possessing a

Schedule II substance for the purpose of trafficking for which he received a $1000 fine and probation for 6 months. 24 . However, his Highway Traffic Act record commencing in 1982 and ending in 2015 contains 22 prior speeding convictions. Position of the Parties 25 . The Crown and defence counsel jointly submit that an appropriate sentence in this case is 8 years in the penitentiary. The Applicable Legal Principles 26 .

Section 718 of the Criminal Code provides as follows: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and 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 the victims or to the community that is caused by an 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 acknowledgement of the harm done to victims or to the community. 27 . I am also mindful of the following principles of sentencing applicable to this case: (

a) that any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender having regard to the relevant aggravating and mitigating circumstances related to both the offence and the offender; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; 28 . In cases of drinking and driving, particularly where death is involved, denunciation and general deterrence are the paramount sentencing objectives. As indicated by the Supreme Court of Canada in R v. Lacasse [i] , general deterrence takes on added significance given that drinking and driving offences are often committed by the same otherwise law-abiding people most likely to be deterred by the threat of substantial penalties. 29 . Finally, Mr.

Domonchuk pled guilty on the basis of joint submission. As indicated by the Supreme Court of Canada in R v. Cook [ii] , join submissions are an accepted and acceptable means of resolving criminal matters and are the basis upon which the vast majority of criminal cases are resolved in this country. Accordingly, judges should only depart from joint submissions where the proposed sentence would bring the administration of justice into disrepute, or would otherwise be contrary to the public interest. Analysis 30 .

The joint recommendation of an 8 year penitentiary sentence is well within the range of sentences imposed on similar offenders for similar offences committed in similar circumstances. 31 . In R v Darwish [iii] , the defendant was sentenced to 7 ½ years for dangerous and impaired driving that resulted in the death of a mother and significant injury to her infant child. Mr. Darwish acknowledged consuming both alcohol and marijuana prior to the collision.

Alcohol and marijuana were found within his vehicle which was travelling at a speed of 214 km/h when it struck the rear of the victim’s vehicle travelling on Highway 7. His vehicle was observed tailgating another vehicle, swerving back and forth between the two westbound lanes and driving onto the shoulder and gravel portions of the highway. However, unlike Mr. Domonchuk, Mr. Darwish had a prior conviction for operating a motor vehicle with a blood alcohol content over the legal limit. 32 . In R v.

Kummer [iv] , 8 year sentence was upheld on appeal for dangerous and impaired driving that resulted in significant injury to a father and the death of two 12-year-old children as well as the death of a passenger in the defendant’s vehicle. At the time of the collision, the defendant’s vehicle was travelling at 122 km/h in a posted 70 km/h zone. Unlike Mr. Domonchuk, the defendant’s blood- alcohol concentration at the time of driving was more than twice the legal limit, indicating he had consumed equivalent of 15 to 20 beers. 33 . Finally in R v.

Muzzo [v] , the defendant was sentenced to 10 years in the penitentiary on four counts of impaired driving causing death and two counts of impaired driving causing bodily harm. Three of the deceased were young children. Although he had no prior criminal record, Mr. Muzzo had a history of Highway Traffic Act violations, including 10 convictions for speeding. Unlike Mr. Domonchuk, Mr. Muzzo’s blood-alcohol concentration at the time of the collision was almost 3 times the legal limit.

34 . The proposed sentence of 8 years appropriately accounts for the relevant aggravating and mitigating circumstances with respect to the offences and to Mr. Domonchuk. 35 . The aggravating circumstances in this case include the following: (

a) Mr. Domonchuk has a significant record for driving infractions, including 22 prior speeding convictions; (

b) Mr. Domonchuk was operating his motor vehicle at an excessive speed. He was travelling at 120 km/h when he struck the minivan being operated by Sarah Payne, despite having travelled through the centre grass median; (

c) Mr. Domonchuk was engaged in dangerous and aggressive driving leading up to the collision. Approximately an hour earlier, his aggressive driving caused another motorist to take evasive action to avoid a collision; (

d) Mr. Domonchuk made a choice to drink and drive despite significant efforts to raise public awareness of the dangers of so doing. He had a partially consumed bottle of vodka in his vehicle; (

e) Mr. Domonchuk ‘s decision resulted in the death a young child and her mother and left a second child with significant injuries; and (

f) The impact on the Payne family and friends is immense. Mere words could not possibly describe the loss they have suffered and will continue to suffer for the rest of their lives. A loving wife, mother, daughter and dear friend has been lost forever. A five year old daughter, granddaughter and sister has been tragically cut short, together with the hopes and dreams that her family had for her future. A six year old child was significantly injured and is also left to deal with the loss of his mother and younger sister. 36 . There are also the following mitigating factors which I must consider: (

a) Mr. Domonchuk pled guilty. Although he did not do so at an early stage, I am advised there was never an intention on his part to take this matter to trial. His guilty pleas avoided the necessity of a trial, with an uncertain outcome. This is particularly so, given the low readings in this case; (

b) Although Mr. Domonchuk has a significant number of speeding convictions, he has only one prior criminal conviction for trafficking in a controlled substance in 2006. This will be his first jail sentence; and (

c) Mr. Domonchuk otherwise appears to be a person of good character as evidence by the numerous letters filed on his behalf. 37 . I would be remiss if I did not point out the significant concern this court has with Mr. Domonchuk’s comment that he was not “drunk” at the time of the collision. I appreciate that he is sincerely remorseful for the consequences of his actions. I also understand that his comment may well be an attempt to convince others that he is not the person they now see him as.

Nevertheless, it evidences a lack of appreciation for the significant danger posed by individuals whose ability to drive is even slightly impaired by the consumption of alcohol. 38 . One does not have to be drunk to kill two people and significantly injured a third. No level of impairment in the operation of a motor vehicle, by alcohol or drug, is acceptable or safe or legal. That is the lesson here. It is one which our Courts have been emphasizing since the Ontario Court of Appeal issued its decision in R v. Stellato [vi] , 25 years ago.

39 . Mr. Domonchuk should have learned that lesson well before occupying the driver seat of a Ford F250 on the date of the collision. That he, and others like him, continue to ignore this message only serves to amplify the need to send the message that impaired driving resulting in death or injury will result in a significant sentence. 40 . At the same time, the Court is faced with certain limitations in the sentencing process. The court in R v. Fracassi [vii] summarized those limitations as follows; (

i) Whatever sentence is imposed, it cannot undo the damage that has been done by the events. Regardless of the sentence imposed today, the victims of the offence will be left with the emptiness and heartache they began the day with; (ii) No sentences is capable of satisfying all interested parties. Indeed, I suspect that none of the constituents here will be satisfied.

It is important, however, that the sentences adhere to the purposes and principles of sentencing set out in subsections 718 to 718.2 of the Criminal Code and that it be fit for purpose - neither too lenient nor too harsh - in order to maintain the confidence of the broader public; and (iii) The sentence imposed is in no way meant to reflect the value of the losses suffered. One cannot put a price, in dollars or in years of incarceration, on a life lost or otherwise significantly impaired. Conclusion 41 . For all of these reasons I sentence Mr. Domonchuk as follows: (

i) On counts 1, 2 , 4 and 5, Mr. Domonchuk is sentenced to concurrent periods of custody of 8 years; (ii) On Counts 3 and 6, Mr. Domonchuk is sentenced to 5 years custody concurrent to each other and concurrent to counts 1, 2, 4 and 5; (iii) On Count 7, Mr. Domonchuk is sentenced to 3 months custody concurrent to all other matters; 42 . In addition, Counts 1 through 6 are secondary designated offences. I find that the circumstances of the offences and Mr. Domonchuk’s driving history, are such that his privacy interests in obtaining a sample of his DNA for analysis are outweighed by the public interest.

Accordingly, Mr. Domonchuk will provide a sample of his blood for analysis and admission to the DNA databank, pursuant to

section s.487.051(3) of the Code . Released: December 17, 2018 Signed: Justice G. Orsini [i] R v. Lacasse, 2015 SCC 64 , at para 73 (SCC)

[ii] R v. Cook, 2016 SCC 43, at para. 6 (SCC) [iii] R v. Darwish, 2017 O.J. No. 2821 (ONCJ) [iv] R v. Kummer, 2011 O.J. No. 34 (ONCA) [v] R v. Muzzo, 2016 ONSC 2068 , 2016 O.J. No. 1506 (ONSC) [vi] R v. Stellato, (ON CA), 1993 O.J. No. 18 (ONCA) [vii] R v. Fracassi, 2017 O.J. No. 12, at para. 36