R. v. Sachithananthan, 2011 ONCJ 469

Citation: R. v. Sachithananthan , 2011 ONCJ 469 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. SUTHARSAN SACHITHANANTHAN ********** R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE B. KNAZAN on February 8, 2011 at TORONTO , Ontario Courtroom 126 ********** APPEARANCES: T. Goddard, Mr. M. Worsoff, Mr. Counsel for the Crown Counsel for the Accused TUESDAY, FEBRUARY 8, 2011 R E A S O N S F O R S E N T E N C E KNAZAN, B. (Orally) You can remain seated, Mr. Sachithananthan.

You are sentenced to two years and five months imprisonment, in view of 11 days pre- trial custody, and you are prohibited from driving anywhere in Canada for a period of four years under s.259 of the Criminal Code .

Mr. Sachithananthan has pleaded guilty to causing an accident that caused the death of Hemwantie Dhanna while committing the offence of operating a motor vehicle while his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s.255(3.1) of the Criminal Code . On Friday, August 15th, 2008, Mr. Sachithananthan drove his car at a high rate of speed on the 401 highway in Toronto . Ms. Dhanna, age 20, was in the back seat. She did not know Mr. Sachithananthan well, if at all; she may have met him for the first time that night.

The speed limit on the 401 highway is 100 kilometres per hour. A witness, Mr. Melo, was travelling in the far left lane of the highway at 113 kilometres per hour westbound when he observed Mr. Sachithananthan's car approaching him from behind, very quickly. When Mr. Melo moved over one lane, Mr. Sachithananthan passed him and then suddenly veered from lane one to the right, across two more lanes of traffic toward the collector lanes for the exits to Islington Avenue and Highway 409. There was a bullnose area separating the collector and the express lanes. It was not realistically possible for Mr.

Sachithananthan to make the lane changes or exit. He drove more or less head on into the bullnose area that was surrounded by compression barrels. The back end of his vehicle rose in the air. Mr. Sachithananthan's car rotated clockwise, while continuing in the westbound express lanes that are the lanes that he was trying to exit from. The car came to rest upside down. It was destroyed beyond any possible repair. Ms. Dhanna, along with two other passengers in the back seat, was not wearing a seat belt. She and one other passenger were ejected from the car leading to her horrible and tragic death.

A large commercial vehicle with dual wheels manoeuvred to avoid hitting Mr. Sachithananthan's car. This vehicle bisected Ms. Dhanna's body from the torso down and amputated one of her legs. She died immediately from multiple traumatic blunt force injuries. Based on expert analysis of Mr. Sachithananthan's blood sample, it was determined that the concentration of alcohol in his blood at the time of the collision was at least 186 milligrams of alcohol in 100 millilitres of blood. It is a further aggravating factor that Mr.

Sachithananthan's blood alcohol level was greater than the 160 milligrams of alcohol per 100 millilitres of blood, which is an aggravating factor on sentencing under s.255.1. The two other passengers in the back seat were also seriously injured. One suffered a broken pelvis when he was ejected from the vehicle and required surgery. The other had his arm severely fractured below the shoulder. Another driver, who tried to avoid colliding with Mr. Sachithananthan's car, lost control of his car, spun, rotated and collided with the barrier to the far left of the highway.

His car was severely damaged, but he was not injured. Mr. Sachithananthan is 28 years old. He does have a criminal record, but has no previous convictions for drinking and driving, and all of his convictions were in 2005, which is a long time before the offence for such a young man. He has been convicted of driving offences under the Highway Traffic Act , including for speeding, although only once and only ten kilometres per hour over the speed limit. He is studying and is one course short of qualifying to be a computer technologist.

He lives with his parents and his sister, who is to be married this year while he is serving the prison sentence that I am imposing today. Despite his record as a younger man, I consider him to be of good character. The members of Ms. Dhanna's family were present in court for the proceedings, but declined to prepare a victim impact statement, and after consulting with Crown counsel and the police officers, indicated that they did not want to address the Court in any way. Their presence and their silence here are as eloquent as anything they could have said.

It takes little effort to imagine the permanent pain that Mr. Sachithananthan's offence has caused them and their son and the members of their wider family. None of the words that judges usually use, "tragic," "senseless," "devastating" could come close to capturing their grief. And their daughter lost all of her life, with so much time left to live. Mr. Sachithananthan was originally charged with criminal negligence causing death in addition to other charges dealing with his driving and his drinking. Several weeks before his lengthy trial was to begin, he indicated that he wished to plead guilty.

After a meeting among myself, Crown counsel and defence counsel, I indicated that I viewed the proposed sentence of a short penitentiary sentence as fit. Crown counsel indicated that he would attempt to persuade me that 30 months was a fit sentence, and defence counsel indicated that he would attempt to persuade me that two years was a fit sentence for the offence of operating a motor vehicle with a blood alcohol level exceeding 80 milligrams of alcohol in 100 millilitres of blood, causing death.

By pleading guilty and taking the position that he has, that is agreeing that only a penitentiary sentence is proportional to his offence, Mr.Sachithananthan has taken responsibility. Further, by this agreement, that is by his not even arguing that any shorter sentence could befit, and by his statement to this Court during which he genuinely cried under s.726 of the Criminal Code, he is acknowledging the harmdone to the victims and the community, filling one of the principles of sentencing under s.718(f). However, I have determined that the longer sentence proposed by Crown counsel is more appropriate.

The fundamental principle ofsentencing in s.718.1 of the Criminal Code is that a sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. Both Mr. Sachithananthan's responsibility and the gravity of the offence are high. The offence isparticularly serious; it is a new offence which came into force on October 1st, 2008. It is punishable by life imprisonment.

Further, by virtue of amendments to s.742.1 of the Criminal Code that also came into force in 2008, a conditional sentence is notavailable as a sanction, because an offence punishable by ten years in prison that results in death is a serious personal injury offence asdefined in s.752: R. v. Nusrat 2009 ONCA 31 , 239 C.C.C. (3d) 309, paragraph 33.

This, in my opinion, renders irrelevant, allof the decisions in which courts imposed conditional sentences for offences in which alcohol was involved, or criminally negligentdriving that resulted in death was involved, when determining a fit sentence for the new charge of causing death while operating a motorvehicle with more than 80 milligrams of alcohol per 100 millilitres of blood. The Supreme Court of Canada has described the seriousness of operating a motor vehicle after having consumed too much alcohol. InWhyte v.

The Queen (SCC), [1988] 2 S.C.R. 3, the Supreme Court of Canada held that sections of the Criminal Codedealing with the use, care or control of a motor vehicle while the ability to drive is impaired by alcohol or while the proportion of alcoholin the blood exceeds certain limits, is a response to a major social problem, (paragraph 37), and recognized the threat to public safetyposed by drinking and driving (paragraph 50). In attempting to capture the core of the situation of a driver getting into their car after drinking, I cannot possibly improve on whatAssociate Chief Justice MacKinnon said in 1985 in R. v.

McVeigh (ON CA), 22 C.C.C. (3d) 145: "The variations in the penalties imposed for drinking and driving are great and increasing sentences for offences at the "lower end"would emphasize that it is the conduct of the accused, not just the consequences, that is to be criminality punished. If such an approachacts as a general deterrent then the possibilities of serious and tragic results from such driving are reduced. No one takes to the road afterdrinking with the thought that someone may be killed as a result of his drinking.

The sentences should be such as to make it very muchless attractive for the drinker to get behind the wheel of a car after drinking. The public should not have to wait until members of thepublic are killed before the courts' repudiation of the conduct that led to the killing is made clear. It is trite to say that every drinkingdriver is a potential killer." As Justice Doherty recently said in R. v. Ramage 2010 ONCA 488 , 257 C.C.C. (3d) 261, in the course of referring to McVeigh,"Unfortunately that potential was realized in this case." Mr. Sachithananthan became a killer on August 15th, 2008.

His criminal conduct killed Ms. Dhanna. There can never be typical cases in sentencing because the circumstances of the offence and the offenders vary so widely, but insofar asthere can be a paradigm of a case, it is the person of good character who makes one error in judgment and causes serious injury or deathwhile drinking and driving.

Justice Doherty noted in Ramage, at paragraph 75 that: “McVeigh also recognizes that many persons who commit serious crimes while drinking and driving will be otherwise good citizens whohave never been involved with the criminal law.” Although not precisely the case here, as I have indicated, Mr. Sachithananthan, though he has been involved with the criminal law, wasof previously good character and certainly never committed any crime as horrible as the one to which he has pleaded guilty.

Ideally, the sentences that have been imposed and the public awareness that has developed that drinking and driving is a true crimewould have worked together to stop people from driving if they drink too much to drive safely. That has not occurred. Parliament ins.718(

a) and (

b) directs courts to impose sentences to contribute to respect for the law and the maintenance of a just, peaceful and safesociety and to fulfill the objectives of denunciation and deterrence of the offenders and other persons, and the Ontario Court of Appeal

has emphasized these objectives of sentencing in cases of drinking and driving. It is of little relevance that Mr. Sachithananthan did not intend to hurt or kill Ms. Dhanna. The consequence was foreseeable, and underour criminal law, anyone who commits a crime is morally responsible for the foreseeable consequences. As Justice Sopinka stated in R.v. DeSousa (SCC), [1992] 2 S.C.R. 944: "Conduct may fortuitously result in more or less serious consequences depending on the circumstances in which the consequences arise.The same act of assault may injure one person but not another.

The implicit rationale of the law in this area is that it is acceptable todistinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused. This isreflected in the creation of higher maximum penalties for offences with more serious consequences. Courts and legislators acknowledgethe harm actually caused by concluding that in otherwise equal cases a more serious consequence will dictate a more serious response." In determining the fit sentence for Mr.

Sachithananthan, I have considered that in Ramage, the Court of Appeal upheld a sentence of fouryears imprisonment on a charge of impaired operation of a motor vehicle causing death. S.253(a), which underlies that charge, is in thesame

section as s.253(

b) which underlies the new charge under s.255(3.1). Both are punishable by life imprisonment. The Court ofAppeal considered a lower sentence in Ramage, but deferred to the trial judge. That would indicate that the range of sentences presentedby both the prosecution and defence in this case is appropriate. For the reasons that I have just outlined, I am imposing the longer sentence proposed by Crown counsel after crediting Mr.Sachithananthan for the 11 days that he has already spent in pre-trial custody. The sentence will be two years and five months in prisonin view of 11 days pre-trial custody.

There will be an order prohibiting Mr. Sachithananthan from operating a motor vehicle anywhere inCanada for a period of four years under s.259 of the Criminal Code. MR. WORSOFF: Thank you, sir. MR. GODDARD: Your Honour, I don't recall - I have to confess whether I asked for - well, actually, sorry, the other information was aseparate information. There was a new information put before the Court for this plea. So, I haven't checked the docket whether thatother information is still before the Court, but if it is the Crown is withdrawing the other charges. CLERK OF THE COURT: I have a second information.

THE COURT: Withdrawn. MR. GODDARD: Thank you, Your Honour. THE COURT: The victim surcharge, Mr. Worsoff? MR. WORSOFF: Well, my client's not working and he's... THE COURT: He is exempt. Thank you. MR. WORSOFF: Should I have him step into custody? THE COURT: Just sit right there until the officer comes. MR. WORSOFF: Thank you for your careful reasoning. THE COURT: Thank you, Mr. Worsoff. MR. WORSOFF: I appreciate it. Thank you, sir. Thank you, Mr. Goddard. **********