R. v. Wieczorek, 2010 ONCJ 582

COURT FILE No.: Citation: R. v. Wieczorek , 2010 ONCJ 582 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ANDREW WIECZOREK Before Justice Heather Perkins-McVey Reasons for Sentence delivered on September 29, 2010 J. Neubauer................................................................................................................. for the Crown N. Boxall................................................................................................................... for the Accused PERKINS-McVEY, J.: [ 1 ] Andrew Wieczorek has entered a plea of guilty that on September 2, 2009 he failed to remain at the scene of an accident contrary to s. 252(1.3) (

b) of the Criminal Code . [ 2 ] The Crown has elected to proceed by Indictment. [ 3 ] There is no minimum punishment prescribed under the Criminal Code , the maximum punishment on pleading guilty or being found guilty is life imprisonment. [ 4 ] This is an extremely difficult sentencing.

On the one hand, I have before me the accused, a young man with no prior criminal record, who has good family support, a positive pre-sentence report, who turned himself in the day after the accident and who has entered a plea of guilt. [ 5 ] But as I listened to the moving victim impact statements of the victim’s parents and his brother, what struck me is that the overriding tragedy of this case is the death of Brad O’Neil who was celebrating his 18 th birthday on the night of the accident. [ 6 ] As Brad O’Neil’s parents and brother stated in their victim pact statements, Brad O’Neil has been forever deprived from having or realizing any plans for the future.

Their victim impact statements attested to the devastating effect Brad’s death and this accident has had on their lives. [ 7 ] No sentence, however harsh can change that sad fact. [ 8 ] Rather society has decreed that the sentence must comply with the more attainable principles and objectives set forth in the Criminal Code . The Issues [ 9 ] The Crown and Defence agree that Mr.

Wieczorek should be sentenced to a period of incarceration of less than 2 years. [ 10 ] The issues are the length of sentence and whether he should be sentenced to a period of incarceration in a correctional institution or pursuant to a conditional sentence. [ 11 ] The position of the crown is that the facts of this case require a jail sentence of 12-15 months followed by probation and a 7 year driving prohibition in order to satisfy the need for general deterrence. [ 12 ] The defence seeks a conditional sentence of 12 to 18 months under strict conditions followed by probation and an 18 month driving prohibition. [ 13 ] In the alternative, should a conditional sentence be precluded under s. 742.1 the defence seeks a sentence in the range of 90 days to 6 months plus probation.

Facts [ 14 ] The facts of this case are set out in an Agreed Statement of Facts. [ 15 ] On September 2, 2009, Mr. Wieczorek was out with a number of friends at East Side Mario’s on Stafford Road in Bell’s Corners to eat dinner and celebrate the birthday of a co-worker. [ 16 ] At the time, Mr. Wieczorek was employed as an apprentice plumber with FIA Plumbing and Heating who had a contract in Ottawa. [ 17 ] Over the course of the evening Mr. Wieczorek and his friends consumed alcohol.

The server assigned to the table advised police that all the men at the table were drinking, some were articulate but one of them was definitely intoxicated. That intoxicated person was not the accused. Neither the bar staff or the accused’s companions were able to state with any specificity how much alcohol the accused consumed. However when they were leaving the parking lot of East Side Mario’s, a friend of Mr. Wieczorek’s twice asked Mr. Wieczorek if he was able to drive. Mr. Wieczorek assured him he was. [ 18 ] Mr.

Wieczorek drove away from East Side Mario’s with two passengers heading for home. [ 19 ] On this same evening Brad O’Neil was celebrating his 18 th birthday with friends. He and his friends were initially celebrating in Hull where they consumed and purchased beer. They returned to Ottawa by bus and at a skate park near Baseline and Woodroffe are where they intended to continue to consume alcohol. Just before 11:00 p.m. Mr. O’Neil and his friends were approached by someone who produced a knife and demanded property. Mr.

O’Neil and two of his friends refused to comply with this demand and fled towards Woodroffe Avenue. There they re-encountered one of the males that had been with the fellow demanding their property, they proceeded to assault him. Seeing this, the person with the knife ran toward Mr. O’Neil and his friends. Mr. O’Neil and his friends ran across Woodroffe Avenue near Algonquin College. The two groups chased each other back and forth across Woodroffe. Finally this chase ceased and Mr. O’Neil and his friends ran back across Woodroffe Avenue in order to return to the skate park to get a bag that had been left behind.

The other two males made it safely back across Woodroffe Avenue. Tragically Mr. O’Neil did not. [ 20 ] As Mr. O’Neil was running across Woodroffe Avenue, Mr. Weiczorek was driving southbound on Woodroffe in the left hand lane at a speed of between 72 and 78 kms. The posted speed limit is 60 km. This area is well lit by street lights and the roads were described as dry. Mr. Weiczorek had the right of way when Mr. O’Neil ran out into the roadway and the tragic impact occurred. The collision sent Mr. O’Neil into the air before landing across the median, in one of the northbound lanes of Woodroffe Avenue.

The collision sent Mr. O’Neil into the air before landing across the median, in one of the northbound lanes of Woodroffe Avenue. Witnesses described that after Mr. Wieczorek’s truck struck Mr. O’Neil the truck noticeably slowed down, and then sped away down Woodroffe Ave. [ 21 ] Mr. Wieczorek’s passengers indicated that the collision created a loud sound and caused obvious damage to his vehicle, including a broken driver’s side window visible from the cab of the truck. The passengers did not know what had been in contact with the truck. Mr.

Wieczorek continued driving, and then made two quick turns before stopping at the side of the road. The accused told them he thought he hit someone or something and drove by himself to his home at 48 Largo Crescent, leaving the passengers to make their own way to that address. [ 22 ] One of the males who had been at East Side Mario’s who had driven himself home arrived at 48 Largo Crescent to find Mr. Wieczorek seated in his vehicle in the driveway. This fellow described Mr.

Wieczorek as panicked and difficult to speak with, muttering among other things that he had hit someone or something and a concern that he would go to jail. He also saw that Mr. Wieczorek had blood on his face. [ 23 ] Once Mr. Wieczorek got inside the house, Mr. Wieczorek described that “he saw some people or some guy, but he didn’t see it, he just saw something going across the street and the vehicle was smashed”. [ 24 ] On the morning of September 3, 2009, Mr. Wieczorek contacted his father who made arrangements to retain counsel for him. Following the arrival of his father, Mr.

Wieczorek made arrangements through his counsel to turn himself in to police. Mr. Wieczorek advised police that the vehicle was in the driveway of 48 Largo Crescent where it had been since the accident. [ 25 ] Visible damage as a result of the collision included a broken driver’s side headlight with wires dangling from it, the driver’s side side-view mirror was broken off and missing, the driver’s side window was broken with fragments of glass inside the cab and there was a dent on the driver’s side of the hood. [ 26 ] Mr.

Wieczorek was released from custody on September 10, 2009 after a bail hearing having served 8 days in pre- sentence custody. Andrew Wieczorek [ 27 ] This young man comes before me as a youthful first offender with no prior criminal record. He has a Highway Traffic Act record for speeding just prior to this offence. He has entered a plea of guilty without having set a date for a preliminary inquiry or trial. [ 28 ] He has tremendous support from his family, his friends and from his community as is set out in the materials filed on his behalf on sentence.

The letters filed speak of him as a dedicated and conscientious worker who is respectful of those he works with. He is also described in a similar manner by Mr. Montgomery who also says that since graduating high school Andrew has begun a career in the plumbing trade in which he seems to be thriving and developing a strong sense of responsibility and direction. Mr. Montgomery says, “I have no doubt Andrew will mature into a solid, successful and dependable member of the community. [ 29 ] Others speak of the respect and discipline he has learned through karate. He was raised in a stable, loving environment.

[ 30 ] Despite being academically challenged he successfully completed high school and in 2008 started working as an apprentice for FIA Plumbing where is once again employed after having to leave that job as a result of certain bail conditions that he not associate with potential witnesses. [ 31 ] It does not appear that the accused has any addiction problems to drugs or alcohol, although he does admit to consuming alcohol prior to driving on the night in question. [ 32 ] A pre-sentence report was ordered in this matter. Mr.

Wieczorek was co-operative with the probation officer and this report would be seen as a positive one. [ 33 ] In the pre-sentence report, Mr. Wieczorek reported having feelings of remorse and sadness for what occurred and I quote, “According to him he feels regretful that he contributed to the loss of life and to the pain of a family.

He explained no one should ever have to suffer the loss of a child and someone so young and for the part he played in this happening he will be forever saddened”. [ 34 ] In addition to letters of support and the pre-sentence report, there are also letters from a clinical psychologist, Dr. William Ammons and Andrew’s family physician, Dr. Kathy Sang. [ 35 ] Andrew Wieczorek was seen by Dr. Ammons for individual counselling on a bi-weekly basis as a result of the elevated guilt, anxiety and stress associated with the trauma of the accident.

The doctor finds that Andrew is a pro-social individual who exhibits no indications of psychopathy or anti-social attitudes. [ 36 ] Mr. Wieczorek’s family physician Dr. Sang describes Andrew as respectful and conscientious and that he is remorseful for his actions and that it was out of character for him to leave the scene of the accident. [ 37 ] Given his background this is not a case where either specific deterrence or rehabilitation is in issue. I am sure the criminal process itself has provided a strong message to Mr.

Wieczorek that he cannot ever engage in similar or any criminal conduct. [ 38 ] It is against these facts and this offender that the difficult issue of sentencing arises. Fail to Remain s. 252 (1.3) [ 39 ] This is an offence which creates a duty on driver’s to stop at an accident, give their name and address and where a person is injured offer assistance. This is not an onerous duty. Only the driver of a motor vehicle has that duty to stop and render assistance. No other citizens or bystanders have that legal duty or obligation to do so. [ 40 ] Under s. 252(1.3) which is the penalty

section of the offence of fail to remain under s. 252 , the elements of the offence are: a driver who has care and control of a motor vehicle involved in an accident with another person, knowing what bodily harm has been caused to that person, and being reckless as to whether the death of that person resulted from the bodily harm which death in fact resulted, with intent to evade criminal or civil liability, failed to stop, give his name and address and where a person is injured or appears to require assistance offer assistance. [ 41 ] These are the elements of the offence that Mr.

Wieczorek has acknowledged by his plea of guilt. [ 42 ] So as indicated this is an offence where culpability is based on what you didn’t do. The prohibited conduct is not doing what you are supposed to do – stay at the scene, give your name and render assistance. The purpose is to allow criminal investigations to occur without delay or obstruction and allows for the orderly resolution of any criminal or civil dispute arising from the accident. [ 43 ] Mr.

Wieczorek through his counsel acknowledged that he knew or had good reason to believe he had been involved in an accident and kept on going without bothering to check. Mr.

Wieczorek has also acknowledged in the pre-sentence report that he knew it was wrong to leave and by his acknowledged plea of guilt and the statement of facts we know that he fled the scene to avoid criminal or civil liability. [ 44 ] As indicated, he could not have been oblivious to the damage to his driver’s side window or the loss and damage to the side mirror yet he made no attempt to stop at the scene. [ 45 ] Conviction for an offence under s. 252 (1.3) carries a maximum penalty of life imprisonment plus a driving prohibition under s. 259(2)(a). [ 46 ] That being said, the offender must not be punished for the crimes he did not commit.

This conviction is not for dangerous driving or impaired driving causing death. The offence to which he has pled guilty involves no finding of a causal relationship between the consumption of alcohol and the fatal result. [ 47 ] It must be noted that Mr. Wieczorek is not charged with any criminal offence related to driving conduct that occurred before the accident. The Law and Jurisprudence [ 48 ] The Court of Appeal has characterized the offence of Fail to Remain as a serious offence.

This view is supported by the amendments to the penalty provision of s. 252 created the offence under s. 232 (1.3) that the accused has pled guilty to. [ 49 ] The Court of Appeal of Ontario have also made it clear in cases such as R. v. Ramdass [1982] O.J. 177 (Ont. C.A. ) , R. v. Gummer 1983 CanLII 5286 (ON CA) , [1983] O.J. No. 181 (Ont. C.A.) and R. v. Fortin [1984] O.J. No. 158 (Ont.

C.A.) that the sentencing principles of general deterrence and denunciation are of paramount importance in determining the appropriate sentence in cases such as this even when the accused is not charged with a driving offence related to the accident.

[ 50 ] The act of leaving the scene of an accident and not rendering assistance is considered morally abhorrent and as stated by the Court of Appeal in R. v. Ramdass at para. 15 “It must be added, however that while Mr.

Hall was killed instantly in this accident the appellant had no way of knowing this and leaving him on the road was not only contrary to the Criminal Code but contrary to any standard of decency and humanity”. [ 51 ] That being said a review of the case law shows a wide range of dispositions for the offence of Fail to Remain depending on the seriousness of the accident, the injuries suffered, whether the accused stopped at all, whether the accused had consumed drugs or alcohol and whether there were attempts to hide evidence or evade justice. [ 52 ] Each case is however dependent on its own facts and in passing sentence a court must craft a sentence that is proportional to the gravity of the offence and the degree of responsibility of the offender. [ 53 ] Counsel on behalf of Mr.

Weiczorek agrees that this is an offence which warrants a jail sentence but asks that I impose a conditional sentence or a jail sentence to be served in the community under strict conditions. [ 54 ] The Crown argues that this accused is not eligible to receive a conditional sentence as his conduct of failing to remain at the scene of an accident meets the definition of a “serious personal injury offence” and hence this accused would be precluded under s. 742.1 from receiving a conditional sentence. [ 55 ]

Section 742.1 the Criminal Code states as follows: “if a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is 10 years or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community and would be consistent with the fund- amental purpose and principles of sentencing set out in sections 718 to 718.2, the court may for the purpose of supervising the offenders behaviour in the community, order that the offender serve the sentence in the community subject to the offenders compliance with the conditions imposed under s. 742.3.” [ 56 ] For the purposes of this matter, the issue is whether the conduct of Mr.

Wieczorek meets the definition of a serious personal injury offence particularly as defined under s. 752 (a)( ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person. [ 57 ] Further at issue is whether the imposition of a conditional sentence would be consistent with the fundamental purpose and principles of sentencing as set out in s. 718 to 718.2. All of the other preconditions as set out in s. 742.1 are met in this case. [ 58 ] Counsel for Mr. Wieczorek argue that Mr.

Weiczorak’s conduct did not endanger Mr. O’Neil’s life because his decision to leave the scene and not render assistance didn’t prevent Mr. O’Neil from getting help as there were people there to ensure he got help. Further he argues nothing Mr. Weiczorek could have done would have helped or saved Mr. O’Neil. [ 59 ] The Crown argues that when you hit someone and drive away you are exposing them to danger, harm and risk. The fact that other people happened to be present doesn’t mitigate the danger he left Mr.

O’Neil in. [ 60 ] While it can be argued that the tragic loss of life was in this case the direct result of the accident, Mr. Wieczorek is not charged with driving conduct which led to the accident, and that there is nothing about his leaving the scene that endangered his life or delayed treatment. [ 61 ] On the other hand as previously set out s. 252 is an offence of obligation – one of those legal obligations is to offer assistance where any person has been injured or appears to require assistance. By failing in his duty to Mr.

O’Neil (a legal duty only owed by the driver not bystanders) his conduct could be seen as conduct endangering or likely to endanger the life or safety of another person. [ 62 ] The Ontario court of Appeal in R. v. Arruda [2002] O.J. No. 2403 dismissed a sentence appeal stating “In our view, the question whether the victim died instantaneously and the appellant’s state of knowledge of the fact is irrelevant and provides no basis for interfering with the sentence appealed from. Hence, this similar argument made by the defence that Mr.

O’Neil died instantly may not assist in arguing that in this case the circumstances and such that this is not a serious personal injury offence. [ 63 ] In my view, in the case before me however, it is not strictly necessary to decide on the facts whether Mr. Wieczorek’s conduct amounts to a serious personal injury offence. I accept that this is a finding of fact to be made by the trial judge as indicated by

the Ontario Court of Appeal in R. v. Lebar . However, I find on the facts of this case that the imposition of a conditional sentence would be inconsistent with the principles of sentence set out in s. 718 to s. 718.2 and as such I do not need to strictly determine if the accused conduct amounts to a serious personal injury offence. [ 64 ] The most important sentencing objectives in this matter are general deterrence and denunciation. The duty imposed under s. 252 is not an onerous one – a person involved in an accident must remain at the scene, identify him or herself and give assistance to any injured party.

This allows for any criminal investigation to occur without delay, resolves issues of civil or criminal liability. Just as importantly, there is a simple duty as a human being to show care and respect for those who may have been injured or killed – to remain until authorities determine what has happened. [ 65 ] In my view, a conditional sentence would not meet the fundamental principles and purposes of sentencing.

I am not satisfied that the statutory and any additional conditions would meet the necessary principles of deterrence and denunciation and a sentence served in one community for this offence would not send the message of denunciation needed for offences where a driver has failed to meet his obligation under s. 252(1.3) and render assistance to an injured or dying person. [ 66 ] In imposing an appropriate sentence, I am mindful of the following mitigating fac tors:

a) the accused is a young man;

b) no prior criminal record, entered a plea of guilty;

c) stable family, support of his family and his community which suggests good core values;

d) he turned himself in the day after the day of the accident;

e) he is not charged with driving offences arising from the accident;

f) positive pre-sentence report;

g) no alcohol or drug problems;

h) excellent prospects for rehabilitation;

i) he shows insight and remorse;

j) he did attempt to hide the vehicle or obstruct justice ;

k) he has been under strict terms of bail since his release which he has not breached. [ 67 ] I also take into account the following aggravating factors:

a) seriousness of the offence;

b) fleeing the scene without rendering assistance with intent to escape criminal or civil liability

c) he had consumed alcohol prior to driving to the extent that his friend asked twice if he was okay to drive

d) we don’t know what his blood alcohol content was because he didn’t turn himself in until the next day

e) he was travelling above the posted speed limit 72 to 78 kms in a 60 kms zone. [ 68 ] Bearing in mind his youth, his plea of guilt, no prior record, his remorse, the fact that he has been under strict terms of release without breaches, that apart from this offence he is otherwise of good character, given that in sentencing a youthful offender lengthy incarceration is not usually considered necessary or helpful as it works against rehabilitation and as shorter periods of jail may adequately address the need for deterrence. [ 69 ] In this matter, I feel that the appropriate disposition is one of five months.

I note that you have done eight days of pre- sentence custody; that will be noted on the Information. [ 70 ] This will be followed by a period of probation for eighteen months on the following terms and conditions:

a) keep the peace and be of good behaviour;

b) appear before the court if and when required to do so;

c) notify the court or probation office in advance, of any change of name, address, employment or occupation;

d) report in person within two working days of your release from custody and be under the supervision of a probation officer, or a person authorized by a probation officer, and thereafter report at such times and places as that person may require;

e) you will make reasonable efforts to find and maintain suitable employment;

f) you will attend for any assessment as recommended by the probation office and follow any programs deemed suitable to assist in your rehabilitation;

g) you will sign any and all releases as required by the probation office to monitor your attendance and progress at any of those programs if deemed appropriate;

h) you will perform 60 hours of community service work; that work is to commence within 60 days of the date of the commencement of this order and shall be completed at a rate of not less than ten hours per month, on consecutive months. [ 71 ] I am going to waive the victim fine surcharge in this matter. [ 72 ] You will also be subject to a driving prohibition; said driving prohibition will be effective anywhere in Canada for a period of two years. I have taken into account the fact that you have not been driving since this offence; otherwise I may have imposed a longer driving prohibition. R eleased: November 30, 2010 _____________________________________ Justice Heather Perkins-McVey