R. v. Pathak, 2020 ONCJ 625

CITATION : R. v. Pathak , 2020 ONCJ 625 DATE : November 20, 2020 4460 999 19 30075 ONTARIO COURT OF JUSTICE IN THE MATTER OF THE PROVINCIAL OFFENCES ACT R.S.O. 1990 HER MAJESTY THE QUEEN v. RAVI PATHAK ******** P R O C E E D I N G S A T T R I A L BEFORE HIS WORSHIP JUSTICE OF THE PEACE M. CUTHBERTSON on Friday, November 20, 2020 at KITCHENER, Ontario Appearances: Mr. N. Lund Provincial Prosecutor Mr. G. Eschweiler Agent for Defendant FRIDAY, NOVEMBER 20, 2020 THE COURT: Now dealing with the matter of Ravi Pathak and for the Prosecution please. MR. LUND: Lund first initial "N" on behalf of the Crown.

THE COURT: And for the defense? MR. ESCHWEILER: Eschweiler, E-S-C-H-W-E-I-L-E-R initial "G" for Greg for defense. THE COURT: And how are we proceeding today Mr. Lund please? MR. LUND: Yes Your Worship, at this time its my intention to proceed with the guilty plea to the charge as it's laid and I believe that there will be a joint position with sentencing. THE COURT: Agreeable Mr. Eschweiler? MR. ESCHWEILER: Your Worship this is a fully informed plea as per 45(3) of the POA. I have written instructions; there will be a

guilty plea to the charge before the Court of Careless driving causing bodily harm as is. THE COURT: Okay then if you would kindly arraign then Madam Clerk. MADAM CLERK: Ravi R. Pathak stands charged on or about the 4th day of July 2019 at the City of Cambridge, did commit the offence of did drive a motor vehicle on Fisher Mills Road and did drive carelessly causing bodily harm or death contrary to the Highway Traffic Act section 130(3). To that charge on behalf of the defendant, how do you plead? MR. ESCHWEILER: Guilty. THE COURT: Go ahead Mr. Lund. MR.

LUND: Yes Your Worship, on July 4th sometime slightly before 5:30 pm there was a collision near Fisher Mills Road or on Fisher Mills Road near Hespeler Road in the City of Cambridge. This involved a motorcycle, which was travelling eastbound on Fisher Mills Road. At this time, there was another vehicle, a red Dodge Caravan, being operated by the defendant, exiting the right ramp lane on Hespeler Road along Fisher Mills Road East. The Dodge Caravan then proceeds to conduct a U-turn on Fisher Mills Road were ultimately it collided with the motorcycle.

The driver of the motorcycle, Troy William Larry Simms, S-I-M-M-S, was then, as a result of the collision, transported to Hamilton General Hospital with life threatening injuries. The driver of the Caravan was later identified to be Ravi Pathak, P-A-T-H-A-K and was served later with the charging documents that bring these charges before the Court. Those are essentially the facts. THE COURT: Are those... MR. ESCHWEILER: Those are agreed to, Your Worship. THE COURT: All right, the facts are agreed to, then a conviction will be entered. Submissions on penalty please? MR.

LUND: Yes Your Worship, the Crown is going to be seeking the fine of $2000., as well as a period of probation with the stat terms and some additional terms, that have been agreed upon between myself and my friend. To support this position I have been assisted by a victim statement from Mr. Pathak who indicated, that as a result of this collision he did loose his right leg.

As a truck driver and the owner of his own truck, this has caused some significant issues for him because to his knowledge there has never been a successful modification on these vehicles to give it a left foot gas pedal, which has impacted his ability to support himself. It has turned the asset of that truck into a liability for him. It has also affected his life in terms of being able to do simple tasks that we take for granted such as how one showers themselves and as he finds it unlikely that he'll ever find any joy in riding a motorcycle. However, to Mr.

Pathak's credit he has engaged in this process early on through Mr. Eschweiler. He has entered an early guilty plea as well as completed some up front work so that is why the Crown is seeking that stance Your Worship. THE COURT: Mr. Eschweiler please. MR. ESCHWEILER: Yes Your Worship, I'm in agreement with that. The defendant has done an online driving course to make himself a better driver moving forward. The defendant has done a donation to charity for $1000. The defendant has big remorse for this; its really affected his life and it weighs on his shoulders heavily Your Worship.

He's 56 years of age, married; his 26 year old daughter Ravina has helped very much in this. He was so distraught when this happened he could barely talk and he had a hard time even communicating with me. I can say that this has weighed very heavily on his shoulders and I appreciate the resolution offer Mr. Lund has presented to the defendant because the fines could have been serious; custody was an issue and the same with a very lengthily driver's licence suspension so I appreciate the resolution my friend Mr. Lund has put forward.

THE COURT: And you've worked out a probation order for a joint submission on terms, is that correct? MR. ESCHWEILER: That's correct. MR. LUND: That is correct. THE COURT: And you've provided that to Madam Clerk. I would invite Madam Clerk to read that into the record please. MADAM CLERK: Ravi Pathak has a probation order here set for one year from the date of this order in addition to fining him with the statutory terms. Did you want me to read the statutory terms Your Worship? THE COURT: Yes please.

MADAM CLERK: Number one, the defendant shall not commit the same offence or any related or similar offence or any offence under a Statute of Canada or Ontario or any other province of Canada that is punishable by imprisonment. Number two, the defendant shall appear before the Court as and when required and number three the defendant shall notify the court of any change in the defendant's address. In addition to those three statutory terms, number one shall be ordered to a licence suspension for four months with the following exceptions; number one to drive too and from place of employment.

Number two to drive for medical appointments and medical emergencies for him or his family and number three to drive on Saturdays from 1 pm to 5 pm for the necessities of life. THE COURT: All right thank you. That is a joint submission correct counsel; Mr. Lund? MR. LUND: That is correct Your Worship. MR. ESCHWEILER: Your Worship, that’s correct. I have explained this in detail to the defendant and he understands and he agrees to those terms of the probation order Your Worship. THE COURT: Thank you and that will be the order of the Court and Madam Clerk you have my authority to sign that order on my

behalf and provide it to the defendant and to both counsel if they wish copies. This is a very sad and tragic situation. Both the motorcycle driver and Mr. Pathak as defendant have suffered significant personal injuries and life altering circumstances because of this matter. Lives have been altered in ways that one can only imagine the pain and the stress that it has caused for both parties. I note the remorse that Mr. Pathak has shown by his desire to resolve this matter at the earliest opportunity.

I note the actions that he has taken up front to show his remorse and payback the community in ways possible for him in his circumstances for his actions. He has agreed to a probation order that makes sense from this Court's perspective. I am not particularly worried about specific deterrence, I am more worried about general deterrence in this matter and when I look at the combination put together by counsel of a fine, the prior work done by Mr.

Pathak as well as the probation terms that we've just put on the record, I'm satisfied that the message will be provided in a very real way to the driving community that we must all be very very diligent when we are driving vehicles to look for smaller other vehicles such as motorcycles on the highway. We are all too often use to looking for larger four wheeled vehicles or multi wheeled vehicles. Smaller motorcycles and other small vehicles may escape a driver's attention. We must all be diligent and that message has to be well understood by the driving public. So, I will accept the joint submission... MR.

ESCHWEILER: Thank you. THE COURT: ...the fine will be $2000. plus the appropriate court costs and surcharges. Time to pay Mr. Eschweiler? MR. ESCHWEILER: Your Worship can I ask for nine months please. THE COURT: And can you just assist me with why so long please? MR. ESCHWEILER: Well, it’s a significant amount of money. He has put out the funds for the donation to charity and just to give him some breathing room with what's going on in the world; if you're allowing that it would be appreciated if he could have nine months to do that. THE COURT: All right.

Well we are certainly in the early clutches of a second wave of the pandemic and none of us know what that's going to mean to people's ability to earn a living so I will agree to the nine months and hope that Mr. Pathak as well as the motorcycle driver can move forward with their lives in a positive way after today's proceedings. Thank you he'll have nine months and his address remains the same Mr. Eschweiler? MR. ESCHWEILER: Yes, just to confirm for the record, it's 158 Stillwater Street Kitchener Ontario, postal code November two Alpha Zero Juliette Two.

MADAM CLERK: And that's what I have and if I can ask you Mr. Eschweiler, do you want me to send this probation order directly to the defendant or to you? MR. ESCHWEILER: Yes, if you could send that directly to him and if you could also send a copy to our office; email is fine, I can give you our email address. MADAM CLERK: I'll give you a ring after to get that. MR. ESCHWEILER: Thank you. MADAM CLERK: Thank you. MR. ESCHWEILER: Your Worship thanks for your consideration and Mr. Lund. MR. LUND: Thank you my friend.

THE COURT: Thank you counsel for your work on this matter to bring it to a resolution; I appreciate your help. MR. ESCHWEILER: More than welcome and Your Worship you are the brain child really of these kinds of resolutions for these kind of charges so I appreciate your input for the last many years, you're the one who kind of spear headed and drafted these up so I appreciate it. THE COURT: You're more than welcome sir and thank you Mr. Lund. MR. LUND: Thank you Your Worship.