R. v. Puvtoski, 2015 ONCJ 97

COURT FILE No.: Toronto RegionCitation: R. v. Puvtoski, 2015 ONCJ 97ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Sara MacDonald, ) for the Crown ) — AND — ) ) ) milco puvtoski ) R. Tomovski, ) for the defendant(s) ) ) ) ) HEARD: January 19, February 6, 12, 2015 FELDMAN J.: [1] I found Milco Puvtoski guilty after trial of Operation Over 80. He was involved in a collision with a motorcyclist, LisaGray, in an intersection at Highway 401 and Kennedy Rd. in Scarborough.

I accepted the evidence of a forensic toxicologist who putthe blood-alcohol concentration of the defendant at the time in the range of 120-170 mgs. [2] I found it probable that Ms. Gray entered the intersection from the highway off-ramp on an amber, rather than a red,light. Given that on the evidence I am unable to resolve this as a fact to a near certainty, it is of little assistance in the criminal context indetermining fault. [3] However, I accepted the testimony of Sam Kodsi, an accident reconstructionist called by the defence, that Mr.

Puvtoskiwas travelling northbound on Kennedy Rd. facing a red light at 55-56 kmh five seconds prior to impact and that he failed to apply hisbrakes until one second before the collision. [4] In relation to the significance of this latter evidence, the toxicologist explained that driving is a divided-attention taskextremely sensitive to the impairing effects of alcohol, which is a central nervous system depressant that causes sedation. She said thatthis would inevitably impact negatively on a driver’s reaction-time choices when behind the wheel. [5] I relied, in addition, on the principle in R. v.

Letford, 2000 Can LII 17024 (ONCA), at para 22, that permits the court toweigh this expert evidence on the question of the degree of impairment of a person’s ability to drive. I did so in the context of thecircumstances of the accident and Mr.

Kodsi’s testimony. [6] In the result, I was satisfied on all the evidence to the requisite standard that the defendant’s manner of driving permittedthe inference, and I found as a fact, that he was operating his motor vehicle with his level of awareness and reaction-time choicesdiminished to the degree that his ability to drive was at least slightly impaired by alcohol and that he bore some responsibility for theaccident having occurred: see R. v. Laroque (1988), 5 M.V.R. (2d) 221 (Ont. C.A.).

I judicially stayed the Operation Impaired chargegiven my finding on the Over 80 count. [7] Lisa Gray suffered catastrophic and life-threatening injuries that were and continue to be debilitating. She has front lobebrain damage that affects her short-term memory and leaves her struggling to find words, to problem-solve and to multi-task, allcognitive deficits. Her right eye is disfigured and limits her ability to read. She endures daily physical pain and has significantlydecreased mobility and body coordination.

Her recovery has been slow and her rehabilitation painful, the latter of which continues to thisday with no known end date. [8] As a result, Ms. Gray has been let go from a managerial position she found fulfilling and is, as well, at risk of losing hercondominium. She has accumulated debt, carries severe anxiety and is socially isolated. She can no longer be active in a variety ofoutdoor activities that were important to her. She is now dependent on others for some of her needs and tasks. [9] Ms. Gray read her statement to the court about these life-altering injuries and emotional stress.

It was delivered withcandor and dignity. It was unsettling to hear her say, “I feel that I am a shadow of what and who I was previously and battle with thatevery day which causes me to feel low self-esteem and depression”. [10] The words of this brave woman highlight once again the “tragic effects and devastating consequences” for innocent victimsthat flow all too often when thoughtless people drink and drive: see R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, atpara. 16. [11] Mr. Puvtoski has no prior criminal antecedents. He is of otherwise good character.

He is a former refugee who sincearriving in Canada in 1989 has worked hard to support his family. He started his own business as an independent trucker over a decadeago. He has strong family support. Friends and former colleagues wrote about his good nature and character. It is inevitable that thisconviction will put his business in jeopardy. Positions of the Parties on Sentence

[12] Ms. MacDonald, for the prosecution, submits that in light of the court’s finding that the defendant’s driving was acontributing factor in the collision, a sentence in the upper intermittent range, an elevated driving prohibition and 12 months probationwould meet the principle of general deterrence, set out as paramount in R. v. McVeigh (ON CA), [1985] O.J. No. 207(Ont. C.A.), for serious cases of this kind. [13] Ms. MacDonald says her position reflects a range of sentence below that set out in the authorities for more serious relatedoffences: see R. v. Rai, [2007] O.J. No. 3841 (Ont.

C.J.), where the defendant was sentenced to 14 months following a guilty plea toOperation Impaired Causing Bodily Harm and where the victim suffered grave injuries. She says this provides an element of fairness inthe sentencing process here by taking into account that she did not proceed on the basis of proving causation ultimately found as a fact bythe court. [14] Mr. Tomovski, for the accused, submits that I should view the Crown’s decision in proceeding on a lesser charge as havingdisclaimed causation as an essential element the defence had to address in its conduct of the trial.

He asserts that it would be unfair atthis stage to consider the accident and injuries as aggravating features on sentence, in effect, he says, imposing a disposition for a moreserious charge. [15] Is it Fair to Consider the Accident and Bodily Harm as Aggravating Factors on Sentence? [16] There is a statutory basis for considering the accident and injuries as aggravating factors.

Code s. 718.2 indicates that asentence should be increased to account for aggravating circumstances and that evidence the offence had a significant impact on thevictim, including their health and financial situation, shall be deemed to be aggravating circumstances. As well, s. 724(1) permits a courtto find as fact any information disclosed at trial that has been proved beyond a reasonable doubt. [17] In referring to these sections, MacPherson J.A. said in R. v. Balcha (ON CA), [2004] O.J.

No. 1217 (Ont.C.A.), at para 54, that a sentencing judge is entitled to consider all relevant factors in imposing sentence, including the degree ofresponsibility of the offender. Of significance, however, the court also held, at para 55, that it would be unfair for the Crown to advancea fact at the sentence hearing that is specifically disclaimed in the trial process. [18] There are examples of such disclaimers in the authorities. In R. v. Brown, (SCC), [1991] 2 S.C.R. 518, thedefendant was charged with Dangerous Driving Causing Bodily Harm and Death.

The defence argued that the driving was not causallyconnected to the death or injuries. Although the jury convicted only of Dangerous Driving simpliciter, the driver was sentenced as ifcausation had been proved. Justice MacPherson in Balca, at para 36, interpreted the judgement of the Supreme Court in allowing anappeal from that sentence to mean that a sentencing judge cannot ignore or disagree with the clear factual implication of a verdict by thetrier of fact. I respectfully agree with this

interpretation. [19] In R. v. Doerkson (1990), (MB CA), 53 C.C.C. (3d) 509 (Man. C.A.), the accused was originallycharged with Impaired Driving Causing Death. Following negotiations, the Crown accepted a guilty plea to Impaired driving simpliciter,in effect, explicitly disclaiming causation as an essential element of the prosecution’s case and therefore as a potentially aggravatingfactor on sentence, as MacPherson J. pointed out in discussing this case in Balca, at para 44. [20] In the case at bar, the defendant was originally charged with Impaired Operation and Operation Over 80 Causing BodilyHarm.

The Crown proceeded on lesser offences that excluded consideration of causation, she says, because at the outset she was of theview that she was unable to prove that essential element beyond a reasonable doubt. Put another way, as the Crown expressed it, shebelieved that on the evidence available to her at the commencement of the trial there was no reasonable prospect of conviction on themore serious charges. [21] In the circumstances, Ms.

MacDonald exercised her discretion to act fairly in the circumstances as she is obliged to do and“lay an appropriate charge in light of [her] assessment of all the relevant circumstances”, in effect, a tacit disclaimer of an essentialelement of the more serious charge in the perceived absence of sufficient evidence of causation. [22] I accept the submission of the Crown that at the outset unknown conditions in the intersection at the time of the collisionmade proof of causation problematic. There was no clear evidence of bad driving.

The colour of the traffic signals for both drivers wasuncertain, as was the speed of the motorcycle prior to the collision. As well, the Crown had only raw data speed of the accused’s vehicleat various distances leading up to the crash. [23] Mr. Kodsi was called as an expert in accident reconstruction to analyze this data on behalf of the accused in order toestablish that the accident, regardless of the driver’s impairment, was unavoidable. It would seem this evidence was necessary to firm upthe inference of no bad driving and raise a reasonable doubt that the defendant’s ability to drive was impaired by alcohol.

As it turnedout, the calling of this witness carried risks for the defence. [24] It was unfortunate for Mr. Puvtoski’s case that his witness interpreted the data in a manner that permitted the inference thedefendant was travelling too fast in the intersection, in effect, opening up the question of causation. This

interpretation was not includedin Mr. Kodsi’s report tendered in advance of trial nor brought out in examination in chief, but was conceded only when the witness waspressed on this point in cross-examination. I don’t accept on this evidence that the Crown ought to have foreseen this fact in issue priorto trial, as suggested by the defence. [25] In the circumstances, I found that causation had been proven. The Crown appropriately raises the question of fairness inconsidering this aggravating fact in sentence. I agree that it would be unfair were I to sentence Mr.

Puvtoski as if for a more seriousoffence as that was not the case he came prepared to meet. [26] However, the finding of causation as here leads me to the conclusion that it would also be unfair to the prosecution, giventhe manner in which proof of causation unfolded, as well as a fiction to ignore the fact of the accident and injuries as linked to thedefendant’s impaired ability to drive. I will not consider a range of sentences for the more serious offence but rather take into accountthose aggravating features in the context of a conviction for Operation Over 80 simpliciter.

[ 27 ] The emphasis on general deterrence set down by Mackinnon A.C.J.O. in McVeigh remains relevant. He pointed out that it is the conduct, not just the consequences of that conduct, that is the criminality punished. He encouraged judges to impose sentences that would make it very much less attractive for the drinker to get behind the wheel.

He asserted that every drinking driver is a potential killer. [ 28 ] He went on to say the following: [ 29 ] “Members of the public, when they exercise their lawful right to use the highways of this province, should not live in fear that they may meet with a driver whose faculties are impaired by alcohol. It is true that many of those convicted of these crimes have never been convicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence would be in their best interests and be the most effective form of rehabilitation.

However, it is obvious that such an approach has not gone any length towards solving the problem. In my opinion these are the very ones who could be deterred by the prospect of a substantial sentence for drinking and driving if caught. General deterrence in these cases should be the predominant concern and such deterrence is not realized by over-emphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving.” [ 30 ] This is a case at the more serious end of offences of this nature given the aggravating features apparent in the evidence.

While the defendant is a first offender and warrants consideration for his solid work and family life, it is necessary to give emphasis on these facts to the principal of general deterrence where the consequences of this criminal conduct are so dire. [ 31 ] Mr. Puvtoski will be sentenced to 30 days. Given his personal and business responsibilities that sentence may be served intermittently. He will be taken into custody and released today to return to the jail at 7:30 p.m. on Friday and will be released the following Monday at 6 a.m. He will serve his sentence each weekend similarly until it is completed.

As well, he will be on probation while serving this sentence, the only term of which is that he will attend at the jail with no alcohol in his system. In addition he will be placed on probation for 12 months on terms to be discussed with counsel. I am not persuaded that an enhanced license prohibition is necessary. [ 32 ] I wish to express my appreciation to counsel for their submissions and assistance. Released: February 24, 2015 Signed: “Justice L. Feldman”