2019 QCCQ 8063, 2019 QCCQ 8063

R. c. Akoulov 2019 QCCQ 8063 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division No: 500-01-111711-146 DATE: December 2, 2019 ______________________________________________________________________ BY THE HONOURABLE SALVATORE MASCIA, J.C.Q. ______________________________________________________________________ THE QUEEN The plaintiff. v. Igor AKOULOV. The accused. ______________________________________________________________________ DECISION ON SENTENCE [1] ______________________________________________________________________ Introduction [ 1 ] On October 1, 2018, the accused, Mr.

Igor Akoulov, was on trial before me with respect to the following two counts of an indictment: i . Failure to stop at the scene of an accident causing death with the intent of escaping civil or criminal liability, section 252(1.3) of the Criminal Code ; ii . Failure to stop at the scene of an accident causing bodily harm with intent to escape civil or criminal liability, s. 252 (1.2) of the Criminal Code . [ 2 ] The events leading to the charges date back to September 19, 2014. The delays in bringing this case to trial are due, in part, to the accused’s ill health. As we shall see in another

section of this decision, the accused’s health issues interrupted the continuation of the trial. By the time the case was scheduled to resume where it had left off (almost seven months later on April 30, 2019), the accused changed his plea to one of guilty on both counts. Brief recap of the facts [ 3 ] On September 19, 2014, Mr. Akoulov was driving a BMW, southbound on Victoria Avenue. At the intersection of St. Kevin Avenue, while the light was green for traffic travelling on Victoria, he made a left turn and subsequently cut off a taxi driven by Mahmood Zakar and carrying a passenger, Elsa Saludo.

Though the taxi was driven at a normal rate of speed, it could not stop and it slammed into the side of the BMW. [ 4 ] Ms. Saludo was seated at the rear, passenger side, of the cab. She did not have her seat belt on. The force of the impact propelled her head first onto the windshield. She was transported to the hospital, but succumbed to her injuries a few hours later. [ 5 ] As for the driver of the cab, Mr. Zakar, he was able to get out of his vehicle with the help of two witnesses. Luckily for him, he had fastened his seat belt. His injuries were limited to bruises and contusions on the arms and broken ribs.

He was released from the hospital on the morrow of the accident. [ 6 ] As for the accused, he staggered out his car after the impact, briefly examined the scene and then immediately took flight on foot. One witness gave chase, but could not find him. He was arrested four days later at his residence. From trial to guilty plea (the long and winding road) —Interrupted trial and the medical issues [ 7 ] The trial was scheduled for five consecutive days starting October 1, 2018. From the outset, however, it appeared that the accused’s ill health would compromise the completion of the trial as scheduled.

Just a few months earlier, the accused had suffered a stroke. In 2014 (a short time after the accident), he had suffered a heart attack. He also suffered from several chronic conditions (i.e., diabetes and high blood pressure) that required a host of medications to keep in check. [ 8 ] At the trial, he was accompanied by his son who would help him to his seat when the trial began and who helped him up when the

Court adjourned. His moved very slowly with an unsteady gait. In the course of the proceedings, I noticed that every so often he winced as if in pain. Throughout the process, he appeared to be extremely anxious. [ 9 ] The trial was interrupted on the second day of hearings when the accused appeared to have a serious malaise. Fearing it could be a heart attack, he was taken by ambulance to a hospital. [ 10 ] Needless to say, the remaining three days of the trial were scrubbed and the matter of fixing a new trial date was delayed whilst awaiting for more news from the accused.

Rescheduling the rest of the trial and the medical report [ 11 ] Before the trial could be rescheduled, we needed an update on the accused’s medical condition. On the 27 th day of November 2018, Me Alan Guttman, attorney for the accused, provided a « medical report » from the Stroke prevention Clinic of the McGill University Health Center, dated November 1, 2018. As the ill health of the accused was one of the main arguments for leniency on sentencing, it will be useful to set out hereafter certain aspects of the report. [ 12 ] The three-page report outlined the medical history of the accused.

With regards to the stroke he suffered back in July 2018, we read the following: Stroke on the left side of the brain; the recovery was partial and he needs a cane for walking … Patient has all the risk factors for small vessel disease. [ 13 ] In the

section of the report titled «neurological exam » we note the following remarks: Alert…Orientated x 3. Not dysarthria or aphasic. Cranial nerves normal. Motor exam shows satellisation and drift of left arm No cerebellar signs Legs moderately swollen and red up to knees … [ 14 ] In the

section titled, « functional status » the clinician wrote, « slight disability .» [ 15 ] In the

section titled « clinical impressions » we have the following annotations: Patient with very severe and uncontrolled vascular risk factors. Had lacunar stroke in context of small vessel disease... Recovered partially. However, seems incapable of managing risk factors (med compliance, smoking cessation, physical activity, and is severely affected by a significant abdominal hernia. [ 16 ] It should be noted that the « medical report » makes no mention of the accused having suffered a recent heart attack.

By all accounts, it appears that the malaise he suffered in the courtroom back in October 2018, was simply a case of extreme anxiety. [ 17 ] Though the three-page document was described by defence counsel as a «medical report», it is essentially a collection of the clinicians’ annotations or observations. Most of the comments are set out laconically, in point form and without any elaboration. The documents also included medical terms and abbreviations as well as test results or test numbers which I will not pretend to understand.

Rather than a report, defence counsel had essentially filed into the court record three pages of the accused’s medical file. [ 18 ] Eventually, a new date was reserved to continue the trial, the 29 th of April 2019. To make sure the case would proceed without further delays, an entire week was set aside for the hearing. However, before the trial could pick up where it left off, Mr. Akoulov entered a plea of guilty to both counts in the indictment. Sentencing was then adjourned to September 10, 2019, for the preparation of a presentence report.

Summary of the testimonies (eye witnesses and police investigators) [ 19 ] The accident was witnessed by several people. The following

summary of their testimonies is drawn from the agreed statement of facts entered into by the parties and from their testimony in court. [ 20 ] Upon hearing the impact, one witness, Mr. Habseiger, saw the accused quickly stagger out of the BMW, take a few steps around the intersection and leave the scene on foot, westbound on St. Kevin. In the other vehicle, that is to say, the cab, he noticed that the passenger was in bad shape and was probably not wearing her seatbelt. She was unconscious, her head in the windshield, lying on her stomach and her feet were on top of the backseat.

The driver, on the other hand, exited the vehicle with the help of two people and proceeded to sit on a bench. [ 21 ] Another individual, Francois Provencher, witnessed the collision. He mentioned that the light was green for traffic travelling in both directions on Victoria. He immediately proceeded to the taxi in which there appeared to be injured people, in order to assist the occupants.

[ 22 ] Melissa Toussaint, another witness, heard the collision and saw the driver of the BMW (the accused) walking. He appeared confused and was unresponsive. [ 23 ] Eliaz Levy, still another witness, recounted that he was taking out the garbage when he heard a loud « boom » around 10:40 p.m. He noticed smoke coming out from the engines of the two vehicles involved in the collision. He then saw the accused getting out of the BMW. He told him to sit down while he made his way to the driver of the taxi who appeared to be in a state of shock.

Along with another witness, he helped the taxi driver out of his vehicle [ 24 ] Next, he checked on the passenger of the taxi. She was breathing, possibly crying. At that moment, a witness informed him that the BMW driver left the scene via St., Kevin. Mr. Levy went looking for the accused but could not find him. Finally, he returned to the scene of the collision. [ 25 ] As for the accused, the investigation revealed that he went to the apartment complex where his son, Andrei Akoulov, lived. Thereat, a security guard, Mr. Nicolas Beaudoin, buzzed in the accused at circa 11:07 p.m.

In the course of his testimony, the witness described the accused as being «slowed by alcohol » and added that he had an « unsteady gait. » [2] [ 26 ] After lingering for about twenty minutes in the lobby of the apartment complex, the accused left. From the evidence, we learned that Andrei Akoulov was not home at that time. [ 27 ] On the 20 th day of September 2014, police officers attended at the residence of Andrei Akoulov. According to their information, he was the registered owner of the BMW involved in the collision.

He provided the police with his father’s address. [ 28 ] The officers then immediately headed to the residence of the accused. There was no answer; but through the mail slot they were able to see five or six bottles of wine and other items of clothing strewn on the floor. [ 29 ] On September 23, 2014, the accused was arrested. Evidence at the sentencing phase —The accused as a person [ 30 ] The accused is a 60-year-old man in very poor health. As mentioned above, he suffers from several chronic conditions, including diabetes and high blood pressure.

In 2014, he suffered a heart attack and in July 2018, he suffered a stroke. He also suffers from an abdominal hernia which causes significant pain. [ 31 ] He is originally from Russia and immigrated to Canada with his wife in 1992. Since his arrival in Canada, he has been gainfully employed as a truck driver. He even owned his own trucking business. From his account, the business was doing quite well till it fell apart after the accident in 2014. To begin, his business took a hit on account of the fact that bail conditions precluded him from driving.

Next, his failing health (heart attack) hampered his ability to properly administer the business. [ 32 ] The accused is divorced and has little contact with his son. [ 33 ] Unable to work, his only source of income is from social assistance. To get by, he shares an apartment with one of his friends. According to his testimony, he is highly dependent on his friend to get around, i.e., for medical appointments.

Otherwise, given his limited mobility, he is basically homebound. [ 34 ] The presentence report which has been prepared in this matter tells of an individual who, for a time being, functioned well and made a life for himself in Canada. He lived a conventional lifestyle, divided mainly between his job and his family life . In the «Assessment»

chapter of the report, we read that: The offender is an individual conveying traditional values, including commitment to work and one’s family life. Apparently, before the current infractions, it seems as if he maintained a conformist and satisfying lifestyle even though it was not well balanced. [3] [ 35 ] In the « Analysis »

chapter of the report, we read that the accused is fully aware of the inadequacy of his conduct and that he regrets the loss of life and not being able to repair the harm done: Mr. Akoulov expresses empathy towards the victims of the accident. He blames himself for having caused an accident that could have been avoided. He considers that he did lack judgment on that evening and the day following the current infractions.

He regrets the several losses resulting from his indictment (shame, interference in his work caused by the immediate suspension of his driver’s licence, some financial losses and the problems brought to his family). [4] [ 36 ] Though the accused expresses empathy for the victims, I still note that he has a tendency to diminish his responsibility in the events that led to the accident and in his decision to flee from the scene. To the drafter of the report, he explained his faulty left-turn maneuver on St. Kevin Street as an attempt to escape some young drivers who were chasing him.

Next, after the collision, he claimed that he suffered a panic attack and that he was not aware that the female passenger in the taxi was seriously injured. He ran off on foot with the intention of going to the emergency department of a hospital to get help. [ 37 ] None of this has the ring of truth to it. To begin, nothing in the evidence suggests that the accused was being chased by young drivers bent on doing him harm. This was merely a far-fetched excuse intended to attenuate his fault in having caused the accident.

Next, from the force of the impact, the accused had to have known that the occupants of the taxi were seriously injured. He was even told by a witness to stay put, but he fled the scene in order to escape his responsibility. Finally, we know that he didn’t head to a hospital emergency department but dashed to his son’s apartment complex instead.

[ 38 ] In sum, a contrived story designed to minimize the extent of his responsibility in the tragedy as well as his callous act of leaving the scene of the accident. [ 39 ] This being said, I am mindful of the fact that probation officers should not query the accused on the facts of the case when preparing a presentence report.

A pre-sentence report should be confined to portraying the background, family, education, employment record, physical and mental health, associates, social activities, potential and motivation of the person. [5] [ 40 ] My decision on sentencing will not take into consideration those questionable parts of the report. [ 41 ] Also, the accused is not charged with having caused an accident, let alone with dangerous driving causing death or serious bodily injury.

He will be sentenced for the charges he pled guilty to and nothing more. [ 42 ] Always in the report, the accused expressed concerns about his multiple ailments. As a diabetic who has difficulty keeping his condition under control, he fears that the worst is yet to come, i.e., the amputation of a leg. [ 43 ] Given his multiple physical impairments, the accused explained that he is in no condition to ever drive again. Thus, there is no danger that he will ever hurt anyone in a driving related incident.

He added that he has no life plans and that he is willing to abide by any court order imposed on him. [ 44 ] The accused has two prior convictions. One of theft under $5,000 (s. 334(

b) Cr.

C) in 2005 and a second one of breach of conditions (s. 145 Cr.

C) in 2015 for which he was sentenced to 30 days in jail. The breach was in relation to bail conditions imposed by a court in the present matter Testimony of Mr. Mahmood Zakar (cab driver/victim) [ 45 ] Mr. Zakar, the driver of the taxi, testified at the sentencing hearing. He recalled that upon impact the airbags were deployed and hit him square on the chest. There was smoke inside the cab and he had trouble breathing. A witness helped him out of the car and walked him to a bench on the sidewalk.

At that moment, his only concern was the well-being of his passenger. [ 46 ] He was immediately taken by ambulance to the hospital. Though he complained of chest pain, he was discharged from the hospital the following morning. It was later discovered that he had suffered a few broken ribs. He also had bruises on his arms and complained of pain in his back. [ 47 ] Presently, he still suffers from lingering back pain. Worst of all, was the shock he suffered the day of the accident and the anxiety he still suffers today. As he explained, an ordinary fare turned into a tragedy.

In a fraction of a second, another driver’s faulty maneuver led to a collision and the passenger in his car was thrown head first into the windshield. [ 48 ] He added that he is now uncomfortable while driving. It makes him nervous and fretful. On account of his heightened anxiety, he can no longer work the number of hours he used to in the past. Consequently, his income has declined significantly in the past few years. Victim impact statement regarding Ms. Elsa Saludo [ 49 ] The deceased, Ms. Elsa Saludo, was from the Philippines and worked as a live-in nanny and housekeeper for a family in Montreal.

She has lived in Canada since 1992. [ 50 ] Ms. Saludo had no family in the country. Lost but not forgotten, her employer, Shona Godwin, provided a victim impact statement. In essence, a very touching and poignant tribute to a special person who worked selflessly to help others. I have copied below certain portions of the statement: Elsa Saludo was our partner in raising our children for 20 years.

She was an intelligent, creative and loving person who was prepared to invest in the future by supporting others, mainly young people… She came to Canada in 1992 to make a better life for herself and to provide support for her family in the Philippines, her parents, 6 brothers and sisters and many nieces and nephews. She was a self-sacrificing person who gave the lion’s share of her salary to her family and succeeded in putting a niece and nephew through school in the Philippines, one of whom is today a nurse.

In Canada she made sacrifices by working hard to support our family and the education of three boys above all else… She herself studied and earned her Canadian citizenship and contributed to Canadian society by being a role model with her integrity and fine values… With her cruel and shocking death at such a young age, 46 years old, we have been robbed of a good soul who brought peace and loving kindness to those around her. Position of the parties —Crown [ 51 ] In general failing to remain at the scene of an accident has been treated as an extremely serious crime requiring emphasis of general deterrence.

The Crown reminded the Court that the legislative purpose behind the law was not merely to punish the failure to stop, but also the failure to render assistance. [ 52 ] In the course of its representations, the Crown highlighted the callousness of the accused’s behaviour. To begin, he must have known from the force of the impact that the injuries to the occupants of the cab would have been serious, if not life threatening. Yet, he chose to cowardly leave the scene of the accident. Next, he fled on foot despite being told point-blank by a witness to « stay put. »

Finally, he was only brought into custody when the police arrested him four days later. [53] The Crown also pointed out that the accused was a mature and experienced driver. Unlike the young and inexperienced driver,his actions could not be excused as the consequence of shock, stress or panic following an accident.

As a professional truck driver, he,more than the average driver, should have realized the importance of fulfilling his legal obligations of remaining at the scene of anaccident. [54] Given the aggravating factors in this case, the Crown submitted that the accused be sentenced to a period of custody of twelvemonths. —Position of the defence [55] The position of the defence is that Mr. Akoulov should be sentenced to a 90-day term of imprisonment to be servedintermittently. In support of this position, counsel for the accused has underscored the following points: i.

The age of the accused and his poor health • In the past, he has suffered a heart attack and a stroke. He is also afflicted with multiple chronic diseases which require a host ofmedications to control. • A lengthy prison term would seriously compromise his health. Firstly, he would be deprived of ready access to the healthprofessionals he relies on. Secondly, the conditions of a jail cell would only aggravate his situation. ii.

Generally, the accused has proven to be a good person who espouses pro-social values • Aside from a conviction of theft under in 2005 and a breach of condition in 2015, he has no other convictions. • Since he arrived in Canada in 1992, he has worked hard as a truck driver and taken care of his family. • The overall tenor of the presentence report is positive. We note, for instance, that the accused expresses remorse for theconsequences of the accident. iii. Low risk of reoffending • The accused’s ill-health means that he will no longer be driving.

Consequently, he will not be a danger for others on the road. • He is ready to abide by all conditions imposed by the Court. iv. Accused has pled guilty to the two counts of the indictment. [56] Defence counsel also mentioned that the presence of other witnesses at the scene mitigated—though certainly did not excuse—the severity of his conduct. More particularly, the presence (and assistance) of other witnesses meant that the victim was not delayed inthe treatment for her injuries. In other words, he did not leave a victim to die unaided by the side of a deserted road.

Applicable sentencing principles —General comments [57] The task of the sentencing judge is a difficult one. He or she must fix a sentence which reflects the seriousness of the offence andthe offending conduct, taking into account circumstances personal to the offender, including mitigating factors, as well as the applicablesentencing principles. [58] In R. v. L.M., 2008 SCC 31 , [2008] 2 SCR 163, at para. 17, Justice Lebel explained that sentencing is not a fixed orpredetermined procedure in which one ascribes specific terms of credit to various sentencing factors.

He also summed up the factors thata judge must weigh in pronouncing a just sentence: Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge’scompetence and expertise. The trial judge enjoys considerable discretion because of the individualized nature of the process (s. 718.1Cr. C.; R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46 , at para. 22; R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5 ,at para. 82).

To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and thepersonal characteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code: —the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment ofand reparations for the harm they have done (s. 718 Cr. C.) —(the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender (s. 718.1 Cr.

C.); and —the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances that a sentenceshould be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and thatavailable sanctions other than imprisonment should be considered (s. 718.2 Cr. C.).

—Principles specific to the charge of « failure to stop » [59] The offences at section 252 (1.2) and (1.3) of the Criminal Code are designed to prevent an individual from fleeing his or her responsibility.[6] It is the type of offence which contemplates an individual not having regard for the life and safety of others who have been injured in accidents.[7] The law reflects society’s abhorrence to those who injure their fellow citizens and then abandon them to die.Deterrence, both general and specific, as well as denunciation of the accused’s conduct must be of primary importance in sentencing forthese offences. [60] It is worth noting that the maximum penalty for section 252(1.3) is life imprisonment.

Prior to 1999, the maximum sentence was five years for failing to stop, regardless of circumstances.[8] Having increased the penalty to the maximum allowed by law, the legislaturehas made its view regarding conduct of this kind abundantly clear: those drivers who cowardly shirk their civil and criminalresponsibilities by fleeing the scene of the accident (resulting in death) must expect to be punished severely. [61] In R v Didechko, 2016 ABQB 552 Germain J., at paras 19 to 22, wrote that at least three critical public policy reasonsexplain why the maximum sentence for a hit-and-run is so significant when a death occurs: The first observation is that in not all cases does the serious injury lead to death; however, a seriously critically injured victim could diesimply because the driver did not stop and offer what assistance was possible. […] Another public policy reason for substantial penalties for the offence of failing to stop at the scene of an accident where bodily harm ordeath has occurred must be to remove any strategic incentive for an accused to benefit by fleeing the scene.

I suggest that a large segmentof the late night hit-and-runs, also involve alcohol. Secondly, from a strategic point of view, a dishonourable driver would view it betterto take his chances on first, not being caught, or being caught only after he sobers up.

Anything that minimizes or trivializes an offencemeasured against the potential offences one could be attempting to avoid, is bad social policy [see Hansard 36th Parliament, first session,edited number 241, topic 1835] The third social policy reason why these offences attract a significant maximum term is because the manner and circumstances by whicheach of them can occur can vary greatly. By example, fleeing the scene of an accident can be a young person with a new licence whopanics momentarily, but later, perhaps with good family guidance, reports wrongdoing and accepts punishment.

At the other extreme is asophisticated, mature driver who has time to assess his risk, perhaps even seek counsel from others, and then makes a deliberate andintentional decision to attempt to avoid legal jeopardy. The widely varying circumstances of each case all require a wide potential rangeof sanction. —Retribution as opposed to vengeance [62] There are many factors that a judge must consider when fashioning the proper sentence.

Vengeance is not one of them.[9] A sentence is designed to protect the public, not to abate its anger at a particular crime.[10] [63] In the review of the applicable sentencing principles, one notes that the Criminal Code does not speak of vengeance nor the valuation of a life lost.[11] Rather, it says the «fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions,» s 718.[12] [64] The Criminal Code also speaks of « proportionality » and within that concept is found the notion of « retribution. » [65] Essentially, the courts have espoused the view that, while retribution constitutes a significant – and legitimate – goal ofsentencing, vengeance does not.

The essence of this approach took shape in the Supreme Court decision of R. v. C.A.M. , (SCC), [1996] 1 S.C.R. 500, where Chief Justice Lamer, at paras 80 and 81, explained that : Retribution, as an objective of sentencing, represents nothing less than the hallowed principle that criminal punishment, in addition toadvancing utilitarian considerations related to deterrence and rehabilitation, should also be imposed to sanction the moral culpability ofthe offender.

In my view, retribution is integrally woven into the existing principles of sentencing in Canadian law through thefundamental requirement that a sentence imposed be "just and appropriate" under the circumstances… However, the meaning of retribution is deserving of some clarification. The legitimacy of retribution as a principle of sentencing hasoften been questioned as a result of its unfortunate association with "vengeance" in common parlance. See, e.g., R. v. Hinch andSalanski, supra, at pp. 43-44; R. v. Calder (1956), (MB CA), 114 C.C.C. 155 (Man. C.A.), at p. 161.

But it should beclear from my foregoing discussion that retribution bears little relation to vengeance, and I attribute much of the criticism of retributionas a principle to this confusion. As both academic and judicial commentators have noted, vengeance has no role to play in a civilizedsystem of sentencing. See Ruby, Sentencing, supra, at p. 13. Vengeance, as I understand it, represents an uncalibrated act of harm uponanother, frequently motivated by emotion and anger, as a reprisal for harm inflicted upon oneself by that person.

Retribution in acriminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment whichproperly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harmcaused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates aprinciple of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. (Emphasis in the original)

[66] In the case at bar, I must be mindful that retribution calls for an objective, reasoned and measured determination of anappropriate punishment, which properly reflects the moral culpability of the offender. Unlike vengeance, retribution calls for restraint. [67] The life of Ms. Elsa Saludo was priceless. Mr. Mahmood Zakar must live with the pain incurred from the collision. He must alsolive with the troubling memory of his passenger propelled violently against a windshield, barely breathing and possibly crying from theagonizing pain. The length of time Mr.

Akoulov spends in jail won’t compensate anyone for the loss of a woman’s life; nor will it abatethe pain, both physical and psychological, suffered by Mr. Zakar. The length of that time must be determined according to the moralblameworthiness of the accused. Of course, due consideration has to be given to all the circumstances of the offences as well as to thecircumstances of the accused. The case law: parity in sentencing [68] In crafting the proper sentence, a court must take into account the principle of parity, i.e.

« a sentence should be similar tosentences imposed on similar offenders for similar offences committed in similar circumstances», (section 718.2(

b) of the CriminalCode). In R. v. Osterag, 2000 ABCA 232 CanLII, at para. 11, Justice Veit explained the principle as follows: A person convicted of an offence has the right to expect a sanction that will not be more severe than the sanctions imposed on otherswho are similarly situated; the community has the right to expect that a person convicted of an offence will not receive a more favourablesanction than others who are similarly situated and have committed similar offences.

Starting-point sentencing guidelines support theprinciples of equality and uniformity. [69] An appropriate sentence, therefore, must be mindful of the punishments meted out by our courts for other similarly situatedaccused. [70] Though courts should strive for consistency as a matter of abiding importance for the administration of justice, any comparativestudy of the case law has its inherent limitations. To begin, it is difficult, if not impossible, to find case law where the circumstances areidentical to the case at bar. Next, sentencing is an inherently individualized process.

It is therefore plausible for two offenders havingcommitted the same offence under similar circumstances to receive different sentences. As the Court explained in R. v. C.A.M, supra, atpara. 92. It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. Sentencing is an inherentlyindividualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be afruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree acrossvarious communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.[13] (References omitted) [71] Appreciating these limitations upon the exercise of looking at comparable cases, one can nevertheless draw some very clearindications of a sentencing range from a number of the decided cases. [72] In several decisions, my colleagues have commented on the sentencing range for the offence of failure to stop resulting in adeath.

In R. c. Valerie Tremblay, 2016 QCCQ 1675 , at para. 41, Judge Chantale Pelletier mentioned that prison terms of 12 to18 months are handed down when aggravating factors, such as consumption of alcohol or dangerous driving, are also present. In the caseat bar, the said aggravating factors have not been established. [73] In R. v.

Charlebois, 2018 QCCQ 4604 , another case of failing to stop at the scene of a fatal accident, Judge AnoukDesaulniers, after reviewing a table of cases submitted by the Crown, stated that This table supports the Crown’s submission that sentences imposed for this offence usually range between 12 to 24 months ofimprisonment, absent significant mitigating or aggravating circumstances. [74] The decision of Judge Gilles Lafrenière in R. c. St-Louis, 2012 QCCQ 14901 , includes an extensive

summary of sentences handed down for failure to stop resulting in death.[14] He, too, concluded that the range of sentences for such offences wasfrom 12 to 18 months. [75] Longer sentences involved elaborate and prolonged attempts to evade detection.[15] In the present matter, the accused left thescene even when a witness told him to stay put. It was only four days later that he was apprehended. [76] Now, let us examine some individual cases: [77] In Camiré c. R. 2010 QCCA 615, the truck driven by the accused hit the scooter driven by the young victim.

While the victimwound up in a ditch where he later died of his injuries, the accused kept on driving, dragging the scooter for another 500 feet. Thedamage to the truck was considerable. [78] The accused was a young man with no criminal record. He pled guilty to a charge of failure to remain at the scene of an accidentresulting in death and was sentenced to a term of 30 months of imprisonment. [79] On appeal to the Court of Appeal, the sentence was reduced to 23 months to be served in the community.

One of the reasons formodifying the sentence was that the trial judge erred in stating that the accused showed lack of remorse and empathy. It should be notedthat since November 20, 2012, a conditional sentence is no longer available for offences liable to a maximum of imprisonment for life. [80] In R. c. Dupuis, 2010 QCCA 1121, the court of appeal upheld a prison term of five years of imprisonment meted out by the trial

judge. In that case, however, the charges against the accused also included a count of dangerous driving in the context of a car race. Healso had a history of driving violations. Such aggravating factors are absent in the case at bar. [81] In R. c. Gilbert 2007 QCCA 1607, the court handed down a prison term of 24 months for a charge of failure to remain at thescene of an accident resulting in death. Here, too, one finds the aggravating circumstance of dangerous driving. [82] In R. c.

Gravelle (QC CA), [2000] R.J.Q. 2467 (C.A.), the accused pled guilty to one count of leaving thescene of an accident that resulted in the death of the victim and on a second count of driving over the legal alcohol limit.

He wasacquitted on the count of dangerous driving causing death when the Crown announced that it had no evidence to tender on that charge.Among the aggravating circumstances, the accused had three priors of driving while inebriated and he did not have a valid driver’slicence. [83] Notwithstanding the aforementioned aggravating circumstances, the Court of Appeal upheld the sentence meted out in firstinstance of two years less a day to be served in the community. Once again, it bears mentioning that a conditional sentence is no longeravailable for such a crime. [84] In R. c.

Roy 2012 QCCS 2377, a jury found the accused guilty on a count of dangerous driving causing death and on a secondcount of failure to remain. Among the aggravating factors: (

i) the incidents stemmed from a car race that involved both the accused andthe victim; (ii) the accused only had a learner’s permit; (iii) and the devastating consequences for the mother of the victim, the witnessesand the community at large. [85] The aggravating circumstances in Roy, however, were blunted by the following mitigating circumstances: (

i) the young age ofthe accused; (ii) the victim’s partial responsibility in having agreed to partake in the street race; (iii) the accused expressed genuineremorse; (iv) and even the mother of the victim had forgiven him. In the end, the trial judge handed down a 90-day sentence to be servedintermittently. Permission to appeal the sentence was denied. [86] In R. c. St-Louis, supra, the accused pled guilty to a fatal hit-and-run. In that case, the accused suddenly and inexplicably stoppedthe vehicle he was driving on highway 20. The car following right behind rammed right into him.

The victim in the other vehicle was asix-year-old boy. [87] In his decision, Judge Gilles Lafrenière insisted that the charges against the accused be put into their proper perspective. He wasnot accused of murder, manslaughter or, for that matter, of dangerous driving causing death. Considerations as to the gravity of theoffence, therefore, have to be limited to the charges against the accused and nothing more. Next, he noted that the accused’s action ofleaving the scene of the accident did not contribute in any way to the cause of the child’s death.

Finally, after noting a series ofattenuating circumstances (i.e., remorse, guilty plea, positive work history and breadwinner of the family), he handed down an 18-monthconditional sentence. [88] In R. c. Yuliusie 2011 QCCQ 15650, the accused pled guilty to a fatal hit-and-run. He had two prior convictions of drunk drivingand the presentence report was not favourable. On a common suggestion from the parties, the accused was sentenced to two years of jail. [89] In R c. Girard 2008 QCCQ 2539, the accused pled guilty to a fatal hit-and-run.

The victim, a 16-year-old girl, was hit whilstriding her bicycle. [90] Along with his guilty plea, the court noted the following mitigating circumstances: the absence of elaborate manoeuvres to hidehis implication and a certain stability in his personal life. The accused, however, had a difficult time admitting his responsibility despitehaving pled guilty.

He also had a very poor driving record and the presentence report indicated that there was a risk of reoffending.Another aggravating factor was the excessive speed that led to the accident. [91] The accused was handed a prison term of one year. —Ill health as a consideration on sentencing [92] An offender’s failing health may be a mitigating factor where the evidence establishes that imprisonment will be more burdensome because of his medical condition(

s) or that imprisonment will have a seriously adverse effect on his health.[16] Essentially, an accused’s ill-health calls upon compassion as a factor in the sentencing process.[17] [93] Ill health, however, does not constitute a get out of jail free card. Compassion on account of medical considerations is only one of many factors to take into account when determining a fit sentence. It cannot, however, justify an unfit sentence.[18] In R. v.

Babcock,2013 BCCA 368 , for instance, the British Columbia Court of Appeal refused to reduce an offender’s two-year sentence fornegligence causing bodily harm in stating that an appellate court must balance compassion with the seriousness of the offence: [12] We must balance medical considerations with the gravity of the offence and this offender’s particular circumstances. In myview, the protection of the public was the most important factor in Mr. Babcock’s sentencing, together with the gravity of the offence.

Iam not persuaded that his condition and the treatment he is receiving warrant our reducing the sentence on compassionate grounds. [94] Ultimately, the fact that a person may suffer hardship in jail by reason of some illness or disability is a matter for the prisonauthorities. It is their responsibility to ensure that the prisoner is not subjected to undue hardship. In addressing ill health as a mitigatingfactor, there should be evidence that the prison authorities cannot accommodate the medical concerns of the offender. In R. c.

Thibault,2016 QCCA 335 , the ground for sentence reduction based on medical grounds was not accepted by the Court as there was noevidence that the correctional authorities were unable to provide proper treatment: [51] Lorsque les services carcéraux ne sont pas en mesure de répondre au besoin particulier qu’engendre l’état de santé d’undélinquant, l’emprisonnement avec sursis peut être considéré comme une solution de rechange à l’emprisonnement. Tel n’est pas le cas

ici. [52] Il n’y a pas au dossier de preuve médicale établissant l’état de santé précis de l’appelante.

Rien ne permet de croire que cet état requiert des soins particuliers qui ne pourraient lui être prodigués si elle était placée en détention [ [53] Le juge précise dans son jugement que « bien que fragile, l’état de santé de l’accusée n’apparaît pas aux yeux du Tribunal comme étant une considération à prendre en compte pour déterminer la peine » [54] On peut comprendre que, vu la preuve restreinte présentée à ce sujet, l’état de santé de l’appelante et son handicap ne pouvaient, aux yeux du juge, constituer un facteur déterminant le justifiant de recourir à l’emprisonnement avec sursis. [55] Il n’y a donc pas lieu d’intervenir à cet égard. ( Footnotes and references in the original omitted) Application [ 95 ] In cases of this nature, it is important that a message be sent both to the offender and to those of like mind, that this kind of conduct will not be tolerated.

A sentence must reflect society’s abhorrence to those who injure their fellow citizens and then shirk their responsibilities by abandoning them to die. Deterrence and denunciation have to be the primary sentencing goals. [ 96 ] In failing to stop as required, the accused exhibited a grave failure to comport himself within the standards of humanity and decency. [19] His failure to stop and at least investigate and enquire manifests a callous disregard for the plight of others who may have suffered injury and must be strongly condemned. [20] [ 97 ] The moral culpability of the accused is high.

From the impact, he surely knew that the occupants of the other vehicle were (at the very least) seriously injured. Despite being told to stay put by a witness, he fled the scene. He was only arrested four days later. [ 98 ] It is of little comfort to anyone that any assistance that the accused could have rendered to Ms. Saludo would have been futile— or that his failure to provide assistance did not delay medical attention. He was morally and legally obliged to stop.

Instead, he fled. [21] [ 99 ] From the evidence presented at trial (before the guilty plea) there is a strong suspicion that the accused was driving while inebriated. The doorman at his son’s apartment complex stated that the accused seemed to be slowed down by alcohol and that he walked with an unsteady gait.

When police offers arrived at his home, they saw through the mail slot five or six empty bottles of wine littering the floor. [ 100 ] In the joint statement of facts filed into evidence by the parties, the accused admitted that he left the scene with the « intention of escaping his civil and criminal liabilities . » For that matter, after two days of hearings—and an adjournment that lasted several months— he freely and voluntarily pled guilty before me on two counts of leaving the scene of an accident with the intent of shirking his civil and criminal liabilities .

Which begs the question: what criminal liability was he hoping to dodge by fleeing from the scene? The question is mostly redundant, from the inventory of offences listed in the Criminal Code , only a few can fit the bill. [ 101 ] This being said, I am mindful of the fact that the accused was not charged with drunk driving; nor was he charged with dangerous driving causing death and serious bodily injury. For that matter, the evidence falls short of establishing any one of the two aforementioned offences.

The accused will only be punished for the callous and cowardly act of leaving the scene of the accident. [ 102 ] However, the limited scope of the charges does not limit the importance of denunciation and deterrence as guiding principles in sentencing. One must remember that the maximum penalty for a hit-and-run resulting in death is life imprisonment. Reasons of public policy justify why the legislator imposed such a significant penalty. Among those reasons, to remove any strategic incentive for an accused to benefit by fleeing the accident.

A drunk driver should not view it better to take his chances on first fleeing and then only being caught (or handing himself in) after sobering up. [22] [ 103 ] A fit sentence requires that I consider the personal circumstances of the accused. The accused is 60 years old and in poor health. Since coming to Canada in 1992, he has worked hard to achieve the immigrant’s dream of a better life for him and his family. After working as a truck driver for several years, he owned his own trucking business.

Since the accident, however, he has lost his career and a business that he built through his own efforts. [ 104 ] For the defence, the main argument for clemency was the accused’s ill health. In essence, an extended period of imprisonment would cause great hardship for the accused. [ 105 ] There is no doubt that the accused has several health issues. From the medical reports, I know that he suffers from diabetes and high blood pressure and that he takes a host of medications to keep those conditions in check.

In the past, he has suffered a heart attack (2014) and a stroke (2018). [ 106 ] At the trial—back in October 2018—I had the chance to observe him: his gait was slow and unsteady and he was breathing heavily. At the sentencing phase—back in September 2018—he appeared to fare better health-wise. [ 107 ] . I accept that the accused will face additional challenges while incarcerated due to his poor health.

However, the evidence does not show that the medical needs of the accused cannot be properly addressed by the correctional services authorities. [ 108 ] Finally, with respect to the accused’s guilty plea, it will have little weight as a mitigating factor on sentencing. To begin, the

evidence against the accused was overwhelming. [23] In pleading guilty, the accused merely resigned himself to the inevitable. Secondly, the guilty plea came very late in the process. A late guilty plea carries less mitigation. [24] It bears recalling that the accused only admitted his guilt after the trial had been suspended for circa seven months. I note, however, that the guilty plea saved five additional days of court time.

Conclusion [ 109 ] When I balance all of the considerations on sentencing, including the accused’s ill health and his guilty pleas along with the with society’s need to deter and denounce his conduct, an intermittent sentence of 90 days of imprisonment is manifestly unfit. Where the offender’s moral culpability is high, as is the case here, a full-time custodial sentence is mandated. As a mature driver and experienced trucker, he—more than the average driver—should have known better than to leave the scene of an accident.

Instead, he cowardly and callously fled on foot and was only arrested four days later. [ 110 ] The ill health of the accused, however, will blunt the severity of the sentence I would have been otherwise inclined to impose in this matter—a custodial term ranging from 15 to 18 months. As mentioned above, I accept that the accused will be facing certain challenges in jail on account of his medical condition(s).

Though the medical evidence falls short of establishing that his physical ailments cannot be treated as thoroughly and easily while he is in custody as if he were to be out of custody, incarceration will be more onerous for the accused than for the average prisoner. I note, for instance, that he walks very slowly with the aid of a cane and that his gait is unsteady. For that matter, all his movements were painfully slow and unsure—as evidenced every time he struggled to stand up, steady himself and reach for his cane in order to make his way out of the courtroom or to the witness stand.

Even when addressing the Court, his speech was slowed. Some of the words were slurred or mumbled and not always easy to understand. Granted, the accused was testifying in English, a second language he learned relatively late in life; but as indicated in his medical record, he has not totally recovered from the stroke he suffered in July 2018. [25] [ 111 ] I am also aware that the accused’s punishment will not be limited to the jail term meted out.

He will also have to bear the guilt and the stigma of his actions and deal with the loss of a career and business that he built through his own efforts. [ 112 ] In pronouncing a fit sentence, I am mindful of the fact that no jail term—no matter how long—can compensate for the loss of life and for the pain—both physical and psychological—suffered by Mr. Zakar. As explained earlier, vengeance as opposed to retribution, has no

part in the sentencing process. [ 113 ] Aside from the fact that an eye-for-an-eye punishment is anathema to our system of criminal justice, one must always keep in mind that the accused is not charged with having caused the accident that led to the death of Ms. Saludo and the injuries to Mr. Zakar. Though I have my suspicions that he was inebriated at the time of the accident, the sentence will be limited to the two offences he has pled guilty to and nothing more.

The only aggravating and mitigating circumstances to be considered are those that were clearly established by the evidence. [ 114 ] For all the aforementioned reasons, the accused is sentenced to a custodial term of seven (7) months. [ 115 ] In closing, I would like to thank both counsel involved in this matter for their professionalism and thoughtful submissions in a difficult and sensitive case. __________________________________ SALVATORE MASCIA, J.C.Q. Me Anne-Marie Emond Attorney for the prosecution Me Alan Guttman Attorney for the accused

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