HER MAJESTY THE QUEEN — v. —, 2019 ONCJ 609

ONTARIO COURT OF JUSTICE CITATION: R. v. Tolouei , 2019 ONCJ 609 DATE: 2019 08 30 COURT FILE No.: Newmarket 18 07919 K BETWEEN: HER MAJESTY THE QUEEN — AND — SAYED YASHAR TOLOUEI Before Justice David S. Rose Heard on August 30, 2019 Reasons for Judgment released on August 30, 2019 Mr. Ventola............................................................................................ counsel for the Crown Mr. Brody................................................ counsel for the accused Sayed Yashar Tolouei Rose J.: [ 1 ] Mr.

Tolouei pleaded guilty to the charge of Criminal Negligence causing Death to Julia Baciu on August 19, 2018. He is before me for sentencing. Facts [ 2 ] The events which lead to Ms. Baciu’s death are very brief, but very tragic. On the evening of August 19, 2018 she was being driven home with her boyfriend Felipe Lino. The two met in high school. They were high school sweethearts who planned to marry. [ 3 ] It was an otherwise uneventful night. As Mr. Lino turned his car left from Bayview Avenue onto Woodriver Street to enter the subdivision where Ms. Baciu lived, in an instant, he was struck by Mr.

Tolouei who was driving a Toyota Camry. The Camry hit Mr. Lino’s car on the passenger side where Ms. Baciu was seated beside him. The police arrived shortly after the collision and found her to be deceased. [ 4 ] Mr. Tolouei’s driving in the moments before the collision deserve some discussion. Mr. Tolouei was a novice driver. He only had his G2 licence and was therefore not permitted to drive with any alcohol in his system. Despite that he had smoked marijuana and consumed alcohol before assuming control of the Camry. He had his girlfriend in the car and was coming southbound on Bayview from Bloomington Road.

His rate of speed was so high that when he passed other cars on the road, the occupants of those cars didn’t see him until he blew past them. The other southbound cars were going 60 or 70 km per hour. It was a 50 km hour zone. The other drivers said that he was going about double the speed limit. [ 5 ] Mr. Tolouei continued to travel southbound on Bayview at this extremely high rate of speed for several kms. At one point he passed a marked police car with its roof lights on. That police car had stopped to investigate another driver. Mr.

Tolouei continued to travel aggressively fast despite the presence of a lit-up police car on the road. [ 6 ] When Mr. Tolouei approached the area where Mr. Lino was turning left he was travelling at 168 km/hr. It was a 50 km/hr zone. Because of extraordinary velocity of Mr. Tolouei’s Camry Mr. Lino never had a chance to avoid the collision. There is no way he could have seen Mr. Tolouei in time to prevent the carnage the followed. Mr. Tolouei’s driving that night made this inevitable. The collision scene

[ 7 ] Mr. Lino’s car was struck by Mr. Tolouei’s Camry with such force that it pushed Mr. Lino’s many meters from the impact zone with explosive force. The collision was so violent that Mr. Lino’s car was wrapped around a nearby light standard to about 90 degrees. Ms. Baciu’s seat was pushed so hard by the Camry that it ended up behind Mr. Lino’s seat buried underneath the twisted mass of steel and glass. When Mr. Lino emerged from the wreck dazed he was frantic to find Ms. Baciu. He expected that she had left her passenger seat beside him and was in the vicinity.

She was actually still in the front passenger seat, which was by then wedged behind the driver seat between it and the rear passenger bench. His testimony at the preliminary hearing about the moments after the collision was moving and difficult to receive. [ 8 ] The first officer on scene was PC Chrzaszcz, who was a new member of the York Regional Police. She tried to check Ms. Baciu’s pulse but couldn’t reach her neck. The carnage in the car was too dense. Instead she had to make an attempt to confirm life by putting her hand on her stomach. Again, Ms. Baciu was deceased. [ 9 ] Mr.

Lino emerged from the collision dazed but physically intact. Mr. Tolouei’s Camry spun to the opposite side of the road by the force of the impact. He suffered a broken finger. His passenger Ms. Maryam Keshavarz required medical assistance. [ 10 ] After the collision Mr. Tolouei chose to tell PC Chrzaszcz that he needed help with his broken finger and that his passenger needed medical assistance even though she was in the process of dealing with a traffic fatality. He continued by yelling profanities at the paramedics on scene who were trying to help Ms.

Keshavarz. [ 11 ] The police on scene detected an odour of alcohol on Mr. Tolouei. They also noted his droopy eyes and that he was unsteady on his feet. He had an inability to focus. The police arrested him for impaired driving. He then refused to provide breath samples when that demand was made of him. [ 12 ] Mr. Tolouei was transported to MacKenzie Health Hospital. He was met there by PC Skanes a Qualified Breath Technician. PC Skanes told him that he was there to take breath samples. He again refused to provide breath samples. After going through the consequences of such a refusal, Mr.

Tolouei continued to refuse to provide samples of his breath to PC Skanes. He was then charged with Refuse Breath Sample. [ 13 ] Mr. Tolouei ultimately gave a statement to an officer. He told the officer that his refusal to provide a breath sample was because he did not trust the police. The next day Mr. Tolouei was released from custody. He then returned to the scene of the collision and found a TV news crew from Global News. He chose to give them an interview in which he said that he did not owe the police anything. He also said that the collision was not his fault because Mr.

Lino’s car pulled out in front of him. Proceedings [ 14 ] After a preliminary hearing before me Mr. Tolouei admitted that the combination of speed and his marijuana and alcohol impairment demonstrated a wanton and reckless disregard for the lives of Julia Baciu, Felipe Lino, and Maryam Keshavarz, and that his criminal negligence caused the death of Julia Baciu. Mr. Tolouei [ 15 ] Mr. Tolouei is now 22 years old. He has no criminal record, and his Highway Traffic Act record has only one moving violation in 2016 for speeding 30km/hr over the limit. He was born in Iran but moved to Qatar at 3 with his family. Mr.

Tolouei had a disciplinarian father who treated him harshly. He and his mother lived with his father until 4 years ago. He is angry at his father for how harsh he treated him, but he is still thankful that his father showed him what he does not want to be. Mr. Tolouei has written books which depict his father in them. Mr. Tolouei has Post Traumatic Stress Disorder (PTSD) from his upbringing. [ 16 ] Mr. Tolouei has a high school education and has worked in the field of sales and information technology. His relative youth supports a finding that there are good prospects for rehabilitation.

He is a permanent resident and this sentence will mean that he is exposed to deportation. Victims [ 17 ] Julia Baciu was a young university student training to be a teacher. She was studying on a scholarship. She spoke, and taught, several languages. She lit up the room. All the victims who read their impact statements spoke of her as a high achiever, who had a very bright future. She was well loved and admired by all around her. Her brother Cristian happens to be an EMS responder.

When the family was informed by the police of her death he was tasked with going to the scene of the collision to find out what happened. What he saw left him psychologically scarred. No parent should survive one of their children. As Julia’s mother put it “ you can never find closure after the death of your child”. For his part, Mr. Lino has lingering physical injuries including migraines and permanent hearing loss. He lost his life partner in the most violent fashion.

I did not hear from PC Chrzaszcz. [ 18 ] The Victim Impact Statements were a real help to the Court in explaining the broader circumstances of her death. In the sentencing process the Court tries to repair the harm done to the Victims. In this case I don’t know that anything the Court can do will accomplish that. Nonetheless, it is also the Court’s hope that participating in the sentencing will start the process of closure. [ 19 ] The Crown position is that Mr. Tolouei should serve 6 years in jail, and be subject to an 8 year driving prohibition. The Crown seeks his DNA as a secondary designated offence.

The Defence position is that 5 years, and between 3 and 6 months in jail is the appropriate sentence. Both Crown and Defence agree that he is entitled to 3 months credit for the strict bail terms. The Crown position is therefore a jail sentence of 5 years, 9 months net. The defence asks for 3 – 6 months less than that. [ 20 ] The sentencing principles are outlined by Parliament in s. 718 of the Criminal Code . I would identify denunciation and deterrence as the predominant sentencing principles in this case, see R. v. Sivanadi 2017 ONSC 5210 , and R. v. Alex 2017 SCC 37 . Mr.

Tolouei’s youth engages rehabilitation as a concern, although it plays much less a factor as denunciation and deterrence.

[ 21 ] In this case the aggravating circumstances are numerous. One person is dead. The circumstances include the speed of the car – which was over 3x the legal limit. That driving pattern was not fleeting, but had gone on for some time. The Criminal Code permits me to draw an adverse inference by Mr. Tolouei’s refusal to provide a breath sample, see s. 258(3). Given the admissions and the extraordinary speed he was driving I rely on s. 258(3) to find that Mr. Tolouei’s ability to operate his motor vehicle was impaired by alcohol. It is also an aggravating factor that he had taken marijuana.

Furthermore, It is aggravating that he was only a G2 licenced driver and therefore violated his licence restriction regarding intoxicants. The impact on Ms. Baciu’s friends and relatives is significant. It is another aggravating factor. Mr. Tolouei caused significant harm to many. [ 22 ] It is mitigating that Mr. Tolouei is a young man. He has prospects for rehabilitation. He has no criminal record. He has been on a restrictive bail for over one year. He has accepted responsibility by pleading guilty. His remorse is not, in my finding complete.

While he has now pleaded guilty, but it is beyond troubling that he chose to give a statement to Global news on the day after the accident denying responsibility. Put bluntly, words matter. The mitigating effect of the guilty plea is also limited by the fact that Mr. Tolouei’s acceptance of responsibility took place after a preliminary hearing in which Mr. Lino and Cst. Chrzaszcz testified.

His guilty plea was before the trial, but it is not an early one. [ 23 ] Cases of criminal negligence causing death in the course of traffic collisions tend to fall within a range of sentence in the mid to upper single digit penitentiary range. In R. v. Neilson [2019] O.J. No. 2554 my brother Kenkel J. identified that range as being 6 – 8 years. This reflects, as he put it at par. 24, “the high degree of risk taking in the offence of criminal negligence”. In R. v.

Carreira 2015 ONCA 639 the Appellant received a 6 year sentence for criminal negligence causing death after he had a BAC of 160 and crashed his motorcycle killing his passenger. He had been driving the wrong way down a street without insurance when he crashed the bike. In R. v. Yesno 2015 ONSC 6350 the offender swerved his van into oncoming traffic so that he could hit a bicycle driven by a man who had wronged him. He killed the bicycle rider. He received a 7 year sentence.

The range of sentence being proposed by the Crown and Defence is appropriate. [ 24 ] This is a tragic case from any perspective, and a long jail sentence will not change that. A young, promising woman lost her life. Her family and friends genuinely expressed how this has devastated them. Mr. Tolouei will go to jail. The only question is for how long. Part of the tragedy is that cases like this are entirely avoidable. It is quite easy to drive lawfully, and therefore safely – millions of Canadians do it every day.

Another aspect of the tragedy is that driving which causes injury or death is far too common in York Region. It was only 3 years ago that Regional Senior Justice Fuerst said "... the message that every drinking driver is a potential killer of innocent members of the community continues to go unheeded." See R. v. Muzzo 2016 ONSC 2068 (Ont. S.C.J.) at par. 2 . The Muzzo tragedy followed another traffic carnage case by 6 years, see R. v. Ramage 2010 ONCA 488 . From the perspective of a trial judge in this Courthouse, it appears that the pace of traffic carnage cases is not decreasing but increasing .

Earlier this week my sister Justice McPherson gave reasons for sentence on an impaired driving causing death case, see R. v. Singh (unreported). R. v. Neilson ( supra ) was only 5 months ago. I am told that the proceedings in R. v. Neilson were delayed because there was another impaired driving fatality during the proceedings and Highway 404 was closed. For that reason, one of the lawyers in the case was unable to get to court to appear before Kenkel J. on time. It is a bitter irony. [ 25 ] The people of York Region are entitled to travel on its roads and highways safely.

Public education about the consequences of dangerous and impaired driving is so clear, so obvious, and so constant that I find that the message about the dangers of drinking and driving are being deliberately ignored by too many people – Mr. Tolouei among them. If public education is unable to contain this epidemic, the courts must denounce the conduct and punish the offenders in ever increasing terms. [ 26 ] Sentencing is not an exercise in precision. In this case the defence and Crown are in substantial agreement about the length of the jail sentence. Having heard the submissions Mr.

Tolouei will be sentenced to 5 years 9 months in jail. Despite Mr. Brody’s able submissions I see no reason to depart from the Crown’s position. When he is released he will be subject to an 8 year driving prohibition. This is a secondary designated offence and Mr. Tolouei will give a sample of his DNA to the National DNA Databank. Released: August 30, 2019 Signed: Justice Rose