R. v. Verbitski, 2012 ONCJ 712

COURT FILE No.: Halton 1211-11-2392 DATE: November 15, 2012 Citation: R. v. Verbitski , 2012 ONCJ 712 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — YAROSLAV VERBITSKI Before Justice R. Zisman Heard on June 25, 2012 and September 21, 2012 Reasons for Judgment released on November 15, 2012 Monica McKenzie ...................................................................................................... for the Crown Robbie Tsang .............................................................................. for the accused Yaroslav Verbitski ZISMAN J.: 1.

INTRODUCTION [ 1 ] On June 25, 2012, the defendant pleaded guilty to a charge of impaired driving causing bodily harm. The Crown elected to proceed by indictment. The sentencing was adjourned until September 21, 2012 for the preparation of a pre-sentence report and to provide the victims with an opportunity to file a victim impact statement.

After hearing submissions, I adjourned the sentencing until today. [ 2 ] The Crown seeks a term of imprisonment of four to six months in jail, a driving prohibition of 18 months, a term of probation for 12 months and a DNA order. [ 3 ] The defendant seeks a sentence of 90 days to be served intermittently. It is submitted that the defendant supports and assists his parents with whom he lives and that if he was sentenced to a longer term of imprisonment he would lose his job. The defendant is agreeable to the driving prohibition and probation and takes no position on the DNA order. 2.

FACTS [ 4 ] On July 3, 2011 at about 7:55 p.m. the defendant was driving northbound on Tremaine Road near Third Line in the Town of Milton in his BMW. The defendant went through a stop sign and hit the motor vehicle driven by Jeffrey Aul. Mr. Aul was in the car with his two daughters, Sarah who was 13 years old and Kristen who was 15 years old. [ 5 ] The defendant’s girlfriend was in his car and she suffered some minor facial lacerations. The defendant had no injuries. [ 6 ] Mr. Aul lost consciousness.

Photographs of his car show it on the grass near a tree with severe damage and two car doors that had to be removed so he could be extracted from the car. He suffered a broken left arm, bruising to his left thigh and a lasting contusion. His daughters had no physical injuries. [ 7 ] The police arrived at the scene at about 8:05 p.m.

The defendant was standing outside his motor vehicle, he was unsteady on his feet, had glassy eyes and the odour of alcohol. [ 8 ] The defendant was arrested for impaired operation of a motor vehicle causing bodily harm, given his rights to counsel, cautioned and a breath demand was made. [ 9 ] The defendant was transported to the Halton police station. He declined to speak to counsel.

[10] He provided two suitable samples of his breath at 9:20 and 9:42 p.m. The readings were 140 and 130 milligrams ofalcohol in 100 millilitres of blood. 3. SENTENCING PRINCIPLES [11] The fundamental purpose of sentencing as set out in s.718 of the Criminal Code is to ensure respect for the law and themaintenance of a just, peaceful and safe society. The imposition of just sanctions requires the court to consider the sentencing objectivesreferred to in that section, which the sentence the court imposes should attempt to achieve.

These are denunciation, deterrence, bothspecific and general, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion ofa sense of responsibility in the offender and acknowledgement of the harm which criminal activity brings to our community. In addition,in imposing sentence the court must take into account the principles of proportionality and the applicable aggravating and mitigatingcircumstances relating to the offence as set out in s.718.2 of the Criminal Code. [12] The overriding principle of sentencing in cases such as this is general deterrence.

This was the conclusion of the OntarioCourt of Appeal in R. v. McVeigh (1985), (ON CA), 22 C.C.C. (3d) 145, where the court clearly stated its policyapproach and underlying rationale. In my view, the passage from this decision that I intend to quote is as true today as it was then, andwould also currently find overwhelming public support: In my view, the sentences for the so-called lesser offences in this field should be increased.

The variations in the penalties imposed fordrinking and driving are great and increasing sentences for offences at the "lower end" would emphasize that it is the conduct of theaccused, not just the consequences, that is the criminality punished. If such an approach acts as a general deterrent then the possibilitiesof serious and tragic results from such driving are reduced. No one takes to the road after drinking with the thought that someone may bekilled as a result of his drinking.

The sentences should be such as to make it very much less attractive for the drinker to get behind thewheel of a car after drinking. The public should not have to wait until members of the public are killed before the courts' repudiation ofthe conduct that led to the killing is made clear. It is trite to say that every drinking driver is a potential killer. Members of the public when they exercise their lawful right to use the highways of this province should not live in the fear that they maymeet with a driver whose faculties are impaired by alcohol.

It is true that many of those convicted of these crimes have never beenconvicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence wouldbe in their best interests and be the most effective form of rehabilitation. However, it is obvious that such an approach has not gone anylength towards solving the problem. In my opinion, these are the very ones who could be deterred by the prospect of a substantialsentence for drinking and driving if caught.

General deterrence in these cases should be the predom​inant concern, and such deterrence isnot realized by over​emphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving. [13] Ten years later Justice Cory spoke of the gravity of drinking and driving offences in an often quoted passage from hisdecision in R. v. Bernshaw (SCC), [1995] 1 S.C.R. 254 at paragraph 16: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, ithas a far greater impact on Canadian society than any other crime.

In terms of the deaths and serious injuries resulting in hospitalization,drunk driving is clearly the crime which causes the most significant social loss to the country. [14] It is also clear from these decisions that denunciation is also an important objective of sentencing where personal injuryor death is involved. It is through denunciation that general deterrence is reinforced, shared community values are communicated andthe public is assured that the offender has been held to account for his or her particular conduct.

Depending on the offender’s personalcircumstances and circumstances surrounding the offence under consideration, personal deterrence may also come into play. [15] In R. v. Biancofiore (1997) (ON CA), 119 C.C.C. (3d) 344 (Ont. C.A.), Justice Rosenberg furtherconcluded that courts must take care not to de-stigmatize drinking and driving offences. Denunciation through incarceration wouldgenerally have this effect and would guard against law-abiding people regarding such behaviour as a mere “accident” or “error injudgment”, rather than the criminal act is was (supra, at paragraphs 25 to 29). [16] In R. v.

Biancofiore, supra, the Court of Appeal concluded that under the sentencing regime introduced by Sections 718.1and 718.2 of the Criminal Code, incarceration was proportionate to the gravity of the offence and degree of responsibility of the offenderin serious drinking and driving cases. There is a high degree of moral culpability when an offender intentionally takes a risk thatmanifests itself in an unsafe manner of driving resulting in harm to someone else. Justice Rosenberg reconfirmed the gravity of drinkingand driving offences, quoting the passage written by Lamer J. in R. v.

Bernshaw, ibid. [17] As result of Biancofiore and subsequent decisions of the Ontario Court of Appeal and this court, it is clear thatdenunciation and deterrence are still the governing sentencing principles in these cases, and for all the same reasons. [18] Counsel for both the Crown and defendant provided the court with several cases to support their respective positions.[1] It is clear from these cases and the principles I have cited above that the courts emphasize that any sentence imposed must address theprinciples of deterrence and denunciation and protection of society.

In most of the cases, a term of incarceration is imposed to emphasizethe serious nature of this crime. However, the sentences in these cases vary from short intermittent sentences as requested by thedefendant to terms of penitentiary. Although an examination of similar cases is helpful, few cases are identical on their facts. Ultimatelyeach case must be decided on the unique circumstances of the offence and the offender and balance the principles of sentencing toachieve a just result. 4. ANALYSIS

4.1 Aggravating Factors [ 19 ] I have considered the following aggravating factors. [ 20 ] The defendant’s blood alcohol readings were high although not statutorily aggravating. [ 21 ] The injuries suffered by the victim, Mr. Aul were not insignificant. The impact of this crime was devastating not only on him but on Sarah and Kristen who were in the motor vehicle and on his wife. The victim impact statements filed in this case bring home, on a very personal level, the long-lasting impact this type of crime can have on a family. [ 22 ] Mr. Aul has no memory of the accident having suffered some retrograde amnesia.

Upon regaining consciousness he was unable to see until the next day. He was required to use two weeks of his vacation and 12 hours of his overtime to stay home and recover from his injuries. His arm was in a cast for a month, he was unable to put any weight on his leg for several weeks and he had to attend physiotherapy for a month. He continues to feel anxious every time he drives. [ 23 ] Although thankfully neither Sarah nor Kristen suffered any physical injuries, the emotional trauma of seeing their father unconscious and thinking he had died will not easily fade away.

In her victim impact statement, Sarah spoke of how frightened she was when their car was spinning around and thinking her father was dead. She describes the impact on her as follows: Now whenever I am in a car, when we are going past a side street I cringe up and close my eyes because I am afraid that a car is going to end up hitting us again. I used to be able to sleep in the car but I had to get used to being in the car again. I am still trying to get used to sleep….when I cross the street I am even more careful then I was before because I don’t want anything bad to happen. [ 24 ] Sarah O’Donoghue, who is Mr.

Aul’s wife and the stepmother to Sarah and Kristen, also filed a victim impact statement. She wrote very poignantly about how an otherwise normal day, when her husband was returning Sarah and Kristen to their mother who lives in Hamilton, something he had done hundreds of times, can, after one phone, call turn a whole family’s lives in turmoil. She wrote that her husband suffered for many weeks but tried to downplay his injuries and the pain he suffered so as not to worry herself or their children.

She spoke about how the summer of 2011 was lost to their family who love going camping and swimming and how her husband who loves to play the guitar had to endure painful and intensive physiotherapy to be able to play again. Ms. O’Donoghue expressed how children should never have to endure such a nightmare and how frustrated and helpless a parent is as there is nothing that anyone can do to erase the memory of that frightening day from these children’s memories. [ 25 ] Mr.

Aul and his wife also suffered an economic loss of about $2,107.00 that should be compensated for loss of employment income. [ 26 ] The defendant has an unrelated criminal record. In 2006, he was convicted as youth for robbery and received a sentence of 34 months probation and in 2008 he was convicted of a charge of theft under $5,000.00 and received a sentence of 12 months probation. 4.2 Mitigating Factors [ 27 ] I have considered the following mitigating factors. [ 28 ] The defendant is 24 years old. He was born in Moldova and immigrated to Canada with his parents in 1996.

He had was he describes as a “normal childhood”. He completed high school and has been working consistently as a plumber since then and earns about $48,000.00. [ 29 ] The defendant pleaded guilty albeit on the day of the trial and the witnesses including Sarah and Kristen were in attendance and prepared to testify. Although a guilty plea on the day of trial does not have the same weight as an early plea, nevertheless, by pleading guilty he spared these young children the trauma of testifying. [ 30 ] The defendant has apologized to Mr. Aul and his family and has expressed his remorse.

I have no reason to doubt his sincerity. [ 31 ] The defendant has performed 30 to 40 hours of community service, much of which is directed to speaking to youth about the dangers of drinking and driving. [2] [ 32 ] The pre-sentence report is quite general with input only from the defendant, his parents and his girlfriend. I agree with Crown counsel’s submissions that rather than being positive, it is not negative. [ 33 ] The defendant is quoted in the pre-sentence report as stating that he regrets and is prepared to make amends for what he calls “a mistake” and that, “I wish I could turn back the time.

I’m sorry the situation took place. I’m not a criminal.” The defendant also wanted to make it clear that he had no intention of harming anyone. [ 34 ] The defendant’s father testified at the sentencing hearing. He testified that he is a cancer survivor but there are recent concerns that his cancer may have returned. His only source of income is a small pension and the modest income of his wife who herself suffers from diabetes. He testified that his son lives with them and helps them financially and also assists with transportation and other household chores.

He testified that he did not know how he and his wife would manage if the defendant could not assist them. [ 35 ] However, in cross-examination, it appeared that the defendant did not actually contribute financially and only paid his own expenses and for his lawyer’s fees. Although the defendant’s father spoke about how only defendant could help, the defendant does have a brother who is residing in this jurisdiction and it was unclear why he also could not assist.

Further, in the pre-sentence report the defendant’s girlfriend indicated that she and the defendant were seriously planning to move to Calgary and planned to married within

two years. It therefore appears that the defendant and his girlfriend did not consider that the defendant needed to live with his parents to assist them. [ 36 ] The defendant has a very supportive family and also has the support of his girlfriend. However, it is apparent that none of them appreciate the criminality of his offence. The defendant’s father seemed to deflect or blame his son’s drinking on his son’s employer.

He also testified that the defendant was very upset about the damage to his BMW that he worked so hard to buy. [ 37 ] The defendant’s girlfriend, Shantel Prashad, praised the defendant’s compassion, empathy and his exceptional character. However, I note that Ms. Prashad, who was the passenger in the defendant’s car on the evening of this offence, did nothing to stop the defendant from driving when he was obviously intoxicated and so I must question her judgment. [ 38 ] The defendant has no prior history of alcohol related offences.

Both the defendant and his family maintain that he does not have any substance abuse issues. 5. CONCLUSION [ 39 ] Drinking and driving is a criminal offence – not simply “a mistake” and those that commit these offences are “criminals”. Perhaps because these offences are regrettably so common in our society and perhaps because we as judges hear these cases every day, we have become somewhat immune to the personal havoc they cause the victims.

Although judges quote as I have done in this judgment the words of well-respected jurists, the impact of these crimes on their victims and long lasting effects of these crimes on the victims are not always sufficiently considered. [ 40 ] As much as offenders indicate, as the defendant has done in this case, that they are sorry and that they wish to make amends, Mr.

Aul and his wife and their children will not be able to erase the effect of this incident on their lives. [ 41 ] Every day members of the public get into their cars alone or with loved ones and take their lives in their hands as there is the possibility that someone may have been drinking and driving. The statistics indicate that alcohol is a contributing factor in an average of 43% of all motor vehicle accidents. [3] [ 42 ] The defendant is fortunate that he did not kill or seriously injure himself, his girlfriend, Mr.

Aul or his children. [ 43 ] In sentencing the defendant the court must balance all of the positive antecedents in his life, the fact that he is still young, he is a productive member of our society and recognize that the principle of rehabilitation is still a factor that should be considered. [ 44 ] I have considered that the defendant offers his family practical support and perhaps even some financial support. I appreciate that the defendant’s family may suffer because the defendant chose to drink and drive and that he will be imprisoned as a result.

But the other reality is that the family of the victim also suffered as a result of the defendant choosing to drink and drive. [ 45 ] I have also considered that there is a possibility that the defendant could lose his employment if he does not receive an intermittent sentence.

However, the fact that the defendant might lose his employment or not be able to assist his family members are both clearly foreseeable consequences to someone who decides to drive in the manner the defendant drove and with that much alcohol in his system. [ 46 ] I do not find that either of these factors outweighs the need of imposing a sentence that will clearly indicate to this community that drinking and driving will not be tolerated despite the otherwise good character of an offender. [ 47 ] The importance of a sentence for drinking and driving offences reflecting specific values of the community of Halton Region was considered by Justice Quigley of the Ontario Superior Court, sitting in Milton in the case of R. v.

Thompson , he noted that this region must bear the consequences of drinking and driving offences that occur daily on the three multilane high-speed thoroughfares that pass through it namely, Highway 401, Highway 407 and the Queen Elizabeth Way. Although in the case he was considered the defendant was a repeat offender, his observations are just as applicable to this case.

Justice Quigley stated at paragraph 46: .. the burgeoning population of Halton Region, the fastest growing community in the country according to the last census report, is becoming increasingly intolerant of the carnage being wreaked on the highways and arterial roads that pass through their community, and particularly intolerant and demanding in the case of repeat offenders. The community whose values I am required to give expression to in the sentence I impose on this offender today wants a serious and unequivocal message to be conveyed.

That message is that there is zero tolerance for drinking and driving, zero tolerance for dangerous driving, and zero tolerance for repeat offenders.

That community wants to know that these offences will not be tolerated, and that significant custodial sentences will be imposed in response to them…. [ 48 ] It is the responsibility of the court to reiterate the clear and firm message that the need for deterrence and denunciation continues in this community, that drinking and driving will not be tolerated and that where there is an injury as a result of such drinking and driving the appropriate sentence will be a period of incarceration. [ 49 ] It appears that although drinking and driving offences continue to occur there has been an increase in public awareness of the dangers and that harsh penalties will be imposed for those that are caught.

It is clear that in these types of offences the general public can be deterred by the prospect of a substantial sentence for drinking and driving offences. [ 50 ] Therefore, in balancing all of the principles of sentencing, but in particular the need for general deterrence and denunciation, and considering the specific facts of this case, in my view an intermittent sentence does not appropriately reflect the gravity of this offence. [ 51 ] Accordingly, I make the following order:

Mr. Verbitski will be sentenced to a term of five months imprisonment. Following which he will be placed on probation for 12 monthson the following terms:

a) Keep the peace and be of good behaviour;

b) Report as directed to your probation officer forthwith upon your release and then as required;

c) Attend for any assessment and take such counselling as may be recommended;

d) Sign such necessary releases to allow your probation officer to monitory your compliance with any recommended counselling,treatment or rehabilitative programs and to share any information between themselves as may be necessary;

e) Provide restitution to Jeffrey Aul in the amount of $2,107.00 to compensate him and his wife for their loss of employment incomewithin 6 months. [52] You will be prohibited from driving for 18 months. [53] There will be a DNA order. Generally, it has been held that it is in the interests of the administration of justice to makesuch an order. I have considered the serious nature of this offence, the defendant’s prior criminal record and the fact that I have notheard any submissions, nor is there any evidence that the taking of the defendant’s DNA would seriously impact his privacy or securityinterests.

See R. v. MacLeod 2004 NSCA 31 , [2004] N.S.J. No.58, 182 C.C.C (2d) 437 (N.S.C.A). [54] The victim fine surcharge is imposed. The defendant will have six months to pay. [55] Subject to any further submissions, that will be the sentence on this charge. Released: November 15, 2012 Signed: “Justice Roselyn Zisman

Schedule of Cases Referred to by counsel Crown cases R. v. Hayre [2001] O.J. No. 844 (Ont.C.A.) R. v. Levesque [2001] O.J. No 210 (Ont.C.A.) R. v. Machado [2000] O.J. No. 1247 (S.C.J.) R. v. Thompson [2011] O.J. No. 369 (S.C.J.) Defence cases R. v. Biernat 2009 ONCJ 273 , [2009] O.J. No. 2483 (O.C.J.)

R. v. Rooplal [2009] O.J. No. 5493 (O.C.J.) R. v. Sinnarasa [2005] O.J. No. 4039 (S.C.J.)