)) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 1631

CITATION : R. v. Igor Kresko, 2013 ONSC 1631 COURT FILE NO.: 243/11 DATE: 20130318 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – IGOR KRESKO Defendant )) )) )) )) ) ) Tanya Krancj , for the Crown Ernst Ashurov , for the Defendant DELIVERED: March 18, 2013 HIMEL J.

REASONS FOR SENTENCE [ 1 ] Following a lengthy trial before me sitting without a jury, I found Igor Kresko guilty of the offences of refuse to provide breath sample causing death (s. 255(3.2), refuse to provide breath sample causing bodily harm (s. 255(2.2), two counts of fail to stop at the scene of an accident causing bodily harm (s. 252(1.2)), and drive while disqualified (s. 259(4)(a), contrary to the Criminal Code . At the request of counsel, I ordered a pre-sentence report which has now been prepared and reviewed by counsel and Mr. Kresko.

Counsel have called evidence and made their submissions at the sentencing hearing. I now provide my reasons for sentence. FACTUAL BACKGROUND: [ 2 ] On September 26, 2010, Igor Kresko was arrested as a result of a motor vehicle collision involving a 2000 Mercedes Benz SUV and a 2009 Honda Civic that took place at approximately 10:35 p.m. at Highway 27 and Vice Regent Blvd. in the City of Toronto. That evening, there had been a large gathering of people at the Woodbine Banquet Hall celebrating Eid and marking the conclusion of Ramadan.

The dinner, at which no alcohol was served, had ended and people were leaving the banquet hall. Asif Iqbal was the driver of the Honda Civic and his 29-year-old wife Sadaf Iqbal and their two young children were passengers in the back seat. [ 3 ] Mr. Iqbal was following his father-in-law who was in the car ahead as he made the left turn from Vice Regent. As Mr. Iqbal was making the left turn from Vice Regent Blvd. to go southbound on Highway 27, his vehicle was struck by the silver Mercedes SUV that was proceeding northbound.

The driver of the Mercedes did not sound his horn and began braking late such that the car collided with the driver’s side rear door of the Honda where Ms. Iqbal was sitting. The impact was so significant that both vehicles ended up in the southbound lanes of Highway 27 and debris was scattered all across the road. [ 4 ] The six-year-old child who had also been sitting in the back seat of the Honda was trapped in the vehicle. Ultimately, she was removed and taken to hospital with serious injuries to her vertebrae and spleen and required hospitalization for several weeks.

The seven-week-old infant in the baby seat in the rear of the Honda survived the collision with minor scratches. Ms. Iqbal was pronounced dead at the scene. [ 5 ] Police, ambulance and firefighters responded to the numerous 911 calls made immediately after the collision by people who were nearby. Imran Saleem, who had attended the celebration with his family, was leaving the banquet and, when he saw people running to the site of the collision, he went there too to offer assistance.

When he arrived, he noticed that there was no one inside the Mercedes, the driver’s door was open and a male person was trying to remove the rear licence plate from the vehicle. A security guard who ran to the scene from the nearby Woodbine Race Track asked the male if he was okay and he mumbled in response. They could not make out what he was saying. The security officer told the man to stop and wait there. [ 6 ] When the police arrived, they told the security officer to keep an eye on the man. Mr.

Saleem also said that he saw the man walking around alone in the parking lot and remembered him because he stood out as a Caucasian who did not look like one of the community. He saw this man standing near the entrance of the banquet hall. [ 7 ] Martin Stanislas, who was driving north on Highway 27 as he approached the collision, heard a baby crying and stopped to assist. He said he saw a man sitting in the driver’s seat of the Mercedes. He described this man as tall (5 feet 11 inches), bald and about 200 pounds. He said that the man said to him, “Get me a cab. I have to get out of here.” Mr.

Stanislas asked the security guard to keep an eye on him. Mr. Kresko was told to stay beside the car until police were able to speak to him. The security guard later saw Mr. Kresko

trying to remove the licence plate from the car and then throw the plate into the car. [ 8 ] As a crowd was gathering around the collision scene, police cordoned off the area with yellow tape. PC Bergeron noticed that the man who had been standing by the Mercedes was no longer in the area of the car. Police put out a broadcast concerning the collision and gave a description of the male who had been by the Mercedes and had possibly gone to the area of the banquet hall.

The description was for a bald, white male, wearing a black jacket. [ 9 ] Mohammed Abdullah had been at the banquet hall that night and was picking up his family at the front entrance of the hall with his taxi cab when he was approached by a person whom he described as male, bald, white, clean shaven, wearing a white coat and a black shirt. He said this man asked to be taken to Etobicoke. Mr. Abdullah told the man that that he was not working and the taxi was not available.

He said while talking to the man he detected a smell of alcohol on his breath. [ 10 ] When Officer Hazell arrived on the scene, she went over to the area of the banquet hall and saw a large crowd of people of East Indian descent who were leaving the dinner with their families. Officer Hazell noticed a man fitting the description of the person who was believed to have been driving the Mercedes, the bald, white male wearing a black jacket. She observed him standing next to a taxi that had an open door but did not have a driver.

At first, she thought he was the driver of the taxi. [ 11 ] At approximately the same time, PC Kennedy was in the vicinity of the banquet hall. He observed a person who matched the description of the person believed to be the driver of the Mercedes and whose description had been broadcast over the police radio as: male; 5 feet 8 inches to 6 feet tall; 170 pounds; shaved bald head; European; approximately 30 to 40 years old; and wearing blue jeans and a black leather jacket.

While there were many people in the area dressed in the same type of clothing for the celebration of Eid, there was no one else in the vicinity who matched the description of the man given in the police broadcast. [ 12 ] Officer Hazell and Officer Kennedy approached the man who was standing close to the entrance of the Woodbine banquet hall and they had a brief conversation. PC Kennedy detected a strong odour of an alcoholic beverage on the man’s breath, found the man to be elusive in answering questions and said that he was unsteady on his feet. Both officers said that the man had difficulty speaking.

The officers escorted him to the accident scene. When they returned to the scene of the collision with the man, the security guard from the Woodbine Race Track identified him as the person from the Mercedes. Officer Kennedy placed Mr. Kresko under arrest for impaired driving and fail to remain at the scene of an accident and read him his right to counsel at the scout car. [ 13 ] Officer Kennedy described Mr. Kresko as unsteady on his feet and as requiring a hand on both of his arms to maintain his balance while walking from the banquet hall to the scene of the collision. Mr.

Kresko had not approached the Honda at any time, nor did he provide his name, address or any assistance to the injured parties following the collision. Officer Kennedy arrested Mr. Kresko on charges of impaired driving and fail to remain. He was identified by his permanent resident card and read his right to counsel, cautioned and given a breath demand at 11:15 p.m. [ 14 ] Mr. Kresko said he did not understand. At 11:18 p.m., Officer Kennedy requested a Russian speaking officer to attend to assist in translating for the accused. [ 15 ] Mr.

Kresko was transported to the police station by Officer Kennedy and Officer Ahluwalia for the purpose of providing a breath sample. During the drive to the station, they observed Mr. Kresko sleeping in the rear of the car. [ 16 ] Mr. Kresko arrived at 22 Division at 11:31 p.m. He was paraded before Staff Sgt. Lowery and told he could make a telephone call when the booking process was done. He said he wanted to speak to his own lawyer but that he did not wish to contact his lawyer at that time and would wait until the morning. Mr. Kresko was belligerent and argumentative with the officer escorting him. Mr.

Kresko had also been advised that he could speak to duty counsel. After the booking procedure, Mr. Kresko was placed in a small report room. Officers attempted to contact his lawyer for him but were not successful. [ 17 ] At 12:28 a.m ., Officer Tumanskiy, a Russian speaking police officer, arrived at the station. Mr. Kresko was paraded again before the Staff Sgt. at 12:40 a.m. with the officer translating for him. After the second parade, Officer Ahluwalia contacted duty counsel to arrange for a Russian speaking duty counsel to speak to Mr. Kresko. Mr.

Kresko spoke to a Russian speaking duty counsel and was taken to the breath room at 1:09 a.m. At approximately 1:25 a.m., Mr. Kresko’s lawyer called 22 Division and he was put in touch with him while he was in the breath room. Mr. Kresko was removed from the room in order to speak with his counsel. After the conversation, he was returned to the breath room. At 1:54 a.m., he refused to provide a breath sample. He was charged with refuse to provide a breath sample contrary to s. 254(5) of the Criminal Code . He was escorted from the breath room at 1:57 a.m. [ 18 ] At 2:11 a.m., Mr.

Kresko was advised that the impaired driving charge was being changed to impaired driving causing death. He was transported to Traffic Services for further investigation, held overnight and taken to court the following day for a bail hearing. Although I was not provided with the reasons for his detention, I was advised that Mr. Kresko was denied bail and has been in custody since his arrest. EVIDENCE AT THE SENTENCING HEARING: [ 19 ] The pre-sentence report outlining Mr. Kresko’s background was filed as an exhibit. Counsel for Mr. Kresko filed a letter from Mr.

Kresko’s sister who resides in Russia and has written to convey her views of the positive character of her brother. She refers to his background and the fact that he has acted in a responsible and generous manner in assisting with the support of his family in Russia including his parents, his former wife, his son and, in particular, his sister who required financial aid so that she could be treated for cancer. [ 20 ] The Crown filed Mr. Kresko’s criminal record and his driving record as exhibits. Mr.

Kresko’s criminal record consists of a conviction on July 23, 2004 of driving with more than 80 mgs of alcohol in his blood, for which he received a fine of $800 and a driving prohibition for one year. While it does not appear on the formal record, the pre-sentence report mentions that on February 24, 2009, Mr. Kresko was convicted of mischief and take vessel without consent and was sentenced to a suspended sentence and 18 months’ probation. Mr. Kresko’s driving record was provided as a certified document from the Ministry of Transportation and it contains the following:

03/04/01 Suspension for unpaid fine; 04/07/23 Driving with more than 80 mgs of alcohol (offence date 2003/03/19); 05/07/23 Suspension for fail to complete remedial program; 08/01/29 Careless driving; 08/01/29 Driving while licence is suspended; 08/05/29 Speeding 162 kmh in 100 kmh zone; 08/05/29 Driving while licence is suspended; 08/06/16 Suspended until August 15, 2008 demerit point total; 10/09/27 Suspended until December 26, 2010. [ 21 ] Additional driving infractions were noted in his Ministry of Transportation driver record which was also filed as an exhibit.

They included: 2003/02/18, violation of G2 Licence conditions; 2002/08/27, speeding 75 kmh in 50 kmh zone; 2001/02/14, speeding 85 kmh in 70 kmh zone; 2007/08/12, following too close (noted the he had been drinking) and 2002/11/30, lost control (noted that he had been drinking). Mr. Kresko disputes two of the entries. In particular, he has no knowledge of a conviction involving a collision in August 12, 2007 for following too close. As this is disputed and the document tendered was not provided as a certified copy of a record, I am not relying on the information contained in this document.

Where the same information is contained in the certified document, I consider that as part of Mr. Kresko’s driving record. [ 22 ] Crown counsel also submitted Victim Impact Statements from Mr. Assif Iqbal, husband of Sadaf Iqbal, Ms. Rukhoana Aziz, mother of Sadaf Iqbal and Ayoob Meah, Saba Meah and Zayan Meah, written by the brother-in-law of Sadaf Iqbal. These statements all highlight the pain and suffering experienced by each of these family members and others as a result of the loss of Sadaf Iqbal. [ 23 ] Counsel for Mr. Kresko subpoenaed the records and the records keepers from the facilities where Mr.

Kresko has been incarcerated since his arrest on these charges. The evidence from the records outlines the conditions at the facilities including, in particular, the number of days that Mr. Kresko was detained with more than two people in a cell (triple bunking), the number of days when he did not receive fresh air or yard access and the availability of programs for him. Counsel also submitted into evidence records concerning any misconduct findings on Mr.

Kresko’s file since his incarceration on these charges. [ 24 ] Cassandra Charlton is employed in the Security Department at the Metro West Detention Centre where Mr. Kresko was incarcerated from October 2, 2010 until June 8, 2011. She produced records which showed that Mr. Kresko was in protective custody for most of his time at the facility. He was in a triple bunking situation on 82 occasions. The records do not indicate when he slept on the mattress and when he had a bed, as the inmates would take turns.

While inmates are generally given an opportunity for fresh air each day, sometimes circumstances dictate otherwise. During his time at Metro West Detention Centre, there were 19 days of lockdowns and 23 additional days with no opportunity for fresh air, for a total of 42 days of no fresh air. According to Ms. Charlton, all educational programs are conducted in English and there were no records of whether Mr. Kresko participated in any of them. She was not aware if there were programs in English as a second language. [ 25 ] The representative from the Toronto Don Jail testified that Mr.

Kresko was an inmate at that facility from June 8, 2011 to October 19, 2011 (134 days). No record is kept of the number of lockdowns but, according to the witness, they occur sometimes two or three times per week. There are records maintained concerning triple bunking (more than two people in a cell.) During the 28 days of triple bunking, Mr. Kresko slept on a mattress on the floor for 11 days. While inmates are to be given an opportunity for fresh air in the exercise yard on a daily basis, because of staffing issues or inclement weather, these opportunities may be cancelled.

For the protective custody unit where Mr. Kresko was detained, the opportunity to attend the yard is made available on the average of three days per month. There are no records kept about the programs made available to Mr. Kresko or whether he participated in any of them. [ 26 ] Mr. Kresko was also detained at the Toronto East Detention Centre from October 19, 2011 to the present date, for a total of 516 days. The witness described that there were 47 occurrences of triple bunking but that does not necessarily mean that Mr. Kresko slept on the mattress.

He was offered yard access on 65.63% of the days (the average is 58% for the institution overall). No inmate has access to the yard every day. There were ten days when there were lockdowns for the entire day and two days where due to staffing levels, there was a lockdown for a few hours. There were 33 times when lockdowns took place for two hours. In total, there were 38 partial lockdown days. As for programs, they were only offered in English. There were no records provided on Mr.

Kresko’s participation in programs offered at the jail. [ 27 ] Fraser Brown who works at the Security Department at the Metro East Detention Centre testified that he deals with issues of remission and that for some forms of misconduct, a person may lose remission. He referred to an incident of misconduct noted on Mr. Kresko’s file for an assault on a fellow prisoner on March 14, 2011 which resulted in Mr. Kresko being ordered to be placed in segregation and having his privileges suspended for five days. He was only kept in segregation for two days. There was a second incident involving a shoving match between Mr.

Kresko and another inmate which resulted in a warning but did not result in his segregation. According to Mr. Brown, the misconduct noted for Mr. Kresko was considered minor and would not have resulted in the loss of remission. He also testified that an inmate who is not sentenced does not gain any remission. ISSUES: [ 28 ] What is the appropriate sentence in this case? What is the appropriate credit given for pre-sentence custody? POSITIONS OF THE PARTIES ON SENTENCE:

[ 29 ] The Crown emphasizes that there are aggravating factors in this case, as Mr. Kresko was driving with alcohol in his blood and at an excessive rate of speed. Counsel argues that his actions in failing to remain at the scene demonstrate conduct of moral blameworthiness. Finally, driving while disqualified calls for further sanctions by the court by way of a consecutive sentence. She argues that the pre-sentence report suggests a possible addiction issue which Mr. Kresko does not acknowledge. She also highlights that Mr.

Kresko has not produced any specific evidence concerning his previous employment and that his poor driving record is extensive and demonstrates that he does not take responsibility for his actions. Furthermore, she points to the number of victims affected by the death of Sadaf Iqbal and the pain and suffering caused to Huya Iqbal who spent three weeks in hospital with serious injuries and has ongoing physical and psychological issues. [ 30 ] The Crown takes the position that, according to the jurisprudence, the sentencing objectives for offences of this kind are general deterrence and denunciation.

However, in the circumstances of this case, because of Mr. Kresko’s driving record and criminal record, specific deterrence should be a clear objective on sentence. Not only did Mr. Kresko have a poor driving record, but, on the date of the offences, he was driving without insurance, thus showing disrespect for the law. He had not taken steps to register the motor vehicle, likely because the vehicle would not pass a safety inspection.

Further, he was using licence plates from 2003 which he attached to the car in breach of Highway Traffic Act provisions and he did not have a valid driver’s licence. [ 31 ] Crown counsel argues that there has been a clear shift since 2010 in the sentences imposed by the Ontario Court of Appeal for offences involving drinking and driving. She points out that cases relied upon by the defence are either prior to that shift or were cases involving guilty pleas, or where there was evidence of remorse, or the absence of a bad driving record or the absence of a criminal record.

She submits that sentencing for the offence of refuse breathalyzer causing death should command an even higher sentence than impaired driving causing death although they both have a maximum sentence of life imprisonment. She argues that this is appropriate because of the obstructive nature of the offence. As for the fail to remain causing bodily harm offences, the Crown argues that these offences demonstrate a lack of decency and reprehensible conduct involving a high level of moral blameworthiness. Not only did Mr.

Kresko leave the scene of a very serious collision, but also he attempted to remove the licence plates so that the owner of the car could not be identified. [ 32 ] Counsel’s submission is that this court should impose a global sentence of 7 to 8 years’ imprisonment which recognizes the principle of totality as follows: five years for the refuse breathalyzer causing death and causing bodily harm offences, two years for the fail to remain causing bodily harm offences to be served consecutively and six months to one year for the drive while disqualified offence which should be imposed consecutively.

She argues that since Mr. Kresko did not provide evidence of the impact of the conditions in the jails on him personally, the court should not give him enhanced credit. At the date of submissions, she calculated that he has served 879 days since September 26, 2010 or two years and four months in custody. Crown counsel asks that Mr. Kresko be credited against sentence with pre-trial custody on a 1:1 basis.

She asks that the court not impose an inadequate sentence because of the potential impact of his sentence on his immigration status and suggests that the loss of a potential remedy against a deportation order is not a mitigating factor. She seeks a lifetime prohibition on driving under s. 259(2)(a.1) because of the extensive bad driving record and his criminal record. She also seeks a DNA order under s. 487.051(3). [ 33 ] The position of the defence on sentence is that this court should consider the background of Mr. Kresko and the fact that he has been in custody since the date of his arrest on the offences.

Counsel urges the court to view the circumstances of the case as unique, as Mr. Kresko was not the sole cause of the collision. Counsel argues that, in contrast to other situations outlined in cases cited by Crown counsel, in this case there is less blameworthiness in terms of causation since Mr. Iqbal drove out onto the highway and his conduct had a role in the accident when Mr. Kresko had the right of way. Mr. Kresko’s driving was not the only cause of the collision and, therefore, this is an exceptional case. [ 34 ] Defence counsel points out that the pre-sentence report outlines that Mr.

Kresko was self-employed as a painter so that further evidence of his work history is not available. He says that Mr. Kresko disputes the driving record tendered by the Crown in that he says he has no knowledge of a collision on August 12, 2007. [ 35 ] Counsel argues that the offences of which Mr. Kresko was convicted arose out of the same transactions and that concurrent sentences are therefore appropriate. While Mr.

Kresko was driving a vehicle that was not registered to him, without ownership and without insurance, he was not charged with those offences and the court must be careful to sentence only for those offences for which he was charged and convicted. As for the refuse breathalyzer causing death offence, he disputes Crown counsel’s position about treating this offence more harshly than the offence of impaired driving causing death.

He argues that the sentence must be proportionate to the gravamen of the offence and that the offence of refuse breathalyzer is more akin to fail to remain causing bodily harm or death and should be in the range of twelve to eighteen months. The sentence for the offence of drive while disqualified should be six months or less with an order of probation and conditions. He does not oppose the DNA order but argues that the driving prohibition should be for two to five years. [ 36 ] Defence counsel submits that it is appropriate to impose a sentence of time served.

Counsel points to the evidence he led on the conditions in the jails where Mr. Kresko was detained, the lack of appropriate programs and that any misconduct on Mr. Kresko’s record was minor and would not have been considered the type of offences for which he would have lost remission. He argues that it is not necessary that there be evidence of what the impact of these conditions would be on the accused. He also takes the position that the consequences of the sentence on his immigration status may be taken into account, but cannot take the sentence out of the appropriate range.

If he is sentenced to a sentence of two years or more, Mr. Kresko will have no recourse against a deportation order. [ 37 ] Mr. Kresko’s counsel submits that he has spent 881 days, or two years and five months, in pre-trial custody since September 26, 2010 and much of it under harsh conditions. As a result of those harsh conditions and his loss of remission in light of the “dead time”, he should be credited with 1.5 days for each day served. ANALYSIS AND THE LAW: [ 38 ] Before turning to the specific circumstances of this case, I first consider the general sentencing principles which apply.

The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code . It is to ensure respect for the law and to promote a just,

peaceful and safe society.

The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section.They are: denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separatingoffenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community,promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community. [39] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Whenimposing sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating ormitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed insimilar circumstances. Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh.

Theoffender should not be deprived of liberty if less restrictive sanctions are appropriate and all available sanctions other thanimprisonment, that are reasonable in the circumstances, should be considered for all offenders, particularly aboriginal offenders. [40] I now turn to the relevant legislative provisions and jurisprudence on sentencing applicable to the offences in this case.

Refusal to provide a breath sample causing bodily harm or death (ss. 255(2.2) and (3.2)) [41] On July 2, 2008, Parliament added the offences of driving with a blood alcohol level over the legal limit and causing anaccident which resulted in bodily harm and/or death, and refusal to provide a breath sample knowing that their operation of the motorvehicle caused an accident resulting in bodily harm 255(2.2)), and/or death (s. 255(3.2)).

As a result of the 2008 amendments to theCriminal Code, the penalties for the offences of impaired driving causing bodily harm and refuse to provide a breath sample causingbodily harm are the same.

That is also the case for the offences of impaired driving causing death and refuse breath sample causingdeath. [42] It would seem that, given where and how these amendments are positioned in the Code and the intent of Parliament asindicated in the statements from the House of Commons Standing Committee on Justice and Human Rights (May 30, 2007) and theDebates of the Senate (Hansard), 2nd Session, 39th Parliament, Vol. 144, Issue 36 (Wednesday, February 27, 2008), and made beforethe Standing Senate Committee on Legal and Constitutional Affairs on February 20, 2008, that it was the intention of Parliament to treatthese new offences in a similar manner to drinking and driving offences.

Therefore, while some of the comments in the case law on thepurposes of sentencing for alcohol related driving offences and the dangers of impaired driving are more relevant to cases whereimpairment has been proven beyond a reasonable doubt, the intent of Parliament to create these new offences for refusing to provide asample causing death and bodily harm, and the imposition of the same penalties for these offences as for impaired driving offences, areclear indications that the harm targeted is similar and the comments with respect to sentencing for alcohol related driving offences are,therefore, relevant.

I am mindful that Mr. Kresko was acquitted of the offences of impaired driving causing death and impaired drivingcausing bodily harm, as the Crown could not prove the elements of these offences beyond a reasonable doubt. Therefore, he will not besentenced for offences for which he was found not guilty. [43] However, I also consider that I was satisfied that the police officer had reasonable and probable grounds to believe that Mr.Kresko was driving a motor vehicle while his ability to do so was impaired by alcohol and that there was a lawful basis to demand abreath sample.

Given the presence of indicia of consumption of alcohol by Mr. Kresko on September 26, 2010, and the Parliamentaryintent when introducing the new provisions, it is not inappropriate to consider the sanctions for the refuse breathalyzer causing death andcausing bodily harm with reference to the sentencing cases for impaired driving causing death and causing bodily harm.

I reject theCrown’s view that the refuse breathalyzer offences should attract a harsher sentence than impaired driving causing bodily harm andcausing death offences and I reject the defence position that the refuse breathalyzer offences should attract a lesser sentence and onemore akin to the sentences given for fail to remain causing bodily harm offences. [44] In the case of alcohol related driving offences, general deterrence is the primary consideration. Many appellate courts acrossthe country have adopted the following reasoning of the Ontario Court of Appeal in R. v. McVeigh, (ON CA), [1985]O.J.

No. 207 (C.A.), that drinking and driving offences are serious and should attract substantial sentences: 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 predominant concern, and such deterrence isnot realized by over-emphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving. [45] More recently, there is evidence of an upward trend in sentencing for such offences: see R. v. Junkert, 2010 ONCA 549, 259C.C.C. (3d) 14, at paras. 46 – 48. In R. v.

Harrington, 2012 ONSC 5363, [2012] O.J. No. 4545, the court wrote at paras. 50 – 52: In R. v. Junkert, 2010 ONCA 549, 259 C.C.C. (3d) 14, at paras: 46 to 48, the Court of Appeal acknowledged that while the length ofsentences in cases of impaired driving causing bodily harm vary considerably, In recent years there has been an upward trend in the length of sentences imposed for drinking and driving offences.

The reasons for thistrend can be attributed to society's abhorrence for the often tragic circumstances that result when individuals choose to drink and drive,thereby putting the lives and safety of others at risk. [46] The cases involving sentences for impaired driving causing death or causing bodily harm offences consider characteristics ofthe offender such as: age; prior driving record, especially a prior conviction for a related drinking and driving offence; a history ofalcohol or drug abuse; and, the prospect for rehabilitation.

They also refer to the presence of aggravating factors such as: previousconvictions (including certain other serious driving offences (see s. 255(4)); blood alcohol level exceeding 160 milligrams of alcohol inone hundred millilitres of blood (see: ss. 255.1, 718.2(a)); damage to persons or property; driving that represented a significant risk of

injury or death; and bodily injury or death. As with impaired driving and “over 80”, general deterrence is the primary consideration whensentencing for failure to provide breath sample offences: see R. v. McVeigh, (ON CA), [1985] O.J. No. 207 (C.A.); R.v. Ramage, 2010 ONCA 488, [2010] O.J. No. 2970, at paras. 74-75. [47] The offence of failure to provide a breath sample causing death (s. 255(3.2)) calls for a sentence with a maximum of lifeimprisonment and a minimum of a $1,000 fine for a first offence, 30 days for a second offence and 120 days for a third offence.

Theoffence of failure to provide a breath sample causing bodily harm (s. 255(2.2)) has a maximum of 10 years’ imprisonment and aminimum of $1,000 for the first offence, 30 days for a second offence and 120 days for a third offence. [48] While there is a dearth of jurisprudence on these new offences, and no clear direction with respect to sentencing forconvictions under ss. 255(2.2) and (3.2), there is, nonetheless, certain guidance on what constitutes an appropriate sentence for theseoffences.

This guidance can be found in the legislation itself and in the underlying purpose for its enactment as demonstrated in theHansard debates and statements made at Committee.

Given the fact that these offences bear the same potential consequences uponconviction as impaired driving causing death or bodily harm, as well as the legislative purpose which brought these provisions about –namely, to serve as a disincentive to drivers to refuse to provide breath samples in an effort to escape impaired driving convictions andinstead benefit from the then lesser consequence of convictions for failure to provide a breath sample – it would seem that guidance maybe gleaned from the sentencing cases for impaired driving causing bodily harm or impaired driving causing death. [49] I now examine some of the leading cases in this area.

In R. v. Bush, 2012 ONCA 743, [2012] O.J. No. 5192, the courtimposed a sentence of 12 years' imprisonment following a guilty plea to criminal negligence causing death, impaired driving causingdeath, driving while disqualified and breach of an undertaking to abstain from consumption of alcohol. The appellant was the driver and,with three friends in the car, engaged in a “drunken high speed crop tour”, at times with passengers hood surfing. He drove off the roadand landed the car upside down in a stream, leaving the passengers trapped.

He tried to convince the other passengers to fabricate a storyand refused to assist them until they agreed to support his lies to the police. One passenger died. The Court of Appeal held that while thesentence was undoubtedly high, it was not unfit. [50] In R. v. Ramage, 2010 ONCA 488, [2010] O.J.

No. 2970, the court imposed a sentence of four years’ imprisonment and a fiveyear driving prohibition for convictions of an offender with an otherwise exemplary background for impaired driving causing death,dangerous driving causing death, impaired driving causing bodily harm, dangerous driving causing bodily harm, and “over 80". Theaggravating factor in this case was the appellant’s high blood alcohol. There were significant mitigating factors.

Even given theappellant’s exemplary life, other than this event, and the extreme impact this would have on his home and work life, the Court of Appealdid not find the sentence of four years to be manifestly unreasonable. He was a devoted father and husband, felt great remorse, would bebarred from entering the United States (where he had worked and lived for many years), and had the support of the victim’s familyasking the trial judge not to incarcerate him. In light of the objective of general deterrence, the sentence of four years’ imprisonment wasseen as no error in principle. [51] In R. v.

Junkert, 2010 ONCA 549, [2010] O.J. No. 3387, the court upheld a sentence of five years' imprisonment and a 10year driving prohibition for convictions of dangerous driving causing death and impaired driving causing death. The appellant wasdriving home from his girlfriend’s house while impaired and had a blood alcohol level of 130 mg shortly after the accident. He hit awoman who was running on the sidewalk, killing her almost instantly. He had no previous convictions.

Following his arrest, theappellant served six days in custody, after which he was released on bail under conditions that he could only leave home in the presenceof his elderly father and could not drive or drink. These conditions lasted 28 months. The sentencing judge gave him no credit againstsentence for this time, in part because the appellant had breached his bail conditions and had not made efforts to find a job. The sentencewas not outside the appropriate range given the seriousness of the offences and their impact on the victim and her family.

This case alsohighlights that in recent years there has been a trend toward increased sentences for these types of driving offences.

At paras. 46 to 48,the Court of Appeal acknowledged that, while the length of sentences in cases of impaired driving causing bodily harm varyconsiderably, “in recent years there has been an upward trend in the length of sentences imposed for drinking and driving offences.” Thecourt attributed this upward trend to society's abhorrence for the often tragic circumstances that result when individuals choose to drinkand drive, thereby putting the lives and safety of others at risk. [52] In R. v. Van Puyenbroek, 2007 ONCA 824, [2007] O.J.

No. 4689, the court upheld the trial judge’s sentence of three yearsand six months’ imprisonment for the driving offences. The appellant was convicted of impaired driving causing bodily harm, dangerousdriving causing bodily harm, failing to remain at the scene of an accident, and careless storage of firearms. The appellant was intoxicatedat a Christmas party. Although he was offered a ride, he insisted on driving himself home. On the way, he hit two pedestrians who werewalking on the shoulder of the highway, causing one of them very serious injuries.

He left the scene and drove a short distance to hishome, where he was later arrested by police. During the course of the arrest, the police found two long guns and ammunition that wereimproperly stored. The received a total sentence of three years and six months’ imprisonment for the driving offences, plus 60 days’imprisonment for the careless storage charge after receiving two-for-one credit for 55 days of pre-trial custody. [53] The Court of Appeal held that although the sentence of three years was somewhat beyond the range historically imposed insimilar cases, there was no error.

Further, the trial judge did not err in law by imposing a consecutive sentence for leaving the scene. Thatoffence involved separate conduct for which the trial judge was entitled to impose a consecutive sentence. However, applying the totalityprinciple, the total sentence was reduced to three years after credit for pre-trial custody. [54] In R. v. Nandlall (2009), 88 M.V.R. (5th) 78, (Ont.

S.C.), the offender was sentenced to three years’ imprisonment forcriminal negligence causing death and for impaired driving causing death, to be served concurrently, and six months’ imprisonment forfail to remain at scene of accident, to be served consecutively. The 23-year-old accused struck the 19-year-old victim, who wasattempting to cross the road. The victim died instantly. The accused continued to drive but stopped about half a kilometre north of thecollision location. He was taken to the police station and provided breath samples where the blood alcohol readings were 164 mg and160 mg per 100 ml of blood.

The offender’s age, lack of criminal antecedents, previous good character and family support weremitigating factors. That the accused left the accident scene and did not seek assistance for the victim added to his moral blameworthinessand was relevant in imposing a consecutive sentence.

[55] In R. v. Holliday, 2009 ONCJ 323, 87 M.V.R. (5th) 148, the court imposed a sentence of three years’ imprisonment forimpaired driving causing death, six months’ imprisonment, consecutive, for failing to stop at scene of accident and 30 days’imprisonment imposed as a concurrent sentence for failing to provide a breath sample. The accused had been drinking and drove througha red light colliding with the victim's car. The victim died at the scene and the accused fled. He was later found by police and refused toprovide a breath sample.

The accused was charged with impaired driving causing death, failing to stop at the scene of an accident, andrefusing to provide breath sample. He later pleaded guilty. Failure to stop at the scene of an accident causing bodily harm (s. 252(1.2)) [56] Section 252(1.2) provides for a maximum sentence of 10 years for this offence. There is no minimum sentence. The courtmay also impose a prohibition from operating a motor vehicle for a period not exceeding three years (s. 259(2)); the period begins theday that it is imposed (s. 719(1)).

The primary objectives when sentencing for this offence are: general deterrence; specific deterrence(especially if there were attempts made to avoid detection, such as reporting the vehicle stolen); and protection of the public. The courtwill look at characteristics of the offender including age, employment history, and attempts at or prospects for rehabilitation.

The casesalso highlight certain aggravating factors: awareness of the injuries; prior drinking and driving related criminal record; history of drivinginfractions; alcohol consumption at or near the time of the accident (pursuant to s. 255.1, evidence that the accused’s alcohol levelexceeded 160mg of alcohol in 100ml of blood shall be deemed to be an aggravating circumstance); injuries or death resulting from theaccident; erratic or dangerous driving; any efforts to cover up the offence or avoid detection. Aggravating factors must be proven beyonda reasonable doubt before they can be relied upon (s. 724(3)(

e) of the Criminal Code). [57] As the failure to remain and offer assistance to those injured by the driving is regarded as a separate and aggravatingcircumstance, generally the sanction imposed for failure to remain is consecutive unless this would result in an excessive global sentencein light of the totality principle: see R. v. Van Puyenbroek, 2007 ONCA 824, [2007] O.J. No. 4689; R. v. Gummer, (ON CA), [1983] O.J. No. 181 (C.A.). [58] The following are some of the more pertinent jurisprudence. In R. v. Patriquin, 2012 ONCA 67, [2012] O.J.

No. 399, thecourt dismissed an appeal from sentence where the sentencing judge imposed a global sentence of five years' imprisonment forconvictions of driving with a blood alcohol level exceeding the legal limit (“over 80”) and failing to remain at the accident scene whichincluded six months’ imprisonment, concurrent, for the fail to remain conviction. The accident resulted in only minor injuries. The globalsentence was significant so the fail to remain sentence in this case was concurrent. The offender had numerous prior convictions forrelated offences. [59] In R. v. Badhwar, 2011 ONCA 266, [2011] O.J.

No. 1541, the court dismissed an appeal from sentence of 25 months’imprisonment on criminal negligence causing death and 12 months’ imprisonment, imposed as a consecutive sentence, for failing to stopat the scene of an accident.

Here, the appellant sought to have global sentence of 37 months unchanged; he merely sought to realign thenumbers in order to circumvent the provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, that prevent him fromappealing, as of right, the deportation order he is facing as a result of his conviction and sentence of 30 months (less 5 months for timespent in pre-trial custody) on the charge of criminal negligence causing death.

The sentence imposed was deemed not unfit and the courtheld that courts should not impose inadequate sentences to circumvent Parliament’s will on matters of immigration. [60] In R. v. Van Puyenbroek, 2007 ONCA 824, [2007] O.J. No. 4689, mentioned above, the court upheld a sentence of sixmonths’ imprisonment for the fail to remain charge to be served consecutively. The Court of Appeal held that although the sentence ofthree years was somewhat beyond the range historically imposed in similar cases, there was no error.

Further, the trial judge did not errin law by imposing a consecutive sentence for leaving the scene. That offence involved separate conduct for which the trial judge wasentitled to impose a consecutive sentence. However, applying the totality principle, the total sentence was reduced to three years aftercredit for pre-trial custody. [61] In R. v. Baker (2006), (ON CA), 81 O.R. (3d) 276 (C.A.), the court affirmed a sentence of nine months’imprisonment for failing to remain at the scene of an accident, followed by 15 months conditional sentence for criminal negligencecausing bodily harm.

The accused collided with another boat late at night. The occupants of the other boat were rendered unconsciousand the boat was sinking when the accused fled the scene. One occupant suffered minor injuries and a second occupant sustainedsignificant injuries including brain damage. The sentence was affirmed on appeal and leave to appeal to the Supreme Court of Canadawas refused: [2006] S.C.C.A. No. 464. [62] In R. v. Lupien (1995), 68 Q.A.C. 253 (C.A.), the court imposed a sentence of 10 months’ imprisonment where the offenderstruck and killed a pedestrian and then left the scene.

The offender was 48 years old and had no criminal record. He had a stable familylife and a job. [63] In R. v. Elphick (1995), 14 M.V.R. (3d) 61 (Ont. C.A.), the court imposed a sentence of nine months’ imprisonment where theoffender lost control of the vehicle during a high-speed chase and a 14-year-old passenger in the offender’s car was killed. He had nocriminal record and was a person of good character but the tragic and unjustifiable accident required a significant custodial sentence. [64] In R. v. Luangpakham, [2012] O.J.

No. 1475 (S.C.), the offender was sentenced to nine months' imprisonment for five countsof dangerous driving causing bodily harm and 15 months less one day consecutive imprisonment for five counts of failing to stop at thescene of an accident and a one year driving prohibition. The driver struck and injured five cyclists seriously and fled the scene. Threehours later he turned himself in to the police. [65] In R. v. Nandlall (2009), 88 M.V.R. (5th) 78, (Ont.

S.C.), the offender was sentenced to three years’ imprisonment forcriminal negligence causing death and for impaired driving causing death, to be served concurrently and six months’ imprisonment forfail to remain at scene of accident, to be served consecutively. The 23-year-old accused struck the 19-year-old victim, who wasattempting to cross the road. The victim died instantly. The accused continued to drive on street and was later arrested about a halfkilometre north of the collision location. He was taken to the police station and given a breathalyzer test.

His blood alcohol readingswere 164 mg and 160 mg per 100 ml of blood. The fact that the accused left the accident scene and did not seek assistance for the victim

added to his moral blameworthiness and was relevant in imposing a consecutive sentence. [66] In R. v. Holliday, 2009 ONCJ 323, 87 M.V.R. (5th) 148, the court imposed a sentence of three years’ imprisonment forimpaired driving causing death and six months’ imprisonment, consecutive, for failing to stop at scene of accident as well as 30 daysimprisonment, concurrent, for failing to provide a breath sample. The accused had been drinking and drove through red light, andcollided with victim's car. The victim died at the scene and the accused fled. He was later found by police and refused to provide abreath sample.

The accused was charged with impaired driving causing death, failing to stop at the scene of an accident, and refusing toprovide breath sample. He pleaded guilty to these offences. Driving while disqualified (s. 259(4)(a)) [67] This offence has a maximum sentence of five years’ imprisonment and no minimum sentence. There is a mandatory drivingprohibition under s. 259(1) as follows: one to three years for a first offence, two to five years for a second offence (plus period ofimprisonment), three years (plus period of imprisonment) to life for each subsequent offence.

The sentencing objectives outlined in thecases emphasize protection of the public, specific deterrence and general deterrence. The court will consider previous convictions fordrinking and driving offences and a record for disobedience of previous court orders to be aggravating factors. The following cases arerelevant on sentencing. [68] In R. v. Thornton, 2007 ONCA 366, [2007] O.J.

N0. 1865 (C.A.), the court reduced a global sentence from 30 months to 26months for offences involving impaired driving but upheld sentences of three months’ imprisonment consecutive for each count ofdriving while disqualified. [69] In R. v. Cook, 2012 ONSC 3265, [2012] O.J. No. 2468, the court imposed a sentence of six months' imprisonmentconsecutive for driving while disqualified. The accused was driving a snowmobile after drinking and caused an accident that resulted inthe death of his passenger.

He was convicted of impaired driving causing death and driving while disqualified and was sentenced to fouryears' imprisonment for impaired driving causing death and six months' imprisonment (consecutive) for driving while disqualified. Thecourt also imposed a five year driving prohibition. The accused was gainfully employed and had family support. He had a negativedriving history, failed to accept responsibility for his conduct and continued to insist he was not driver of the snowmobile. Denunciationand general deterrence were the primary sentencing objectives. [70] In R. v.

Quewezance (2011), 2011 SKCA 123 , 375 Sask. R. 320 (C.A.), the court imposed a sentence of ninemonths’ imprisonment and a three year driving prohibition for driving while disqualified. The offender had 78 prior convictions,including 14 driving offences (five of which were for driving while disqualified and nine of which were for criminal driving offences).The accused was on a mud road which he believed to be privately owned. There was no accident or injury.

The Court of Appeal held thatthe sentencing judge placed too much emphasis on rehabilitation and the personal circumstances of the offender in that he had the care ofhis 11-year-old son and was taking a plumbing course and said he wanted to change his life. It is clear that given the accused’s criminalrecord, particularly his past convictions for driving offences, the sentence imposed did not place enough emphasis on his personalresponsibility for driving while disqualified and on the principles of denunciation and deterrence. [71] In R. v. Curinski, 2010 SKCA 155, [2010] S.J. No. 776, sub.nom. R. v.

C.(J.), the court imposed a sentence of 12 months’imprisonment for two counts of driving while disqualified. The accused was disqualified from driving for medical reasons (cognitiveimpairment). He had previously caused an accident that resulted in the death of several people. While suspended, he took his learner’sexam under a false name. This was discovered and his license was again suspended. He was found driving on two subsequent occasions.The trial judge found that deterrence, denunciation and acknowledgement of responsibility were the primary objectives.

The sentencesimposed were four months on the first count and eight months and 18 months’ probation consecutive on the second count. The issue of Credit for Pre-Sentence Custody [72] Since the introduction of Bill C-25: Truth in Sentencing Act amendments (S.C. 2009, c. 29) on February 22, 2010, two-for-onecredit for time spent in pre-sentencing custody is no longer the norm.

Bill C-25 amended s. 719(3) of the Criminal Code to limit asentencing judge’s discretion to award pre-trial and pre-sentence custody credit “to a maximum of one day for each day spent in custody”with a provision for enhanced credit to a maximum of 1.5 in certain circumstances. The amendments to s. 719 of the Code include thefollowing:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent incustody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each dayspent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one half days for each day spent in custody unlessthe reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custodyunder subsection 524(4) or (8). [73] The Bill C-25 amendments came into force on February 22, 2010 and therefore apply only to offences charged after that date:see R. v. Harun, 2011 ONCA 699, [2011] O.J. No. 4948; R. v. Walsh, 2011 ONCA 325, [2011] O.J. No. 1835. Since Mr.

Kresko’soffences occurred on September 26, 2010, after the enactment of this legislation, he is subject to these amendments. [74] The apparent purpose of Bill C-25 was to eliminate having offenders “overcompensated” for time spent in pre-sentencecustody: see R. v. Johnson, 2011 ONCJ 77 , [2011] O.J. No. 822, at para. 83.

While the norm is now 1:1 rather than 2:1, there isstill discretion in the sentencing judge to award additional credit, to a maximum of 1.5:1 for each day spent in pre-sentence custody “ifthe circumstances justify it” (s. 719(3.1)). [75] In Johnson, Justice Green reached the conclusion that 1.5:1 enhanced custody credit would be almost the norm rather than alimited exception, based on the historical purposes of the pre-sentence custody credit. See para. 163:

Judicial efforts to fairly reflect pre-trial custody on sentencing have historically and properly endeavoured to fairly compensate for bothquantitative (remission and parole opportunity loss) and qualitative (onerous remand conditions) disadvantages suffered by accusedpersons who are detained pending their trials.

Both domains of liability have been subject to a singular or conflated metrication,ultimately crystallizing in the judicially malleable convention of two days of credit for every of [sic] day of pre-sentence custody.Jurisprudential accretions to this evolving calculus led at least one jurist to remark (if only by way of footnote) that, "the issue of creditfor pre-trial custody is taking on a life of its own. ... In short, it may be time to revisit the manner in which credit for pre-trial custody isassessed": R. v. B. (J.) (2004), (ON CA), 187 O.A.C. 307, at n. 1, per Moldaver J.A.

Directly or not, Bill C-25represents a Parliamentary response to this sentiment. In a way, the effort to do justice through the calculation of pre-sentence custodycredit has tried to do too much with a single tool of equity and, in the process, has merged disposition-relevant factors that, within thelogic of sentencing, properly warrant independent attention, application and weight. [76] Green J. found that loss of remission and parole potential due to remand in custody roughly translates mathematically into the1.5:1 ratio permitted under s. 719(3.1): see Johnson, at para. 172.

Therefore, to compensate offenders for that loss of that time, he heldthat 1.5:1 should be the norm to avoid having accused persons who were denied bail serving longer global periods of incarceration thanthose released pending trial – “a manifestly unfair and arbitrary result”: see Johnson, at paras. 160-185. [77] Whether to exercise discretion to grant enhanced credit of 1.5:1 has been the subject of numerous judgments in the OntarioSuperior Court of Justice, the Ontario Court of Justice and in other courts in the country.

Some cases have accepted that 1.5:1 isessentially the norm, to account for an offender’s loss of remission and parole eligibility while in remand custody. Where the offenderwould have been eligible for remission, he or she should receive enhanced credit because otherwise the result offends the sentencingprinciple of proportionality in s. 718.1. On this, see R. v.

Vittrekwa, 2011 YKTC 64, 275 C.C.C. (3d) 193, at para. 70: In order to receive enhanced credit, an offender must establish on a balance of probabilities that he or she has suffered the loss of theiropportunity to earn statutory remission and that, had this opportunity existed, he or she would have, in all likelihood, received thisstatutory remission. ... I do not anticipate that this evidence will be difficult to obtain or generally result in prolonged sentencing hearings. [78] Other cases have applied principles of statutory

interpretation and have looked at the intention of Parliament to support theapproach that loss of remission, standing alone, is not sufficient to award enhanced credit. In other words, it was not the intent ofParliament that enhanced credit be the norm and the offender must point to something else to justify 1:5:1 credit: see R. v. Caceres, 2012ONSC 5214, [2012] O.J. No. 4421, at paras. 71-80; R. v. Morris, 2011 ONSC 5206, [2011] O.J. No. 3995, at para. 41. [79] The approach to be taken to s. 719(3.1) has now been clarified by the Ontario Court of Appeal in R. v. Summers, 2013 ONCA147, [2013] O.J.

No. 106, where Justice Cronk writing on behalf of the court held that s. 719(3.1) of the Code permits a judge to creditpre-sentence custody up to a maximum of 1.5:1 for each day in pre-sentence custody, where in considering all relevant circumstances,“enhanced credit” is necessary to achieve a fair and just sanction. Lack of remission and parole eligibility in remand custody may berelevant in justifying enhanced credit. In reaching this conclusion, she noted that the legislators did not require “exceptionalcircumstances” to justify enhanced credit.

Rather, the sentencing judge is to consider all the relevant circumstances and where there issome basis in the evidence or in the information before the court to support the conclusion that enhanced credit is warranted, the judgemay give enhanced credit. Loss of remission and parole eligibility may justify enhanced credit if the person can show that had he beenserving a sentence he would have most probably received remission and/or statutory release.

Where the person intentionally delayedproceedings or refused to participate in treatment programs or there was evidence of misconduct, the judge may exercise discretion andnot grant enhanced credit. [80] In reaching this conclusion, Justice Cronk made reference to other appellate decisions in Canada where the courts haveconcluded that s. 719(3.1) does not require “exceptional” circumstances: see R. v. Carvery, 2012 NSCA 107, 321 N.S.R. (2d) 321, leaveto appeal to S.C.C. requested, [2012] S.C.C.A. No. 519; and R. v. Stonefish, 2012 MBCA 116, [2012] M.J. No. 420.

In Stonefish, thecourt held that there would have to be evidence called to demonstrate that circumstances justify enhanced credit. RESULT: [81] It is one of the most difficult decisions for a trial judge to impose sentence in a case such as this one. Sentencing involves theexercise of discretion and requires the sentencing judge to consider the individual circumstances of the offender, the circumstances of theoffence and the need for the sentence to meet the sentencing objectives outlined by Parliament.

The goal of sentencing is to impose a justand fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence: seeR. v. Wust, 2000 SCC 18 , [2000] 1 S.C.R. 455, at para. 44. The consequences of what occurred on the evening of September26, 2010, are extraordinarily tragic. The loss of Sadaf Iqbal, a 29-year-old mother, wife, daughter, sister and sister-in-law, is so final andso painful that those left behind will never be the same. Ms. Iqbal lost so much that night. Mr.

Kresko has been incarcerated since thecharges were laid and he will always bear the memories of what took place on that fateful night. [82] The criminal justice system cannot right the wrongs that have occurred by undoing these events. No sentence can compensatefor the loss of Ms. Iqbal’s life. A sentence must reflect the principles of sentencing set out in our Criminal Code and take into accountthe specific circumstances of the offences and the specific circumstances of this offender.

The following is what I deem the appropriateresult in this case, taking these issues into account. [83] As I have indicated, a proper sentence must take into account both the circumstances of the offence and the circumstancesof the offender. In the case of Igor Kresko, I consider the following circumstances to be relevant:

(1) Mr. Kresko is 47 years of age. He was born in the Ukraine and moved with his parents and sister who is five years older than himto Russia when he was 11 years old. His mother was a medical doctor, and his father was a truck driver. They were hard working peoplewho were involved with their church. The family had a love of music.

(2) Mr. Kresko married at the age of 20 and had a son who is now 28 years old. He has contact by internet with him. The son has a 5-

year-old child. When he separated from his first wife, Mr. Kresko moved to Moscow and married again. He did not have any morechildren.

(3) Mr. Kresko and his wife divorced and he came to Canada in 1999. He was involved in immigration proceedings for years buteventually received Landed Immigrant status.

(4) Mr. Kresko met a woman in 2007 with whom he has had a strong friendship. She was interviewed by the probation officer alongwith two other friends and they spoke positively about Mr. Kresko.

(5) Prior to his incarceration, Mr.Kresko was working as a painter. He rented a basement apartment from his friend and his hobbieswere biking and skiing.

(6) Mr. Kresko completed his high school education and attended a college that specialized in the marine and fishing industry. He alsoattended military lessons. He was promoted to junior lieutenant, a commissioned officer in the Russian Navy, as a mechanic of a navalship. He worked in the fishing industry for three years. Then he joined some friends in a business operating two stores and sellingwholesale furniture. After some time he decided to move to Canada.

(7) Mr. Kresko has the support of his sister who resides in Russia and wrote a strong letter of endorsement on his behalf.

(8) Mr. Kresko has a criminal record as follows: on July 23, 2004, he was convicted of drive with over 80 mgs. of alcohol in his bloodfor which he received a fine of $800 and a prohibition from driving for one year. He was also convicted of mischief and take vessel forwhich he received a suspended sentence and 18 months probation. He was on probation at the time of these offences. He never re-applied for a driver’s licence and intended to do so when he bought a car. He claims he was test driving the car on the day of theincident. He was driving the vehicle without a valid driver’s licence, without proper registration and without insurance.

(9) Mr. Kresko says he drinks alcohol but denies that he has any substance abuse problems.

(10) Since his arrest on September 26, 2010, Mr. Kresko has been in custody at three facilities in the Toronto area. The details of histime spent and the conditions of his incarceration are outlined above.

(11) Mr. Kresko has a lengthy driving record which, in my view, demonstrates a complete disregard for the law. [84] With respect to the circumstances of the offences, Mr. Kresko was convicted of extremely serious crimes. He had alcohol inhis system and was driving too fast. As a result of his driving, a horrific collision took place which resulted in the death of a youngmother and significant injuries to a six year old child. The evidence was that he did not honk or take evasive action until just beforearriving at the intersection of Vice Regent Blvd. From that, I must conclude that he did not see Mr.

Iqbal’s vehicle making the turn untilit was too late. In my view, although the improper driving may not have been prolonged and the collision may not have been causedsolely by Mr. Kresko, his driving was still a substantial cause of the accident. Mr. Kresko fortunately was not injured in the collision. Hisconduct in attempting to remove the licence plates and making efforts to hire a taxi in order to leave the scene were reprehensible.

Thefailure to stay at the scene to provide information and render assistance, knowing that he had been involved in a serious collision wherethere was no doubt that occupants in the back seat of the car would be seriously injured or dead, demonstrated conduct best described as"a grave failure to comport with the standards of humanity and decency": see R. v. Gummer, supra, at para. 14. That he was driving whiledisqualified because he failed to take a remedial program after his over 80 conviction demonstrated a complete lack of regard for thelaw. [85] The Victim Impact Statements prepared by Ms.

Iqbal’s family members describe the terrible pain and loss that they haveendured as a result of her untimely death. The family all express a profound sense of loss following this tragic event.

Unfortunately, nosentence will undo the wrong nor fill the void that has been created. [86] The jurisprudence emphasizes that general deterrence and denunciation are of paramount concern for offences of this kind.However, the cases also recognize that each case must be considered in light of its circumstances and the aggravating and mitigatingfactors. [87] I am of the view that an appropriate sentence in this case is a global sentence of six years’ imprisonment as follows: for theoffences of refuse breathalyzer causing death and causing bodily harm, I sentence Mr. Kresko to five years’ imprisonment.

For theoffences of fail to remain causing bodily harm, I sentence Mr. Kresko to two years’ imprisonment to be served concurrently. Theseoffences arise from the same transactions. While this is a separate wrongful act and denunciation and deterrence are the primaryobjectives of sentencing for this offence which involves morally blameworthy conduct, in light of the totality principle, I conclude that asentence of two years served concurrently is appropriate. For the offence of drive while disqualified, I sentence Mr. Kresko to one yearto be served consecutively.

The nature of his driving record and his disrespect for orders of the court demand that the sentence beconsecutive for such flagrant disregard of the legal system. [88] In my view, the global sentence imposed meets the objectives of general deterrence and denunciation and reflects society’sabhorrence of these types of crimes and their devastating consequences to those specifically affected and the community at large. [89] I now turn to the issue of credit for pre-sentence custody.

The credit is to be determined by the sentencing judge who is ableto weigh the factors and consider the harshness of the detention and the lack of remission mechanisms for the period of “dead” time: seeR. v. Rezaie (1997), (ON CA), 31 O.R. (3d) 713 (C.A.) at p. 721. In accordance with s. 719(3.1) and the decision of R.v. Summers, supra, I have considered the evidence led before me concerning the conditions of Mr. Kresko’s incarceration since the dateof arrest and the evidence concerning any misconduct during his imprisonment.

I have not been advised that the reason for detaining Mr.Kresko in custody since arrest was stated in the record under subsection 515(9.1) or that he was detained under subsection 524(4) or (8).In these circumstances, I exercise my discretion and award him enhanced credit of the maximum of 1.5:1 for each day spent in pre-

sentence custody as I am satisfied that “the circumstances justify it”. [ 90 ] As I have outlined, I sentence Mr. Kresko to a global sentence of six years' imprisonment. Mr. Kresko has served 904 days (two years, five months and twenty days), which is the period from September 26, 2010 to March 18, 2013. With enhanced credit of 1.5:1, Mr. Kresko is credited with 1,356 days served. The balance he will serve is 834 days (two years, three months and twelve days). [ 91 ] I now turn to the question of the driving prohibition. In the case of R. v. Holm, [2003] O.J.

No. 5385 (S.C.) , Justice Nadeau considered the driving prohibition as part of the punishment and at para. 28, said that it is “to be included as a factor in the totality of the punishment imposed.” Nonetheless, he imposed a lifetime ban on driving. I view the driving prohibition in a similar manner in this case. It is a privilege to possess a driver’s licence to operate a motor vehicle. Mr. Kresko did not have a valid driver’s licence and was driving a car that was not registered and without insurance.

While he was not charged or convicted of these infractions, these circumstances are relevant to the issue of the driving prohibition. The privilege of driving was seriously abused on September 26, 2010. In light of his driving record, I view this case as an appropriate one for a lifetime ban. The driving prohibition is ordered under s. 259(2)(a.1)) of the Criminal Code . [ 92 ] There will also be an order under s. 487.051(3) that a DNA sample be taken. This is imposed for each conviction but only one sample is to be taken. [ 93 ] I am of the view that the victim surcharge should be waived. Himel J.

Released: March 18, 2013 CITATION : R. v. Igor Kresko, 2013 ONSC 1631 COURT FILE NO.: 243/11 DATE: 20130318 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – IGOR KRESKO REASONS FOR SENTENCE Himel J. Released: March 18, 2013