



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gomes, 2022 ONCA 247

DATE: 20220328

DOCKET: C67996

Lauwers, Pardu and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jorge Gomes

Appellant

Carter Martell, for the appellant

Kristen Pollock, for the respondent

Heard: March 9, 2022 by video
    conference

On appeal from the conviction entered on
    August 15, 2019 by Justice Sean F. Dunphy of the Superior Court of Justice,
    sitting without a jury, with reasons reported at 2019 ONSC 4808, and the sentence
    imposed on February 14, 2020, with reasons reported at 2020 ONSC 1013.

REASONS FOR DECISION

[1]

The appellant was convicted of two counts of
    operating a motor vehicle while impaired by alcohol causing bodily harm
    contrary to s. 255(2) of the
Criminal Code
,
R.S.C. 1985, c.
    C-46. He appeals against his conviction.

[2]

The appellant was sentenced to a custodial
    sentence of 3 years, followed by a 3-year driving prohibition. The appellant
    seeks leave to appeal this sentence.

[3]

For the reasons that follow, the appeal is
    dismissed.

Background Facts

[4]

The convictions against the appellant arose out
    of a motor vehicle accident involving a pick-up truck and two pedestrians at
    around 2:00 a.m. on June 3, 2017.

[5]

Three men had just exited a bar on a commercial
    stretch of Eglinton Avenue West in Toronto. They began crossing the street on
    their way to one of their homes nearby. They paused in the westbound lane, near
    the median, to allow a
tow truck to pass them in the
    eastbound lane. Seconds later, they were hit by a pick-up truck driven by the
    appellant speeding in the westbound lane. The violent collision caused serious
    injuries to two of the three men, Mr. Marchese and Mr. De Vellis. The third
    man, Mr. Hedman, was not hit and suffered no injury.

[6]

At trial, there was an agreed statement of
    facts. The appellant admitted the time, date and place of the accident, and that
    he was driving the vehicle involved in the accident. He admitted that he had a
    blood alcohol concentration at the time of the accident of between 150 mg and
    185 mg of alcohol in 100 ml of blood. The appellant also admitted that the
    injuries sustained by the two pedestrians constituted bodily harm for the
    purposes of s. 255(2) of the
Criminal Code
.

[7]

The trial judge heard evidence from a number of
    witnesses, including the three pedestrians; Mr. Martins, the driver of a tow
    truck who passed the pedestrians just prior to the collision; Officer
    Persichetti, a police officer who attended the scene of the accident; Detective
    Constable Chin, a police officer with expertise in the investigation and reconstruction
    of motor vehicle collisions; and an expert toxicology witness who testified on
    the effects of alcohol impairment on drivers of motor vehicles. The appellant
    did not testify.

[8]

Detective Constable Chin testified about data
    drawn from the pick-up trucks sensing diagnostic module (SDM), which
    recorded pre- and post-crash data. DC Chin testified that the SDM did not
    record continuously but began recording in response to certain events. The
    moment the system began recording was referred to as Algorithm Enabled
    (AE), and the system captured data for the five seconds preceding. He
    testified that AE could have been triggered by rapid deceleration or by a
    collision.

[9]

The trial judge found that the appellant was
    impaired, based on the admission that the appellant had a blood alcohol
    concentration of between 150 mg and 185 mg of alcohol per 100 ml of blood at
    the time of the collision and expert evidence as to the degree of impairment
    this would cause. The trial judge also noted that it was agreed that the harm
    suffered by Mr. De Vellis and Mr. Marchese amounted to bodily harm, and that
    the overwhelming evidence indicated that the bodily harm arose as a direct
    consequence of the collision, in which the appellants truck struck the two
    men.

[10]

The trial judge concluded that the Crown had
    established that the appellants impaired driving caused bodily harm, based on
    the following findings of fact:

·

The three pedestrians ought to have been visible
    in the roadway to the driver of a pick-up truck and in conditions of good
    lighting for four to five seconds before the collision;

·

At the time the three pedestrians reached the
    area of the median, the appellants vehicle was far enough away from the
    pedestrians so as not to be perceived as a danger by the tow truck driver, Mr.
    Martins, and to provide ample opportunity for the appellant to react to the
    presence of the pedestrians in a way that would have avoided the accident
    entirely;

·

The appellant was driving at a high rate of
    speed (over 50 percent above the posted speed limit of 50 km per hour) and was
    accelerating as he approached the scene until the last instant, depriving
    himself of some of the reaction time that might otherwise have been available
    to avoid the collision;

·

The appellant was travelling towards the
    pedestrians at a time when his faculties needed to process and deal with
    emerging risks and hazards were impaired by the presence of significant
    quantities of alcohol in his system; and

·

There was no evidence that the appellant noticed
    the imminent collision more than an instant before it occurred, because there
    was no indication of more than minor braking prior to the hard braking and no
    indication that the appellant reacted to the presence of the pedestrians by
    using some of the room that was available in the curb lane to attempt to steer
    his vehicle away from harm prior to the collision.

[11]

Based on these findings, the trial judge found
    that the Crown had met the standard of proof required to convict the appellant
    for operating a motor vehicle while impaired by alcohol causing bodily harm
    contrary to s. 255(2) of the
Criminal Code
.

ANALYSIS

[12]

The appellant raises the following grounds of
    appeal against the conviction:

(1)

The trial
    judge made findings of fact unsupported by the evidence; and

(2)

The trial
    judge reached an unreasonable verdict.

[13]

The appellant also seeks leave to appeal against
    the sentence imposed. The appellant argues that the trial judge failed to appropriately
    consider mitigating factors such as his remorse, and gave inadequate weight to
    collateral immigration consequences, in determining the sentence. The appellant
    also submits that the trial judge erred in relying on the Superior Court of
    Justice decision in
R. v. Bulland
, 2019 ONSC 4220 (
Bulland ONSC
),
    revd 2020 ONCA 318 (
Bulland ONCA
), to determine an appropriate
    sentence.

[14]

Each ground of appeal is addressed in turn.

The trial judges findings were available on the evidence

[15]

With respect to the first ground of appeal, the
    appellant argues that the trial judge made four findings of fact unsupported by
    the evidence in determining legal causation.

[16]

The trial judge held that in order to find the
    appellant guilty of impaired driving causing bodily harm, he must find not only
    that the appellant was impaired but also that the bodily harm suffered by the
    pedestrians was caused as a result of the appellants impaired operation of the
    pick-up truck. He stated, at para. 88, If the accident was not avoidable or if
    there is reasonable doubt as to whether it was avoidable, then the necessary
    causal relationship will not have been demonstrated by the Crown to the
    required standard of proof.

[17]

First, the appellant argues that the trial
    judges finding that it was safe for the pedestrians to cross the road, based
    on the evidence of the eyewitnesses, was contradicted by physical evidence,
    namely the fact of the collision and the SDM data from the appellants vehicle.
    Second, the appellant submits that the trial judge erred in finding that a
    sober driver would have swerved to avoid the pedestrians because there was no
    evidence that this manoeuvre would have avoided the collision or would have
    been possible. Third, the appellant submits that the trial judges finding that
    the pedestrians were on the roadway and visible for at least four to five seconds
    was based on two premises unsupported by the evidence, namely the speed of an
    unhurried pedestrian and the width of the westbound lanes. Fourth, the
    appellant submits that the trial judge erred in finding that the appellant only
    responded to the pedestrians at the last second before impact, which
    misapprehended the AE evidence.

[18]

We reject these submissions.

[19]

First, the trial judge accepted portions of the
    evidence of the pedestrians as to their position on the road prior to the
    collision and the fact that they did not believe they were in danger from
    westbound traffic when the tow truck passed them. The trial judge also relied on
    the testimony of Mr. Martins, the tow truck driver, as to the proximity of the
    appellant when he passed the pedestrians. The trial judge stated, at para. 63:

All allowances being made for the frailty of
    memory when it comes to re-constructing events in minute detail, Mr. Martins
    evidence does provide some reliable information. He
did

have
    his attention drawn to the three men crossing the road as he came alongside
    them. There was nothing that he saw  whether it be their direction and speed
    relative to his own or the state of any on-coming traffic heading towards them
     that caused him to become alarmed to the point where a more detailed picture
    became imprinted upon his memory. I infer that Mr. Gomes vehicle at this
    point was far enough away from this scene as not to appear to pose any danger
    to anyone.

[20]

The trial judge relied more heavily on Mr.
    Martins testimony to find that the pedestrians were hit after the tow truck
    passed them, because Mr. Martins was not directly involved in the incident and
    had a specific memory of the actions he took in consequence of hearing the
    collision after he passed the pedestrians. It was open to the trial judge to
    accept the eyewitnesses testimony that the road was safe to cross, and Mr.
    Martins evidence that the collision occurred shortly after he passed the
    pedestrians. These findings were not contradicted by the fact of the collision or
    the SDM data, given that the SDM data indicated that the appellant was speeding
    prior to the collision, and the SDM data only provided information about the
    appellants driving, not about when the pedestrians became visible in the road.

[21]

Second, the trial judge relied on scene
    photographs to support his finding that there was sufficient room for the
    appellant to have swerved to the right to avoid the pedestrians. This finding
    was open to him on the record. Third, the trial judge relied on Mr. Marcheses
    evidence as to the pedestrians pace, and a five km per hour walking speed as
    a rough rule of thumb consistent with the pace, as well as DC Chins lane
    measurements, to calculate the length of time the pedestrians were in the road.
    It was open to the trial judge to rely on Mr. Marcheses and DC Chins
    evidence, and although the five km per hour pace was not in evidence, the trial
    judge used this as a rough guide rather than a precise measurement.

[22]

Finally, the appellant submits that the trial
    judges finding that at the one second pre-crash data point the brake was
    engaged reflects a misapprehension of the AE evidence. However, the trial judge
    used this term to refer to data collected prior to the AE, and his reasons
    reflect an understanding that the AE was not necessarily the moment of collision.

[23]

Ultimately, the trial judge correctly stated the
    test for legal causation and the factual findings he made in order to conclude
    that legal causation was established in this case are entitled to deference and
    were available to him on the evidence.

[24]

We dismiss this ground of appeal.

The trial judges verdict was reasonable

[25]

Assessing the reasonableness of the verdict
    involves asking whether the verdict is one that a properly instructed trier of fact,
    acting judicially, could reasonably have rendered:
R. v. Biniaris
,
2000
    SCC 15, [2000] 1 S.C.R. 381, at paras. 36-37.

In our view,
    the appellant has not established that the verdict was unreasonable.

[26]

The trial judge was
satisfied that the collision was avoidable and that the Crown
    established beyond a reasonable doubt that the collision arose as a result of
    the impaired operation of the motor vehicle by the appellant.

[27]

The appellant argues that the Crowns evidence was
    incapable of proving that the accident was the result of the appellants
    impairment from alcohol, and that a sober driver could have avoided the
    accident. According to the appellant, the trial judges findings were not supported
    by the evidence before him. For example, the trial judge found that speed
    played a key role in the collision, but there was no evidence that if he were
    driving at the posted speed limit, the collision could have been avoided.

[28]

The appellant also argues that it was unclear
    whether his alcohol impairment played any role in the speed he was travelling. The
    appellant contrasts this case to
R. v. Hall
, [2004] O.J. No. 4746 (Ont.
    S.C.), revd in part 2007 ONCA 8, 83 O.R. (3d) 641, leave to appeal refused,
    [2007] S.C.C.A. No. 298, where the trial judge held that a drivers decision to
    speed and accelerate through streets with significant car and pedestrian
    traffic indicated that the driver was not in possession of all his faculties
    (at para. 73). In contrast, this case involved a long stretch of road without
    traffic in the middle of the night. According to the appellant, in such
    conditions, it is entirely possible that a sober person would also be speeding.
    The appellant also submits that the Crown failed to prove that the appellants
    reaction, once he observed the pedestrians, indicated impairment, because it
    was equally consistent with momentary inattention. The appellant argues that
    the trial judges conclusion that the appellants impairment caused the
    collision was not supported by the evidence.

[29]

We disagree.

[30]

The expert evidence on the effects of impairment
    accepted by the trial judge made clear that the appellants ability to multi-task
    and to assess the danger posed by the pedestrians on the street, his vigilance,
    his judgment of speed and distance and his reaction time would all be adversely
    affected by his impairment. This evidence was consistent with the testimony of Mr.
    Martins that the pedestrians would have been visible to on-coming traffic, the
    testimony of the eyewitnesses that the appellants vehicle was sufficiently far
    away when the tow truck passed the pedestrians that it was not perceived to be a
    danger, and the SDM data, which indicated that the appellant was driving well
    above the speed limit and accelerating until seconds before he braked and
    collided with the pedestrians.

[31]

It was open to the trial judge to conclude that
    the pedestrians were visible for four to five seconds prior to the collision
    and that the appellant failed to see and react to them due to his impairment.

[32]

We see no basis to conclude that the trial
    judges verdict was unreasonable.

The trial judge did not err in the sentence imposed

[33]

The appellant argues that the trial judge gave
    insufficient weight to the fact that he was a first-time offender, to his
    remorse, and to the serious immigration consequences of his sentence. The
    appellant also takes issue with the trial judges reliance on
Bulland ONSC
.

[34]

A trial judges determination of a fit sentence
    is entitled to a high degree of deference.

[35]

The trial judge explicitly listed one mitigating
    factor in his decision, the fact that the appellant worked cooperatively to
    narrow the issues at trial. The trial judge also noted the appellants lack of
    prior criminal record.
However, the trial judge concluded that the mitigating factors in
    this case were outweighed by the fact that the primary sentencing principles
    were denunciation and deterrence in this case.
He stated,
    at para. 25:

Mr. Gomes presents  as do many offenders
    convicted of alcohol-related offences  as a very solid citizen. He is a
    support for his parents, an integral part of a close-knit family. He has worked
    his whole life and is by all accounts a contributing, valuable member of our
    community. He has no criminal record. The leniency that these aspects of his
    individual make-up might otherwise command is overshadowed by the paramountcy
    that must be given to the objectives of general deterrence and denunciation in
    this case, by the gravity of the offence and his degree of moral
    blameworthiness in it.

[36]

The appellant also submits that the trial judge
    erred in giving no specific consideration to the fact that the appellant had
    demonstrated remorse by making concessions at trial and refraining from any
    attempt to reinstate his drivers licence prior to sentencing. However, to the
    extent that making concessions at trial reflected remorse, the trial judge
    considered this factor.

[37]

The trial judge also considered the immigration
    consequences for the appellant. He acknowledged that, because each of the
    offences for which the appellant was convicted carry a maximum sentence of up
    to ten years in prison, the appellant could be subject to deportation, and a
    custodial sentence of longer than six months would render the appellant unable
    to appeal a decision that he be removed from the country. The trial judge
    concluded, at para. 13, In the present case, it is quite clear that a sentence
    under six months would be manifestly unfit in the circumstances here present
    and I cannot be swayed by sympathy for an offender facing dramatic if
    collateral immigration consequences to reverse engineer a sentence that is
    otherwise unfit to avoid the prospect of removal by immigration authorities
    should they determine to exercise their statutory discretion to do so. The
    trial judges consideration of the collateral immigration consequences was
    consistent with the Supreme Courts direction in
R. v. Pham
,
2013 SCC 15, [2013] 1 S.C.R. 739,

at paras. 14-15.

[38]

The appellant also takes
    issue with the trial judges reference to the decision in
Bulland ONSC
,
in
    determining the appropriate sentence. In
Bulland ONSC
, the trial judge
    imposed a sentence of 39 months for a similar offence. However, in
Bulland
    ONCA
,
this court overturned the sentencing decision in
Bulland
    ONSC
and reduced the appellants sentence. This courts decision in
Bulland
    ONCA

was not available to the trial judge in this case at the time
    of sentencing.

[39]

The trial judge in
Bulland ONSC
imposed
    a sentence well in excess of the sentence the Crown requested and failed to put
    the defence on notice that a higher sentence was being contemplated. The trial
    judge also failed to indicate in his reasons why he departed so significantly
    from the Crown position. These procedural errors led this court to reduce the
    sentence to two years, followed by three years probation, to reflect the Crown
    position.

[40]

The appellant submits that had the trial judge
    had the benefit of this courts decision in
Bulland ONCA
, he likely
    would have started from a range of two years less a day. However, there were no
    such procedural errors in this case, and no indication that the trial judge
    relied on
Bulland ONSC
to establish a sentencing range. Rather, in
    rejecting the range put forward by the defence, the trial judge observed that,
    among the cases advanced by the defence,
Bulland ONSC
was the most
    comparable. Further, this court in
Bulland ONCA
did not cap the range
    of appropriate sentences. Rather, this court commented that a penitentiary
    sentence in excess of two years would be appropriate but imposed a sentence of
    two years based on the circumstances of the case.

[41]

We would grant leave to appeal the sentence, but
    dismiss the appeal.

DISPOSITION

[42]

For these reasons, we dismiss the conviction
    appeal, grant leave to appeal the sentence but dismiss the sentence appeal.

P.
    Lauwers J.A.

G.
    Pardu J.A.

L.
Sossin J.A.


