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HomeOntarioSuperior Court of Justice2010 ONSC 2529 (CanLII)

R. v. Kippax, 2010 ONSC 2529 (CanLII)

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Date: / 2010-04-29
Docket: / CR-07-1969
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Noteup: / Search for decisions citing this decision

Reflex Record (related decisions, legislation cited and decisions cited)

Related decisions

Superior Court of Justice

R. v. Kippax, 2009 CanLII 58064 (ON S.C.) - 2009-10-27

• R. v. Kippax, 2009 CanLII 43102 (ON S.C.) - 2009-08-17
• R. v. Kippax, 2009 CanLII 20706 (ON S.C.) - 2009-04-28

Decisions cited

• R. v. Belanger, 2009 ONCA 867 (CanLII)

CITATION: R. v. Kippax, 2010 ONSC 2529

COURT FILE NO.: CR-07-1969

DATE: 20100429

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N: / )
)
HER MAJESTY THE QUEEN / )
)
) / S. Doyle, for the Crown
)
Crown / )
)
- and - / )
)
)
ALAN KIPPAX / )
)
) / R. Posner for the Defendant
)
Defendant / )
)
)
) / HEARD: January 28, 2010

REASONS FOR SENTENCE

Baltman J.

[1]On a rainy Saturday night in June 2006 the offender, Alan Kippax, took one life and shattered two others while performing a driving stunt in his Mercedes. Following a trial I convicted him of one count of dangerous driving causing death and two counts of dangerous driving causing bodily harm. He is now before me for sentencing.

Factual Background

[2]This tragic event occurred at approximately 10:30 p.m. on June 3, 2006, in Mississauga. The offender and his cousin, Peter Kippax, were on their way home in separate cars after dining out at a restaurant. The offender drove a silver Mercedes, Peter a black Porsche. It was dark out and the roads were wet, it having rained earlier that evening.

[3]The cousins were driving north on Mavis, approaching the intersection with Eglinton. Several cars were stopped at the intersection, waiting for the light to change.

[4]The curb lane of Mavis approaching Eglinton was clearly marked as a right turn lane. Just north of the intersection was a merge lane of 120 metres for traffic turning north onto Mavis from Eglinton. The speed limit south of the intersection was 60 km/hr; north of Eglinton it became 70 km/hr.

[5]When the offender reached the intersection, and just as the light turned green, he used the right-hand turn lane south of the intersection and the merge lane north of the intersection to overtake and cut in front of the northbound traffic. He was able to merge into the through lane and carry on.

[6]Peter, following close behind him, then attempted the same manoeuvre but lost control of his car while trying to merge into the through lane north of the intersection. His Porsche spun around several times, crossed the centre line and smashed into a Sunfire heading southbound on Mavis.

[7]The results were disastrous. Peter died on impact. The two occupants of the Sunfire suffered devastating injuries, which I will outline below.

[8]Although the offender realized almost immediately that his cousin had not made it through the intersection, he did not pull over or turn around. Instead he took a roundabout route and parked on an adjacent street where he sat in his car for some time, with a clear view of the crash scene. He did not approach the Porsche or any of the emergency personnel to inquire about his cousin’s condition, but simply remained in his car. A witness who recognized the Mercedes as having preceded the Porsche through the intersection alerted one of the police officers, who then approached the accused.

[9]In my reasons for judgment (reported at [2009] O.J. No. 4371), I made the following findings of fact:

•Both vehicles were travelling at excessive speeds for the conditions that existed that night;

•The offender knew when he was approaching the intersection that his cousin was travelling lockstep behind him;

•The cousins were driving aggressively and in tandem; Peter followed the offender through the intersection at an extremely close and unsafe distance, and was attempting to copy the same dangerous manoeuvre;

•It was therefore entirely foreseeable that Peter would crash his own car and/or collide with another;

•After the crash the offender attempted to conceal his involvement in criminal activity.

The impact of the crash

[10]I begin with the two occupants of the Sunfire, who were entirely innocent victims of this tragedy.

[11]That night Mark Radman and his then fiancée, Allison Radman-Livaja, were on their way to a movie. Recently engaged and in their early 30’s, the couple had everything to look forward to. Allison was planning their wedding. She was a special education teacher and was slated to teach in September. She hoped in the future to obtain a Masters in education and work as a principal or vice-principal. Mark was employed full-time and held a promising future with his company.

[12]The couple was very athletic. Allison was a marathon runner, and was training for the Boston marathon. She played ultimate Frisbee, skied, sailed and played basketball. The couple recently purchased a home together and had just adopted a border collie. They planned for Mark to play Frisbee with the dog; Allison would run with him.

[13]All of this came to a crashing halt that night. Allison was profoundly injured; her right ankle was crushed and her left arm was broken. Much worse, within hours of the crash she suffered a massive stroke, robbing her of speech and movement. She had to learn how to walk and talk all over again. For six months she was confined to a wheelchair; although she eventually graduated to a cane and then learned to walk unaided, she is left with a permanently altered gait, and still needs her cane on occasion. The couple was forced to move from their newly purchased two storey home, and into a bungalow.

[14]After extensive speech therapy Allison has improved somewhat but still struggles to express herself. Her speech is slow and halting, and she expects that she will need further speech therapy indefinitely. She will never return to teaching or engage in sports like she did before. She will never drive a car again. She can no longer ride a bicycle or climb a ladder. In her words “all of my dreams were ruined.”

[15]Because she was previously right-handed, and her right arm is now virtually immobile, she had to learn to do everything with only her left hand. This has made it difficult or impossible to do many things, large and small, that she used to take for granted, like cooking, sewing, applying make-up or putting her hair in a ponytail.

[16]Mark’s injuries were less profound but still extremely serious. He suffered a shattered femur, a broken tibia and a broken ulna. Many of those bones are now held together by hardware. He was unable to weight bear for three months, and required extensive physical therapy for nearly two years after the crash. Although he has resumed some physical activity, his endurance is limited and strenuous exercise is painful. Household chores are considerably more difficult.

[17]In addition, the crash has had a devastating emotional impact upon him. He worries frequently about Allison’s well being and whether she can cope with parenting. He cannot share with Allison many of the activities they enjoyed before. Because of her speech deficits they struggle to communicate.

[18]Despite the tremendous hurdles they faced, Mark and Allison proceeded with their wedding plans. Allison gave birth to a son in the summer of 2008 and is expecting their second child in the near future. Being a mother in her condition brings great challenges. She needs help with diapers, bathing, and strollers. Simple things most parents take for granted like changing a child’s clothing, taking him for a walk or reading him a bedtime story are all greatly compromised.

[19]Mark returned to work after one year, on a gradual basis. However, because of Allison’s limitations, he took a parental leave when their first child arrived, and will need to take another leave when their second child is born. These absences have delayed his career progression.

[20]The ramifications of their injuries go well beyond them. Allison’s father, John Hickey, movingly conveyed how both Mark and Allison’s extended families have stepped into the breach. The couple’s siblings and parents were very involved and supportive throughout their hospitalization and recovery. Now the mothers of Mark and Allison are constantly on call to help both their children and their grandchildren. No doubt before this disaster both mothers had a very different view of what their life would be like as grandmothers. Instead of the usual scenario with doting grandparents enjoying their leisure time, they are now full-time caregivers to both their children and grandchildren. Their “golden years” have become hard years.

[21]In sum, this crash robbed Allison, Mark and their families of many of their hopes and dreams. While I am struck by the dignity and fortitude that this couple has demonstrated, they have been left with huge losses and much anguish that can never be fully eased.

[22]I turn finally to Peter Kippax, who is both a perpetrator and a victim in this case. The only evidence regarding the impact of his death came from his former spouse, Debra Kippax. She and Peter had separated before this incident. However, they have a young daughter, who will now grow up without her father. Peter had also taken on an active parental role toward his three step-children, who were born to Debra during a previous relationship. All four children have forever lost his emotional and financial support.

The Offender

[23]The offender is 43 years old. He is engaged to a woman he has been involved with for several years, but no date has been set for the wedding. He attended college for some time but did not obtain a degree, and instead embarked on various business ventures. He is close with his father. He has a 14 year old son with whom he has no contact.

[24]For the past several years the offender has been employed as a principal of Business in Motion International Corporation (BIM). In his current position of “Global Sales Director” he claims to employ 15 people directly and many others as “distributors”. The current and past president of BIM filed letters of support, attesting to his dedication and importance to the company.

[25]As for Mr. Kippax in his personal capacity, he has a dated but significant criminal record. This includes numerous convictions for possession of narcotics, assault causing bodily harm, and obstructing a police officer. More significantly, his record includes numerous serious driving convictions: in particular, impaired driving (1988), driving while disqualified (1989) and dangerous driving (1994).

[26]I also find compelling the numerous speeding convictions sustained by the offender in recent years:

•In 2006, 129 km/hr in a 100 km/hr zone;

•In 2007, 135 in a 100 zone;

•In 2007 (again), 104 in a 60 zone; and

•In 2008, 16 to 29 over the limit (out of province).

[27]Those convictions, in my view, demonstrate that the offender’s inclination toward aggressive driving has continued unabated in recent years.

[28]At the conclusion of the sentencing hearing I inquired of the offender whether he wished to address the court. He did so briefly, saying that even though he engaged in excessive behaviour when he was younger, he is now a serious man who is responsible for numerous employees. Although he feels sad that people were hurt in the collision, in his words “accidents happen” and this was not his fault, even if his cousin was following him.

Positions of the Parties

[29]The Crown seeks a penitentiary term of 4 years and a 10 year driving ban. The defence argues for a conditional sentence of 15 months and a 10 year driving ban.

Analysis

[30]The range of sentence for dangerous driving causing death or serious injuries is very broad. The primary sentencing goals are denunciation and general deterrence: R. v. Belanger 2009 ONCA 867 (CanLII), 2009 ONCA 867 at para. 5; R. v. Phillips,[2005] O.J. No. 155 (C.A.) at para 21; R. v. Currie,[2004] O.J. No. 5196 (C.A.) at para. 6. In this case, given the offender’s record and recent speeding convictions, specific deterrence is also an important consideration.

[31]I do not believe those goals can be met in this case by a conditional sentence. Even if the other preconditions in s. 742.1 could be satisfied, such a sentence would not be consistent with the fundamental principles of sentencing. Although of short duration, the driving involved was arrogant and calculated. The offender deliberately took a significant and totally unnecessary risk for the sole purpose of getting ahead of other drivers. Ignoring the designated through lanes, he instead used turning lanes to blaze through a busy intersection at night and on wet roads, oblivious to the safety of the many other drivers around him. He did this knowing his cousin was driving in tandem and likely to copy the same manoeuvre. In so doing, he led his cousin to his death and triggered the devastation of two other young lives. After the crash he sat by observing the scene, pretending to be uninvolved.

[32]Nor is this an isolated example in the offender’s life of his disregard for other drivers. His three previous convictions of impaired driving, driving while disqualified and dangerous driving illustrate that this is a longstanding issue. His counsel argued that those convictions are so dated they should be ignored. If so I would not have expected to see his recent speeding convictions. Those incidents confirm that age has not had a sobering effect on his driving behaviour.

[33]Finally, accepting his right to maintain his innocence regarding this event, I note that he still shows little appreciation or regret for the horrific injuries that followed his driving that night. As the author of the pre-sentence report observed, he requires the structured environment of a correctional institution to drive the point home.

[34]Defence counsel presented numerous cases in which a conditional sentence had been granted for similar offences. However, many if not all of those cases contained mitigating features not present here, including a guilty plea, a youthful offender, unqualified remorse and/or the absence of a criminal record. For example, in R. v. Ryazanov,[2008] O.J. No. 3816 (C.A.) the Ontario Court of Appeal upheld a conditional sentence of two years less a day, although it substituted stricter terms. In that case the offenders were driving at excessive speed and one of them crashed into and killed a taxi driver in Toronto. At the time of the collision both offenders were 18 years old. Each pled guilty. Neither had a criminal record and both expressed sincere remorse and accepted full responsibility for their actions.

[35]None of those factors is present here. The offender is mature. He does not have the benefit of a guilty plea. Albeit dated his criminal record is significant and relevant, and his recent spate of speeding convictions suggest he has not learned moderation on the roadway. Any regret he expressed at the sentencing hearing for this tragedy was paltry and qualified.

[36]I acknowledge defence counsel’s point that sentencing should not be about vengeance or retribution. And I recognize there are few drivers who have not engaged in the occasional over hasty or imprudent manoeuvre. But this driving went well beyond that. As Mr. Hickey observed in his victim impact statement, “this was not an accident”; it was a totally avoidable crash caused by someone old enough to know better.

[37]Prison sentences for numerous similar cases range from 18 months or two years less a day at the low end to five years at the high end. Most of the lower range cases contain mitigating features not present here. For example, in R. v. Goulet,[2009] O.J. No. 4654 (C.A.) the offender pulled over a double line on an S-curve to pass a transport truck and struck an oncoming vehicle. The collision killed one person and injured three others, including the offender. The Court of Appeal upheld a sentence of 18 months, noting the offender was young, pled guilty, had no criminal record, and demonstrated genuine remorse for his crimes. See also R. v. Costa,[2007] O.J. No. 1111 (C.A.)which involved a brief episode of racing and a poor driving record, for which the Court of Appeal upheld a sentence of two years less a day. However, that offender was also young.

[38]In fairness I must also note that in Currie supra the Court of Appeal upheld a sentence of two years less a day for a somewhat similar case. That offender drove his vehicle onto a dock at high speed. The vehicle went into the water and one of the passengers drowned. The Court referred to it as “a prank” that “went very badly” by a man who “deliberately took a very significant and totally unnecessary risk”, which could describe what Mr. Kippax did here. And, like this case, the offender there was middle aged, did not plead guilty, showed little remorse, and had a criminal record that included driving offences. However, the case before me resulted in three shattered lives, two of whom were innocent bystanders.