An Ontario judge has rejected a jointly proposed sentence intended to avoid immigration consequences for a Ukrainian newcomer accused of impaired and dangerous driving, ruling that such leniency was not in the public interest.
Justice Joseph Kenkel declined a joint submission from Crown and defence seeking a conditional discharge — a sentence that would have spared the accused a criminal conviction — in a case involving a serious collision in Vaughan.
The accused, Vitalii Chubyrko, allegedly ran a red light and T-boned another vehicle while impaired, causing significant damage, airbag deployment and a vehicle fire. The incident occurred on May 11 at the intersection of Highway 7 and Jane Street.
In Canadian law, a conditional discharge involves probation but does not result in a criminal record, meaning it would not trigger immigration inadmissibility. Both Crown and defence agreed to propose such a sentence, citing Chubyrko’s immigration status.
Justice Kenkel said he was not prepared to accept the submission.
“While I am able to make small exceptions for newcomers who commit crimes, I will not do so unless it is in the public interest,” Kenkel told the court.
The case was heard in Newmarket court, where assistant Crown attorney Alice Pan outlined the facts. The court heard that the victim complained of chest pain at what police described as a “chaotic” scene but was able to speak with officers.
Following Chubyrko’s guilty plea, defence lawyer Evan Sinclair argued that the proposed sentence — described as a “three-year probation order” — included a two-year driving prohibition followed by one year with an ignition interlock device.
Justice Kenkel sharply questioned the appropriateness of a discharge given the seriousness of the offence.
“How is a discharge in the public interest,” he asked, pointing to York Region’s history of impaired-driving fatalities. “The damage was so significant. The other car was on fire.”
Pan acknowledged she did not have a strong response to the judge’s concerns. When Kenkel asked whether there were weaknesses in the Crown’s case that justified the concession, Sinclair said the proposal was directly tied to the accused’s immigration status.
Kenkel rejected that rationale.
“Usually, people with those issues are very careful not to commit criminal offences,” he said. “There are times when sentences for foreign nationals are reduced for those reasons. However, that concern cannot result in a sentence that is unfit.”
The judge said the joint submission failed to adequately address the core principles of sentencing, including denunciation, deterrence and the protection of the public in cases involving serious motor vehicle collisions.
He invited Crown and defence to reconsider their positions in light of his comments.
“If Chubyrko chooses to plead guilty again, he will be sentenced as the presiding judge sees fit,” Kenkel said.
The case is scheduled to return to court on January 8.