CITATION: R. v.

Muzzo, 2016 ONSC 2068

NEWMARKET COURT FILE NO.: CR-15-7521
DATE: 20160329
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
and
MARCO MICHAEL MUZZO

)
)
)
)
)
)
)
)
Defendant )
)
)
)

Paul Tait and Kellie Hutchinson, for the

Crown

Brian H. Greenspan and Seth P. Weinstein,

for the Defendant
HEARD: February 4, 23 and 24, 2016

REASONS FOR SENTENCE

FUERST J.
Introduction
[1]

On a clear fall day, six members of a family drove through York Region. Loving
grandparents and a great-grandmother were taking three small children home to their
parents, after an overnight visit in King City. It was a perfectly ordinary weekend event,
the kind regularly engaged in by families in communities big and small all across the
province. But in this sad case, a perfectly ordinary event was rendered catastrophic
because of Marco Muzzos decision to drink and then drive.

[2]

More than thirty years ago, the Court of Appeal for Ontario declared that members of the
public who travel the roadways of the province should not live in fear that they may meet
with a driver whose faculties are impaired by alcohol.1 But, as this case so tragically
illustrates, the message that every drinking driver is a potential killer of innocent
members of the community continues to go unheeded.

[3]

Marco Muzzo is before me for sentencing on four counts of impaired driving causing the
deaths of Gary Neville, Daniel Neville-Lake, Harrison Neville-Lake, and Milagros

R. v. McVeigh (1985), O.A.C. 345.

Page: 2
Neville-Lake, and two counts of impaired driving causing bodily harm to Josefina Frias
and Neriza Neville.
[4]

I appreciate that regardless of the length of the jail term that I impose today, the time will
come when Mr. Muzzo will be released from custody. He will have the opportunity to
return to his home, his work, and the company of those who love and support him. I am
acutely aware that the Neville-Lake, Neville, and Frias families will be forever denied
that opportunity. They will continue to serve the form of life sentence that Mr. Muzzo
inflicted on them by his decision to drink and drive. The sad reality is that the sentence
I impose today will not make whole the families who lost three children and their
grandfather, nor will it return a grandmother and great-grandmother to good health.
While the criminal justice system can deter and denounce, it is ill-suited to make
reparation for harm of the magnitude involved in this case.

The Circumstances of the Offences

[5]

Kirby Road and Kipling Avenue intersect in a less developed area of York Region.
Kirby Road runs east to west with a single lane in each direction. The two lanes are
divided by a solid yellow centre line. White fog lines mark the outer limits of each lane.
The posted speed limit is 60 kilometres per hour.

[6]

Kipling Avenue runs north to south with a single lane in each direction. The posted
speed limit is 80 kilometres per hour.

[7]

At the intersection of the two roads, there are stop signs for traffic travelling north and
south on Kipling Avenue. There are no stop signs for traffic travelling on Kirby Road.
Traffic on Kirby Road has the right of way.

[8]

On September 27, 2015, the stop sign for northbound traffic on Kipling Avenue was
visible and unobstructed. There were no weather or traffic conditions that would prevent
a northbound vehicle from stopping safely at the intersection.

[9]

At 3:15 p.m. that day, Mr. Muzzo arrived at Torontos Pearson Airport on a private jet.
He was returning from his bachelor party in Miami. After clearing Customs, he walked
to his Jeep Grand Cherokee and left the parking area at 3:27 p.m. He was alone in his
vehicle. He began travelling to his home in Vaughan.

[10]

Around 4:00 p.m. he was driving northbound on Kipling Avenue, approaching Kirby
Road.

[11]

At that time, 64 year old Neriza Neville was driving westbound on Kirby Road in her
daughters new 2016 Dodge Grand Caravan. She had five passengers. Her mother, 91
year old Josefina Frias, was in the front passenger seat. Behind them in the middle row
were her grandsons, nine year old Daniel Neville-Lake and five year old Harrison
Neville-Lake. Her 65 year old husband, Gary Neville, was in the back row with the
youngest grandchild, two year old Milagros Neville-Lake.

Page: 3
[12]

Ms. Neville slowed down as she approached the intersection with Kipling Avenue, even
though she had the right of way. As Mr. Muzzo approached the same intersection, he
applied his brakes, but he entered the intersection without stopping for the stop sign. He
did so as Ms. Neville was driving through.

[13]

Mr. Muzzos Jeep struck the drivers side of the Grand Caravan. The impact sent the
Grand Caravan into the northwest corner of the intersection, where it came to rest in a
ditch after striking the stop sign facing southbound traffic.

[14]

The Jeep rotated counter-clockwise and continued northbound. Its rear end rotated into
the southbound lane of Kipling Avenue on the other side of the intersection, where it
struck an almost stopped Mercedes on the front drivers side. The occupants of the
Mercedes were not injured.

[15]

Several members of the public who were travelling in other vehicles witnessed the
collision. They remained at the scene until the police arrived. One of the witnesses
noticed that Mr. Muzzo had glossy eyes. She believed that he was under the influence of
drugs or alcohol.

[16]

The first officer on scene spoke to Mr. Muzzo. He observed that Mr. Muzzo was
unsteady on his feet, had glossy eyes, attempted to use people to keep his balance, and
was having a difficult time comprehending directions. The officer also observed that Mr.
Muzzo urinated himself, and that a smell of alcoholic beverage was emanating from his
breath.

[17]

The officer cautioned Mr. Muzzo. Mr. Muzzo admitted to being the driver of the Jeep.
He was arrested at 4:30 p.m. for impaired driving causing bodily harm. A demand for
samples of his breath was made, and he was taken to a police station.

[18]

Shortly after arriving at the station, the police learned of the deaths of Gary Neville and
Daniel Neville-Lake. Mr. Muzzo was told that he was facing additional charges.

[19]

Mr. Muzzo spoke with counsel of choice. He then provided two breath samples. The
first, taken at 6:13 p.m., resulted in a reading of 192 milligrams of alcohol in 100
millilitres of blood. The second, taken at 6:34 p.m., resulted in a reading of 204
milligrams of alcohol in 100 millilitres of blood.

[20]

Mr. Muzzos blood alcohol concentration at the time of the collision would have been
between 190 and 245 milligrams of alcohol in 100 millilitres of blood.

[21]

After the breath samples were taken, the police learned that Harrison Neville-Lake and
Milagros Neville-Lake had died. Mr. Muzzo was advised of the additional charges.

[22]

Mr. Muzzo again spoke to counsel of choice. He then provided a videotaped statement,
in which he again admitted to being the driver of the Jeep.

[23]

Data files from the Airbag Control Modules from both the Grand Caravan and Mr.
Muzzos Jeep were examined. The data files showed that at 5 seconds prior to impact, the

Page: 4
Grand Caravan was travelling at 54 kilometres per hour with the brake on. During the
next 5 seconds, the brake was off and at impact, the van was travelling at 47 kilometres
per hour. The data files showed that Mr. Muzzos Jeep was travelling at an excessive rate
of speed before the impact. At 3.7 seconds before impact, the brakes were being applied,
and the Jeeps speed was dropping significantly, but at impact it was still travelling at a
speed of 85 kilometres per hour.
[24]

Gary Neville, Daniel Neville-Lake, Harrison Neville-Lake, and Milagros Neville-Lake all
died on September 27 from injuries they sustained as a direct result of the collision.

[25]

Neriza Neville suffered injuries that included non-displaced fractures to her right lateral
ribs, minimally displaced fractures to two left anterior ribs, a left knee hematoma, liver
hematoma, right adrenal hematoma, and abrasions to her neck, chest and legs. She has
ongoing neck and shoulder pain, fatigue, and anxiety.

[26]

Josefina Frias suffered fractures to her seventh cervical vertebrae, sternum, and right
clavicle. She spent about two weeks in hospital, followed by five weeks in a residential
rehabilitation centre. She continues to suffer from a brain bleed. She has significant
memory loss issues.

The Victim Impact Information

[27]

Victim Impact Statements were provided by ten family members and friends. Those
statements poignantly express that Mr. Muzzos actions produced a tragedy almost
beyond comprehension. The lives of innocents were lost. A life sentence has been
inflicted on the Neville-Lake, Neville, and Frias families. Happy, positive people have
been robbed of their reasons for being.

[28]

To attempt to summarize the Victim Impact Statements would do an injustice to their

authors. But reference to some brief passages opens a window to the magnitude of the
loss suffered by the families.

[29]

Neriza Neville lost not only all her grandchildren, but also her husband. She wrote,
Now I have no more grandchildren to look forward to on the weekendsI have no one
to grow old with anymoreYou took everything from me.

[30]

Edward Lake, who is described by a cousin as a committed, loving and hands-on father,
wrote of all the everyday activities with his children that he will miss, from getting them
ready for school, to cleaning up their toys, to playing video games with them, to listening
to them both laughing and arguing, to tucking them into bed at night. But most
importantly, I will miss being a dad.

[31]

Jennifer Neville-Lake, a woman who others say was born to be a mother, wrote of the
roaring silence and painful emptiness that now envelops their house: I am listening in
vain for my kids to call out my name and I dont hear them. I dont have anyone left to
call me mom. Not one left.Where there was once joy in waking up and greeting the

Page: 5
day there is only despair and heartache. The soothing night time sounds of my childrens
gentle breathing, of their little footsteps coming into my room are all gone...When you
killed my children you took away my identity as a mother and without my kids, Im
nothing anymoreWhen I begin to cry over one of my dead, I feel so guilty because I
am crying for one and not the other. I dont know how to even begin to sort out the grief
for my dad, my rock, my protector[E]very waking moment is haunted by what was and
what can never be again.
[32]

Community Impact Statements were provided by the Mayor of Brampton, the President
and CEO of Jennifer Neville-Lakes employer, the Catholic School Board Trustee for the
Ward in which the Neville-Lake family lives, and a representative of the Scouting Group
in which the children participated. In these statements, members of the community to
which Edward Lake and Jennifer Neville-Lake belong express feelings of sadness, fear
and distress over the senseless loss of the lives of the children and their grandfather.

Other Evidence
[33]

Crown counsel filed an affidavit of Wendy Duncan, who is a statistician with York
Regional Police. She sets out the number of charges laid by York Regional Police in
relation to impaired driving incidents for each calendar year from 2011 to 2015. In that
period, charges were laid in relation to a total of 4,708 impaired driving incidents, as
follows: 992 in 2011; 802 in 2012; 795 in 2013; 979 in 2014; and 1,140 in 2015.

The Circumstances of Mr. Muzzo

[34]

The defence filed 92 letters of support from Mr. Muzzos family members, friends,
neighbours, co-workers, business associates, and others who know him. In addition, Dr.
Graham Glancy, who is an experienced forensic psychiatrist, conducted a psychiatric
assessment and prepared a report. These materials provided both biographic and
character information about Mr. Muzzo.

[35]

Mr. Muzzo is 29 years old. He is the eldest of three children. He grew up enjoying close
relationships with his parents, siblings, and extended family members. He continues to
have strong support from his mother, siblings, uncle, and other relatives, many of whom
have maintained contact with him while he has been in custody.

[36]

The Muzzo family is well-known in the greater Toronto area because of its long-standing
involvement in the construction and development industry. Notwithstanding the familys
financial success, Mr. Muzzos grandfather, father and uncle instilled in him the
importance of hard work and effort. From the time he was a child, Mr. Muzzo spent
weekends and summers at the family business, where he was put to work sweeping
floors, hauling garbage, and unloading drywall. He was taught that nothing would simply
be handed to him, and that he would have to earn his position.

Page: 6
[37]

When Mr. Muzzo was 17, his father died of cancer. On his fathers death, Mr. Muzzo
became the male figure in the household. He took responsibility for the well-being of his
mother and younger sisters. Both his paternal and maternal grandfathers passed away
within the next two years. At a young age, Mr. Muzzo became the person on whom his
grandmothers also relied for help.

[38]

Mr. Muzzo graduated from high school and then obtained a certificate in Construction
Engineering Management from Fanshawe College. With his education completed, he
joined one of the family companies. He is one of its Directors. He is responsible for
estimating drywall contracts, and for managing the property where his office is located.

[39]

The support letters repeatedly describe Mr. Muzzo as a hard-working and conscientious
person. He is respected for his strong work ethic. He typically arrives at work early in
the morning to open the office, and works a twelve hour day. He is said to be a humble
and genuine person who treats others, including co-workers and employees, respectfully.
He does not flaunt his family wealth.

[40]

The letter writers consistently speak of Mr. Muzzo as a compassionate and kind person
who goes out of his way to help others. The letters are replete with examples of small,
everyday acts of kindness done by him for others, ranging from cleaning off employees
cars after a snowfall, to helping a neighbour change a flat tire in the dark. The letters also
reference his participation in charitable events.

[41]

Mr. Muzzo was to have been married in October 2015. He has known his fiance since
they were in high school. She and her parents continue to stand by him.

[42]

The authors of the letters were uniformly shocked by Mr. Muzzos offences. They
consistently express, however, that his decision to plead guilty did not surprise them, as
taking responsibility for his actions is reflective of his character as they know it.

[43]

Mr. Muzzo has no previous criminal record. He does have a history of Highway Traffic
Act2 violations, beginning in 2003. On ten occasions, he was found guilty of speeding,
most recently in August 2013. On two other occasions, in November 2012 and May
2015, he was found guilty of other driving infractions.

[44]

Dr. Glancys assessment included interviews of Mr. Muzzo, Mr. Muzzos mother, his
fiance, and a close friend, and the results of a battery of psychological tests performed
and interpreted by a psychologist.

[45]

Dr. Glancy questioned Mr. Muzzo about his state of mind in the hours leading up to the
crash. Dr. Glancy summarized the information as follows:
The evaluee reports that he travelled to Miami with ten or twelve
of his friends and relatives on September 24, 2015, for a premarriage party. They spent a few days in a hotel in Miami. He

R.S.O. 1990, c. H.8.

Page: 7
reports that they went out for nice dinners, went to the lobby bar,
and sat by the pool during the day. He reports that it was very lowkey and easy-going. He reports there were no particular incidents
during the trip. He reports that on the Saturday night before he left
he stayed up until approximately 3:00 am [sic] in the morning and
consumed alcohol. He reports that they had a late dinner. He
denies using any illicit drugs during this weekend or at any time.
He reported that he set his alarm but woke the next morning before
it rang. He then showered and packed. He reports that he had a bit
of a headache and felt a bit dazed. He did not take any medication
for the headache. He then checked that he had not left anything
behind and went on a bus to the airport. During the flight, he
watched some movies. He reports that he had three or four
alcoholic drinks.
He reports that he felt good and was walking and talking without
difficulty. He did not perceive himself as being drunk. He then
proceeded to the car which he had parked at the airport to drive
home.
[46]

Dr. Glancy found that Mr. Muzzo has no history of alcohol abuse or problem drinking.
There was no evidence of antisocial personality disorder or psychopathy. The
psychological testing suggested a capacity for remorse. Mr. Muzzo displayed
considerable remorse during the assessment, and expressed an appreciation that his
actions ruined the family of his victims.

[47]

Dr. Glancy concluded that the risk of repetition of behaviours before the court is minimal,
and that Mr. Muzzo is a low risk for recidivism. Dr. Glancy observed that although there
is no pattern of alcohol abuse by Mr. Muzzo, treatment programs for substance abuse that
are available within the federal correctional system will help reaffirm Mr. Muzzos
intention to abstain from alcohol in the future.

[48]

In the courtroom, Mr. Muzzo told the family of his victims,

I am tortured by the grief and the pain that I have caused your
entire family and the tragic effect that this has had on so many
others and its impact upon the community.
I could never have imagined the degree of suffering and pain I
have caused. If I could reverse the hands of time, I would without
hesitation. I want nothing more than to attempt to bring some
peace to your hearts and minds.

[49]

Mr. Muzzo expressed his intention to atone for his conduct by devoting himself to
educating the public about the disastrous consequences of drinking and driving.

[50]

Mr. Muzzo has been in custody since his arrest on September 27, 2015, with the
exception of approximately three weeks. After he entered his guilty pleas on February 4,
2016, Crown counsel consented to his release on bail until his sentencing hearing on

Page: 8
February 23, 2016. Mr. Muzzo surrendered back into custody on that date and remained
in custody.

The Positions of the Parties

[51]

On behalf of the Crown, Mr. Tait submits that I should impose a sentence of ten to twelve
years in jail, concurrent on each count of impaired driving causing death, and four to six
years concurrent on each count of impaired driving causing bodily harm. He
acknowledges that Mr. Muzzo should receive credit, meaning a deduction from the time
to be served in jail, for his time in pre-sentencing custody, calculated on a one and a half
to one basis. He seeks a driving prohibition of eight to twelve years, to take effect after
the expiration of the jail term, and imposition of the mandatory victim surcharge.

[52]

Mr. Tait contends that the paramount objectives of sentencing in this case are
denunciation and general deterrence. The Crown accepts that Mr. Muzzo is remorseful
and pleaded guilty at an early stage, that he is a first offender who has a dedicated job
history and a supportive family, and that he is a low risk to re-offend. But, the
aggravating factors are significant, and Mr. Muzzos moral blameworthiness is high.
Specifically, Mr. Tait points to the devastation caused to the Neville-Lake, Neville and
Frias families by Mr. Muzzos impaired driving; the extremely high blood alcohol
concentration at almost three times the legal limit; the manner of driving that involved
both speeding and failing to stop despite a visible stop sign; and the prior related driving
record with ten convictions for speeding. The affidavit evidence shows an increase in
drinking and driving offences, and the jurisprudence reflects an upward trend in
sentences for such offences. Mr. Tait says that driving while impaired was an act of
extreme selfishness on Mr. Muzzos part. Mr. Muzzo could have taken a ride home from
the airport, but instead he made the choice to drive after drinking. The result of that
choice, most particularly the deaths of three children under the age of ten, and the impact
of the loss on those left behind, is profound. This case is without precedent. A sentence
exceeding the eight years upheld by the Court of Appeal for Ontario in R. v. Kummer3 is
justified.

[53]

On behalf of Mr. Muzzo, Mr. Greenspan submits that the sentence on each of the
impaired driving causing death counts should be eight years in the penitentiary
concurrent, less the time spent in pre-sentencing custody credited on a one and a half to
one basis. The driving prohibition should not exceed the bottom end of the Crowns
range at most, since it will not commence until Mr. Muzzo is released from custody.

[54]

Mr. Greenspan characterizes Mr. Muzzos conduct as a terrible decision made by a very
good person. The many letters of support verify that Mr. Muzzo has led virtually an
exemplary life, that he is regarded as a person of character, and that he has made positive
contributions to the community. His driving record shows that he had no demerit points

2011 ONCA 39.

Page: 9
at the time of the collision. Mr. Muzzo made a decision to plead guilty at the earliest
opportunity, and he has carried through with extraordinary speed. His acceptance of
responsibility and his remorse and sense of guilt are all honest. The authors of the letters
confirm that this is in keeping with his character. Dr. Glancy concluded that there was no
pattern of alcohol abuse, and that the risk of repetition of the behaviour is minimal. Mr.
Greenspan contends that a relevant consideration is that this is a first sentence of
imprisonment for Mr. Muzzo. He says that there is no reason to depart from the sentence
of eight years in jail which the Court of Appeal for Ontario considered appropriate in
Kummer, a recent case involving multiple fatalities. The affidavit of Ms. Duncan shows
that impaired driving continues to be a problem in York Region, but is not evidence that
it is on the rise.
[55]

Both Crown and defence counsel advanced positions that were supportable by the
authorities that govern the imposition of sentence in cases such as this. Neither overreached.

The Objectives of Sentencing

[56]

The objectives of sentencing long recognized at common law have been codified in s.
718 of the Criminal Code. They are: the denunciation of unlawful conduct, deterrence
both general and specific, the separation of the offender from society where necessary,
rehabilitation, reparation for harm done to the victims or the community, and promotion
of a sense of responsibility in offenders and acknowledgement of the harm done.

[57]

Section 718.1 sets out the principle of proportionality in sentencing. It provides that a
sentence must be proportionate to the gravity of the offence and the degree of
responsibility of the offender. Section 718.2 enumerates a number of other sentencing
principles. In particular, it provides that a sentence should be increased or decreased to
account for any aggravating and mitigating circumstances relating to the offence or the
offender. Section 718.2 also requires that there be parity in sentencing. A sentence
should be similar to sentences imposed on similar offenders for similar offences
committed in similar circumstances.

[58]

In cases of drinking and driving, particularly where death is involved, denunciation and
general deterrence are the paramount sentencing objectives. Denunciation refers to the
communication of societys condemnation of the conduct.4 General deterrence refers to
the sending of a message to discourage others who might be inclined to engage in similar
conduct in the future.5 General deterrence is particularly important in cases of impaired
driving. Drinking and driving offences are often committed by otherwise law-abiding

4
5

R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 81.

R. v. P.(B.W.), [2006] 1 S.C.R. 941, at para. 2.

Page: 10
people. Such persons are the ones who are most likely to be deterred by the threat of
substantial penalties.6

Sentencing Parameters
[59]

Sentencing is not an exact science. The determination of the sentence that is just and
appropriate in a given case is, in the words of the Supreme Court of Canada, a highly
individualized exercise that goes beyond a purely mathematical calculation.7 The
gravity of the offence, the offenders degree of responsibility, the specific circumstances
of the case, and the circumstances of the offender all must be taken into account by the
sentencing judge.8

[60]

One measure of the seriousness of a particular kind of offence is its maximum penalty.
The maximum penalty for impaired driving causing death was increased by Parliament in
2000, from fourteen years in jail, to life imprisonment. The fact that a life sentence is, as
the Court of Appeal for Ontario put it, within the realm of possibility for the offence of
impaired driving causing death signals Parliaments intention that offences of impaired
driving causing death be treated severely by the courts.9

[61]

Of course, it does not follow that the maximum penalty will be imposed in a given case.
None of the previous decisions to which counsel referred me involved the imposition of a
life sentence, even where the offenders impaired driving resulted in more than one
fatality.

[62]

While experienced Crown counsel have made it very clear that this case is a most serious
instance of impaired driving causing death, they do not seek a sentence of life
imprisonment for Mr. Muzzo. To be clear, Mr. Tait specifically stated that the Crown is
not asking me to impose a sentence of life imprisonment on Mr. Muzzo.

Analysis
[63]

Trial judges typically look to sentences established by appellate courts, for assistance in
identifying an appropriate sentence for a particular offence. Because the offence of
impaired driving causing death can be committed in an almost infinite variety of
circumstances, the Court of Appeal for Ontario concluded that there is no identifiable
range of sentence that applies to the crime.10 The Supreme Court of Canada recently

R. v. Lacasse, 2015 SCC 64, at para. 73.

Lacasse, at para. 58.
8
Lacasse, at paras. 58 and 143.
9
Kummer, at para. 20.
10
R. v. Junkert, 2010 ONCA 549.
7

Page: 11
cautioned that even where sentencing ranges are identified, they are guidelines and not
hard and fast rules.11
[64]

Nonetheless, recent decisions of the Court of Appeal for Ontario provide some guidance
as to the just and appropriate sentence in this case. In particular, two propositions emerge
from those decisions.

[65]

The first is that the offence of impaired driving causing death will attract a substantial
penitentiary sentence, even for first offenders of good character. Three cases are
particularly relevant.

[66]

In R. v. Ramage,12 the offenders car crossed four lanes of traffic and struck two
oncoming vehicles. His passenger was killed, and a driver in another car was injured. At
the time of the collision, the offenders blood alcohol concentration was two to three
times the legal limit. He was convicted at trial. He had no prior criminal record, was
described as an outstanding member of the community, and was deeply remorseful. He
lived and worked in the United States, but would be barred from re-entry because of the
convictions. The family of his deceased passenger forgave him and asked that he not be
incarcerated. A sentence of four years in the penitentiary and a five year driving
prohibition was upheld on appeal.

[67]

In R. v. Junkert,13 the offender drove at a high rate of speed and failed to negotiate a turn
in a residential neighbourhood. His car went onto the sidewalk, where it struck a car and
a lamp pole before re-entering the roadway. In the course of its travel, the car struck and
killed a jogger. The offenders blood alcohol concentration at the time was well above
the legal limit. He was convicted at trial. He was a first offender. A sentence of five
years in the penitentiary and a ten year driving prohibition was upheld on appeal.

[68]

In Kummer, the offender drove at an extreme speed. He ignored a passenger who told
him to slow down. After failing to stop at a stop sign, he entered the intersection. He
slammed on his brakes, but struck a pick-up truck. Both vehicles caught fire. The driver
of the pick-up truck was badly injured, but was able to get out of the vehicle. However,
his young son and the sons friend remained trapped in the burning truck and died. A
passenger in the offenders vehicle also died. The offender had a blood alcohol
concentration more than twice the legal limit, which represented the consumption of
fifteen to twenty beers. He had no prior criminal record, and there was evidence of his
good character. He had been convicted previously of careless driving and failing to
report an accident caused when he drove onto an airport runway after he had been
drinking. The Court of Appeal for Ontario upheld a sentence of eight years in the
penitentiary and a twelve year driving prohibition, imposed on the offenders guilty pleas.

[69]

The second proposition that emerges from the jurisprudence is that sentences for
impaired driving causing death have increased in recent years. This reflects societys

11

Lacasse, at para. 60.

2010 ONCA 488.
13
2010 ONCA 549.
12

Page: 12
abhorrence for the often tragic consequences of drinking and driving, as well as concern
that even though the dangers of impaired driving are increasingly evident, the problem of
drinking and driving persists.14 For this reason, sentencing decisions that pre-date
Ramage, Junkert, and Kummer have diminished value as guidelines.
[70]

With that background, I turn to consideration of the aggravating and mitigating

circumstances in this case. The presence of aggravating and mitigating factors is
important in determining where a case falls on the spectrum of available sentences.

[71]

There are a number of significant aggravating factors in this case. They include the
following:

14

1.

Mr. Muzzo made the choice to drink and then drive. When he walked off the
private jet at a large metropolitan airport, he had an array of transportation options
readily available to him. He could have travelled home by limousine or taxi. He
could have called a family member or friend to pick him up. He made the
decision to get behind the wheel of his vehicle. He took the risk that his driving
would put other users of the roadway in danger.

2.

Mr. Muzzo drove his vehicle at an excessive rate of speed as he approached the
intersection where the collision occurred. While he braked before impact, his
vehicle was still travelling above the speed limit at impact.

3.

Mr. Muzzo failed to stop at a stop sign marking the intersection. The stop sign
was large, unobstructed, and clearly visible. It gave the right of way to the van
driven by Neriza Neville, who was entirely blameless in the collision that
followed.

4.

Mr. Muzzos blood alcohol concentration at the time of the collision was
alarmingly high. It was well over twice the legal limit, and within the range of
three times the legal limit. This is a statutorily aggravating factor. There is no
evidence before me of the amount of alcohol that Mr. Muzzo would have had to
consume to reach a blood alcohol concentration between 190 and 245 milligrams
of alcohol in 100 millilitres of blood, but it is a reasonable inference that he drank
excessively.

5.

Mr. Muzzo killed four people, three of them children, and caused serious injuries
to two others, all members of the same family group.

6.

The impact on the Neville-Lake, Neville, and Frias families is monumental.

Additionally, the impact has been felt in the community.

7.

Mr. Muzzo has a lengthy prior record for driving infractions, including ten
convictions for speeding. This indicates an irresponsible attitude toward the

Junkert, at para. 46; Kummer, at para. 15.

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privilege of driving. His previous convictions for speeding should have deterred
him from driving above the speed limit on September 27. They did not.
[72]

[73]

There are important mitigating factors that I must consider. They include the following:
1.

Not only did Mr. Muzzo plead guilty, he did so at a very early stage, without
having had a preliminary inquiry. This is an indication of both his deep remorse
and his willingness to accept responsibility for his conduct. Additionally, his
guilty pleas avoided the need for a trial, and the uncertainty of its outcome.

2.

Mr. Muzzo has no previous criminal record. This will be his first jail sentence.

3.

It is clear that Mr. Muzzo is a person of good character. The many letters of
support evidence that he is a hard worker who has shouldered family and business
responsibilities, and made a positive contribution to the community.

4.

Mr. Muzzo has expressed deep and genuine remorse, in private discussions with
people close to him, and also in his public statement in the courtroom. I accept
that he appreciates the enormity of the harm he caused.

5.

There is no evidence that Mr. Muzzo has substance abuse, or mental health issues.
Dr. Glancy concluded, through a comprehensive psychiatric assessment, that the
risk that Mr. Muzzo will re-offend is minimal.

6.

Mr. Muzzo has very strong support from family members, friends and others in
the community who are well aware of his situation. This bodes well for his
reintegration to society on his release from the penitentiary.

I am unable to conclude from the affidavit of Ms. Duncan that impaired driving is on the
increase in York Region. Her affidavit does not include information necessary to
interpret the raw numbers provided, such as population figures or numbers of drivers
checked for possible impaired driving in the relevant years. Her affidavit does show,
however, that impaired driving remains a persistent problem in York Region. While this
is not an aggravating factor, it underscores the need to impose a sentence that denounces
and deters drinking and driving.

Conclusion
[74]

Any loss of life caused by an impaired driver is tragic. In this case, however, the
enormous harm caused by Mr. Muzzo is extraordinary. Mr. Muzzo made victims of four
generations of one family. He took the lives of three children under the age of ten and
that of their grandfather, and left their grandmother and great-grandmother with lasting
injuries. In one fell swoop, he decimated an entire generation of the Neville-Lake family,
its legacy and its future. Three members of the most vulnerable segment of our society
sacrificed their lives to Mr. Muzzos decision to drink and drive. The impact on the
parents of the children is immense, and possibly beyond alleviation. They no longer see

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a purpose to their own lives. Those closest to them despair that there can be a way
forward for what remains of the family.
[75]

The effect of Mr. Muzzos actions extends beyond the Neville-Lake, Neville, and Frias
families. Through its representatives, the community expressed not only its profound
sorrow, but also its sense of vulnerability and fear that this disaster could befall other
innocent families, as long as there are drinking drivers on the roads.

[76]

For as long as Mr. Muzzo has been alive, courts have warned about the consequences of
impaired driving. Yet the message escaped him. It is important that it does not escape
others.

[77]

The high degree of Mr. Muzzos moral blameworthiness, combined with the enormous
and far-reaching consequences of his offences, sets this case apart from others.
Notwithstanding the many positive aspects of Mr. Muzzos background and character,
and the fact that this is a first jail sentence for him, a lengthy penitentiary term is
necessary.

[78]

The just and appropriate sentence is one of ten years.

[79]

Crown and defence counsel agree that under s. 719(3.1) of the Criminal Code, Mr.
Muzzo is entitled to credit for the time that he has spent in pre-sentencing custody,
calculated on the basis of one and a half days for each day spent in custody. I concur,
based in particular on my knowledge of conditions at the detention centre. Mr. Muzzo
will be credited with eight months of pre-sentencing custody, which has been calculated
on a one and a half to one basis excluding the three weeks that he was on release.

[80]

In light of the nature of Mr. Muzzos driving on September 27 and his driving record, it is
just and appropriate that he be prohibited from driving for twelve years in addition to the
period of imprisonment.

[81]

Mr. Muzzo, please stand. I sentence you as follows:

On Count 1, impaired driving causing the death of Gary Neville, to ten years in
jail less credit for the equivalent of eight months of pre-sentence custody, leaving
a sentence to be served of nine years and four months in the penitentiary;
On Count 2, impaired driving casing the death of Daniel Neville-Lake, to nine
years and four months in the penitentiary concurrent;
On Count 3, impaired driving causing the death of Harrison Neville-Lake, to nine
years and four months in jail in the penitentiary concurrent;
On Count 4, impaired driving causing the death of Milagros Neville-Lake, to nine
years and four months in the penitentiary concurrent;
On Count 13, impaired driving causing bodily harm to Josefina Frias, to five
years in the penitentiary concurrent;

Page: 15
On Count 14, impaired driving causing bodily harm to Neriza Neville, to five
years in the penitentiary concurrent.
[82]

On each of Counts 1, 2, 3 and 4 there is an order prohibiting you from driving for twelve
years in addition to the period of imprisonment. The period of driving prohibition on
each of Counts 13 and 14 is six years. The driving prohibition orders all run
concurrently.

[83]

I order you to pay the applicable victim surcharge, within 90 days.

FUERST J.

Released: March 29, 2016

NOTE: As noted in court, on the record, this decision in writing is to be considered the official
version of the Reasons for Sentence and takes precedence over the oral Reasons read into the
record.