Nicholas Berto is headed to jail for running over and severely injuring a Sault College aviation instructor five years ago after the province's highest court dismissed his conviction and sentence appeals.
In a decision released Thursday, the Ontario Court of Appeal upheld his conviction for dangerous driving causing bodily harm and fleeing the scene of an accident for his actions in the early morning hours of March 12, 2016.
It also agreed with the two-year jail sentence imposed by a Sault Ste Marie judge.
Paul VanderGriendt, then 25, received devastating, life-changing injuries that left him a quadraplegic when a truck rammed into him in the parking lot of a Pine Plaza bar.
His head was crushed, his neck broken and ribs injured by Berto's jacked-up GMC truck. He also suffered many fractures and a torn lung.
Berto, who had recently turned 18, struck and ran over VanderGriendt with his knobby-tired truck outside The Harp and Grill after an altercation with a group of people in the parking lot.
During the confrontation, Berto brandished a broken beer bottle at the crowd, which backed away.
Angry and upset, he jumped into his truck and drove towards the group.
Travelling at a high rate of speed, up to 117 km per hour, he then drove away from the accident scene (his exit was captured on cameras at a nearby gas station) and ran a red light.
In addition to appealing his conviction and sentence, Berto sought leave to admit fresh evidence - a report from a forensic psychiatrist.
Berto's lawyers argued the new evidence would render the sentence he received for the two offences unfit and asked that both be changed to suspended sentences.
They also maintained the trial judge erred in law by not having the lesser included
offence of dangerous driving considered by the jury and because of this they were seeking a new trial.
The trial judge also erred by failing to consider evidence from a psychologist as a mitigating factor on sentencing, they claimed.
A jury found Berto guilty of dangerous driving causing bodily harm and failing to remain at the scene in May 2018.
Six months later in November, the 20-year-old was sentenced to two years behind bars.
Superior Court Justice Annalisa Rasaiah said Berto's "dangerous, reckless, irresponsible" and, in his own words "stupid" behaviour had caused significant harm to an "innocent bystander."
VanderGriendt's life has been profoundly changed and he will never realize the future he had envisioned for himself before the accident (which dashed his dream of being a pilot with a major airline), she said.
Rasaiah imposed 18 months imprisonment for the dangerous driving count and a further six months consecutive for leaving the accident scene.
With the 9-day credit he received for pre-trial custody, Berto faced 23 months and 21 days in a provincial facility.
Crown attorney Kelly Weeks had proposed a three-to-four year federal penitentiary term.
Defence lawyer Bruce Wilson had asked the judge to consider a "short, sharp sentence" (up to 90 days), which could be served locally, for the first offence and a conditional sentence, which would be served in the community, for the second count.
A few days later on Nov. 16, 2018, the appeal court granted Berto bail pending his appeal of the two convictions and the sentence he received.
At his appeal hearing earlier this month, his lawyers argued that the six-month consecutive sentence for failing to remain at the scene should be set aside and replaced with a six-month term to be served in the community.
Or as an alternative, it could be concurrent to the 18 months for the dangerous driving causing bodily harm, they said.
In dismissing Berto's appeal of his conviction, the higher court agreed with Rasaiah's ruling not to put the lesser included offence of dangerous driving before the jury.
The crowd's reaction of anger and shock when Berto drove his truck toward them was reasonably foreseeable, the three-member panel said.
"His decision to stop the vehicle for a few seconds before leaving, and the crowd's reaction, were not sufficient to constitute an independent action that could sever his responsibility for the consequences of dangerous driving."
Berto created the situation and nothing broke the chain of causation, the appeal court said.
It agreed with the trial judge that there was a "real and substantial connection between the decision to drive the truck into the crowd of pedestrians" and the harm caused to a person a few seconds later.
"There was no air of reality to the argument that the jury could have found the appellant's conduct driving into a crowd of pedestrians was dangerous, but his decision to drive away a few seconds later was not."
In rejecting the admission of the fresh evidence from the forensic psychiatrist, the appeal court concluded it is not materially different from the psychological assessment Rasaiah had at the sentencing hearing.
As well, the new report doesn't provide evidence that Berto's mental health challenges can't be addressed in the provincial correctional system, it said.
The sentencing judge considered those challenges and his intellectual disability, but found incarceration was warranted because of his high level of culpability and the importance of denunciation and deterrence in these types of offences, the higher court said.
Rasaiah had noted that "evidence of diminished intelligence may be important in identifying moral fault and responsibility."
However, she also said Berto knew he had hit someone or something, he did not report the accident, he knew someone was injured when he spoke with a friend following the incident and continued to drive his truck to parents' property, where he hid it over night because he was scared and wanted to think things through.
The sentencing judge was "clearly attuned" to his challenges, but did not find his actions were the result of them, the writer of the appeal court decision said.
As well, she recognized that failing to remain at the scene of an accident is an offence for which deterrence, denunciation and the protection of the public are the primary sentencing objectives.
There is no reason to interfere with the imposed sentence, the appeal court concluded.