DATE: July 19, 2021 ONTARIO COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN — and — MICHAEL JOHNSON
Before Justice Jennifer Strasberg
Guilty Pleas entered on January 6, 2021 Sentence Submissions heard on March 26, 2021 & May 20, 2021 Reasons for Sentence released on July 19, 2021
J. Levy ..................................................................................................................... for the Crown A. Newman................................................................ Counsel for the accused Michael Johnson
Strasberg J:
OVERVIEW:
[1] Time and time again the toxic combination of drinking and driving produces deadly consequences in our city, our province, and our country. And still, an intolerable number of Canadians continue to drink and drive.
[2] This case is only the latest example of the devastating results that can and too often do flow from the decision to drive after drinking. Despite the numerous alternative modes of transportation that are available in an urban centre like Toronto, people are still getting into their motor vehicles and driving after consuming too much alcohol.
[3] Weijie Zhu Li, Jun Jie Zhu Li and Damir Kussain came to Canada to study at Centennial College. It was their common dream to study and live here. Their dreams were shattered on December 22, 2019, by the criminal actions of Mr. Johnson. What happened on that day was an unspeakable tragedy for each family. Their lives will never be the same.
[4] On January 6, 2021, Michael Johnson entered pleas of guilty to two counts of impaired operation causing death to Weijie Zhu Li and Damir Kussain and two counts of dangerous operation causing death to Weijie Zhu Li and Damir Kussain, and to one count of impaired driving cause bodily harm to Jun Jie Zhu Li and one count of dangerous operation causing bodily harm to Jun Jie Zhu Li.
[5] On March 26, 2021 I heard the submissions of counsel for the Crown and counsel for Mr. Johnson, and Mr. Johnson addressed the court pursuant to s. 726 of the Criminal Code.
[6] Members of the public need to hear about what has befallen the Zhu Li, the Kussain and the Johnson families. Sadly, the devastating impact of Mr. Johnson’s actions must serve yet another warning to those who would otherwise drink and drive.
[7] Mr. Johnson appears before me today for sentencing. There is nothing I can say or do in sentencing Mr. Johnson which can repair the damage that has been done. The lives of two young men – Weijie Zhu Li and Damir Kussain – have been snuffed out. They can never be brought back to their families. They will never have the opportunity to fulfill their potential. Nor can I erase the physical pain suffered by Jun Jie or the emotional trauma he endures as a result of seeing his brother killed. What I can and must do is to consider and weigh the various factors that are present in this case, apply the law and the principles of sentencing set out in the Criminal Code, and arrive at a fair and just sentence for Mr. Johnson.
[8] These are my reasons for sentence. If there is any variance between these written reasons and what I say in court, it is these written reasons that are intended to govern.
THE EVIDENCE IN REGARD TO THE OFFENCES
[9] On Sunday, December 22, 2019, Mr. Johnson left his place of work in Scarborough shortly before 4:15 p.m. and went to meet his cousin at a nearby Jack Astor’s bar and restaurant on Progress Avenue. While at that location, he consumed several alcoholic drinks and some food. At about 6:15 p.m. he left the Jack Astor’s, got into his Mazda 3, and set out to meet his wife for their date night.
[10] Mr. Johnson proceeded to drive his vehicle eastbound along Progress Avenue – which is a posted 50 km/h zone – at an unconscionably high rate of speed, reaching 161 km/h at approximately 6:33 p.m. as he arrived at the intersection of Progress Avenue and Markham Road. When he drove through the intersection, his vehicle impacted the south curb, mounted the sidewalk and continued eastbound, striking three pedestrians – Weijie Zhu Li, Jun Jie Zhu Li and Damir Kussain – who were walking eastbound on the south sidewalk of Progress Avenue. His vehicle then flipped over, causing extensive damage and coming to rest further east of where the pedestrians were struck. At the time of the collision, Mr. Johnson was on his cell phone in hands free mode speaking with his wife.
[11] Mr. Johnson remained at the scene. He sustained minor injuries. Police, fire and paramedics quickly attended at the scene to render assistance and to investigate the collision. Mr. Johnson identified himself as the driver of the Mazda. A police officer asked Mr. Johnson if he had been drinking alcohol. Mr. Johnson denied having consumed alcohol. The officer smelled the odor of alcohol on Mr. Johnson’s breath and, suspecting that Mr. Johnson had been operating a vehicle with alcohol in his system, demanded that he provide a sample of his breath into an approved screening device. The officer also noted that Mr. Johnson eyes were bloodshot, that his speech was slightly slurred, and that he appeared shaken by the collision. Mr. Johnson complied with the demand and registered a “fail”. Mr. Johnson was arrested.
[12] Later at the police station, two suitable samples of Mr. Johnson’s breath were received into an approved instrument. The first, taken at 9:27 p.m., resulted in a reading of 112 milligrams of alcohol in 100 milliliters of blood. The second, taken at 9:49 p.m., resulted in a reading of 111 milligrams of alcohol in 110 milliliters of blood. The qualified breath technician observed that Mr. Johnson’s speech was slurred, his eyes were bloodshot, he was slow to respond, and his eyelids appeared ‘heavy’ and slowly blinking. And he was cooperative.
[13] Dr. Daryl Mayers is employed by the Centre of Forensic Sciences. He is qualified as an expert in toxicology and in the absorption, distribution and elimination of alcohol in the human body. Using 6:33 p.m. as the approximate time of the collision and the blood alcohol concentration results at 9:27p.m. and 9:49 p.m., Dr. Mayers projected Mr. Johnson’s blood alcohol concentration at the time of the collision to have been between 120 and 170 milligrams of alcohol in 100 milliliters of blood. It is Dr. Mayer’s expert scientific opinion that an individual would be impaired in their ability to operate a motor vehicle at a blood alcohol concentration within the projected range.
[14] In their ensuing investigation, the police obtained security video footage from various businesses and buildings in the area as well as the dashcam video of a motorist who had been traveling eastbound on Progress Avenue just east of the intersection at Markham Road at the time of the collision.
[15] Video surveillance from the building located at 888 Progress Avenue – which is located on the north side of Progress Avenue west of the intersection at Markham Road – captured images of Mr. Johnson’s vehicle travelling eastbound at a high rate of speed through the intersection at approximately 6:30 p.m.
[16] The dashcam video captured images of Mr. Johnson’s vehicle passing on the right at a high rate of speed – already out of control – having left the roadway and on the grassy boulevard and sidewalk, and crashing.
[17] The Electronic Data Recorder from Mr. Johnson’s vehicle was seized and examined. The data files show that 5 seconds prior to impact, the Mazda 3 was travelling at 151 km/h and accelerating. At 1 second before impact Mr. Johnson’s vehicle was still accelerating and had reached the speed of 161 km per hour. At 0.5 seconds before impact Mr. Johnson applied the brakes and the speed was reduced to 156 km per hour.
[18] At the time of the collision there was a moderate amount of traffic on eastbound Progress Avenue; however, the intersection at Markham Road and Progress Avenue was quite busy. While it was dark outside, there was adequate artificial lighting. The road conditions were good and there was no precipitation at the time. Progress Avenue bends gradually to the left (north) as it proceeds east of the intersection at Markham Road.
[19] Wei Jie ZHU LI and Damir Kussain died on December 22, 2019 from the injuries they sustained as a direct result of the collision. Jun Jie ZHU LI suffered injuries to his head including lacerations to his face that required stitches to close.
THE VICTIM IMPACT STATEMENTS
[20] Victim impact statements were provided by Rixin Zhu and Qiulan Li, the father and mother of Weijie and Jun Jie, and by Gulzhan Bukharova, the mother of Damir Kussain.
[21] If the devastating impact of these events is obvious, the immense sadness and grief suffered by these families is truly heartbreaking. The victim impact statements describe these young men, their promise and the impact that their loss has had on these families.
[22] In their joint victim impact statement, Rixin Zhu and Qiulan Li describe the day of the incident as one of the darkest days in their lives. They describe Weijie as a sunny, healthy, smart, kind, filial boy who was loved by all who knew him. Since the incident their health has suffered. Nothing for them is normal anymore. They have also had to deal with the impact of these events on their son Jun Jie. He suffered severe injuries and both physical and emotional trauma, which continues to significantly affect his daily life. They see him suffering and this exacerbates their own pain. Rixin Zhu and Qiulan Li nurtured both their sons and provided them with access to excellent education, sending them to Canada for that very reason. These events have left them broken, tormented, in endless pain. For his part, Jun Jie, at the age of 21, is now a shadow of his former self, stripped of his dreams and robbed of the love and companionship of his younger brother.
[23] In her victim impact statement, Ms. Bukharova describes Damir as a cheerful, kind and sympathetic boy who dreamed of opening a shelter for homeless animals. Her life and her health have been severely affected by these tragic events. Her statement while brief conveys the heartbreak that she is suffering from the loss of a son who still, in young adulthood, called her “Mommy.” Her younger son will now grow up as an only child.
[24] What made this event even more devastating for these families is that their sons died on foreign soil, far away from their homes and loved ones. Due to the Covid-19 pandemic and other issues, Ms. Bukharova has not yet been able to come to Canada to lay a tombstone on Damir’s grave.
THE CIRCUMSTANCES OF THE OFFENDER
[25] Mr. Johnson has no previous criminal record. He is now 41 years old. He is married and has a 11-year-old daughter with whom he shares a close relationship. He has been employed by Canada Post for 20 years.
[26] Mr. Johnson was diagnosed with depression approximately five years ago at which time he was encouraged to seek therapy and/or take medication. He did neither prior to the index offence. He has had issues with alcohol and cannabis use which have resulted in negative consequences in his marriage.
[27] In the past, Mr. Johnson has experienced passive suicidal ideation: that is, thoughts of suicide or self harm but never a plan or intention to carry them out. Mr. Johnson reports having several stressors leading up to the time of the offences, including marital and financial problems, chronic pain, and the recent death of his father-in-law for whom he cared in the year leading up to his death. On the night of the collision, as a result of an argument he had with his wife while he was driving, Mr. Johnson says that he made the decision to drive recklessly and thereby end his life.
[28] Since the offence Mr. Johnson has attended Alcoholics Anonymous on a regular basis. He has abstained from alcohol and has vowed not to drink again. He has sought out therapy to address the issues that led up to the incident.
[29] Eighteen letters were filed in support of Mr. Johnson. I am told there were many more. These letters paint a picture of a man who is kind, honest, hardworking and caring. Several times Mr. Johnson is described as a man who would give you the shirt off his back. He is described as a family man and a valuable member of his community. He has been a role model for children in his community as a hockey coach for his daughter’s hockey team. He is supported and held in high esteem by family, friends, colleagues and his community. Each letter of support also acknowledged the devastating impact this has had on him and his genuine remorse for his actions. Many of the letters urge this court to show compassion for him.
[30] Mr. Johnson addressed the court at the sentencing hearing. It is clear from what he said and his demeanor that he is very aware of the devastation he has caused. He takes full responsibility for his actions and is truly remorseful. If he could turn back the clock he would. Unfortunately, this cannot be done.
THE POSITION OF THE PARTIES
Defence
[31] Mr. Newman submits that the sentence range for this offence is a penitentiary term of four to six years. He urges the court to find that Mr. Johnson’s mental health history and the fact that he was trying to kill himself are mitigating factors that would place the sentence at the bottom of, or even below, the indicated range. He submits that the cause of the collision was as much a result of the mental health aspects as it was the alcohol consumed by Mr. Johnson. He submits that the degree of the offender’s moral blameworthiness is thereby diminished as compared with someone who merely drives drunk.
Crown
[32] The Crown seeks a penitentiary sentence in the range of seven to eight years. The Crown submits that the range of sentences for the offence of impaired driving causing death has been steadily increasing and that in the circumstances of this case Mr. Johnson’s moral blameworthiness is high. The Crown argues that Mr. Johnson’s mental state – culminating in his conscious decision to drive in a reckless manner- is an aggravating factor because he did so under circumstances wherein it was foreseeable that people could be harmed or killed. The Crown also seeks a sentence of 3 years concurrent on the charges of impaired driving cause bodily harm.
THE LAW
The Legal Parameters
[33] Pursuant to s. 320.14(2) of the Criminal Code, the maximum penalty applicable to the offence of impaired driving causing bodily harm is fourteen years imprisonment.
[34] Pursuant to s. 320.14(3) of the Criminal Code, the maximum penalty for impaired driving causing death is life imprisonment.
The Relevant Principles of Sentencing
[35] Section 718 of the Criminal Code codifies the fundamental purposes of sentencing. These include 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 and the community, and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done.
[36] Section 718.1 expresses the fundamental principle of sentencing: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[37] Section 718.2(a) provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances.
[38] Section 718.2(b) provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (the parity principle).
[39] The appropriate weight to be given to the various sentencing objectives articulated in s. 718 is determined by the facts and circumstances of the offence and of the offender. In this case, deterrence – particularly general deterrence – and denunciation are of particular importance.
ANALYSIS
The Range of Sentence
[40] It is often said that sentencing is the most difficult task of a trial judge. It is fact-driven and highly individualized process. Sentencing in this case is particularly challenging. Mr. Johnson comes before me as a valuable and loved member of the community who has committed an extremely serious crime which had catastrophic consequences.
[41] Over a quarter of a century ago, in the seminal case of R. v. Bernshaw (1995), C.C.C. (3d) 193, Supreme Court of Canada Justice Peter Cory observed how drinking and driving offences like this one impact our communities at para. 16 of the judgment:
Every year drunk driving leaves a terrible toll of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of death and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant loss to the country.
Those words ring true today as I sentence Mr. Johnson.
[42] More recently, the opening paragraph of Justice Moldaver’s majority judgment in R. v. Alex 2017 SCC 37 [2017] 1 S.C.R. 967 re-emphasizes the point:
[1.] Each year drunk drivers cause tremendous suffering and loss of life on Canada’s roadways. Tragically, drinking and driving offences remain one of the most common crimes in Canada – and they place a substantial burden on the criminal justice system.
[43] The observations of Boswell J. in R. v. Fracassi, 2017 ONSC 28 (SCJ) apply whole heartedly to this case:
There are certain basic limitations in the sentencing process. I make note of the following three:
(1) Whatever sentence is imposed, it cannot undo the damage that has been done by the offence. Regardless of the sentence imposed today, the victims of the offence will be left with the emptiness and heartache that they began the day with;
(2) No sentence is capable of satisfying all interested parties. Indeed, I suspect that none of the constituents here will be satisfied. It is important, however, that the sentence adhere to the purposes and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code and that it be fit for purpose – neither too lenient nor too harsh – in order to maintain the confidence of the broader public; and,
(3) The sentence imposed is in no way meant to reflect the value of the losses suffered. One cannot put a price, in dollars or in years of incarceration, on a life lost or otherwise significantly impaired.
There are, on the other hand, certain things that a sentence must do. In this case, it must denounce, in no uncertain terms, the conduct engaged in. It must reinforce the message that impaired driving often has serious, even if unintended, consequences and will be met with a substantial sentence in pursuit of the goal of deterrence. At the same time, it must adhere to the principles of sentencing codified in s. 718.2 of the Criminal Code, including the principle of parity, which seeks to prevent markedly disparate sentences for similar offenders committing similar crimes in similar circumstances.
[44] Sentences for the offence of impaired operation causing death have been increasing over the years. Both Crown and defence counsel provided cases to support their submissions with respect to the suggested range of sentence. Both rely on the recent case of R. v. Altiman, 2019 ONCA 511 in support of their respective positions. In Altiman, the Court of Appeal thoroughly reviews the upward trend in sentencing for this offence. Sentences for impaired driving causing death typically fall into the four to six-year range when there is no prior criminal record or driving record. If there is a prior record the range can increase to between seven and one-half years and twelve years. However, the Court acknowledges that while there are ranges, in “practice” the court has not defined a formal range due to the many factors that can vary from case to case. (Altiman at para 70 & 71) Mr. Altiman did not have a prior criminal or driving record. In the result, the Court of Appeal reduced his sentence from ten years to seven years.
[45] To summarize, sentence ranges are only meant to be guidelines. There must be flexibility in sentencing to account for the particular facts and circumstances of a case.
The effect of Mr. Johnson’s disclosure(s) that he intended to kill himself
[46] Both Mr. Levy for the Crown and Mr. Newman for Mr. Johnson say that his attempted suicide places Mr. Johnson in a unique position for sentencing. However, the Crown says it is an aggravating factor and the defence says it is a mitigating factor. Neither were able to find a case in which driving while impaired and attempting suicide were co-factors.
[47] The fact of and details regarding Mr. Johnson’s decision to commit suicide immediately prior to the event giving rise to the charges were not part of the agreed facts that were filed at the time of the plea on January 6, 2021. This issue was raised during sentencing submissions on March 26, 2021. Two reports were filed as exhibits on Mr. Johnson’s behalf at that hearing: the report of Dr. Erica Martin and the report of Dr. Leah Hartman. The Crown consented to the filing of both reports.
[48] During sessions with both doctors Mr. Johnson disclosed that on the day of the offence he was fighting with his wife on the phone and he could not handle it anymore. He reported that “he gave up…thought she would be better off without me,” and “he drove erratically trying to run himself off the road.”
[49] The details were expanded upon during submissions by Mr. Johnson’s counsel: Mr. Newman advised the court that Mr. Johnson made the decision to kill himself after he got into his motor vehicle and that it was his intention to find a wall to drive his car into.
[50] While I find that Mr. Johnson was suffering from serious depression at the time of the offences, it is not possible – based on the evidence before me – to parse out the relative effects of his consumption of alcohol, his depression, and the various “stressors” at play, on his decision to kill himself. What is clear however, is that the decision he made to drive after drinking and while in an impaired state preceded the decision that he purportedly made to kill himself behind the wheel. And further, that while he may not have foreseen the horrific consequences of the decision to kill himself by driving “recklessly” on a well-travelled city street at that hour, his decisions to kill himself behind the wheel and to then drive at more than three times the posted speed limit in furtherance thereof were intentional.
The Pertinent Facts
[51] The pertinent facts from the agreed facts are as follows:
- Mr. Johnson got in his motor vehicle after consuming a sufficient amount of alcohol to put his Blood Alcohol Concentration (BAC) well above the legal limit.
- His BAC approximately three hours after he got into his car to drive was measured at 9:27 pm with a result of 112 mg/100 ml and 9:49 p.m. with a result of 110 mg/100 ml;
- The read back of his BAC to the time of driving is between 120 mg/100 ml and 170 mg/100 ml i.e. between one and a half times and twice the legal limit;
- At the time of the collision he was driving at an excessive speed of 161 km/h i.e. over three times the posted speed limit, immediately prior to braking; and
- He began to brake at 0.5 seconds prior to impact, reducing his speed to 156 km/h at impact.
[52] While Mr. Johnson reports that he was in the act of trying to kill himself and/or that his loss of control of the car was a result of his attempt to kill himself, the submission of his counsel – unsupported by evidence – is that Mr. Johnson was looking for a wall to run his car into but that he had yet to find that wall.
[53] In the circumstances, I am unable to eliminate impairment by alcohol as a cause – if not the cause – of the speed at which Mr. Johnson was driving, his loss of control, and even his decision to end his life.
[54] In support of the defence position that I should treat Mr. Johnson’s mental state as a mitigating factor, I was provided with some cases. While I accept the principles espoused in those cases, the facts are quite different from those before this court. First, none of the cases concern an impaired driver. Second, they all deal with a clear attempt to commit suicide at the moment of the collision. Finally, some of the cases conclude that the act of committing suicide in a manner that puts the public at risk is an aggravating factor and that the principles of general deterrence and denunciation have application in those circumstances. See: R. v. Lindsay, 2020 ONCJ 467. (Emphasis added)
[55] Accordingly, if I accept that Mr. Johnson was driving recklessly in order to kill himself, that decision and his ensuing behaviour shows a wanton and reckless disregard for the life and safety of others, which is an aggravating factor.
[56] In Summary:
- I have the incontrovertible facts of Mr. Johnson’s impairment by alcohol, his decision to drive in that state, and of the speed and location at which he was driving at the time of the collision.
- I have some evidence about a pre-existing diagnosis of depression, with no way to determine whether, and if so the extent to which, Mr. Johnson’s depression was a contributing factor to his decision to end his life.
- I have information about various “stressors” that were potentially impacting upon Mr. Johnson during the period leading up to the time of the offences – including marital problems, financial problems, chronic pain, and the recent death of his father-in-law for whom he had cared in the year leading up to his death – with no way to determine whether, and if so the extent to which, those factors or any of them contributed to his decision to end his life.
- I have information that Mr. Johnson disclosed to Dr. Erica Martin and to Dr. Leah Hartman that on the night of the collision, as a result of an argument he was having contemporaneously with his wife Mr. Johnson made the decision to drive recklessly and thereby end his life.
- I have the submission of Mr. Newman – unsupported by evidence – that at the time of the collision Mr. Johnson was engaged in looking for a wall to drive into in order to commit suicide, but that he had not as yet found that wall.
[57] If Mr. Johnson was not yet in the act of committing suicide because he had not yet found the wall, then I cannot conclude that the collision was a direct result of his decision to take his own life.
[58] It bears repeating that the argument Mr. Johnson was having with his wife occurred while he was driving along Progress Avenue i.e. after the decision he had made when leaving the Jack Astor’s to drive while his ability to do so was impaired by alcohol.
[59] In the result, I am left to address the mitigating and aggravating factors in relation to the established facts as cited by counsel with no way of determining whether the driving conduct was attributable solely to the alcohol he consumed or whether it was partially attributable to his depression and/or the various stressors and/or the argument with his wife.
[60] In this case, the aggravating and mitigating factors are as follows:
By way of aggravation:
- Mr. Johnson made the choice to drive after drinking on the night in question.
- Mr. Johnson drove at an excessive rate of speed – he was driving at 161 km/h in a 50 km/h zone at 6:30 p.m. on a Sunday evening along a main city street – where he would have been aware (or ought to have been aware) that there was likely to be both vehicular and pedestrian traffic. This is highly aggravating.
- Mr. Johnson killed Weijie Zhu Li and Damir Kussain and he badly injured Jun Jie Zhu Li. The impact on their families is immeasurable.
- Mr. Johnson’s wife and daughter have suffered and will continue to suffer for his actions.
- His blood alcohol concentration was somewhere between one and a half and two times the legal limit. This is a legislated aggravating factor pursuant to 320.22(e) of the Criminal Code.
By way of mitigation:
- Mr. Johnson is a first-time offender
- It was his intention to plead guilty to these charges from the very start.
- Mr. Johnson has an 11-year-old daughter, and by all accounts he has been an involved and committed parent.
- Mr. Johnson demonstrates a genuine and deeply held remorse for his actions and their consequences. I have no doubt that this haunts him every day and will continue to haunt him for the rest of his life.
- I have received dozens of letters of support for Mr. Johnson from family, friends, neighbours and co-workers. He has a strong support network.
- Mr. Johnson has been a contributing member of the community; he has worked in the public service as a postal worker for 20 years and volunteered in his community as a hockey coach.
- He was, at the time of these offences, suffering from depression and from various substance abuse issues, including alcohol.
- Since his arrest, Mr. Johnson has taken steps on his own to address his alcohol abuse by attending AA, and, he has been addressing his mental health issues. He submitted to psychological testing and 16 sessions of therapy that addressed his substance abuse, relationships and thoughts and actions. He also took programs to address his issues while in custody after the offence.
[61] Mr. Johnson acknowledges that he must be held accountable for his actions. He is pained by the hurt he has caused to the Zhu Li and Kussain families and to his own family. He is a good person who has led a productive life.
[62] That said, his moral blameworthiness is significant. He made the deliberate, intentional decisions to drive after drinking, and to drive at a speed which given the time and location was extremely dangerous. As a result, the lives of two young men were lost and another young man’s life was terribly affected. The horrendous impact of this tragedy on the Zhu Li and the Kussain families is another consequence.
[63] To be clear, I do not agree with defence counsel that this is a case where the circumstances justify a sentence below or at the low end of the range. There are simply too many relevant and significant aggravating factors. I note that Mr. Johnson was aware that he was suffering from stress, pain and depression. While he had sought out help in the past, he did not follow through and get help he needed prior to the commission of the index offences. I also note that Mr. Johnson was using alcohol and drugs to self medicate. He made the decision to go out for drinks on his date night knowing it was likely to cause further issues with his wife. He decided to get in his car having consumed alcohol. He drove in an extremely dangerous and irresponsible manner. The tragedy that ensued is devasting.
[64] The facts and circumstances of this case are more in line with the cases in which the sentences imposed have been at the top of or above the four to six-year year range: see R. v. Purtill, 2013 ONCA 692; R. v. Fracassi, 2017 ONSC 28, R. v. Stevens, 2017 ONCA 686; R. v. Muzzo, 2016 ONSC 2068; R. v. Altiman, 2019 ONCA 511.
CONCLUSION
[65] When I consider all the circumstances, a fit and proportionate sentence is one of six years imprisonment. This sentence will reflect the high degree of moral culpability of Mr. Johnson and serve the sentencing purposes of deterrence and denunciation, while at the same time taking into account his otherwise law-abiding and productive life and the absence of any criminal or driving record.
[66] Pursuant to section 719(3.1) of the Criminal Code Mr. Johnson is entitled to a credit for each day he spent in pre-sentence custody calculated at a ratio of 1.5:1. He was in custody for 106 days prior to his release on bail and will be given credit of 159 days.
[67] Defence counsel sought an additional credit for the harsh bail conditions that Mr. Johnson was subjected to following his release from custody.
[68] In R. v. Downes, (2006), 208 O.A.C. 324 (CA); 205 CCC (3d) 488, Justice Rosenberg held that time spent on stringent bail conditions – particularly house arrest – should be considered by a sentencing judge as a relevant mitigating factor. The amount of credit to be given for pre-trial bail conditions is in the trial judge's discretion. The amount of credit will vary depending on the circumstances of the case, including the length of time spent on bail, the stringency of the conditions, the impact of those conditions on the offender's liberty, and the ability of the offender to carry on normal relationships, employment and activity.
[69] I was advised that for a period of 83 days Mr. Johnson was on full house arrest conditions. After that the terms were relaxed for him to go to and from work and to be out with family members.
[70] I have no evidence of the impact of the stringent bail conditions on Mr. Johnson. However, it would appear that during most of that period the City of Toronto was subject to a stay at home order or a lockdown as a result of the Covid-19 pandemic. Consequently, the effects of any restrictions upon his liberty would have been relatively less severe after June 30, 2020. Mr. Johnson will be given an additional credit for his 83 days of house arrest at a rate of .35 which is an additional 29 days. Thus, his total pretrial credit will be 188 days.
[71] In the result, I impose the following sentence:
(a) On count two, impaired driving causing the death of Weijie Zhu Li, Mr. Johnson is sentenced to six years in the penitentiary, less credit for pre-sentence bail and custody, for a net of 5 years and 177 days;
(b) On count three, impaired driving causing the death of Damir Kussain, Mr. Johnson is sentenced to 5 years and 177 days in the penitentiary concurrent;
(c) On count one, impaired driving causing bodily harm to Jun Jie Zhu Li, Mr. Johnson is sentenced to 3 years in the penitentiary concurrent;
(d) On count four dangerous operation causing bodily harm to Jun Jie Zhu Li, Mr. Johnson is sentenced to 3 years in the penitentiary concurrent.
(e) On count five, dangerous operation causing the death of Weijie Zhu Li, Mr. Johnson is sentenced to 5 years and 177 days in the penitentiary concurrent.
(f) On Count six, dangerous operation causing the death of Damir Kussain, Mr. Johnson is sentenced to 5 years and 177 days in the penitentiary concurrent.
[72] Mr. Johnson will be prohibited from operating any conveyance in Canada for a period of 10 years following his release from custody pursuant to s. 320.24(4) of the Criminal Code.
[73] Mr. Johnson shall provide a sample of his DNA.