ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ADIB IBRAHIM
Defendant
Hank Goody and Derek Ishak, for the Crown
Peter Thorning and Richard Diniz, for the Defendant
HEARD: February 8, 2016
REASONS FOR SENTENCE
clark j.
INTRODUCTION
1In the late afternoon of May 14, 2012, while operating his taxi on King St. E., in Toronto, the accused struck and killed Ralph Bissonette, who was riding a skateboard. Members of the Toronto Police Service arrived to investigate and, shortly after the incident, an officer arrested the accused for dangerous driving. That same evening, while the accused was still in custody, the charge was changed to second degree murder.
2Commencing September 15, 2015, the accused was tried on the murder charge by this court sitting with a jury. On October 30, the jury found him guilty of manslaughter. On February 8, 2016, I heard extensive submissions on sentence. Mr. Ibrahim is now before the court to be sentenced.
POSITION OF THE CROWN
3The Crown contends that Mr. Ibrahim intentionally struck Mr. Bissonette as the final act in an altercation between the men. Before the jury, the Crown sought a conviction for murder, but, as noted above, the jury returned a verdict of manslaughter. Since the defence of provocation was left with the jury, it would still be open to the Crown to now ask the court to find, as the factual underpinning for sentence, that the accused had one of the two intents required for murder. Despite the availability of that submission, the Crown now suggests that there is a reasonable doubt whether the accused had either of the requisite intents. Nonetheless, Mr. Goody maintains, the offender’s moral blameworthiness is still extremely high and warrants a sentence of seven to nine years’ imprisonment.
4Crown counsel also contends that certain ancillary orders are warranted, namely, a DNA order pursuant to s. 497.051 of the Criminal Code and a driving prohibition, pursuant to s. 259(2) of the Code.
POSITION OF THE OFFENDER
5Counsel for Mr. Ibrahim contends that the jury’s verdict is consistent with the jury having accepted the offender’s trial testimony to the effect that he was unaware of Mr. Bissonette’s presence prior to striking him and that striking Mr. Bissonette was the unintentional consequence of making a lane change. On that basis, counsel argues that the appropriate sentence is a period of imprisonment in the intermittent range, followed by a brief period of probation.
6In the alternative, counsel submits that, even if the Court were to agree with the Crown that the offender struck Mr. Bissonette intentionally, the range proposed by the Crown is grossly excessive and would amount to a crushing sentence. However, having taken issue with the Crown’s proposed range of sentence, Mr. Thorning made no alternate submission as to what an appropriate sentence would be in the event that the court were to find the facts the Crown suggests it should find.
7Defence counsel does not quarrel with the Crown’s suggestion that a driving prohibition is appropriate, but disagrees with the length of the disqualification proposed.
8Mr. Thorning made no submissions in response to the Crown’s suggestion that a DNA order is appropriate.
9Mr. Thorning further argued that the sentence should be reduced by virtue of what he contends was certain police misconduct.
THE FACTFINDING FRAMEWORK
10To begin, finding the facts can be more difficult in manslaughter cases than with other types of offences. As McEachern C.J. noted in R. v. Gauthier (No. 2), [1996] 78 B.C.A.C. 85, 108 C.C.C. (3d) 231, at para. 41, “guilty verdicts in manslaughter …cases... are necessarily ambiguous descriptions of how the offence was committed.” That is especially so in this case since, depending on the facts they found, a number of different legal routes to a verdict of manslaughter were open to the jury.
11The court is, of course, “bound by the express and implied factual implications of the jury’s verdict”: R. v. Brown, 1991 73 (SCC), [1991] 2 S.C.R. 518, at p. 523; Criminal Code, R.S.C. 1985, c. C.46, ss. 724(2) (a). That said, for a sentencing court to be bound in this way, the fact must be “essential to the jury’s verdict”: s. 724(2) (a). Beyond that, the court “may find any other relevant fact that was disclosed by the evidence at the trial...”: s. 724(2) (b).
12Where there is dispute respecting a fact relevant to the determination of a fit sentence, the court is statutorily obliged to “request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial”: ss. 724(3) (a). In this case, no one sought to call further evidence concerning the facts upon which the court should impose sentence and I am satisfied that sufficient evidence was adduced at trial to render further evidence unnecessary.
13Respecting facts to be considered on sentence, both the onus and quantum of proof are well established. The party alleging a fact bears the burden of proving it (s. 724(3) (b)) on a balance of probabilities (s. 724(3) (d)), except where the Crown alleges that the disputed fact amounts to an aggravating factor, in which case the prosecutor must establish the fact beyond a reasonable doubt: s. 724(3) (e).
14It is well established that “the trial judge is entitled to make up his own mind on disputed questions of fact which are relevant to sentence”: R. v. Tuckey, 1985 3509 (ON CA), [1985] O.J. No. 142, 20 C.C.C. (3d) 502 (C.A.); R. v. Tempelaar, [1993] O.J. No. 3409; 95 O.A.C. 235; aff’d 1995 133 (SCC), [1993] S.C.C.A. No. 541, 203 N.R. 7. Further, as Southin J.A. stated in Gauthier, at para. 49, “a trial judge is under no obligation, as a matter of law, when sentencing after the verdict of a jury, to give an accused the benefit of that view of the evidence which is most favourable to the accused.”
15Ryan J.A., who wrote the principal opinion in Gauthier, stated, at para. 21:
In R. v. Brown, 1991 73 (SCC), [1991] 2 S.C.R. 518, the Supreme Court of Canada approved (at p. 523) the following passage from the article “Establishing a Factual Basis for Sentencing” found in [1970] Crim. L.R. 80 at p. 82, where the author, D.A. Thomas, says:
[T]he Court of Appeal has developed the principle that where the factual implication of the jury’s verdict is clear, the sentencer is bound to accept it and a sentence which is excessive in the light of the facts implied in the verdict will be reduced. . . . This principle can only apply however where the factual implication of the jury's verdict is clear; where . . . the factual implication is ambiguous, the court has held that the sentencer should not attempt to follow the logical process of the jury, but may come to his own independent determination of the relevant facts.
This statement reflects the correct principle, namely that the sentencer is bound by the express and implied factual implications of the jury’s verdict. There are other authorities to the same effect: R. v. Speid (1985), 1985 3480 (ON CA), 46 C.R. (3d) 22, at p. 47; Boyle and Allen, Sentencing Law and Practice (1985), at pp. 225, 227 and 229; Fox and Freiberg, Sentencing: State and Federal Law in Victoria (1985), at p. 48; Stockdale and Devlin, Stockdale and Devlin on Sentencing (1987), at p. 62. [Emphasis added by Ryan J.A.]
16In R. v. Nelson, [2014] O.J. No. 5729, 2014 ONCA 853, speaking for the court at para. 56, Tulloch J.A. stated:
Under s. 724(2) (a)-(b) of the Criminal Code, a sentencing judge must accept as proven all facts that are essential to the jury’s guilty verdict, and may find other relevant facts disclosed by evidence at trial. A sentencing judge is not permitted to make findings of fact that are “consistent only with a verdict rejected by the jury”: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 17. The appellant relies on R. v. Cooney (1995), 1995 707 (ON CA), 80 O.A.C. 89 (C.A.), to argue that where the factual basis for a jury verdict is uncertain, the sentencing judge must assume that the jury took the most lenient path to conviction. However, this view is inconsistent with the Supreme Court's decision in Ferguson and was expressly rejected in R. v. Roncaioli, 2011 ONCA 378, 271 C.C.C. (3d) 385, at para. 59.
17In Ferguson, speaking for the court at para. 18, McLachlin C.J. stated that “when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.)” At para. 22, McLachlin C.J. elaborated on this point:
[T]he trial judge erred in attempting to reconstruct the logical reasoning of the jury. The law holds that the trial judge must not do this, and for good reason. Jurors may arrive at a unanimous verdict for different reasons and on different theories of the case: R. v. Thatcher, 1987 53 (SCC), [1987] 1 S.C.R. 652. It is speculative and artificial to attribute a single set of factual findings to the jury, unless it is clear that the jury must unanimously have found those facts. Where any ambiguity on this exists, the trial judge should consider the evidence and make his or her own findings of fact consistent with the evidence and the jury’s findings.
18I recognize, of course, that this fact-finding function must be exercised with restraint. As McLachlin C.J. stated, “[i]t follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues”: Ferguson, at para. 18.
THE FACTS
19To decide the facts for purposes of sentencing, I must first examine Mr. Ibrahim’s account. To the extent that I disbelieve his account (and it does not leave me with a reasonable doubt), I must go on to decide the facts based on the remainder of the evidence that I do accept: R. v. (D.) W., 1991 93 (SCC), [1991] 1 S.C.R. 742.
Was Mr. Ibrahim aware of Mr. Bissonette’s presence?
20To begin, as noted above, Mr. Ibrahim contended, both in his statement to the police and in his trial testimony that he did not see Mr. Bissonette before he struck him with his taxi.
21As of the time of the incident, Mr. Ibrahim had been a professional driver for about 20 years. He testified that he was well rested that day and that, in the moments leading up to the collision, nothing had distracted his attention from his driving.
22The weather that day was clear and dry. The evidence reveals, and Mr. Ibrahim acknowledged in his testimony, that nothing obstructed his view out the windshield or the side windows. He acknowledged that he washed the car that day and that the windows were clean.
23The video from the nearby building (which only captured part of the encounter between the two men) plainly shows Mr. Bissonette beside the taxi. At first, he is seen by the leading edge of the front passenger’s side door, but, by the point at which he begins to fall, he was at the right front corner of the hood of the car. Mr. Bissonette was six feet, four inches in height. He was riding a skateboard, the plywood deck of which was several inches above the ground.
24Although it was late in the afternoon, Mr. Ibrahim never suggested that the sun caused him any problem in seeing to the front and there is no reason to think that it would have. Looking to his right, where the evidence shows Mr. Bissonette was immediately before being run over, Mr. Ibrahim would have been looking more or less in a northerly direction (to where Mr. Bissonette can first be seen in the video by the passenger side mirror) or in a northwesterly direction (to where Mr. Bissonette can last be seen in the video as he starts to fall), such that the sun would not have prevented him from seeing Mr. Bissonette. Thus, I find as a fact that Mr. Bissonette was plainly visible and there was no reason that the accused would not have seen him.
25Mr. Ibrahim says that he did not see Mr. Bissonette because he was looking straight ahead. To my mind, it is unrealistic to think that Mr. Ibrahim began to change lanes without even looking in the direction he was going. Further, even had he been looking straight ahead, as he claims, I find it very difficult to accept that he would not have seen Mr. Bissonette in his peripheral vision.
26Several witnesses spoke of hearing someone yelling immediately before the collision. I find as a fact that it was Mr. Bissonette who was yelling. The accused indicated that his windows were rolled up. I find his claim in this regard dubious, but, since one of the witnesses said he thought the windows in the taxi were rolled up, I will give Mr. Ibrahim the benefit of the doubt on this issue. Even so, Mr. Ibrahim acknowledged in cross-examination that, notwithstanding his windows were up, he could hear what was going on outside his car. Thus, there was no reason to think that he could not hear Mr. Bissonette yelling.
27Several witnesses spoke of seeing the skateboarder striking the taxi with his hand and I find as a fact that he did. Although no one who saw this spoke of hearing a noise emanating from Mr. Bissonette’s blows, it seems obvious to me, and I find as a fact, that when Mr. Bissonette struck the car, his blows must have made a noise.
28Since there was no evidence to suggest that Mr. Ibrahim’s hearing is less than normal, I conclude that Mr. Ibrahim heard Mr. Bissonette yelling and heard the noise that his blows on the car made.
29Looking at the evidence cumulatively, I do not believe Mr. Ibrahim’s evidence that he was unaware of Mr. Bissonette’s presence, and it does not leave me with a reasonable doubt. Rather, based on the evidence I accept, I am satisfied beyond any reasonable doubt that Mr. Ibrahim both saw and heard Mr. Bissonette. In other words, I am satisfied beyond a reasonable doubt that he was fully aware of Mr. Bissonette travelling alongside his taxi.
Did Mr. Ibrahim intentionally strike Mr. Bissonette with his taxi?
30Moving to the collision itself, Mr. Ibrahim contended that he did not strike Mr. Bissonette intentionally, but, rather, by accident.
31The video shows the taxi angling to the right and shows Mr. Bissonette beginning to fall. While noticeable, the taxi’s departure from its original line of travel is not pronounced at that point. Unfortunately, the video does not show the entirety of collision. That is where the evidence of the eyewitnesses becomes important. Several of the witnesses spoke of Mr. Ibrahim turning hard to the right. Once having done so, the witnesses say, the taxi actually mounted the curb. Mr. Ibrahim does not dispute their evidence. Indeed, he acknowledges that his vehicle mounted the curb. On the basis of that evidence, which I accept, albeit one does not see it on the video, I find as a fact that the vehicle turned more abruptly and to a much greater degree than would have been required to effect a lane change, as Mr. Ibrahim contends he was doing.
32Mr. Ibrahim acknowledged in his testimony that his course of travel changed sharply, but contended that the radical nature of his change of direction was due to the fact that the skateboard became lodged temporarily beneath his vehicle. As I understand his evidence, the skateboard acted as some sort of focal point, or axis, upon which his car then pivoted, such that he was unable to steer it properly.
33The skateboard consisted of a piece of ½ inch plywood mounted on two metal trucks. The board snapped into two pieces during the collision. One skate truck is still attached to each of what are now two pieces of plywood. Those items were entered as exhibits. Neither the weight of the skateboard nor the weight of the taxi was adduced in evidence. That said, I estimate that the skateboard weighed no more than ten pounds. Mr. Ibrahim’s taxi, on the other hand, must weigh somewhere in the neighborhood of a ton. The trucks of the skateboard are nowhere near tall enough, in any orientation, to span the gap between the pavement and the undercarriage of the taxi. Moreover, as I have said, each truck is still attached to a portion of the original board. Necessarily, then, for the skateboard to have redirected the vehicle’s course, the link between the undercarriage of the taxi and the pavement would have to have involved the plywood deck of the board. It is inconceivable to me, however, that a ½ inch piece of plywood would be strong enough to cause a ton of metal travelling at 40 kilometres an hour or so to change its course at all, much less to the radical degree that I find as a fact the taxi changed course. Further, even if it were possible for the skateboard to have redirected the taxi’s line of travel, I would have expected much greater damage to the pavement than the slight scuff that the photographs introduced in evidence depict on the roadway.
34It must be remembered that Mr. Ibrahim not only turned abruptly to the right, he actually mounted the curb momentarily, and, following that, he was then immediately able to come down off the curb and bring his taxi to a stop without any apparent difficulty.
35Looked at cumulatively, for the foregoing reasons, I do not believe Mr. Ibrahim’s evidence on this point and it does not leave me with a reasonable doubt. Rather, based on the evidence I accept, I am satisfied beyond any reasonable doubt that Mr. Ibrahim had his taxi under control at all times and that, when he turned the car and struck Mr. Bissonette, Mr. Ibrahim did so intentionally, meaning to strike Mr. Bissonette.
What was Mr. Ibrahim’s further intention when he intentionally struck Mr. Bissonette?
36That brings me to the most difficult question: what did Mr. Ibrahim intend to do by intentionally striking Mr. Bissonette with his taxi? It seems to me that there are four possibilities:
(i) he turned his vehicle toward Mr. Bissonette, not meaning to actually hit him, but, rather, intending to make Mr. Bissonette think that he was going to hit him, in order to scare him so that Mr. Bissonette would break off the engagement;
(ii) he meant to knock Mr. Bissonette off his skateboard, but did not intend to kill him or to cause him bodily harm that he knew was likely to cause his death;
(iii) he meant to cause him bodily harm that he knew was likely to cause death; or
(iv) he meant to kill Mr. Bissonette.
By virtue of the various routes to a verdict of manslaughter included in my final instructions (which included murder reduced to manslaughter by reason of provocation), each of the aforementioned conclusions was available to the jury.
37There is, of course, a permissible inference in law that a sane and sober man intends the natural consequences of his act. Mr. Ibrahim was both sane and sober when he struck and killed Mr. Bissonette. Mr. Ibrahim was driving a mid-size sedan at a speed somewhere between 40 and 50 kilometres per hour and, as I have earlier found, he was fully aware of Mr. Bissonette’s presence at the side of his vehicle. He had to have known that Mr. Bissonette was, for all practical purposes, in the same position vis-à-vis physical vulnerability as a pedestrian; i.e.: he was totally unprotected. Yet, notwithstanding that awareness, Mr. Ibrahim veered suddenly to the right and went so far as to mount the curb with his taxi, knocking Mr. Bissonette off his skateboard, and running over him. By so doing, he caused Mr. Bissonette catastrophic injury that resulted in what the pathologist, Dr. Rose, characterized as “instantaneous death.”
38Given those facts, the aforementioned inference is not only compelling, it is virtually irresistible. That said, as Crown counsel pointed out during his oral submissions, the incident lasted only a matter of a few seconds. Indeed, it happened so fast that, in the Crown’s view, there is room for a reasonable doubt whether the offender had sufficient time to advert to the likely consequences of doing what he did. I am prepared to give him the benefit of that doubt.
39On the other hand, I do not accept, nor am I left with a reasonable doubt, that Mr. Ibrahim intended only to frighten Mr. Bissonette. He swerved suddenly to the right to such an extent that it took him from a westerly to a northwesterly direction of travel. Indeed, according to one witness, Ben Drory, Mr. Ibrahim’s taxi was headed almost straight north at one point. In short, the turn was far too drastic, and Mr. Bissonette was far too close to his taxi, for Mr. Ibrahim to have sensibly thought that he could avoid hitting Mr. Bissonette.
40Accordingly, I will sentence Mr. Ibrahim on the basis that he intended to strike Mr. Bissonette, but did not intend to kill him or to cause him serious bodily harm that he knew was likely to cause his death. That said, while I give him the benefit of the doubt in terms of the intent to cause bodily harm sufficient to satisfy s. 229(a) (ii), in all the circumstances it would be naïve to think that Mr. Ibrahim did not realize that he would cause Mr. Bissonette some significant degree of bodily harm and I find as a fact that Mr. Ibrahim knew that.
DISCUSSION
Antecedents and Character of the Offender
41I have had the benefit of a pre-sentence report (“PSR”). With one exception, defence counsel accepted that the PSR was a fair assessment of his client and his circumstances. The exception concerns a comment by the author of the PSR to the effect that Mr. Ibrahim laid some measure of blame at the feet of the victim for what took place. Mr. Thorning took issue with the accuracy of this aspect of the PSR. Since Crown counsel did not wish to call evidence on this matter, I have disabused my mind of that comment.
42Mr. Ibrahim is presently 47 years of age. He was born in Ethiopia. In 1987, at the age of 19, he left Ethiopia and went for a matter of months to Italy. From there, he came to Canada as a refugee, in 1988. He is now a Canadian citizen.
43Once in Canada, Mr. Ibrahim completed his high school education. He then enrolled in an electronics program at the community college level, but did not complete his studies, deciding to join the workforce instead. Since then, he has worked steadily, in the main as a taxi driver. He lived for a time in Niagara Falls, but, for the most part, he has resided in Toronto.
44Mr. Ibrahim has been married for 16 years. His wife had a daughter from a previous marriage. Mr. Ibrahim has raised that child as his own. The couple has had two more children.
45Since the incident giving rise to this prosecution, Mr. Ibrahim sold his taxi plate and has, so I am told, no plans to resume his career as a taxi driver in the future.
46Counsel submitted a compendium of 58 character references from members of the offender’s immediate and extended family, friends, co-workers and others in the community. All these letters speak in glowing terms of a hardworking, industrious, caring and generous man, who is dedicated to his family and who gives willing of his time to the community. They portray the offender as a quintessentially patient and gentle man, for whom the behaviour that led to his conviction in this court was very much out of character. A recurrent theme in the letters is the loss to both his family and the community that incarceration of Mr. Ibrahim would entail.
Victim Impact
47A single victim impact statement, jointly authored by the victim’s mother, sister and nephew, was read into the record and filed as an exhibit. It portrays Mr. Bissonette as a young man with a promising career as a chef and a great many other interests, particularly in outdoor pursuits. It also speaks volumes respecting the pain and abiding misery his loved ones suffer as a result of Mr. Bissonette’s untimely, and totally unnecessary, death.
48Before going further, it is worthy of mention, at this point, that no sentence I might pass today could ever fully compensate for the loss of Mr. Bissonette’s life or for the suffering that Mr. Bissonette’s family has endured and will continue to endure in years to come. As Watt J. (as he then was) observed in R. v. Browne, [2002] O.J. No. 900, at paragraph 17:
The criminal law does not restore life. The objectives, principles and factors that govern the imposition of sentence are not meant to represent the value of the life that has been unlawfully taken. They are designed to reflect the moral blameworthiness of the person who commits an offence and the gravity of the offence, so far as the law is concerned, that he or she has committed.
Principles of Sentencing
49I am mindful of the principles of sentencing set out in sections 718, 718.1 and 718.2 of the Criminal Code.
Rehabilitation
50Mr. Ibrahim is a first offender.
51I am aware, of course, that Mr. Ibrahim has a record of approximately a dozen driving infractions under the Highway Traffic Act, R.S.O. 1980 Chap. H 8. Albeit Mr. Ibrahim is now before the court to be sentenced for a crime that he committed in the course of operating a motor vehicle, I place little weight on the prior driving convictions for three reasons. First, although, as a professional driver, arguably Mr. Ibrahim had a greater responsibility than others to obey the law while driving, the reality is that, as a taxi driver, he typically drove a great deal more than the average non-professional driver. Thus, it is not surprising that he might have transgressed the traffic laws more often than most persons. Second, none of the prior driving infractions was particularly serious. Third, as of May 2012, the convictions were somewhat dated.
52It is trite to observe that rehabilitation is an important factor in sentencing. It is especially so when the court is dealing with a first offender. That said, although Mr. Ibrahim is not youthful, I am mindful, nevertheless, of R. v. Priestly, 1996 1381 (ON CA), 110 C.C.C. (3d) 289 (Ont. C.A.) at 295, where Rosenberg J.A. said “[t]he duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can be avoided merely by invoking the objective of general deterrence”; see also R. v. Stein 1974 1615 (ON CA), 15 C.C.C. (2d) 376, (Ont. C.A.), at 377. In Priestly, the court held that, generally speaking, the primary objectives of sentencing a first offender are individual deterrence and rehabilitation and those goals are best achieved by either a suspended sentence and probation or a very short term of imprisonment. I am also mindful that an offender should not be deprived of his liberty where less restrictive sanction may be appropriate and that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered: Criminal Code, s. 718.2(d) and (e).
Deterrence
53In R. v. Johnson (1996), 1996 3148 (BC CA), 112 C.C.C. (3d) 225 (B.C.C.A.) Ryan J. A. stated at p. 236:
The principle of deterrence as a goal of sentencing is embedded in our law. The Supreme Court of Canada has said so in C.A.M., 1996 230 (SCC), [1996] 1 S.C.R. 500, the amendments to the Criminal Code specifically refer to it as a sentencing objective (see s. 718(b)). We must assume that deterrent sentences have some effect. It is futile to ask whether a particular sentence will deter others. That question can never be answered. Deterrence operates in a general way. Those that would break the law must know, and law-abiding citizens must be assured, that law-breakers will receive sentences which reflect the seriousness of their crimes. This will deter some potential offenders, it will not deter others.
54Deterrence is especially important in driving cases, as was pointed out in R. v. Lacasse, [2015] S.C.J. No. 64, 2015 SCC 64. In that case, the appellant, while impaired by alcohol, drove his motor vehicle into a ditch, killing two of his passengers. At para 73, speaking for the majority, Wagner J. stated:
73 While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences. Impaired driving offences are an obvious example of this type of offence, as this Court noted in Proulx:
[D]angerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the ones most likely to be deterred by the threat of severe penalties: see R. v. McVeigh (1985), 1985 115 (ON CA), 22 C.C.C. (3d) 145 (Ont. C.A.), at p. 150; R. v. Biancofiore (1997), 1997 3420 (ON CA), 119 C.C.C. (3d) 344 (Ont. C.A.), at paras. 18-24; R. v. Blakeley (1998), 1998 6218 (ON CA), 40 O.R. (3d) 541 (C.A.), at pp. 542-43. [para. 129]
74 As I mentioned in the introduction, courts from various parts of the country have adhered to the principle that the objectives of deterrence and denunciation must be emphasized in imposing sentences for this type of offence. For example, the Quebec Court of Appeal made the following comments in Lépine:
[TRANSLATION] Sentences imposed for crimes involving dangerous operation of a motor vehicle while under the influence of alcohol must be aimed at deterring the public generally from driving in that manner. This Court has therefore upheld significant custodial sentences for such offences: R. v. Kelly, J.E. 97-1570 (C.A.).
Very often, the objective gravity of such crimes is based more on their consequences and the extent of those consequences than on consciousness of guilt, which is why Parliament has increased the maximum sentences on the basis of the consequences of the operation of the vehicle.
A loss of human life caused by the operation of a vehicle while impaired is a consequence that cannot be remedied, which is why it is important for the courts to convey a message of denunciation to those who put themselves in potentially dangerous situations, even if the offender does not have a criminal record and did not wish to cause the tragic accident. [paras. 19-21]
75 Along the same lines, the Quebec Court of Appeal said the following in Brutus:
[TRANSLATION] In closing, it should be borne in mind that the courts have long been sharply critical in discussing the commission of driving offences of this nature and have asserted that the objectives of denunciation and deterrence must be emphasized in order to convey their wish to give expression to society's condemnation of such crimes by means of exemplary sentences, particularly in cases (like this one) involving serious consequences for the victims. Society's condemnation may be reflected in longer terms of imprisonment, which have a deterrent effect both on the offender and on all those who might be tempted to imitate the offender. The sentence imposed in this case is not unreasonable in light of this objective, nor is it unreasonable in light of all the circumstances of the case. [para. 18]
Although Wagner J.’s remarks were directed to drinking and driving offences, they are apropos where, albeit alcohol is not involved, a driver indulges in what has come to be known as “road rage.” In cases of road rage, deterrence and denunciation are paramount considerations: R. v. Patron, [2009] A.J. No. 1153, 2009 ABCA 346; R. v. Zarb, [2014] O.J. No. 2180, 2014 ONSC 2585.
Retribution
55In passing sentence, the court is obliged to consider retribution, not in the vengeful sense of the word, but, rather, in the sense of conveying society’s denunciation of the offending conduct. In R. v. M. (C. A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at paras. 80 and 81, McLachlin C.J. stated:
Retribution in a criminal context, by contrast to vengeance, represents an objective reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender… [U]nlike vengeance, retribution incorporates a principle of restraint. Retribution requires the imposition of a just and appropriate punishment and nothing more….
The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct… [A] sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.
Predominant Principles of Sentencing
56As the discussion above reflects, in sentencing an offender the court must pay heed to a number of different principles. Sometimes those principles are in conflict in that the length of sentence required to properly serve one is inconsistent with the length of sentence required to serve another. In such a case, an appropriate resolution may require that one or the other of those principles be the predominant consideration: R. v. Szola, 1977 2041 (ON CA), [1976] O.J. No. 1229, (1977), 33 C.C.C. (2d) 572. In R. v. Biln, 1999 BCCA 369, [1999] B.C.J. No. 1411, (B.C.C.A.), at para 17, McEachern C.J. said: “[s]entencing is indeed an art rather than a science. What a sentencing judge must do is balance the various principles and decide which ones govern a particular case.”
57In this case, I am of the opinion that, while rehabilitation must not be lost sight of, the predominant principles of sentencing must be denunciation and deterrence.
Mitigating Factors
58I find the following mitigating factors in this case:
(i) Mr. Ibrahim has no criminal record;
(ii) he has strong family support;
(iii) he has strong support in the community;
(iv) he has an excellent prospect of making an honest and productive future for himself and his family once this matter is finally behind him; and
(v) albeit it was very late in the day, when asked on February 8, at the end of sentencing submissions, whether he wished to say anything prior to sentence being imposed, Mr. Ibrahim expressed a qualified measure of remorse.
59I say that Mr. Ibrahim’s expression of remorse was qualified because, while he said he was sorry that Mr. Bissonette died and was sorry for the suffering that Mr. Bissonette’s death had caused his family, at no time did Mr. Ibrahim say he was sorry for having caused Mr. Bissonette’s death by what I have found was his intentional action. The distinction is more than pedantic. Most people will feel sorry for the untimely death of another human being and will concomitantly feel some compassion for the pain the deceased’s loved ones suffer. It is quite another thing to feel remorse in the true sense of the word, i.e.: “a deep regret or guilt for a wrong committed”: Concise Oxford English Dictionary, 10th Ed. Revised, (Oxford, Oxford University Press, 2002). Even on his version of events (which, of course I have rejected), Mr. Ibrahim has never acknowledged, at any time, that he was at fault.
60I say that the offender’s expression of remorse, such as it was, came “late in the day” because I disagree with Mr. Thorning when he submits that the offender expressed remorse on the day of the incident.
61In that regard, Mr. Thorning suggested that the following factors reflect Mr. Ibrahim’s remorse on May 14, 2012:
(i) he did not flee the scene after the collision;
(ii) he telephoned 911;
(iii) he was described by some witnesses as looking distraught;
(iv) he asked about Mr. Bissonette’s condition when he was being booked into the police station; and
(v) he asked again about Mr. Bissonette’s condition some hours later, during his interview with the homicide officers.
I do not agree that these actions reflect remorse on the part of Mr. Ibrahim.
62To begin, in terms of his having not attempted to flee the scene, had Mr. Ibrahim failed to remain, and later been caught, he might well have been found guilty of a serious criminal offence, contrary to s. 252 (1) (a) of the Code. In the circumstances, of this case, upon conviction for that offence, Mr. Ibrahim could have been liable to imprisonment for life: s. 252 (1.3). In such circumstances, I fail to see how the fact that Mr. Ibrahim simply obeyed the law is evidence of remorse.
63Further, the notion that Mr. Ibrahim could have escaped and not later been apprehended is illusory. Mr. Ibrahim was operating a clearly marked taxi. As well as the licence plates that all vehicles must display, his taxi plate, which also identified the vehicle and its owner, was mounted on the rear of the taxi. His taxi plate number was also prominently displayed in decals on both sides of the taxi. It was broad daylight and rush hour. There were many, many motorists and pedestrians in the immediate area. Against that backdrop, the notion that, even had he been so inclined, Mr. Ibrahim could have fled and not been ultimately apprehended is farfetched. Accordingly, as I have said, the fact that Mr. Ibrahim did not flee says nothing, one way or another, about his state of mind after, he collided with Mr. Bissonette.
64As for the fact that Mr. Ibrahim telephoned 911, Mr. Bissonette was obviously gravely injured. Presumably, anyone in Mr. Ibrahim’s position, i.e.: someone who realized that he had just inflicted grievous injury on another person with his car, would also have realized that, as a result, he might be in some considerable legal jeopardy. That person would also have realized, surely, that the best way to minimize his potential jeopardy would be to immediately summon medical aid for the injured person. In other words, Mr. Ibrahim’s calling of 911 is consistent with him having acted in his own self-interest and, thus, does not demonstrate remorse.
65As for the fact that Mr. Ibrahim appeared to some witnesses to be distraught, surely anyone in his position would have been. That said, his apparent distress is equally consistent with him being concerned for his own legal jeopardy as it is with concern for the medical well-being of Mr. Bissonette. Thus, his emotional state does not demonstrate remorse.
66As for Mr. Ibrahim asking about Mr. Bissonette’s condition, as I indicated in my ruling on Mr. Thorning’s request for a jury instruction on consciousness of innocence, which I have released contemporaneously with these reasons, Mr. Ibrahim’s first inquiry came only after he was told that the charge of dangerous driving, upon which he had been arrested and brought to the station, might be upgraded to a charge of murder. In my view, as was the case with his apparent distress at the scene, his inquiries are equally consistent, or, given the timing of the inquiries perhaps more so, with being motivated by concern for his own legal jeopardy.
67An absence of remorse is not an aggravating factor: R. v. J.F., 2011 ONCA 220, 105 O.R. (3d) 161, at paras. 84-85; aff'd on other grounds, 2013 SCC 12, [2013] 1 S.C.R. 565. But, where there is a failure to express remorse, an offender cannot rely on remorse to mitigate what would otherwise be an appropriate sentence: R. v. Sawchyn, 1981 ABCA 173, [1981] A.J. No. 26, 60 C.C.C. (2d) 200 (C.A.); R. v. Champion, 2009 ONCA 184, [2009] O.J. No. 829; R. v. Valentini, 1999 1885 (ON CA), 43 O.R. (3d) 178, [1999] O.J. No. 251 (C.A.); R. v. Pavich, 2000 16971 (ON CA), [2000] O.J. No. 4209, (C.A.). Having said that, notwithstanding its tardiness and its qualified nature, I am prepared to give Mr. Ibrahim some limited credit for his expression of remorse.
68Before leaving the subject of remorse, I wish to make plain that, although I disbelieved much of what the accused had to say and, indeed, concluded that much of his testimony consisted of deliberate lies, I have not considered the fact that he lied in deciding whether his expression of remorse on February 8 was genuine: R. v. Kozy, (1990), 1990 2625 (ON CA), 41 O.A.C. 27, 58 C.C.C. (3d) 500. Further, while, as noted above, I rejected much of Mr. Ibrahim’s evidence in coming to my conclusions on the facts of this case, once having determined those facts I have not further considered my rejection of his evidence in deciding what a fit sentence ought to be.
Aggravating Factors
69While, obviously, the offence itself is very serious, this case has no aggravating factors.
Similar Cases
70An offender is entitled to be sentenced in keeping with sanctions imposed on similarly situated offenders in similar circumstances: s. 718.2(b). I have considered the cases provided by counsel for both parties. I propose to refer to only a few of them here.
(a) Authorities Relied Upon by the Defence
71Defence counsel put before the court a compendium of 74 cases. Unfortunately, most of them were of little assistance as comparators for one or more of the following reasons.
72First, most involve charges of dangerous driving or criminal negligence causing death. Albeit the driving in those cases was very dangerous and, in many, more protracted than in the case at bar, the contact between vehicle and victim that gave rise to the tragic consequences was, with few exceptions, unintentional. Here, on the other hand, I have found as a fact that the offender intentionally struck Mr. Bissonette, using his vehicle as a weapon.
73Second, many of the cases Mr. Thorning relies on involve impairment by alcohol, a factor which is absent here. Indeed, for religious reasons, Mr. Ibrahim does not consume alcohol.
74Third, in many of the cases the accused persons were youthful, immature individuals, whereas Mr. Ibrahim is a mature adult who drove for a living.
75Fourth, many, though certainly not all, of the convictions arose from guilty pleas, whereas Mr. Ibrahim was found guilty after a trial. Mr. Thorning made much in his oral submissions of the fact that his client was not only entitled to plead not guilty, but, since he was found not guilty of murder, it was entirely justifiable that he did so. With respect, Mr. Thorning misses the point. Of course, Mr. Ibrahim had every right to plead not guilty to murder. Given the result in this trial, the wisdom of his having done so is apparent. That said, the point is that he denied culpability completely and still maintains that he did nothing wrong. So, while his plea of not guilty to murder is certainly not an aggravating factor, his situation is distinguishable from that of an offender who recognizes his culpability and expresses remorse for the harm he has caused by pleading guilty.
76Whether or not the Crown would have accepted a guilty plea to manslaughter in lieu of having a trial on a charge of murder is something I do not know (and, indeed, ought not to know in the sentencing context.) Having said that, whether or not the Crown would have accepted a plea to manslaughter, if the accused had been inclined to plead guilty to manslaughter it was open to him to have done so irrespective of the Crown’s position. Had he done so that would have been an expression of remorse, which would, in light of the result, have entitled him to some diminution of sentence. Inasmuch as he did not plead guilty, he is not entitled to that same reduction.
77Of the more than 70 cases he provided to the court, Mr. Thorning mentioned only a few in his oral submissions. I will deal briefly with those cases.
78Mr. Thorning placed great reliance on R. v. Winsor 2010 ONSC 2639. In that case, the accused and another driver each became annoyed with the manner in which the other was driving. As a result, each began to drive so as to purposely annoy the other. At one point in this episode, Winsor slammed on his brakes when the other driver was right behind him. Swerving to avoid collision, the other driver lost control of his vehicle, which then rolled over. Because he was not wearing a seat belt, the other driver was ejected from his vehicle and died from injuries sustained. The accused left the scene. Wein J. imposed a sentence of five months’ imprisonment.
79Mr. Thorning emphasized this case because, like Mr. Ibrahim, Winsor had no criminal record, was of previously good character, had a good employment history and was well regarded in the community. As such, Mr. Thorning contends that Winsor was similarly situated to Mr. Ibrahim. I disagree. Two things distinguish Winsor from this case. First, Winsor pleaded guilty. Second, and more importantly, Wein J. found as a fact that he would not have been caught but for the fact that he turned himself in. That conduct, Wein J. held, at para. 48, “is to be encouraged and warrants an exceptional reduction.” As I have earlier said, here there was no realistic possibility that, had he left the scene, Mr. Ibrahim could have escaped eventual apprehension.
80Mr. Thorning also referred to R. v. Gagan Deep Singh, 2009 ONCJ 223. In that case, the accused and a group of friends became involved in a physical altercation with another group of young men in a parking lot outside a bar. After the altercation, Singh got in his car. A man from the other group of men was standing in front of it. The accused then drove his car forward, striking and killing the man. On his guilty plea to criminal negligence causing death, the court imposed a conditional sentence of 18 months.
81I consider Singh to be distinguishable from this case because, as I read the case, the accused did not intentionally strike the victim. Rather, numerous people were around his car and there was a great deal of confusion. Although he drove in a criminally negligent manner, Singh was trying to get himself and his friends away from the continuing hostility between the groups. Further, he was youthful and had pleaded guilty, thereby exhibiting remorse.
82Another case Mr. Thorning provided, but to which he did not refer in oral argument, is R. v. Ceulemans, 1998 13829 (SK QB), [1998] S.J. No. 281,165 Sask. R. 42 (Q.B.). In that case, the accused pleaded guilty to impaired driving causing bodily harm and manslaughter. He was involved in an altercation at a pub with the deceased and a group of his friends. The altercation continued into the parking lot. The victim punched the accused in the face. The accused then got into his car and drove into the group, injuring two persons. When the group pursued the accused as he drove away, he turned around and drove toward the group a second time. Travelling at high speed, he struck and killed one of the men. The accused was 23 and, although he had a minor criminal record, he had a stable, supportive family. He had suffered depression as a result of the incident and had expressed sincere remorse. He was sentenced to four and a half years’ imprisonment for manslaughter and six months concurrent for the impaired driving offence.
83Before leaving the authorities provided by the defence, I pause to mention another case Mr. Thorning provided, but did not mention in oral argument, R. v. Belsem Singh, 2010 ONSC 3398. In that case, the accused, while operating a dump truck, ran a red light at an excessive speed. He “T-boned” a car, killing the driver. I mention Singh because Boswell J. specifically rejected the same disposition that Mr. Thorning proposes for Mr. Ibrahim, namely, an intermittent sentence. In so doing, Boswell J. relied, in part, on the fact that Wein J. had rejected the same suggested disposition in Winsor.
(b) Authorities Relied upon by the Crown
84Turning to the authorities provided by the Crown, some dealt with the general principles applicable when a jury’s verdict leaves ambiguous the facts underlying it. As for those authorities upon which the Crown relies as comparators in terms of the quantum of sentence the court should impose in manslaughter cases, I find, with respect, that they are not sufficiently similar to the case at bar to be particularly useful.
(c) Other Authorities
85In an effort to find cases with facts similar to those I have found in this case, I have also reviewed a number of authorities, other than those provided by counsel. There are relatively few reports in which an automobile was used as a weapon.
86In R. v. Evoy (1993), 1993 2092 (BC CA), 37 B.C.A.C. 103, the Crown appealed the offender’s sentence for assault causing bodily harm. In that case, when a woman inadvertently cut him off, the offender and his passenger shouted obscenities at her. Despite the fact that she apologized, the offender then approached her car and punched her in the face, causing her serious facial damage. The offender had a lengthy record, but no recent convictions. He was supporting a young son. The trial judge imposed a fine of $500 and six months’ probation. On appeal, the court ruled that the sentence was unfit and substituted a term of imprisonment of six months’ imprisonment.
87In R. v. McDonald (1997), 1997 9710 (SK CA), 152 Sask. R. 81 (C.A.), the appellant, an aboriginal woman, was intoxicated when she left a house party. She drove intentionally at a group of people outside, striking and killing one of them. She had a prior record for impaired driving. She pleaded guilty to criminal negligence causing death and was sentenced to two years’ probation, which included nine months of house arrest. On a Crown appeal, the Court set aside the sentence, holding that a sentence of two years’ imprisonment would usually be the minimum fit sentence, but for reasons peculiar to the offender in that case, decided that a reduced sentence of eighteen months’ imprisonment was appropriate.
88In R. v. Stone, [2001] B.C.J. No. 2660, 2001 BCCA 728, the appellant pleaded guilty to dangerous driving causing bodily harm. He and another driver had gotten into a dispute. They taunted each other from, and with, their vehicles. When the other man turned down a road to avoid further confrontation, Stone chased him and blocked his way. However, when he saw that the other man was large and fit, he fled. The other man then taunted him further, whereupon Stone sped up and struck the man. The other man spent four days in hospital. He suffered a compression fracture in his vertebrae and significant pain in his head, back and legs. He was not able to walk unassisted for some months. Stone was 44 years old with a minor criminal record, but was steadily employed and had apologized to the other man. The trial judge, holding that it was important to deter road rage, sentenced him to two years’ imprisonment, indicating that he would have imposed a three-year sentence but for Stone’s guilty plea. On appeal, recognizing that a penitentiary term would have caused him to lose his job, the court reduced the appellant’s sentence to 22 months’ imprisonment, to be served conditionally. He was also prohibited from driving a motor vehicle for a period of seven years and from possessing any of the weapons referred to in s. 109 of the Code for life.
89In R. v. Zarb, [2014] O.J. No. 2180, 2014 ONSC 2585 the accused was found guilty of dangerous driving causing bodily harm and failure to stop at the scene of an accident. He engaged in aggressive driving and mutual “cutting off” with another vehicle on the highway. Both cars were driven well above the speed limit. When his vehicle struck the other car, the other car rotated into a concrete barrier, rolled over and hit a concrete post. The other driver, who was not wearing his seatbelt, suffered catastrophic injuries. Passengers in his car were also injured. The accused then left the scene and attempted to cover up the damage to his car. The accused was 45, had physical and mental health issues, and his mental condition was deteriorating. He had a terrible driving record and had consistently operated a vehicle without insurance. The judge considered the circumstances to be egregious, but held that the other driver was significantly at fault for having engaged in aggressive driving and not wearing a seatbelt. Taking account of the deteriorating state of the accused’s health, which he considered to be the critical mitigating factor, the court imposed a sentence of 18 months for dangerous driving and 12 months concurrent for failure to remain at the scene of an accident. He was prohibited from driving for 10 years.
90In R. v. Davidson, [2015] Q.J. No. 7983, 2015 QCCQ 4063, the accused pleaded guilty to a charge of manslaughter. After being kicked out of a bar for fighting, he continued to argue with the victim outside. Both men were intoxicated. While the victim continued to yell at him and threaten him, the accused got into his truck and ran the victim over, killing him. Davidson, a father of three children, was 35 years old with no criminal record. He had expressed sincere apologies to the victim’s family, who were present in court. Apart from the gravity of the offence itself, the Court found no aggravating circumstances. There were a number of mitigating circumstances. He was sentenced to two years less a day.
91In R. v. Auger, [2000] B.C.J. No. 2104, 2000 BCCA 557, the appellant suffered certain personality problems as a function of drug abuse and had a criminal record for possession of drugs. Under the influence of drugs, she deliberately drove her car head-on at an oncoming car, killing one person and injuring two others. She was sentenced to six years’ imprisonment. She did not appeal the length of the prison term, but, rather, only the length of the driving prohibition, which was reduced from 20 years to ten.
92In R. v. Rae, [2010] O.J. No. 2657, 2010 ONSC 3491, a 41-year-old aboriginal, was found guilty of manslaughter after a trial. Three men assaulted the accused in his home. After they left, he went looking for them in a five-ton truck. Upon spotting the men, he steered towards them, striking and killing one of them. He had abused various substances, including alcohol, marijuana and solvents, over much of his life. He had a criminal record, including two convictions for assault. He apologized for his conduct, but the court found that he was not genuinely remorseful. In addition, the PSR indicated that he lacked both insight into his addictions and commitment to rehabilitation. He received six years, less his pre-trial custody.
93In R. v. Mansour, [2002] O.J. No. 1658, (S.C.J.), aff’d [2003] O.J. No. 2587 (C.A.), the appellant was found guilty of two counts of dangerous driving causing death. When a woman entered the lane in front of the appellant’s vehicle, he began to tailgate her and then tried to pass her on an unpaved shoulder. He lost control and struck her car. In turn, she lost control, entered the oncoming lane and collided head-on with a car driven by a pregnant woman. Both women died. The accused had strong family ties, a stable work history and no prior criminal record. The PSR was favourable. The accused was sentenced to 21 months’ imprisonment and prohibited from driving for five years.
94The important distinction between the case at bar and many of the other cases involving motor vehicles is that the vehicles in those cases were not intentionally used as weapons. Here, on the other hand, I have found that Mr. Ibrahim intentionally struck Mr. Bissonette with his taxi. Accordingly, even though I have given Mr. Ibrahim the benefit of the doubt on the issue of whether he had either of the requisite intents for murder, as the cases to which I have just referred point out, that distinction still calls for a stiff sentence.
Factors Potentially Reducing Sentence
95Having considered what an appropriate disposition ought to be based on the nature of the offence, the antecedents of the offender, and the applicable principles of sentencing, it remains to consider whether certain external factors should reduce that sentence.
Police Misconduct
96Mr. Thorning argues that the court ought to reduce the sentence it would otherwise impose by virtue of what he contends was certain police misconduct in the course of arresting Mr. Ibrahim. I disagree.
97In R. v. Nagosaluk, [2010] 1 S.C.R. 206, 2010 SCC 6, at para. 63, the Supreme Court of Canada affirmed that trial judges may reduce an offender’s sentence to reflect “abuse of process or misconduct by state agents in the course of events leading to an arrest, to charges or to other criminal procedures.”
98The behaviour complained of in this case is twofold. Both complaints rest on evidence first adduced in the course of a blended voir dire to determine whether the accused’s statement to homicide investigators was both voluntary and Charter compliant. Some of that same evidence later emerged again in the trial proper.
99First, Mr. Thorning relies on my finding on the voir dire that the police failed to implement the offender’s right to counsel in a timely fashion, thereby breaching his right under s. 10(b) of the Charter.
100Second, counsel argues that the failure of the police to advise Mr. Ibrahim in a timely fashion that Mr. Bissonette had died was unfair. Mr. Thorning raised this point in his argument on the voir dire as part of his assertion that the accused’s statement had been taken in circumstances amounting to oppression.
101For oral reasons delivered shortly after the conclusion of that voir dire, as supplemented by written reasons I have released contemporaneously with these reasons, I allowed Mr. Ibrahim’s statement to be adduced at the instance of the Crown, despite the matters counsel now raises. I do not propose to restate here either Mr. Thorning’s arguments or my reasons for rejecting them. Suffice it to say that I concluded that the failure by the police to tell Mr. Ibrahim, sooner than they did, that Mr. Bissonette had died neither created nor contributed to an air of oppression. Similarly, I concluded that the Charter breach was unintentional and that no benefit accrued to the prosecution from the breach. Accordingly, I find that there is no proper foundation upon which to reduce Mr. Ibrahim’s sentence by reason of state misconduct.
Pre-trial Custody
102Since the accused spent ten days in custody before being released on bail, I will deduct 15 days from the sentence I would otherwise impose: R. v. Summers, [2014] 1 S.C.R. 575, 2014 SCC 26.
Conditions of Bail
103In R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555, 79 O.R. (3d) 321, at para. 33, Rosenberg J.A. “conclude[d] that time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance”, but went on to say that “like any potential mitigating circumstance, there will be variations in its potential impact on the sentence and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest.” A decade later, in Lacasse, at para. 111, Wagner J. observed that “[t]he courts have seemed quite reluctant to grant a credit where the release of the accused was subject to restrictions, given that such restrictive release conditions are not equivalent to actually being in custody (‘bail is not jail’): R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.); R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81, at para. 36; R. v. Panday, 2007 ONCA 598, 87 O.R. (3d) 1.”
104Mr. Ibrahim has been on bail for more almost four years, but the bail conditions have not restricted Mr. Ibrahim’s liberty in any significant way. The only thing that might have been worthy of consideration in this behalf was the condition that Mr. Ibrahim not drive a motor vehicle. Obeying that condition prevented him from pursuing his normal livelihood as a taxi driver. However, I am given to understand that he found other employment. Although he has been unemployed for some period of his bail that was as a result of certain health difficulties that he suffered that are not attributable to his bail conditions.
105Rosenberg J.A. made plain in Downes that “[w]here the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions.” In all the circumstances, since I do not consider the bail to be onerous and Mr. Thorning has not asked me to consider it in determining the length of Mr. Ibrahim’s sentence, I decline to consider the conditions of his judicial interim release as a factor that ought to reduce Mr. Ibrahim’s sentence.
Sentence
106Ralph Bissonette, was a young man who enjoyed life and had a bright future in front of him. Now, he is dead. Adib Ibrahim, the man who caused that death, is now before the court to answer for his crime. Although it appears that Mr. Ibrahim is a good man in many respects, the fact remains that he lost his temper over what, objectively viewed, was an annoyance and nothing more. Neither Mr. Ibrahim’s health nor his safety was threatened in any way by Mr. Bissonette’s actions. He was simply angry at Mr. Bissonette’s behaviour. And, in an instant of unbridled road rage, he snuffed out Mr. Bissonette’s life. Further, it takes little in the way of imagination to conclude that Mr. Bissonette’s final moments must have been a combination of horrific pain and abject terror. The only merciful thing is that his death was swift.
107As for the Crown’s position, the range Mr. Goody suggests would be appropriate had the court found that Mr. Ibrahim intended either to kill Mr. Bissonette or to cause him bodily harm that he knew was likely to cause death. In the absence of either such intent, however, in my opinion the proposed range is, with respect, simply too high.
108Turning to Mr. Thorning’s submission, even on the facts that he suggests the court should have found, namely, that Mr. Bissonette’s death, however tragic, was nothing more than an accident, the result he proposes (which would constrain the court to impose no more than 90 days imprisonment to be served intermittently) does not adequately address the applicable principles of sentencing. On the facts that I have found, Mr. Thorning’s proposed disposition is woefully inadequate.
109In all the circumstances, I have decided that a fit sentence in this case is four years. Taking account of the reduction I am obliged to make for his pre-sentence custody, I hereby sentence Mr. Ibrahim to a term of 47 and a half months’ imprisonment.
Ancillary Orders
Section 487.051: DNA Order
110The Crown seeks, and Mr. Ibrahim does not oppose, an order pursuant to s. 487.051 of the Criminal Code. Since manslaughter is a primary designated offence, I am obliged to make the order sought. Accordingly, I hereby order that the authorities take from Mr. Ibrahim such samples of one or more of his bodily substances as will be sufficient to derive his DNA profile for submission to the national DNA databank.
Section 259 (2): Driving Prohibition
111The Crown also seeks, and Mr. Ibrahim does not oppose, an order pursuant to ss. 259(2) of the Code. Respecting an offence contrary to s. 236 of the Code, ss. 259(2) provides that, in addition to any other punishment that it imposes, the court may prohibit the offender from operating a motor vehicle “for any period it considers proper, plus any period to which the offender is sentenced to imprisonment…” I am of the opinion that an appropriate disqualification is ten years. In considering this aspect of sentence, I am obliged to consider that, by virtue of his bail conditions, Mr. Ibrahim has already been prohibited from driving for almost four years: Lacasse, paras. 122 and 113. In addition, then, to the term for which he will be imprisoned, I hereby order that Mr. Ibrahim be prohibited from operating a motor vehicle for a further period of six years.
Section 109: Weapons Prohibition
112Subparagraph 109 (1) (a) of the Code mandates that, in sentencing an offender for “an indictable offence in the commission of which violence against a person was used, threatened or attempted and for which the person may be sentenced to imprisonment for 10 years or more”, the court shall prohibit the offender from possessing certain items and substances set out in ss. 109 (2). The court having found that Mr. Ibrahim intentionally struck Mr. Bissonette with his vehicle and the offence of manslaughter being punishable by a maximum of imprisonment for life, this is such an offence. Accordingly, I order that, for a period commencing today and ending ten years from the date on which he is released from custody, Mr. Ibrahim be prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition or explosive substance. I further order that he be prohibited, for the rest of his life, from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device or prohibited ammunition.
R. A. Clark J.
Released: March 04, 2016