Court File and Parties
Court File No.: CR-17-10000439-0000 Date: 2019-01-15 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Elias Osman
Counsel: Marnie Goldenberg, for the Crown Carolyne Kerr, for Mr. Osman
Heard: December 7, 2018
Before: R.F. Goldstein J.
Reasons for Sentence
1. Overview
[1] Driving while drunk is an easy thing to do. Too easy. An ordinary citizen, one who has never been in trouble with the authorities, has a few drinks at a party or leaves the bar. “What’s the big deal?” he or she says. He or she feels fine, just a little out of sorts. “I can make it home”, he or she thinks. “And it is such a pain to take a taxi and then have to come back and get the car the next day. It’ll be fine. No problem.”
[2] Unfortunately, that is essentially what Elias Osman did, just as so many others have done despite all the warnings. And the results were devastating.
[3] Just before 4:00 am on April 23, 2016 Mr. Osman was driving a 2009 Nissan Altima. His friend, Mukhtar Shakul, was in the passenger seat. It was Mr. Shakul’s car. The car left the road at a high rate of speed and struck a building with great force. Mr. Osman was badly injured in the crash. Mr. Shakul was killed. On September 25, 2018 a jury convicted Mr. Osman of impaired driving causing death and criminal negligence causing death. He now comes before me for sentencing.
2. The Facts
(a) Circumstances of the offence
[4] April 22, 2016, was a Friday night. Mr. Osman and Mr. Shakul were young men who headed to the Entertainment District in Toronto for a bit of fun. Mr. Osman was a 22-year old. Mr. Shakul drove and they parked downtown. According to Mr. Osman’s evidence, they went to the Keg Restaurant where Mr. Shakul had two shots of Hennessy. Mr. Osman did not drink anything. Then they went to a club where they shared a 26-ounce bottle of Hennessy. Mr. Osman testified that Mr. Shakul drank more of the bottle.
[5] Mr. Osman testified that he was not counting his drinks. Dr. Marie Elliott is a toxicologist. She testified as an expert witness for the Crown. She calculated Mr. Osman’s blood alcohol level 3:54 am and 3:56 am. She had both hospital records and a sample of Mr. Osman’s blood. She did calculations based on both the records and the sample. She testified that she preferred her calculations based on the sample. Based on the sample she found that at 3:54 am on April 23, 2016 (just before the crash) Mr. Osman’s blood alcohol content would have been between 100 and 124 mg of alcohol in 100 ml of blood. It is not clear which calculation the jury accepted, but nothing really turns on that. For the purposes of sentencing I accept the calculation of blood alcohol content of between 100 and 124. I find, based on the evidence of both Dr. Elliott and Mr. Osman, that Mr. Osman would have consumed between 7 ¾ and 12 ounces of Hennessy during the course of the evening.
[6] Mr. Osman testified that he and Mr. Shakul left the club and went to get pizza. He said that he was feeling the effects of alcohol but was not drunk. Mr. Osman testified that his understanding of the alcohol laws were that a person cannot be drunk and drive. To him, “drunk” meant stumbling, with no control. He did not understand that a person can be impaired without being “drunk”, as he understood the word. He testified that after listening to Dr. Elliot he accepted that he was probably impaired. Ms. Kerr invited the jury to convict Mr. Osman of the lesser and included offence of impaired driving but asked that the jury acquit of the other charges.
[7] Mr. Osman testified that he thought Mr. Shakul was drunk when they left to drive home. They agreed that Mr. Osman should drive. Mr. Shakul gave Mr. Osman the keys and Mr. Osman drove. As they drove northbound on Jane Street, they discussed where they were to spend the night. Mr. Osman’s plan was to take Mr. Shakul to his own house, have Mr. Shakul sleep it off, and then just leave the next morning. Mr. Shakul disagreed. They argued. Mr. Osman testified that Mr. Shakul took off his seat belt and yanked the steering wheel. Mr. Osman tried to yank it back. His next memory was of waking in the hospital.
[8] There is no doubt that the Nissan Altima was travelling northbound on Jane Street at the time of the crash. The vehicle began to cross the yellow centre line two light standards south of 181 and 185 Jane Street. It began to skid to the right and jumped the curb just north of the light standard below 181 Jane Street. The vehicle then struck 181 Jane Street but then collided head-on with the south-west corner of 185 Jane Street. The vehicle then rotated clockwise as it came to rest straddling the sidewalk facing west. As it rotated the engine was flung out of the vehicle, along with other debris. The Altima was destroyed. Firefighters found Mr. Osman alive in the driver’s seat. Mr. Shakul was dead. The firefighters found him sprawled over Mr. Osman’s body. Mr. Shakul was not wearing his seat belt with the crash occurred.
[9] I told the jury that they must consider whether Mr. Shakul’s act of grabbing the steering wheel, if it happened, was an intervening act. An intervening act is one that breaks the chain of causation and itself becomes the cause of death: R. v. Trakas, 2008 ONCA 410 at para. 53.
[10] Since the jury convicted Mr. Osman, there were at least three different routes to the convictions. Some or all of them could have disbelieved Mr. Osman and found that there was no intervening act. Some or all of them could have believed Mr. Osman (or found that his evidence might reasonably be true) that Mr. Shakul grabbed the steering wheel but still found that his impairment and negligence was still a significant contributing cause of death. Some or all of them could have believed Mr. Osman (or found that his evidence might reasonably be true) that Mr. Shakul grabbed the steering wheel but found that it did not constitute an intervening act.
[11] I am bound by the express and implied findings of the jury. Where it is unclear what the jury decided I must make my own findings of fact where it is necessary for the determination of sentence: Criminal Code, s. 724, R. v. Punko, 2012 SCC 39 at paras. 11-12.
[12] In my respectful view, it is necessary for me to make a finding in order to evaluate Mr. Osman’s credibility. I will explain how that impacts on sentence later in these reasons, but for now I will say this: I believed Mr. Osman. I found that he was telling the truth about Mr. Shakul grabbing the steering wheel. His evidence is corroborated by the fact that Mr. Shakul was not wearing his seat belt as well as by the circumstances of the crash generally. I also find that Mr. Shakul grabbing the steering wheel was an intervening act. That said, it is the express finding of the jury that Mr. Osman’s negligence and impairment were significant contributing causes of Mr. Shakul’s death notwithstanding the intervening act.
[13] I also conclude that Mr. Osman was travelling at a high rate of speed although I did not permit expert evidence on the point. I did not permit that expert evidence for several reasons. One of the reasons was that no expert was required for the jury to make a finding. It was indeed an implied finding of the jury on the conviction for criminal negligence causing death. That finding was open to them due to the tremendous force applied to the two buildings. That force caused enormous and obvious physical damage to one of the buildings. That force also caused the engine to dislodge from under the hood of the car. It flew across Jane Street, bouncing off the road (and leaving a significant gouge). The engine then hit the door of a building.
(b) Circumstances of the offender
[14] Mr. Osman is a young man who has never been in trouble with the law. He is now 25 years old. He has never been convicted of a driving infraction. He appears to be hard-working and family-oriented. He is well-regarded in the community.
[15] Ms. Kerr filed extensive sentencing materials on Mr. Osman’s behalf. I have read them in detail. They paint a picture of a young man who comes from a supportive family, who is polite, who volunteers at his local Islamic centre, and was an avid photographer prior to the accident. The materials also paint a picture of a young man who has been an unfailingly productive member of society. He has worked steadily for many years at a series of part-time and full-time jobs. He finished high school and attended York University. He was working full-time at the Toronto Public Library when the crash occurred.
[16] Many of the letters also speak of Mr. Osman’s despair and remorse about the crash that killed his friend and left him physically and psychologically impaired. Indeed, Mr. Osman’s injuries from the crash were very severe. He could not walk for months. He broke 21 bones. He has had several surgeries. He has been unable to work or go to school since the accident. He has been depressed.
[17] Mr. Osman chose to provide me with a long letter rather than avail himself of the opportunity to speak in court. I have read the letter carefully. Mr. Osman indicates in the letter that he deeply regrets his decision to drink and drive on April 22-23, 2016. He has not touched alcohol, does not go to parties or to clubs, prays regularly, and is frightened even to get into a car. He has been under enormous psychological strain and suffers physically from the crash. In the letter he states that he wishes he were the person who died rather than Mr. Shakul. He is aware that Mr. Shakul’s children are now without a father. He apologized to the Court and to Mr. Shakul’s family.
[18] As noted, I found Mr. Osman to be a credible witness. I believe him. I find Mr. Osman’s expression of remorse to be credible and genuine.
(c) Impact on the victim and the community
[19] The impact on Mr. Shakul is devastatingly stark: he is dead. The impact on his family is no less devastating and stark: his children are now without a father. There is nothing else that I can say about that.
[20] The community, of course, is impacted by any death. The most important cost is obviously the human cost; but the economic cost should also not be minimized. The community has shouldered the significant cost of Mr. Osman’s medical care. The emergency services were called out. The police and forensic services conducted a costly investigation. Three residential buildings were damaged. One of those buildings was quite extensively damaged. The roadway was gouged. A massive debris field had to be cleaned up before the roadway could be used by ordinary traffic. One vehicle was destroyed and one severely damaged.
3. Positions of the Crown and Defense
[21] Ms. Goldenberg, for the Crown, takes the position that a sentence of 8 years is appropriate. Ms. Kerr, for Mr. Osman, suggests that a sentence of 3-4 years should be imposed.
4. Case Law
[22] As Ms. Goldenberg correctly points out, sentences for cases of impaired driving causing death have been increasing over the last 30 years.
[23] That proposition was summed-up by Trotter J. when he was a judge of this Court in R. v. Luskin, 2012 ONSC 1764 at paras. 19-20:
In R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 (S.C.C.), Justice Cory explained the impact of drunk driving in our communities. As he said at p. 204:
Every year, drunk driving leaves a terrible trail 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 the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.
After reviewing empirical data on the issue, Cory J. added the following observations, at p. 205:
These dry figures are mute but shocking testimony demonstrating the tragic effects and devastating consequences of drinking and driving. The social cost of the crime, great as it is, fades in comparison to the personal loss suffered by the victims of this crime through the death and injury of their loved ones. The gravity of the problem and its impact on Canadian society has been so great that Criminal Code amendments were enacted aimed at eliminating or, at least, reducing the problem.
There is no reason to think that these words are any less valid today. Indeed, since Bernshaw, a virtual chorus of cases repeat these concerns and continue to stress the importance of deterrence and denunciation. Moreover, sentences for these types of offences have tended to increase over the years: R. v. Linden (2000), 147 C.C.C. (3d) 299 (Ont. C.A.), at p. 300; R. v. Reiger (2011), 2011 ONCA 557, 282 O.A.C. 392, at para. 2; R. v. Boukchev (2003), 117 O.A.C. 119, at para. 6; R. v. Junkert (2010), 2010 ONCA 549, 259 C.C.C. (3d) 14 (Ont. C.A.), at p. 24. Just last year, in R. v. Kummer (2011), 2011 ONCA 39, 266 C.C.C. (3d) 32 (Ont. C.A.), MacPherson J.A. reiterated this theme and said at p. 37: “As the dangers of impaired driving have become increasingly evident and as this problem has continued to demonstrate its intractability, the sentences imposed where impaired driving results in death have increased.” Rejecting the argument that two of the Court’s recent decisions (R. v. Ramage (2010), 2010 ONCA 488, 257 C.C.C. (3d) 261 (Ont. C.A.) and R. v. Junkert, supra) capped the maximum sentence for these offences at four to five years, MacPherson J.A. pointed out that the maximum sentence for impaired driving causing death is life imprisonment. Consequently, he said (at p. 39): “It must remain within the realm of possibility that a life sentence could be imposed for this crime.”
[24] Ms. Kerr referred me to the latest word from the Supreme Court of Canada. In R. v. Suter, 2018 SCC 34. Moldaver J. described the circumstances as “unique”. Suter drove his car into a restaurant patio and killed a two-year old child. He was arrested but refused to provide a breath sample. He was charged with refusing to provide a breath sample after an accident resulting in death, impaired driving causing death, and impaired driving causing bodily harm. A group of vigilantes later abducted Suter. The vigilantes cut off his thumb with pruning shears. Suter then pleaded guilty to the charge of refusing to provide a breath sample after an accident causing death. The sentencing judge imposed a four-month sentence and a 30 month driving prohibition. The Alberta Court of Appeal raised the sentence to 26 months and increased the driving prohibition. The Supreme Court found errors by both the sentencing judge and the Court of Appeal. Moldaver J. (for the majority) imposed a sentence of time served (just over 10 ½ months) and upheld the driving prohibition.
[25] Although Suter was charged with three offences he pleaded guilty to one – refusing to provide a breath sample after an accident resulting in death (a rarely-charged offence). Moldaver J. noted at paragraph 2 of his judgment that “lest there be any doubt, for sentencing purposes the range of sentence for these three offences will typically be treated alike”. At para. 90 he stated:
As indicated, the sentencing range for the s. 255(3.2) offence is the same as for impaired driving causing death and driving “over 80” causing death — low penitentiary sentences of 2 or 3 years to more substantial penitentiary sentences of 8 to 10 years, depending on the circumstances. In unique cases, mitigating factors, collateral consequences, or other attenuating circumstances relating to the offence or offender may warrant the imposition of a sentence that falls below this broad range. By the same token, the aggravating features in a particular case may warrant the imposition of a sentence that exceeds this broad range. As long as the objectives and principles of sentencing codified in ss. 718 to 718.2 of the Criminal Code are met and respected, the sentence will be fit.
[26] Although I was helpfully presented with many other cases by both counsel I need only mention a few that I think are pertinent:
[27] In R. v. Ramage, 2010 ONCA 488 the offender was a famous professional hockey player. His car crossed several lanes of traffic. His passenger, another famous hockey player, was killed. Several different blood and urine samples were taken. Although each yielded a different result, all showed his blood alcohol content was significantly over the legal limit: the lower limit of the lowest calculation was .212 mg of alcohol in 100 ml of blood. As Doherty J.A. pointed out at para. 76, there was no doubt he was significantly impaired. Ramage was convicted of impaired driving causing death and other offences at trial. Sosna J. of this Court imposed a sentence of four years after considering Ramage’s exemplary life up to that point. Doherty J.A. made the following comment on behalf of the Court of Appeal in upholding the sentence at para. 80:
Initially, I was inclined to the view that the sentence appeal should be allowed on the basis that the appellant’s exemplary life, other than this event, entitled him to the lowest possible period of incarceration that would adequately reflect the need for general deterrence and denunciation. I thought that a penitentiary sentence of less than four years would achieve that purpose. Further consideration has, however, led me to conclude that were I to take that approach, I would not be giving the trial judge’s decision the deference it is due. There is no error in principle here. Nor, in light of McVeigh and the relevant jurisprudence, can it be said that a four-year sentence is manifestly unreasonable. This court must yield to the trial judge’s determination as to the appropriate sentence absent an error in principle or a manifestly unreasonable decision. I would add that deferring is made much easier by the trial judge’s thorough reasons, which demonstrate a keen appreciation of all of the factors relevant to the determination of the appropriate sentence in this very difficult case.
[28] An important ground of the sentence appeal in Ramage was the trial judge’s refusal to impose a conditional sentence. I note that since Ramage Parliament has chosen to eliminate the possibility of a conditional sentence for these offences. That, in my respectful view, reflects the general trend towards more exemplary sentences in these cases.
[29] In R. v. Stevens, 2017 ONCA 686 the Court of Appeal upheld a six year sentence. The offender was driving a pick-up truck. She struck the rear of a farm tractor. The driver of the tractor was killed. Her blood alcohol content at the time of the accident was between 70 and 110 mg of alcohol in 100 ml of blood. The Court of Appeal found that the six year sentence was not outside the range of sentence for similar offenders who commit similar offences in similar circumstances.
[30] In R. v. Fracassi, 2017 ONSC 28, a small crew of township employees were working at the side of the road at night. Fracassi hit two, and killed one. His blood alcohol level was in the range of 175 to 200 mg of alcohol in 100 ml of blood. Fracassi had no criminal record, although he had several driving infractions on his record. He had also developed a drinking problem about a year prior to the offences. There were, however, many mitigating factors. Boswell J. called the 34-year old family man “the classic example of a good person who committed a serious offence with horrendous consequences”, a description that also applies to Mr. Osman. Boswell J. carefully considered the case law, including many of the cases that have been presented to me. He noted, as Ms. Goldenberg pointed out, that the sentences imposed in the previous 20 years had been increasing. Boswell J. sentenced Fracassi to six years in the penitentiary on the impaired driving causing death count and a 7-year driving prohibition.
[31] The facts in R. v. Cook, 2012 ONSC 3265 have some similarities to this case. Cook was driving a snowmobile. He failed to properly negotiate a turn in the trail. His snowmobile drove off the trail and hit a tree. The 15-year old passenger died. Cook had a blood alcohol content of between 120 and 168 mg of alcohol in 100 ml of blood. He argued that the turn in the trail was an intervening act. The trial judge found that was so, but also found that Cook’s impairment was at least a contributing cause of the passenger’s death. Cook had a criminal record with at least one previous driving office. Cook had an alcohol problem. There were mitigating factors, such as the fact that Cook was responsible for the care of a young child. O’Neill J. of this Court sentenced Cook to four years, as well as six months consecutive on a driving while disqualified charge. He also imposed a five-year driving prohibition.
5. Mitigating and Aggravating Factors
[32] The aggravating factors in this case are obvious: Mr. Osman had a high, although not exceptionally high, level of alcohol in his system. He was travelling at a high rate of speed. The consequences of this entirely senseless crime were devastating.
[33] There are, however, mitigating factors. Mr. Osman is a young man with an unblemished record. He has support in the community. He is a hardworking person with a long history of full and part-time employment. He himself has suffered greatly. Although he had a trial, he is clearly remorseful. The only real issue he raised was a triable one. He has been accepted into a program at George Brown College, which he will hopefully be able to return to when he is released from jail. I think it is safe to say that he was a young man of promise until this happened.
6. Principles of Sentencing
[34] The primary principles of sentencing in cases of this nature are clearly general deterrence and denunciation. That is not to say that rehabilitation does not play a role in sentencing; it obviously does. None of the principles of sentencing set out in s. 718.2 of the Criminal Code are ousted because the offence involves impaired driving.
[35] That said, rehabilitation applies to a lesser degree for two reasons: first, due to the importance of general deterrence and denunciation. Second, rehabilitation plays a lesser role because many offenders – like Mr. Osman – tend not to reoffend. Obviously there are some people who cannot stop themselves from getting behind the wheel after a few drinks, even after they have already caused devastation or been convicted of impaired driving. But people like Mr. Osman are also common. I would shocked if Mr. Osman were to commit a similar offence in the future.
[36] Finally, parity is also an important principle in criminal sentencing cases. Appellate courts set ranges. Those ranges are guidelines. Sentencing judges have a great deal of discretion in fixing a sentence within those ranges. As I have mentioned already, the range of sentence for offences of this nature has been increasing over the last 30 years.
7. Ancillary Orders
[37] There will be a seven-year driving prohibition from Mr. Osman’s warrant expiry date. I will not impose a DNA order. I see no purpose. The offences are secondary designated offences. I have confidence that Mr. Osman is unlikely to re-offend. I see no need to impose a DNA order simply because the offence is a serious one and Mr. Osman will receive a penitentiary sentence.
[38] There will be an order pursuant to s. 743.21 of the Criminal Code prohibiting communications with members of Mr. Shakul’s family. Mr. Osman will be prohibited from communicating with any of the following people:
- Mohamed Abraham Shakul
- Amina Guled
- Mustafa Shakul
- Maymuna Shakul
- Asma Shakul
- Fathi Abdi
- Isra Shakul
- Mohamed Shakul
8. Final Decision
[39] I have avoided calling the crash an “accident”. That is because it was anything but an accident. It was a crime. It is a crime whether a life is lost, a person is pulled over and merely subject to a fine and licence suspension, or a person makes it home without even encountering the police. In each case that person becomes a criminal. Mr. Osman is responsible for his decision to drink and drive. He intended to drink and drive and to speed. He showed wanton and reckless disregard to the possibility that someone might die. That is the essence of the offences.
[40] It must be noted, however, that Elias Osman led a productive life up until April 22, 2016. He appears to have been a young man of sterling character up to that point. Unfortunately, he chose to commit a very serious crime with devastating consequences.
[41] As noted, I read Mr. Osman’s letter to the Court very carefully. I also read the letters from the community very carefully. He has expressed his remorse to others as well as to this Court. I accept that he feels remorseful. I accept that his apology is sincere. I treat that as a mitigating factor, although obviously Mr. Osman does not get the mitigation that comes along with a plea of guilty. I agree with Ms. Kerr that there were triable issues in this case and that Mr. Osman did accept responsibility for driving while impaired. There is no reason to think that he is anything but sincerely remorseful for his actions. This is one of those rare trials where a person can legitimately litigate an issue and still be remorseful for what happened.
[42] As Fuerst J. commented in R. v. Muzzo, 2016 ONSC 2068 cases of impaired driving causing death will “attract a substantial penitentiary sentence, even for first offenders of good character.”
[43] In my view, when I balance all of the factors, including Mr. Osman’s degree of moral blameworthiness, general deterrence, denunciation, and Mr. Osman’s youth and remorse, I find that 5 years in the penitentiary will achieve the objectives of sentencing in this case. Mr. Osman will be sentenced to 5 years on the count of impaired driving causing death, and 5 years concurrent on the count of criminal negligence causing death.
R.F. Goldstein J. Released: January 15, 2019