R. v. Abau-Jabeen, 2019 ONSC 5399

COURT FILE NO.: CR-18-70000203-0000

DATE: 20191108

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Galeeb Abau-Jabeen

Defendant

Sean Doyle and Andrew Max, for the Crown

Christopher Murphy, for the Defendant

HEARD at Toronto: September 3, 2019

Low J. (Orally)

Background and Facts

1Following a trial by jury, Mr. Abau-Jabeen was convicted on April 16, 2019 of criminal negligence causing the death of Mohammad Mohammad under s. 220 and of criminal negligence causing bodily harm to Elif Gozgoz under s. 221 of the Criminal Code, R.S.C., 1985, c. C-46. The maximum sentence under s. 220, is imprisonment for life and under s. 221, a term not exceeding 10 years.

2In accordance with the decision tree provided to assist the jury in its deliberations, the jury was instructed that it was obliged, if it was to render a verdict of guilty of criminal negligence causing death, to find that Mr. Abau-Jabeen’s manner of driving was dangerous to the public, that it was a marked and substantial departure from the standard of care of a reasonable person in the circumstances, and that the manner of driving showed a wanton or reckless disregard for the lives and safety of others. As a verdict of guilty on both counts was returned, I conclude that the jury found as facts all of the foregoing.

3The fatal accident occurred on the evening of November 28, 2016, at the intersection of Bloor and Parliament Streets, in the City of Toronto, where Bloor Street bends in a northerly direction. Because he was driving too fast to correct his trajectory, Mr. Abau-Jabeen ran his car into a lighting pole at the south-east corner of the intersection. The two victims were seated in the back of the car.

4Mr. Abau-Jabeen was the holder of a G2 license at the time of the incident. Under the conditions of his licence, he was not to drive while having alcohol in his system.

5On November 28, Mr. Abau-Jabeen and his best friend, Mohammad Mohammad, met after work to spend time together. They purchased two mickeys of liquor and a large bottle of pop and went in Mr. Abau-Jabeen’s car to pick up two young female friends, Elif Gozgoz and Naveen Moukbal, from the north end of the city. From there, they proceeded down the Don Valley Parkway to Christie Pits Park where they met with others. Mr. Abau-Jabeen played football and drank some of the alcohol.

6At a point in the evening, Mr. Abau-Jabeen received a call from his sister asking him to pick her up. Mr. Abau-Jabeen gathered his three friends, together with Hassan, a brother of his friend Mohammed, and the five set off eastbound on Bloor Street in Mr. Abau-Jabeen’s car.

7Hassan disembarked prior to the car reaching Sherbourne Street which is west of the scene of the accident. Mr. Mohammad, who had been sitting in the front passenger seat, exchanged seats with Ms Moukbal who had been in the back seat with her friend Ms Gozgoz.

8There was evidence that Mr. Abau-Jabeen had been speeding as early as the progress down the Don Valley Parkway and that the manner of his driving had caused physical discomfort to Ms Gozgoz. Ms Gozgoz told Mr. Abau-Jabeen to slow down but he did not do so. I do not, however, consider these pieces of evidence to be aggravating circumstances as they are separated in time and place from the incident leading directly to the fatalities.

9The driving that culminated in the fatal collision was that which occurred on Bloor Street between Sherbourne and Parliament Streets and which was observed by the witnesses Naveen Moukbal, Matthew Price, Amanda Glendinning and Leanne Bogusky.

10Ms Bogusky observed the Abau-Jabeen vehicle weaving and swooping in and out of lanes with quick jerking movements. She testified that it felt to her like it was going 100 km per hour – so fast that it shook her car. She considered the driving so erratic that it was foreseeable that an accident would happen.

11Ms Glendinning saw the Abau-Jabeen vehicle whiz by in a car racing manner. She considered the driving so irresponsible that she recalls hoping that he would get pulled over.

12Matthew Price testified that the Abau-Jabeen car whipped by so fast that it did not make sense.

13Ms Moukbal, Mr. Abau-Jabeen’s front seat passenger at the time of the incident, testified that Mr. Abau-Jabeen was not driving straight – he was going left and right and speeding like “bumper car stuff”, showing off to her, saying “look at this and look at that”. She testified that he was doing things a person should not do, playing with the car, not taking it seriously, and that when Elif Gozgoz said to him “drive properly, I don’t want to die in the car”, his response was “no one’s gonna die in my car.” He did not change the manner of his driving.

14Mr. Mohammad also told Mr. Abau-Jabeen to slow down, adding, as his rationale, that there were girls in the car.

15Mr. Abau-Jabeen paid no heed to the requests from his passengers to slow down. His speed when he went into the intersection was about 85 km per hour. The posted limit along the segment of roadway on Bloor street from Sherbourne Street to Parliament Street was 40 km per hour. In addition to other traffic on the road, there was a bike lane and pedestrian crossings at the intersection of Bloor and Parliament Streets.

16Prior to entering the intersection, Mr. Abau-Jabeen had been, in addition to speeding, cutting unsafely into and out from spaces between other cars in a manner that caused alarm to his passengers and other motorists. At the final moment before the collision, he veered out at high speed from behind a car in front of him to make the yellow light at Parliament Street. He lost control of his car and crashed into a light pole.

17Contrary to the conditions of his G2 licence, Mr. Abau-Jabeen consumed alcohol shortly before driving. He consumed an unmeasured amount. His blood alcohol, when tested after the accident, was 30 mg/100 ml. This level was not per se unlawful, and there was no definitive evidence of impairment. Some degree of impairment can, however, occur with a blood alcohol level as low as 15 mg/100 ml. Mr. Abau-Jabeen knew that he was not entitled to drive in conjunction with alcohol consumption and he knew or should have known that alcohol consumption could have the effect of reducing his ability to drive safely.

18Mr. Abau-Jabeen’s driving attracted a significant amount of attention. His car was fitted with an after-market muffler that emitted noticeable noise and his manner of driving had the effect of making his passengers and other motorists uncomfortable.

19The accident was a direct result of Mr. Abau-Jabeen showing off by driving at greatly excessive speed and performing a foreseeably unsafe manoeuvre going into the intersection as he did. This was preceded by his ignoring pleas from two of his passengers, including his best friend, to slow down and drive properly. The accident was clearly foreseeable and was actually foreseen by Ms Gozgoz who explicitly expressed to Mr. Abau-Jabeen her fear for her life. Mr. Abau-Jabeen, however, paid no heed to her fear or to his friend’s advice, and whether out of vanity, hubris or juvenility, continued to drive his car in violation of the rules of the road and the most basic principles of safety. Apart from the foregoing, I find no other aggravating factors in the case.

Circumstances of the Offender

20Mr. Abau-Jabeen was born in 1993 and was 23 at the time of the incident. This is his first criminal conviction. There is a positive pre-sentence report disclosing that he is a refugee from Lebanon. He had a fractured family life while a child and had had to start working at the age of 7 in his uncle’s business to help support his mother. He arrived in Canada in 2004 with both parents and his sister. Knowing no English, he had difficulty at school and went no further than Grade 11. He has an interest and ability in auto mechanics and has been a good employee in mechanic businesses although he is not a licensed mechanic himself.

21Mr. Mohammad was Mr. Abau-Jabeen’s best friend and was like a brother to him. They came out of the same war torn past and had previously lived under the same roof for several years.

22I have had the benefit of seventeen letters to the court from Mr. Abau-Jabeen’s family members, friends, co-workers and present and past employers. The letters depict a kind, caring, honest, loyal, generous, dutiful and hardworking person.

23I am satisfied from the presentence report and from Mr. Abau-Jabeen’s own words that he has taken responsibility for his actions and is genuinely remorseful. He will bear the burden of his friend Mohammed’s death and Ms Gozgoz’s injuries for the remainder of his life. He appears to have been significantly affected by the tragic results of his actions and he is, it appears to me, a chastened person. It is hoped that he will seek counselling to enable him to be fully useful to himself, to his family and to his community.

Issues on Sentencing

24Two issues arise on this sentencing:

1. whether and the extent to which the principles of general deterrence and denunciation normally predominant in case of criminal negligence causing death are tempered by principles of specific deterrence and rehabilitation in light Mr. Abau-Jabeen’s youthfulness and the absence of a criminal record; and

2. whether the court has the power to impose a prohibition from driving.

25The Crown seeks a sentence in the range of 5 to 7 years, a 10-year prohibition from driving and a DNA harvesting order.

26Defence argues that an appropriate sentence in the circumstances is 2 years less a day, less 11 days of pre-trial custody credited at the rate of 1.5 to 1, three years’ probation with a driving ban while on probation, a 240 hour community service order, no DNA harvesting order, and, if I should find that the court has the power to impose a driving prohibition, a 5 year order only.

Sentencing Principles

27While the maximum punishment for criminal negligence causing death is life imprisonment, there is no usual range and each case turns on the particulars of the criminal negligence, the consequences of the negligence, the circumstances surrounding the incident and the circumstances of the convicted person.

28I have been referred to a number of sentencing decisions and, as may be expected, there is no factual matrix in the decisions that very closely resembles that in the case at bar.

29The Crown argues that the predominant principles engaged on this sentencing are those of general deterrence and denunciation.

30Driving is a pervasive activity in this country. Getting a driving licence is virtually a normal rite of passage for a young person and, in some parts of the country, it is an ordinary and necessary incident of living. Automobiles have, however, the ability to become instruments of carnage, and every journey in one has the potential to end in tragedy. Members of the public are entitled to expect that drivers will exercise care and diligence, and it is fitting that where wanton and reckless disregard for the lives and safety of others results in death, the punishment be exemplary as an exhortation to other drivers.

31As the court of Appeal stated in Regina v. McVeigh, 1985 CanLII 115 (ON CA), [1985] O.J. No. 207:

Members of the public when they exercise their lawful right to use the highways of this province should not live in the fear that they may meet with a driver whose faculties are impaired by alcohol. It is true that many of those convicted of these crimes have never been convicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence would be in their best interests and be the most effective form of rehabilitation. However, it is obvious that such an approach has not gone any length towards solving the problem. In my opinion these are the very ones who could be deterred by the prospect of a substantial sentence for drinking and driving if caught. General deterrence in these cases should be the predominant concern, and such deterrence is not realized by over-emphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving.

32Where, however, a youthful person is the subject of the sentencing, and in particular where the accused is a first offender, individual deterrence and rehabilitation are stressed, and, apart from crimes of serious violence such as sexual assault, general deterrence and denunciation will have little role in fashioning an appropriate sentence. See R. v. T. (K), 2008 ONCA 91, 89 O.R. (3d) 99 at paras 41-42 Per Doherty JA.

33There is also the corollary principle as expressed in R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 110 C.C.C. (3d) 289, at p. 296, per Rosenberg J.A., that where a youthful first offender is the subject of the sentencing and the circumstances of the case require a custodial sentence, “Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.” See also R. v. Tan, 2008 ONCA 574 at 32, R. v. Nassri, 2015 ONCA 316, 125 O.R. (3d) 578 at paras 30-31, and, and R. v. Mohenu, 2019 ONCA 291 at para 12-13.

34The challenge is to balance the general societal interest in enhancing public safety by imposing a sentence which denounces this accused and deters other potentially criminally negligent drivers, with the narrower but no less important societal interest in rehabilitating a young person of otherwise good character and potential to be a useful member of the community.

35As intimated in McVeigh, if specific deterrence and rehabilitation were the only or the predominant principles engaged, an argument could reasonably be made that no custodial sentence is required and that a punishment specifically tailored to the prevention of a repetition of the offence should be imposed. The incident and the tragic outcome have had a sobering effect on Mr. Abau-Jabeen, and it appears from the letters submitted in his support that he is a changed young man.

36But a young man has died, and a young woman has suffered serious personal injuries as a result of Mr. Abau-Jabeen’s behavior behind the wheel. Denunciation is required, and punishment of sufficient weight to mark the gravity of the offence and the harm that has ensued. A custodial term is fitting and necessary, as is a form of punishment – and remedy – specifically focused on the protection of the public – namely a driving prohibition.

Analysis and Case Law

37I have been referred to a number of sentencing decisions following convictions for criminal negligence causing death.

38In R. v. Hughes, [2012] B.C.J. No 397, the British Columbia Court of Appeal upheld a sentence of 6 years on 4 counts of criminal negligence causing death, one count of criminal negligence causing bodily harm, and 18 months concurrent on 4 counts of failing to stop and one count of failing to stop knowing that bodily harm was caused. The deaths resulted from the accused driving at high speed and carving the victims’ car off the road. The 28 year old accused had no criminal record but a lengthy and related driving record. He left the scene, lied to the police, and was not remorseful.

39In R. v. Purtill, 2013 ONCA 692, [2013] O.J. No 5136, the Court of Appeal upheld a sentence of 6 years for criminal negligence that caused the death of a 5 month old baby and a broken back to the baby’s mother. There was a one year consecutive sentence for refusing to give a breath sample. The accused was remorseful but had a prior criminal record for impaired driving.

40The accused in R. v. Cassady, 2016 ONSC 6063 was a 23 year old who pleaded guilty. He was driving 190 km/hour on a roadway with a limit of 100, was texting while driving and had a blood alcohol content of 82 mg/100 ml. He had no criminal or driving record, accepted responsibility and expressed deep remorse. He was sentenced to 3.5 years for criminal negligence causing death and was given a 4 year driving prohibition.

41In R. v. Parent, 2013 BCCA 429, [2013] B.C.J. No 2234, the 43 year old accused was sentenced to 4½ years for criminal negligence causing death, dangerous driving and failing to remain. Out of an incident of road rage, the accused forced a vehicle off the road, left the scene, then returned, swerving towards the occupants standing by the side of the car, then struck and killed one of them. The accused was found to have swerved toward the men to intimidate them – an act of gratuitous violence. The accused had a lengthy driving record and an unrelated dated criminal record. The appeal centered on an error in the application of the driving prohibition and the British Columbia Court of Appeal substituted a 14 year prohibition from the date of sentence in place of a 12 year prohibition running from release from incarceration.

42In R. v. Cabral, 2016 ONCJ 525, the 37 year old accused pleaded guilty to criminal negligence causing death and criminal negligence causing bodily harm. He had a blood alcohol content of 100 mg/100 ml, drove his car on the wrong side on a highway and struck another car in a head on collision. The other driver died and the passenger suffered broken bones and a back injury. The accused had a prior conviction for impaired driving from 2001 but was otherwise an individual of good character and showed great remorse. He was sentenced to 5 years with an 8 year driving prohibition

43In R.. v. Prevost, [2014] O.J. No. 6562, another decision of the Ontario Court of Justice, a 20 year old accused pleaded guilty to criminal negligence causing death and refusing to provide a breath sample. He was a G2 driver at the time of the incident. The accused refused to comply with a police traffic stop and moments later struck another vehicle, killing the driver. The accused was uncooperative, had glassy eyes and had the odour of alcohol on his breath. He had no criminal record but prior to sentence had pleaded guilty to breach of recognizance and served 45 days. The accused had been twice told by his passenger to slow down, but ignored the request. The court sentenced the accused to 3 years for the criminal negligence causing death and one year consecutive for refusal to give a breath sample. Significantly the sentencing judge stated at paragraph 51, “in these cases, the principle of deterrence and denunciation are paramount. …”, and the admonition in R. v. Priest does not appear to have been brought to the court’s attention.

44The two decisions brought to my attention that have been of greatest assistance to me are: R. v. Laine, 2015 ONCA 519 and R. v. Aleksev, 2016 ONSC 6080.

45In Laine, the 21 year old accused and his 5 friends were on their way back home from his cottage. The road was narrow with gravel shoulders and the speed limit was 80 kilometers per hour. The accused was speeding, accelerating so that he and his passengers could get the sort of rush feeling of being on a roller coaster. Coming out of a sharp curve, he reached a speed of about 140 kilometers per hour and one of his passengers urged him to slow down. As he entered another curve, he lost control of his car, ran off the right side of the road, turned back on to the pavement, crossing over to the opposite side where his vehicle flipped over and crashed into a hydro pole. Two of his passengers were killed and a third was seriously injured. The accused was sentenced at trial to 4 years imprisonment concurrent on each of the three criminal negligence counts. The Court of Appeal observed that the trial judge emphasized the principles of deterrence and denunciation. In reducing the sentence to two years less a day, the Court of Appeal wrote, “[t]he appellant’s crimes are serious and a custodial sentence is required. However, the sentence imposed by the trial judge appears to have been mainly intended to deter others who might be inclined to drive as the appellant had driven. It appears that general deterrence was overemphasized, and this was an error that permits this court to intervene: R. v. M., (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para 90.”

46In R. v. Aleksev, a decision of Trotter J. as he then was, the accused was 20 years old at the time of the offence. Driving recklessly and at a high speed, the accused ran a red light that had been red for at least 6 seconds and instantly killed a cyclist who was crossing the intersection. The trial judge was alive to the tension inherent in fashioning a fit sentence for a youthful first offender in the circumstances. He alludes to the principles of general deterrence and denunciation that are generally engaged by the offence and observes that where a custodial sentence is required for a first offender, it “should be a measured response” (para 30). A sentence of 2 years less a day was imposed.

47While Mr. Abau-Jabeen’s conduct was morally worthy of censure, it was not at the end of the spectrum where the most extreme examples of heinous conduct reside. There was an absence of sense, an absence of manners, an absence of intelligence and an absence of care but there was no intentional gratuitous violence or malice.

48The presentence report and the material filed on his behalf show Mr. Abau-Jabeen to be a caring, compassionate and hardworking person with strong family ties and values. While he has used drugs and alcohol and once had a bad experience with cocaine, he has reportedly abstained from substances since the accident. He is a contributing member of society and it appears that the lessons learned from the experience that brings him to this juncture will, in time, make him a more responsible person. In my view, an appropriate custodial sentence is 2 years less a day, against which he is to be credited the 11 days of pre-trial custody at the rate of 1.5 or 17 days.

Probation and DNA Order

49Post-incarceration, Mr. Abau-Jabeen is to be placed on probation for a period of 3 years and will perform 240 hours of community service at the direction of his probation officer.

50With respect to the Crown’s request for a DNA harvesting order, the offences are secondary offences under s. 487.04 of the Criminal Code. While the invasion of the person is minimal, there is nevertheless a significant privacy interest engaged in the harvesting and storage of DNA information. Mr. Abau-Jabeen has no criminal record other than the convictions arising from the driving incident, and, as indicated above, appears to me to be a person of otherwise good character. While there was, in my view, arrogance and ill-conceived self-confidence in the commission of the offence, there was no malice or dishonesty. I am therefore not satisfied that it is in the best interests of the administration of justice to make the order.

Driving Prohibition

51I turn now to the issue of the imposition of a prohibition against driving. The Crown seeks a ban of 10 years following the period of incarceration. Defence argues that as a result of change of legislation between the offence date and the date of sentencing, the court no longer has the power to impose a driving ban upon conviction for criminal negligence causing death although it continues to have such a power in relation to convictions for dangerous driving causing death. Where a variation in penalty is legislated between the date of offence and the date of sentence, the accused is entitled to the lesser penalty (see s. 44(e) of the Interpretation Act, R.S.C. 1985, c. I-21).

52Under An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21. which received royal assent on June 21, 2018, ss. 249 to 261 of the Criminal Code were repealed (see s. 14) and were replaced with new provisions dealing with dangerous driving and its sequelae (see s. 15):

320.13(1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.

(2) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes bodily harm to another person.

(3) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes the death of another person.

320.21 Everyone who commits an offence under subsection 320.13(3), 320.14(3), 320.15(3) or 320.16 is liable on conviction on indictment to imprisonment for life and to a minimum punishment of,

(a) for a first offence, a fine of $1,000.

(b) for a second offence, imprisonment for a term of 30 days; and

(c) for each subsequent offence, imprisonment for a term of 120 days.

53The most significant substantive change was the increase of maximum possible penalty for dangerous driving causing death (now termed dangerous operation of a conveyance causing death) from 14 years under s. 249(4) to imprisonment for life under s. 320.21.

54In practical terms, where in cases of highly egregious behavior the Crown hitherto may have sought conviction under criminal negligence causing death under s. 220, it may well choose to proceed under s. 320.13(3) given the absence of requirement to prove wanton and reckless disregard for life and safety of others and the identical maximum penalty in both offences.

55The defence relies on the repeal of the former s. 259(2) and the substitution of the news. Section 320.24(4) in support of its contention that the court no longer has power to impose a driving prohibition as part of penalty.

56The former s. 259(2) provided:

If an offender is convicted or discharged under section 730 or an offence under section 220, 221, 236, 249, 249.1, 250, 251, or 252 or any of subsections 255(2) to (3.2) committed by means of a motor vehicle, a vessel, an aircraft or railway equipment, the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel, an aircraft or railway equipment, as the case may be ….

57The new s. 320.24(4) and s. 320.24(5) provide:

(4) If an offender is found guilty of an offence under section 320.13, subsection 320.14(2) or (3), 320.15(2) or (3) or under any of sections 320.16 to 320.18, the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating the type of conveyance in question during a period to be determined in accordance with subsection (5).

(5) the prohibition period is

(a) if the offender is liable to imprisonment for life in respect of that offence, of any duration that the court considers appropriate, plus the entire period to which the offender is sentenced to imprisonment.

58It is said that because of the repeal of former s. 259(2) enabling the court to impose a driving prohibition where there has been a conviction for criminal negligence causing death by means of an automobile and the absence of inclusion of s. 220 among the offences listed in the new s. 320.24(4) enabling imposition of a driving prohibition upon conviction for certain offences, Parliament either intended to remove the power to impose a driving prohibition where there has been conviction under s. 220 for criminal negligence causing death by means of an automobile or it inadvertently did so.

59I do not agree with this submission.

60Under s. 662(5) of the Criminal Code, dangerous driving causing death under s. 249 is an included offence under s. 220. The Crown burden insofar as the proof of mens rea is concerned, is higher under s. 220 than under s. 249 or the new 320.13(3). In order for a finding of guilt to occur under s. 220 where the death is caused by operation of an automobile, there must be a preliminary finding that the offender was guilty of dangerous driving. Otherwise the issue of whether the conduct was characterized by a wanton and reckless disregard for the lives and safety of others, the mens rea element in s. 220, does not arise.

61In short, there cannot be a conviction under s. 220 in respect of criminal negligence causing death by means of operation of automobile without a finding of guilt of dangerous operation of a conveyance. Because a finding of guilt of dangerous driving is necessarily imbedded in the conviction under s. 220, the court’s power to impose a driving prohibition is, in my view, undisturbed by s. 320.24(4).

62I am satisfied that this is a case for a driving prohibition for a substantial period of time and I accede to the Crown submission that 10 years from release from incarceration is an appropriate period. The ban is to apply to any street, road, highway, or other public place. I impose the driving ban for the protection of the public and for denunciation of Mr. Abau-Jabeen’s conduct. Mr. Abau-Jabeen did not have the maturity of mind to be in control of an automobile at the time of the incident. With the passage of time and with sober reflection and greater responsibility, Mr. Abau-Jabeen will learn, it is hoped, to have respect for the lives and safety of others.

___________________________ Low J.