Court File and Parties

Court File No.: CR-19/7-506 Date: 2021-01-20 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Adib Ibrahim, Accused

Counsel: Derek Ishak and Evan Akriotis, for the Crown Peter Thorning and Alex Alton, for the Accused

Heard: November 24, 2020

Before: A.J. O’Marra J.

Reasons for Judgment on Sentencing

[1] On May 14, 2012, a clear sunny spring day, Mr. Ralph Bissonnette was riding his skateboard westbound on King Street East, Toronto in the curb lane when Mr. Adib Ibrahim, driving his taxi moved abruptly into the curb lane and collided with Mr. Bissonnette running him over, killing him instantly. Mr. Bissonnette died as result of crushing injuries to his head.

[2] After trial before me Mr. Ibrahim was found guilty of manslaughter. He is here today to be sentenced.

[3] Originally Mr. Ibrahim had been tried for the offence of second-degree murder in 2015 with the result that he was found guilty of manslaughter. The Ontario Court of Appeal in R. v. Ibrahim, 2019 ONCA 631 in considering a deficiency in the jury instructions as to the assessment of the accused’s evidence in relation to the fault requirement for the unlawful act of dangerous driving as a basis for the offence of manslaughter ordered a new trial on the charge of manslaughter.

[4] As a result of the finding on the first trial Mr. Ibrahim was sentenced by the presiding justice, to four years’ incarceration and six years’ driving prohibition additional to the four years he had been prohibited from driving whilst on bail. (See R. v. Ibrahim, 2016 ONSC 1538.) Both Crown and Defence counsel referenced the judgment in submissions. The facts upon which I rely to determine the fit and proper sentence for what occurred on May 14, 2012 are contained in my judgment at R. v. Ibrahim, 2020 ONSC 5815.

The Circumstances of the Offence

[5] The collision between Mr. Ibrahim’s taxi and Mr. Bissonnette on his skate board, also referred to as a longboard, occurred at approximately 6:00 p.m. on May 14, 2012 in the westbound curb lane in front of 160 King Street East, Toronto, about 50 metres from the northwest corner of the George Street intersection.

[6] There was considerable pedestrian traffic that day, people walking on both sides of King Street going to and from work, shopping or attending the nearby George Brown College. Testimony was given by a number of witnesses present as to their observations from various locations and proximity to the collision. There was testimony about hearing yelling and banging on the taxi.

[7] In addition, a video recording was available from a surveillance security camera mounted on the building at 170 Queen Street East. The video captured Mr. Bissonnette riding his longboard westbound in the curb lane as the taxi driven by Mr. Ibrahim approached from behind and up beside Mr. Bissonnette. The four to five second video showed Mr. Bissonnette riding his longboard parallel to the right front side taxi. Mr. Bissonnette made contact with the front right side of the hood of the taxi up to the windshield and to the side passenger mirror with his lower left arm and hand. Thereafter the taxi veered abruptly to the right into Mr. Bissonnette causing him to fall backward. Mr. Bissonnette was run over and sustained crushing injuries to his head, which killed him instantly.

[8] Mr. Ibrahim testified that he did not see Mr. Bissonnette or hear him yell before the longboard made contact with the front right wheel of his taxi. He was not aware of Mr. Bissonnette’s presence for the few seconds that he was alongside his taxi. He collided with him as a result of a momentary lapse of attention.

[9] In considering the sequence of events as discerned from the evidence of a number of independent witnesses and the video, I rejected Mr. Ibrahim’s evidence as to a momentary lapse of attention. I concluded that he was aware of Mr. Bissonnette’s presence when he proceeded to change lanes. He turned his taxi abruptly into the curb lane knowing that Mr. Bissonnette was riding the longboard beside him. He did so intentionally after Mr. Bissonnette had yelled at him, banged on the hood and hit the side view mirror of the taxi, later found dislodged in its housing.

[10] He caused the death of Mr. Bissonnette by the unlawful acts of assault with his taxi and dangerous driving when he turned abruptly into the curb lane knowing Mr. Bissonnette was beside the vehicle. The aggressive act of using his taxi to interfere with Mr. Bissonnette was intentional.

Victim Impact

[11] Mr. Bissonnette at the time of his death was 28 years of age. He was a young man with a promising career as a chef. He was said to have been actively involved with many other interests in life.

[12] A jointly authored victim impact statement by Mr. Bissonnette’s mother, sister and nephew as provided to the court in 2016 was filed on the sentencing hearing. In their statement it describes the pain and grief they experienced as a result of Mr. Bissonnette’s death:

All of our lives changed on the evening of May 14, 2012. I watch my now deceased husband fall apart under the weight of the sorrow. Part of him died at that moment. On that evening, I also lost the father of my son. As for myself I think that I can convey my suffering by saying that it is as if I had been shot right through the heart. Part of me also disappeared at that moment. I feel as if I have hole in my heart. The wound has healed over, of course, but the empty spot is there to stay.

The loss of Ralph has certainly had other consequences for our family. We could easily think about the grandchildren that he will never be able to give us. In addition, Ralph was a talented and ambitious chef. He has been deprived of a wonderful career in life, I am sure. That has also deprived us of the pride associated with his professional success. Ralph had all of his life ahead of him. What a waste!

The Circumstances of the Offender

[13] Mr. Ibrahim at the time of the offence was 44 years of age. He is now 52. He has no criminal record and as such he is a first offender. He has a record of approximately a dozen driving infractions under the Highway Traffic Act, RSO 1980 c. H.8, although they are not particularly serious, and they are somewhat dated. Prior to May 14, 2012 he had been a taxi driver for 16-17 years.

[14] The pre-sentence report prepared in 2016 was filed as an Exhibit on the sentencing proceeding, which was updated in submissions by counsel for Mr. Ibrahim.

[15] Mr. Ibrahim was born in Ethiopia, the middle of seven children to his parents. His father is deceased, and his mother continues to reside in Ethiopia. He has a brother and sister who reside in Toronto, three siblings who reside in the United States and one who remains in Ethiopia. Growing up he was exposed to civil unrest and war. When he reached high school age, he left the country rather than being forced into army service. He migrated to Italy in 1987. The following year he was sponsored to Canada by a family member where he received landed immigrant status. Then three years later, he obtained citizenship.

[16] He is married with two children from the marriage and an older stepdaughter from his wife’s previous relationship.

[17] After working in a number of service-related jobs he drove a taxi in the Niagara Falls area for several years. Subsequently, he moved to Toronto where he drove a taxi for a number of companies. Then in 2002, he obtained his Ambassador plate, which allowed him as an owner-operator to take fares off the streets and personal calls for pick-ups. He sold his plate in June 2015. Following the offence, not being allowed to operate a motor vehicle as a condition of his bail, he worked for a year as a car detailer. He was forced to quit in 2014 as a result of suffering a heart attack. He was hospitalized and received a stent. He continues to receive medication. Counsel advised that he worked afterwards at a Hasty Mart but was laid off in 2019 when the property was sold and redeveloped for other purposes. He has not worked since and his wife works as an assistant in an Islamic school.

[18] He attends mosque three times daily to pray and attends regular Friday services.

[19] He is described by his wife, family members and friends as a good husband and father who has continued to try to support his family financially. He has been on bail since 2012 with a condition that he not operate a motor vehicle and to contact the police on a weekly basis.

Position of the Crown

[20] The Crown submits that as an act of road rage that led to the death of Mr. Bissonnette for which Mr. Ibrahim bears a high degree of moral blameworthiness, a sentence of four years in the penitentiary is appropriate. In addition, the Crown seeks an order under s. 487.051 of the Criminal Code for Mr. Ibrahim to provide a sample of bodily substances for a DNA analysis, and an order under s. 109 of the Criminal Code for weapons prohibition. Further, the Crown seeks a driving prohibition, notwithstanding an amendment to the Criminal Code repealing s. 259(2) which had provided inter alia a discretion to impose a driving prohibition for an offence committed under s. 236, (manslaughter), and other driving related offences. The amendments relied on by the Crown, in which there are no references to s. 236, manslaughter however, provides under s. 320.24(4) and (5) for a discretionary prohibition where there is a conviction under s. 320.13 of an offender who operated a conveyance in a dangerous manner and causes the death of another person.

Position of the Defence

[21] The position of the defence is that Mr. Ibrahim should receive a conditional sentence of two years less a day, with house arrest and a period of probation thereafter. When he was sentenced in 2016 conditional sentences were not available for offences like manslaughter as a result of the Safe Streets and Community Act, S.C. 2012, c.1 (SSCA). The amendment, s. 742.1(c) of the Criminal Code excluded conditional sentences for convictions of offences that had maximum terms of 14 years or life imprisonment sentences. However, recently in R. v. Sharma, 2020 ONCA 478 the majority held s. 742.1(c) contravened ss. 7 and 15 of the Charter by denying an Aboriginal offender, a member of a community subject to systemic overincarceration, the availability of community-based sanctions and alternatives to imprisonment under the conditional sentencing provisions.

[22] Accordingly, without the limitation, counsel submits that as before the SSCA, conditional sentence provision should be considered in this matter as Mr. Ibrahim would otherwise qualify based on the criteria set out in s. 742.1(a) and (b). There is no minimum sentence to which he would be subject for the offence of manslaughter, and he would not endanger the safety of the public. He has no criminal record, strong family and friend support and he has health problems, all of which should be considered, particularly in light of the current COVID-19 pandemic concerns to which he would be exposed if incarcerated.

[23] Counsel submits that any period of incarceration should be reduced because Mr. Ibrahim has been on bail for 8½ years during which he has been prohibited from driving and required to make weekly contacts with the police. Any additional period of driving prohibition could be made as a condition of the conditional sentence and any additional probationary period thereafter.

[24] Further, he should be given credit for pre-trial custody, 11 days before he received bail and 4 days before being granted bail pending appeal - 15 days on a 1 to 1.5 basis resulting in a reduction of 22 days.

Sentencing Principles

[25] Section 718 of the Criminal Code states that the fundamental purposes of sentencing are to contribute to the respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of a number of objectives.

[26] Those objectives include denunciation of unlawful conduct, deterrence of the offender and others who might be similarly inclined, separation of the offender from society where necessary, rehabilitation, to promote a sense of responsibility in the offender, and acknowledgement of the harm done to victims or to the community.

[27] Section 718.1 sets out the principle of proportionality. The sanction imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The quantum of the sentence imposed should be commensurate with the gravity of the offence and moral blameworthiness of the offender.

[28] Section 718.2 sets out a number of other sentencing principles, such as the sentence should be increased or decreased to account for any aggravating or mitigating circumstances relating to the offender. Further, there is to be parity in sentencing. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[29] An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders.

Mitigating Circumstances

[30] There are several factors I take into account with respect to mitigation. Mr. Ibrahim is now 52 years of age. At the time of the offence he was 44 years old. He has no criminal record. He has strong family and community support. He has been productive all of his adult life. He has excellent rehabilitative prospects once the matter is behind him.

[31] In the pre-sentence report, while he expressed sympathy for the victim’s family, an appropriate empathetic response, he has not accepted any responsibility for his actions or expressed remorse. While an absence of remorse is not an aggravating factor however, an absence of a mitigating factor which would convey an acceptance of responsibility for the crime, is relevant to whether restorative objectives can be satisfied and entitle the offender to a sentence reduction. An offender cannot rely on an expression of regret without taking responsibility to mitigate what would be an otherwise appropriate sentence.

Discussion of Sentencing Principles

[32] Manslaughter is an offence punishable by a maximum sentence of life imprisonment, which reflects its seriousness.

[33] In this case, Mr. Ibrahim drove dangerously and used his vehicle to assault Mr. Bissonnette by driving into him causing his death. Manslaughter cases in which motor vehicles are used as instruments to cause death are rare. However, there are numerous criminal negligence and dangerous driving causing death cases, many of which counsel have cited, which recognize that the paramount principles to emphasize in determining an appropriate sentence are general deterrence and denunciation. When determining sentence in such cases the sentencing judge must also be mindful of the other principles such as rehabilitation, but to a lesser extent.

[34] Denunciation is required to reflect society’s condemnation of the conduct that caused death and general deterrence to send a message to discourage those who may be similarly inclined to engage in similar conduct in the future.

[35] Courts have consistently made clear that driving offences, particularly those that involve serious personal injury or death, the objectives of deterrence and denunciation are paramount. In R. v. Lacasse, 2015 SCC 64 at paras. 73 and 74 the court stated:

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.

. . . 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

[36] In R. v. Proulx, 2000 SCC 5 the court observed in a driving case:

[D]angerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These are crimes 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.

[37] As noted earlier, rehabilitation is of course an important factor to consider, particularly so when dealing with a first offender. In R. v. Priestly, [1996], 110 CCC 3rd 289 (OCA) at 295 Rosenberg J.A. stated:

The 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.

[38] The Court held that primary objectives in fashioning a fit sentence for a first offender are individual deterrence and rehabilitation, goals best achieved either by suspended sentence and probation or a short time of imprisonment.

[39] However, in R. v. Nusrat, 2019 ONCA 31 the court observed recently in a criminal negligence causing death case; “where the offender’s conduct results in serious personal injury or death, the gravity of the offence must be given predominance in determining the appropriate sentence”. The goal must always be to achieve the right balance.

Conditional Sentence

[40] Under s. 742.1 of the Criminal Code a conditional sentence is available if the court considers a sentence of less than two years’ incarceration as appropriate, and the court is satisfied the offender would not endanger the safety of the community, and consistent with the fundamental purpose and principles of sentencing set out in s. 718 to 718.2.

[41] With these considerations in mind can a conditional sentence, as suggested by counsel achieve the paramount objectives of general deterrence and denunciation?

[42] In Proulx, at para. 100 the court stated:

A conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration.

[43] A conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed, such as community service orders or house arrest and the public is made aware of the severity of such sanctions. However, where punitive objectives such as denunciation and deterrence are “particularly pressing, as in cases where there are aggravating circumstances incarceration will generally be the preferred sanction”.

[44] However, as stated in Proulx at para. 104 before consideration of the conditional sentence provision, the sentencing judge should first reject a term of incarceration, or probationary measures as appropriate, and then consider whether conditional sentence of less than two years would be consistent with the fundamental purpose and principles of sentencing in the matter. It is only when a determination is made that a term of less than two years is within the appropriate range that the sentencing judge should then consider if it is appropriate that the offender serve the sentence in the community.

[45] Counsel have jointly provided more than 60 cases in support of their respective positions almost all of which deal with driving related offences, only a few of which were commented on in oral submissions.

Defence Cases

[46] The position of defence counsel is that Mr. Ibrahim should be sentenced to a period of house arrest under the conditional sentence provisions. In support he refers to R. v. Ryazanov, 2008 ONCA 667 in which the Court of Appeal upheld a conditional sentence of two years less one day for an 18-year-old offender who pleaded guilty to dangerous driving causing death.

[47] In that case, there were two accused racing their vehicles with each other at twice the speed limit for a kilometre and a half during which they passed one and another leaving little space between the vehicles. One of the offenders crashed into a taxi and killed the driver. Each accused pleaded guilty to dangerous driving causing death. They had no criminal records, positive pre-sentence reports and they appeared remorseful. The trial judge imposed a conditional sentence of two years less a day with house arrest for the first year and a curfew thereafter followed by two years’ probation, and a four-year driving prohibition.

[48] The Court of Appeal held that the trial judge had failed to sufficiently impose punitive terms to reflect the principles of general deterrence and denunciation and increased the house arrest condition to the full term of the sentence and extended driving prohibitions to seven years.

[49] In R. v. Winsor, 2010 ONSC 2639 a 39-year-old offender pleaded guilty to dangerous driving causing death. The victim had been driving close behind the accused on the 401 highway at speeds of 110–120 when the accused, being annoyed at the actions of the following driver hit his brakes. It caused the victim to take avoidance action. He drove into a guardrail and his vehicle rolled over. The accused kept going knowing there had been an accident. Later, he learned that the other driver had died and turned himself in to police. The court found that the offender had genuine remorse for his actions. He had no criminal record. He was sentenced to five months incarceration and two years’ probation, and a five-year driving prohibition.

[50] In R. v. Singh, 2009 ONCJ 223 a 26-year-old offender hit the victim with his vehicle as he attempted to flee a parking lot in which there was an ongoing conflict between two groups. He pleaded guilty to criminal negligence causing death and received a conditional sentence of 18 months house arrest, two years’ probation and a driving prohibition for seven years.

[51] In R. v. Nikitin, [2003] O.J. No. 2505 a school bus had stopped at the side of the road with its warning lights flashing and side stop sign extended. Two brothers, age 5 and 12 were crossing the road to their home driveway. Nikitin, 65 was driving his truck and trailer. He did not see the boys until it was too late. He swerved to avoid them, but his trailer hit and killed the 5-year-old. He was found guilty of manslaughter after trial.

[52] The offender had no criminal record. He had been married 41 years. He was described as an excellent parent, a good family man, and a conscientious and reliable worker. Since the incident he suffered a series of heart attacks. He provided support and care to his wife who had serious physical ailments. He was sentenced to 22 months conditional sentence.

[53] On appeal, in deference to the trial judge, the sentence imposed was found not to be demonstrably unfit.

Crown Cases

[54] The Crown in submissions relied on the cases of R. v. L. (J.), [2000] O.J. No. 2789, R v. Heffernan, 2008 ONSC 7114 and R. v. Parent, 2012 BCSC 789.

[55] In L. (J.) a 21-year-old offender who had a prior criminal record pleaded guilty to criminal negligence causing death and received a five-year sentence. He had driven for an extended period of time at a high rate of speed during which he almost lost control and ran three red lights, the last of which resulted in a collision with the victim’s motor vehicle leading to his death. The court observed that when there is “deliberate endangerment of other users of the road and pedestrians, the more serious the offence and the more likely that a lengthy prison term will be required”. The court found that there was a high degree of moral blameworthiness on the part of the offender in the circumstances.

[56] In Heffernan, the offender, 25 years of age pleaded guilty to criminal negligence causing death. He was sentenced to three years imprisonment, less 3 months pre-sentence custody and given a driving prohibition for eight years. In that instance, the victim and a number of other drivers had been trying to exit a plaza parking lot to a roadway but were being prevented from doing so because other drivers were exiting through a one-way exit the wrong way further up the road. The victim left his vehicle to try to stop the other vehicles from exiting the one-way exit. He ended up standing in front of the offender’s motor vehicle as he began to inch his vehicle forward out the laneway. The victim ended up on the hood of the offender’s vehicle. The victim punched the windshield and caused three large cracks either before or after the offender accelerated with him on the hood. The victim came off the hood of the offender’s vehicle on to the payment. He died as a result of his injuries.

[57] The court referenced R. v. L. (J.) and the comment made by the court at para. 3 that the more the conduct demonstrates a deliberate endangerment of other users of the road and pedestrians, the more serious the offence and the more likely that a lengthy prison term will be required.

[58] The court considered the sentence imposed in R. v. Ibrahim, 2016 ONSC 1538 and found a significant difference because he had been found to have intentionally used his taxi to strike the victim knowing he would cause the victim some significant degree of bodily harm, even though he did not intend to kill him or cause him serious bodily harm that he knew was likely to cause his death. Whereas, in Heffernan’s case the court stated:

The admitted criminal negligence in this case is not the intentional striking of the victim. It is the driving down the laneway in a manner and at a speed that Mr. Heffernan did once Mr. Stott was on the hood of his car that is admitted to be criminally negligence and to have caused Mr. Stott to fall from the car, thereby causing his death.

[59] The offender had made a conscious decision to drive his vehicle at speeds reaching 43-48 km/h knowing the victim was on the hood of his vehicle. While he did not intend to cause the victim’s death, the potential for serious harm to him was obvious in the circumstances. The court concluded that the offender’s moral blameworthiness was significant in that case.

[60] In Parent, the offender 43 years of age, a mechanic was found guilty of criminal negligence causing death, dangerous driving and fail to remain. He received a sentence of 4 years 6 months for criminal negligence plus additional time for the other offences totaling 5½ years imprisonment. In that instance, the offender in an act of road rage ran another vehicle off the road and then in an attempt to intimidate the occupants who had exited the vehicle returned and swerved his vehicle toward them striking and killing one of them. He had an unrelated criminal record with a lengthy record of motor vehicle fractions, some 64 offences and 5 prohibitions, accumulated in his youth. The court noted at para. 35:

There is no question that general deterrence deserves significant emphasis here. It is self-evident that all motor vehicles are potentially very dangerous and everyone who operates them, particularly those who operate large and powerful trucks like Mr. Parent's, must receive a strong message from the Court that vehicles must never be used as instruments of aggression.

Denunciation also deserves major emphasis. Society's collective condemnation of the senseless carnage on our roads that can be brought about by uncontrolled anger, as it was in this case must be reflected in the kind of sentence that I impose.

[61] Further, the court noted that there was a “high degree of moral blameworthiness” on the part of Mr. Parent.

Assessment

[62] In my view, the cases of Ryazanov and Singh reflect sentences of exceptional leniency. In Ryazanov, the sentence was reduced on the basis that the offenders were inexperienced drivers and in Singh, the offender had been acting in response to unanticipated hostile situation which caused him to flee in a panic. In both cases there were guilty pleas and expressions of genuine remorse. In Nikitin, the offender had tried to avoid the victim. None of the offenders had been using their vehicles in an intentionally aggressive manner.

[63] I consider Heffernan and Parent to have greater applicability in fashioning a fit and proper sentence in the circumstances of this case.

[64] The court in Parent accepted that while the swerving of the motor vehicle that led to the victim’s death was of a short duration and not at a high speed, such a maneuver was always going to be “fraught with enormous risk regardless of its duration or speed.” He received a sentence of 4 years and 6 months for criminal negligence causing death.

[65] Here, the same can be said. Mr. Ibrahim steering his taxi, travelling at 40-50 km/h into Mr. Bissonnette on a skateboard, was an act fraught with enormous risk of causing him serious injury or death.

[66] Counsel argued that it was a matter that only took a few seconds and a bad decision. I agree, it was a bad decision made either because of his annoyance or anger at Mr. Bissonnette striking his taxi with tragically foreseeable consequences.

[67] In my view, there is a higher degree of moral blameworthiness on the part of Mr. Ibrahim in committing the offence of manslaughter, than that of the offender in Heffernan who pleaded to the act of criminal negligence causing death sentenced to 3-years’ incarceration. In Heffernan at para. 64 the court specifically noted the absence the aggravating factors referenced in many of the driving cases - drugs or alcohol, multiple deaths, racing, reckless driving for a lengthy period of time, a lengthy criminal record, a bad driving record, flight from the police or leaving the scene of an accident. However, there was a conscious choice on the part of the offender to drive his vehicle with the victim on the hood.

[68] In this case, while the encounter with Mr. Bissonnette was brief, Mr. Ibrahim knew Mr. Bissonnette was beside his taxi and he intentionally drove into the path of Mr. Bissonnette. The choice created a deliberate endangerment to Mr. Bissonnette.

[69] This is a matter that requires a sentence that emphasizes general deterrence and denunciation. He, like the offender Heffernan, made a conscious decision to turn his vehicle into Mr. Bissonnette with foreseeable consequences. The appropriate sentence in his case requires the imposition of a sentence of incarceration in a penitentiary.

COVID-19 Pandemic

[70] Counsel for Mr. Ibrahim has argued that as a result of the COVID-19 pandemic and the risk it presents to someone of the same age and the health issues as Mr. Ibrahim, a conditional sentence to be served in the community, with a significant portion to be served under house arrest would satisfy the objectives of general deterrence and denunciation.

[71] COVID-19 is a highly contagious virus that can cause serious illness requiring hospitalization and even death. Since the declaration of a pandemic by the WHO in March 2020 it has spread worldwide, leading governments to make orders and issue directives for the public to wear masks, socially distance from others and engage in frequent hand washing. It has led to the periodic closure of businesses, limitations as to indoor and outdoor gatherings and stay at home orders, all in an attempt to control the spread. International initiatives have been undertaken to develop safe and effective vaccines. The phased introduction of the inoculations to the most vulnerable and front-line health care personnel has commenced.

[72] Congregant settings like jails and prisons have been recognized as areas of potential spread. Prisons are already harsh environments, physically and psychologically, made more so now due to lockdown restrictions to limit movement and spread of the virus. It has heightened fear of inmates who have little ability to control exposure of contracting the virus, notwithstanding the efforts of the correctional authorities to reduce risk to staff and inmates by adopting effective disinfecting and other control measures.

[73] Should the sentence be reduced because of the prevailing circumstances of the COVID-19 pandemic?

[74] In R. v. Hearns, 2020 ONSC 2365 Pomerance J. considered the impact of COVID-19 on sentencing considerations where the objectives of general deterrence and denunciation are emphasized.

The impact of the pandemic is a matter that is extraneous to the pillars of proportionality – the gravity of the offence and the moral blameworthiness of the offender. The point to be taken is this: a sentence may be reduced where it is necessary to denounce state conduct, or where it is necessary to account for other punitive consequences, or where the sentence would have a more significant impact on an offender. . . . The impact is attributable to the social conditions of the time, which are very different than those in the past. COVID-19 is not a mitigating factor in the classic sense. However, it adversely affects conditions of imprisonment, and increases health risks for those in jail. On that basis, it is an important part of the sentencing equation.

[75] The court recognized that while the risk factors presented by COVID-19 may in some cases reduce the length of sentence to be served based on the circumstances of the offender, the pandemic does not operate as a “get out of jail free card”. A reduction must be in keeping with the objectives of sentencing, not to make an unfit sentence fit. As noted in R. v. Doering, 2020 ONSC 5618 the presence of COVID-19 and its effect on congregate populations may permit some derogation from the principle of proportionality in structuring a sentence, it cannot sanction that which is truly disproportionate.

[76] In Correctional Service of Canada (CSC) reports of COVID-19 positive cases per province, provided on consent of counsel after submissions, updated daily, in the 7 Ontario CSC institutions, as of January 18, 2021 there have been 5711 COVID-19 tests conducted, 178 inmates have tested positive, 168 cases have recovered, there are 10 active cases and no deaths.

[77] Considering the impact of COVID-19, I take into account that since the many earlier cases considering the impact of COVID-19 on determining sentences or releases pending trial, vaccines have been developed and approved as safe and effective that are being distributed currently in the community, initially to the elderly in long-term care homes and front-line staff, and in the CSC prison population to those at risk due to age and/or underlying health concerns.

[78] Further, a phased distribution of the approved vaccines into the greater population is said to occur within the next few months, with experts projecting that the majority of the country’s general population will receive vaccinations by September 2021.

[79] In my view, to reduce the sentence to permit a conditional sentence in the circumstances of this case would be disproportionate to the gravity of the offence and need to emphasize general deterrence and denunciation of the conduct. It would not promote the sense of responsibility in the offender.

[80] Those objectives which are paramount in the circumstances of this case could not be achieved by reduction of the term of incarceration within the conditional sentence range of two years less a day, even with terms of house arrest for its duration.

[81] In my assessment, given the gravity of the offence of manslaughter and the high moral blameworthiness of Mr. Ibrahim in deliberately endangering Mr. Bissonnette out of annoyance or anger because he banged on his taxi warrants a penitentiary term of 4 years imprisonment.

Further Reductions

[82] Counsel requests that I further reduce the overall sentence as a result of Mr. Ibrahim being on bail for 8½ years with conditions he not drive a motor vehicle and maintain weekly contact with police authorities. In R. v. Downes, [2006] O.J. No. 555 Rosenberg J.A. stated at para. 33:

While time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. 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.

[83] Further, any credit while on bail will depend on a number of factors such as the length of time spent on house arrest, the stringency of the conditions, the impact on the offender’s liberty, the ability of the offender to carry on normal relationships, employment and activity. The onus is on the offender to establish those factors on a balance of probabilities.

[84] Here, Mr. Ibrahim has been able to carry on working when it was available, and his normal family relationships and activities. The bail conditions have not restricted Mr. Ibrahim’s liberty in any significant way, save being able to operate a motor vehicle. I decline to make any reduction to the overall sentence based on his conditions of bail.

[85] Mr. Ibrahim shall be given credit for pre-trial custody credit rounded out to one month.

Driving Prohibition

[86] At the time Mr. Ibrahim committed the offence of manslaughter, on sentencing s. 259(2) of the Criminal Code provided that a discretionary driving prohibition order could be made by the court if the offender was convicted of a number of enumerated offences, including manslaughter, where the offence was committed by means of a motor vehicle.

[87] In 2018, sections 249 to 262 of the Criminal Code were repealed and replaced with provisions, ss. 320.11 through 320.4 dealing with offences relating to conveyances. While criminal negligence causing death and bodily harm and manslaughter were specifically referenced in s. 259(2) those offences were not referenced in the new provisions. There was a suggestion that the driving prohibition discretion no longer existed with respect to manslaughter.

[88] However, s. 320.13(3) states that every person who commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and causes the death of another person. Section 320.24(4) and (5) provides for a discretionary prohibition where there is a conviction under s. 320.13.

[89] Section 662(5) makes the offences committed under s. 320.13 included offences to criminal negligence causing death and manslaughter arising out of the operation of a conveyance. Here, one of the two unlawful acts committed by the offender to commit manslaughter was the dangerous use of his conveyance, and as such the discretion to impose a driving prohibition continues.

[90] Notwithstanding, I decline to make a further driving prohibition in this case. Mr. Ibrahim has been prohibited from driving for 8½ years as a result of a term of his bail, and he will be precluded from driving during the term of his incarceration.

Sentence

[91] In the result, I sentence Mr. Ibrahim to 4 years imprisonment, less pre-trial custody credit of one month, reducing the sentence to 3 years and 11 months incarceration in a penitentiary.

[92] In addition, I make the ancillary orders that Mr. Ibrahim provide bodily substance samples for DNA analysis pursuant to s. 487.051 of the Criminal Code, and that Mr. Ibrahim is prohibited from possessing weapons, firearms and other substances pursuant to s. 109 of the Criminal Code for 10 years from the date of his release from custody.

Released: January 20, 2021