Court File and Parties

Court File No.: CR-22-0478 Date: 2023-06-15 Ontario Superior Court of Justice

Between: His Majesty the King R. Raeesi, for the Crown

– and –

Antonio Canono Y. Obouhov, for the Defendant

Heard: May 12, 2023

Reasons for Sentence

Dennison J.

Overview

[1] No one thinks when they get into a vehicle after drinking that they are going to kill someone, let alone one of their best friends, but that is exactly what happened in this case.

[2] A jury convicted Mr. Canono of operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood causing death and operating a motor vehicle in a dangerous manner causing death. He is now before me for sentencing.

[3] On the evening of August 25, 2018, Mr. Canono was at his friend Jhay’s house. Mr. Canono, his brother (Kelvin Canono), Ms. Lubang, and Mr. Isanan were present. Mr. Canono consumed alcohol while at the residence.

[4] At approximately 4:34 a.m., Mr. Canono was driving home from the get-together in his G35 with his friend Mr. Isanan in the passenger seat. Mr. Canono drove south on Central Parkway at a significant speed when his G35 jumped the curb and continued on the grassy area. The passenger side of the vehicle collided with a hydro pole and Mr. Isanan was killed.

[5] Kelvin Canono and Ms. Lubang called 911 less than a minute after the collision. Kelvin Canono testified that he was driving Ms. Lubang home from the get-together and just happened upon the collision. There was an issue at trial as to whether Mr. Canono’s vehicle and Kelvin Canono’s vehicle were seen on a video on Central Parkway racing each other just prior to the collision. Neither Ms. Lubang nor Kelvin Canono remained at the scene for long after the collision.

[6] At the scene of the collision, Mr. Canono told his brother, Kelvin Canono, as well as a good Samaritan who stopped, Mr. Cormier, that he swerved to avoid hitting an animal.

[7] Mr. Canono was taken to the hospital where blood samples were taken. Police seized one blood sample and sent it to the Centre of Forensic Sciences for testing. An expert, Ms. Chow, testified that based on the blood test results conducted at the hospital and the test she conducted, Mr. Canono had between 102 and 133 mg of alcohol in 100 ml of blood at the time of the collision.

The Circumstances of the Offence

[8] Because this was a jury trial, I must first determine the material facts for sentencing. I must accept as proven, all facts, expressed or implied, that are essential to the jury’s verdict: see s. 724(2)(a) of the Criminal Code. I may also find any other relevant fact that was disclosed by the evidence at trial: see s. 742(2)(b).

[9] In R. v. Ferguson, 2008 SCC 6, at paras. 16-18, the Supreme Court of Canada explained how this fact-finding process is to be completed where a jury has found the accused guilty of an offence: see also R. v. Aragon, 2022 ONCA 244, at para. 105.

[10] In determining the facts, it is appropriate for the trial judge to consider the legal instructions given to the jury. Where the basis of the jury’s verdict is unclear, the sentencing judge should make their own independent determination of the facts consistent with the jury’s verdict: Aragon, at para. 107. The sentencing judge is not however obliged to assume that the jury took “the most lenient path to conviction”: R. v. Nelson, 2014 ONCA 853, at para. 56.

Evidence of “over 80” causing death

[11] Given the jury’s conviction, they found that Mr. Canono consumed alcohol and drove his G35 that hit the pole killing Mr. Isanan when he had at least 80 mg of alcohol in 100 ml of blood.

[12] I am satisfied beyond a reasonable doubt that Mr. Canono had at least 102 mg of alcohol in 100 ml of blood at the time of the collision.

[13] After the collision, Mr. Canono was transported to a hospital. Two blood samples were taken from him at the hospital at 6:07 a.m. One of the samples was tested at the hospital and contained 26 millimoles of alcohol. The second sample was seized by police.

[14] Ms. Chow from the Centre of Forensic Sciences gave expert evidence at trial. I accept her evidence entirely. Her evidence was balanced and unbiased as it should be for expert evidence.

[15] Ms. Chow explained that the 26 millimoles of alcohol would be calculated to be 103 mg of alcohol in 100 ml of blood. Ms. Chow tested the second sample that was seized by police. She found that it contained 102 mg of alcohol in 100 ml of blood (“BAC”). Given the time the blood samples were taken and relying on certain assumptions that are meant to ensure that the BAC is not overestimated, Ms. Chow opined that Mr. Canono’s BAC would have been between 102 to 133 at 4:34 a.m., which was the approximate time of the collision.

[16] Using the breathalyzer results taken at 7:56 a.m. Ms. Chow testified that the range of the BAC would be between 60 and 116 at 4:34 a.m. If she assumed the person stopped drinking at 2:30 a.m., the BAC result would be 80 to 115 at 4:34 a.m. Ms. Chow relied on the same assumptions as she did when calculating Mr. Canono’s BAC from the blood samples.

[17] Ms. Chow explained that the wider range derived from the breathalyzer test results from the longer period between the time of the breath test and 4:34 a.m., which was 3.25 hours, as opposed to the blood samples that were taken earlier. She also explained that blood is a direct determination of the BAC, whereas breath is an indirect way to determine BAC and a conversion factor must be applied, which is meant to ensure that the BAC is underestimated not overestimated.

Evidence of dangerous driving

[18] Given the jury’s conviction of dangerous driving causing death, the jury found that Mr. Canono drove the vehicle in a manner that was dangerous to the public and that his driving was a marked departure from the standard of care that a reasonable person would exercise in the circumstances.

[19] The Crown urges the Court to make several findings of fact because it is not known on what basis the jury found that Mr. Canono’s driving was dangerous to the public and a marked departure. The Crown submits that it has proven the following facts:

1. That Mr. Canono was impaired;
2. That Mr. Canono was speeding;
3. That Mr. Canono was racing; and
4. That there was no animal on the road.

Was Mr. Canono Impaired?

[20] Impairment is not an element of the offence that the Crown must prove beyond a reasonable doubt. I am however satisfied beyond a reasonable doubt based on the evidence introduced at trial that Mr. Canono was impaired while operating the G35.

[21] As I have already outlined above, I find that Mr. Canono’s BAC was at least 102 at the time of the collision. Ms. Chow testified that alcohol is a depressant drug that slows down the brain, which controls motor function. A person can develop a tolerance for alcohol if they use it on a regular basis, but that does not mean that they are not impaired. She explained that if a person does not have a tolerance, they may start slurring their words or have difficulty walking or standing. She also said that alcohol may result in bloodshot eyes or glossy eyes. Alcohol can also cause flushing of skin.

[22] Ms. Chow explained that driving is a complex task; a driver is required to focus on multiple stimuli such as monitoring speed, calculating how much space there is between vehicles, and checking for pedestrians. Alcohol impairs an already divided attention. Alcohol also impairs reaction time.

[23] Ms. Chow testified that studies show that once an individual has a BAC of 50, one or more of their faculties would be impacted. This is on a continuum such that the higher the BAC, the greater the effects of impairment.

[24] In this case, there were other indicia of impairment in addition to Mr. Canono’s BAC. The arrested officer observed that Mr. Canono’s face was flushed, his eyes were watery, and his pupils dilated. There was also Mr. Canono’s driving. The evidence in this case demonstrated that Mr. Canono’s vehicle veered from the left-hand lane into the right-hand lane, jumped the curb, proceeded on the grass, and hit a hydro pole.

[25] When the evidence is considered cumulatively, I am satisfied that the only reasonable inference is that Mr. Canono was impaired at the time of the collision when he caused Mr. Isanan’s death.

Was Mr. Canono Speeding?

[26] The Crown submits that Mr. Canono was speeding based on video footage seized from a house that looks onto Central Parkway. First, I must be satisfied beyond a reasonable doubt that Mr. Canono’s vehicle was the vehicle in the video. If I find that it was Mr. Canono’s vehicle, then DC Misev’s evidence must satisfy me beyond a reasonable doubt that Mr. Canono was driving at 105 km per hour shortly before the collision.

[27] DC Misev obtained video footage from a backyard camera located at 4776 Owl Circle. The camera looks onto Central Parkway and shows vehicles travelling north and south on Central Parkway.

[28] I am satisfied beyond a reasonable doubt that the car in the left-hand lane in the video at 4:34 a.m. was Mr. Canono’s vehicle and that the vehicle in the right-hand lane was driven by Mr. Canono’s brother, Kelvin Canono.

[29] DC Misev obtained the video from Owl Circle covering the 15 minutes prior to the police being dispatched. The police were dispatched at 4:38 a.m. He explained that in his experience, emergency services would arrive quickly given the nature of the collision and because the collision occurred on a major fairway.

[30] Both DC Misev and DC Elson testified that the vehicle that collided with the hydro pole was travelling in the left-hand lane prior to the collision. They based this opinion on the tire marks they observed in the left-hand lane, that then moved into the right-hand lane, onto the curb and then onto the grass. Both officers have considerable expertise in collision reconstruction. Their evidence on this point was not shaken.

[31] The Owl Circle video showed a single vehicle traveling south on Central Parkway at 4:32 a.m. in the right-hand lane. Another video taken from Camden Drive, which is south of the collision, showed a vehicle driving southbound at 4:28 a.m. That video is five minutes behind the real time (actual time would be 4:33 a.m.). One can therefore infer that this is the same vehicle as seen at 4:32 a.m. in the Owl Circle video. It is unlikely that this vehicle was involved in the collision as it was in the right-hand lane 160 meters before the first set of tire marks.

[32] The Owl Circle video showed another single vehicle travelling south at 4:36 a.m. in the right-hand lane, which was after the 911 call. This vehicle cannot be the vehicle involved in the collision.

[33] The only vehicle travelling south in the left-hand lane 15 minutes before the police were dispatched was the vehicle seen at approximately 4:34 a.m. The Owl Circle video showed two vehicles travelling southbound at 4:33:58 a.m. The make and model of the vehicles cannot be ascertained from the video. The vehicle in the left-hand lane is a car length ahead of the vehicle in the right-hand lane.

[34] Kelvin Canono and Ms. Lubang called 911 at 4:35 a.m., approximately a minute after the two cars were seen on the video.

[35] I do not accept Kelvin Canono’s evidence that he just happened upon Mr. Canono after the accident. I found Kelvin Canono to be evasive when testifying and that he appeared to be trying to protect his brother. Kelvin Canono initially testified that the only people at Jahy’s house were Ms. Lubang, Jhay, and him. He did not say that Mr. Canono or Mr. Isanan were there. Only after being shown his preliminary inquiry transcript did he state that both Mr. Canono and Mr. Isanan were present.

[36] Kelvin Canono was less than forthright when dealing with the 911 operator and the police. When Kelvin Canono spoke to the 911 operator, he did not tell the operator that it was his brother in the vehicle but said that the person looked like he was a teenager. When asked if he tried to provide accurate information to the operator, he gave a rather strange answer. He said ‘sure’ but that he was not born here and didn’t know the procedure, and no one had taught him about his rights. He also did not give accurate information when the police stopped him as he walked away from the collision.

[37] I found Ms. Lubang to be somewhat more forthright in her evidence but she was also evasive. She testified that she saw Antonio Canono drinking but did not recall how much he drank. She did not recall if she and Kelvin Canono left the get-together at the same time as Mr. Canono and Mr. Isanan. She did admit that a car passed them on the road, but she testified that she did not know if it was Mr. Canono’s vehicle.

[38] Based on all the evidence, the only reasonable inference is that the vehicle in the left-hand lane in the Owl Circle video was driven by Mr. Canono and the vehicle behind it in the right-hand lane was driven by Kelvin Canono.

[39] I am also satisfied beyond a reasonable doubt that Mr. Canono was driving 105 km per hour 211 meters prior to the collision and was travelling significantly over the speed limit at the time of the collision. The speed limit in this area was 50 km per hour.

[40] In some cases, the police will be able to obtain the speed the vehicle travelled prior to the collision based on data obtained from the event data recorder inside the vehicle. In this case, the police did not have a tool that would provide access to the event data record in this type of vehicle. As such, the Crown called expert evidence to establish the speed at which the vehicle travelled.

[41] DC Misev was qualified to give opinion evidence on collision reconstruction including speed determination and scene evaluation, the collection and interpretation of physical evidence, and data from the collision scene. He has a BA in physical science and a minor in physics. He has also taken courses in police reconstruction and has testified as an expert three times in relation to velocity based on calculations from video surveillance. His math has been peer reviewed by an engineer and by the director of Nanoscience at the University of Guelph.

[42] He explained that the constant velocity equation is that velocity equals distance divided by time.

[43] By selecting a point A and a point B in the video, the video can be broken into individual frames. He determined that 8 frames elapsed in the time the vehicle in the left-hand lane passed between point A and point B. He explained that the frame rate is a series of images shown in sequence. However, the equation cannot be solved without knowing either the distance traveled or the vehicle’s velocity.

[44] DC Elson then drove a police van at 60 km per hour on the same road in the same lane that was recorded on the same video recorder. DC Misev determined that 14 frames elapsed from the time DC Elson drove between the same point A and point B. DC Misev explained that using the same points establishes that both the G35 and the police vehicle travelled the same distance.

[45] Putting in the known values of the police vehicle’s speed of 60 km per hour times the number of frames that it took the police vehicle to pass through point A and point B (14) and dividing by the number of frames the G35 took to pass through the same points (8), DC Misev calculated that the speed that the G35 traveled between point A and B was 105 km per hour. In coming to this conclusion, DC Misev relied on the assumption that the vehicle travelled at a constant speed between point A and B.

[46] Admittedly, DC Misev cannot say at what speed the vehicle travelled after it left the area captured by the video. However, the Owl Circle video depicted an area approximately 160 meters from the first observed tire mark and 211 meters from the severed hydro pole. The damage to the vehicle and the hydro pole also supports a finding that Mr. Canono was speeding significantly at the time of the collision.

[47] Based on all the evidence, I am satisfied beyond a reasonable doubt that Mr. Canono was driving at 105 km per hour shortly prior to the collision and was speeding significantly at the time of the collision.

Was Mr. Canono Racing?

[48] The Crown also urges the Court to find that Mr. Canono was racing. The Crown submits that the second car seen in the video, in the right-hand lane, was driven by Kelvin Canono. The Crown submits that the video evidence, Kelvin Canono’s omission of the fact that the driver in the collision was his brother, and the fact that Kelvin Canono provided false information to the police about his identity, supports an inference that Kelvin Canono and Mr. Canono were racing.

[49] As I have already stated, I find that the video taken at approximately 4:34 a.m. shows Mr. Canono driving the G35 in the left-hand lane and Kelvin Canono driving the vehicle in the right-hand lane.

[50] I think it is probable that Kelvin Canono and Mr. Canono were racing. However, when all of the evidence is considered, I am not satisfied beyond a reasonable doubt that the only reasonable inference to be drawn from the video and Kelvin Canono’s conduct after the collision is that Kelvin Canono and Antonio Canono were racing: see R. v. Villaroman, 2016 SCC 33, at paras. 32-34.

[51] This is not a case where the two vehicles were observed for a lengthy period of time. The Owl Circle video only shows the two vehicles for approximately a second. Mr. Canono’s vehicle in the left-hand lane is approximately a car length ahead of Kelvin Canono’s vehicle. Mr. Canono could have been passing Kelvin Canono’s vehicle as opposed to racing against each other. DC Misev did not give any evidence as to what speed Kelvin Canono was driving.

[52] There could also be other reasons why Kelvin Canono did not want anyone at the scene to know that he was Antonio Canono’s brother, such as fear of being accused himself even if he wasn’t racing, or hesitation to provide any evidence that could incriminate his brother. Alternatively, the omission could have resulted from being in shock at having seen the results of a horrific collision that his brother and very good friend were involved in.

[53] Ultimately, I am not sure that Mr. Canono was racing and therefore this is not a fact that I can considering when sentencing him.

Did an animal run across the road?

[54] Finally, I am not satisfied one way or the other that there was an animal on the road that night. Nor do I think that anything turns on whether I make this factual finding.

[55] I accept Kelvin Canono’s evidence that Antonio Canono told his brother immediately after the collision that he swerved or hit an animal. Mr. Canono made a similar statement to Mr. Cormier about swerving because he saw a squirrel. Mr. Cormier arrived shortly after the collision occurred and has no relationship with Mr. Canono.

[56] On the one hand, Mr. Canono made the utterance immediately after the collision when he was observed by Mr. Cormier as being “distraught and freaking out” and had little opportunity to concoct a story. On the other hand, there was no dead animal on the road. I do not find that evidence of there being a squirrel by the tree had anything to do with the collision. As a result, I cannot say one way or the other whether an animal ran out onto the road just prior to the collision.

[57] However, whether there was an animal or not has no real impact on sentencing in this case. As was explained to the jury, if other events such as an animal running across the road “so overwhelmed Mr. Canono’s driving as a cause that his driving merely became the background setting for the intervening cause to take effect, his driving is too trivial or insignificant to be a significant contributing cause of the collision.” In convicting Mr. Canono, the jury found that either there was no animal or if there was an animal that it was not a sufficient cause of the collision. The jury found that Mr. Canono’s driving was a significant contributing cause of the collision. That is a fact I must accept when sentencing Mr. Canono.

Victim Impact

[58] In sentencing, the Court must consider statements from the victims of the offence. Rachel Isanan, Mr. Isanan’s sister, provided a written statement that was made an exhibit at the sentencing hearing.

[59] The loss of Mr. Isanan to both Ms. Isanan and her family cannot be overstated. She described the shock and profound emotional trauma she and her family have suffered and will continue to suffer for the rest of their lives. As she explained, “there are no words to truly describe the sadness and grief myself and my family have been dealing with since it happened and it’s something I would not wish for anyone to ever experience. It is unbearable.”

[60] It is clear to me that Mr. Isanan was well loved by his family and that his death has had and will continue to have a profound effect on his family.

Circumstances of the Offender

[61] Mr. Canono is now 26 years old. He has no criminal record nor any driving infractions. He appears to be hardworking and family oriented.

[62] Mr. Canono was born in the Philippines and came to Canada in 2009 when he was 12 years old. He stated that he had a normal upbringing. Mr. Canono dropped out of high school to assist his family with household financial obligations. He has been gainfully employed since that time working in general labor and factories. He has worked at a manufacturing plant since 2022 and has the support of his employer.

[63] Mr. Canono started dating his spouse in 2018. They married in November 2020. They have a two-year-old son together and are expecting their second child in November 2023.

[64] Mr. Canono does not have any drug or alcohol problems. His spouse indicates that he might have one or two beers at family gatherings.

[65] Mr. Canono met Mr. Isanan through family connections in 2014. They became close friends. Mr. Isanan regularly attended family events. Mr. Isanan helped Mr. Canono, his brother and his father obtain employment.

[66] Mr. Canono has the love and support of his family. His mother described him as selfless and said she was willing to support him to the end. Several letters were filed in support of Mr. Canono that talked about his good character.

[67] In both the Pre-sentence Report and in Court, Mr. Canono expressed that he wished he had died instead of his friend.

Principles of Sentencing

[68] Sentencing is a highly discretionary and individual process. The Court must balance several factors concerning the offence and the offender having regard to the principles and purpose of sentencing.

[69] Sections 718 and 718.1 of the Criminal Code sets out the purpose and principles of sentencing. In determining the appropriate sentence, the Court must consider the principles of denunciation, general and specific deterrence, the rehabilitative prospects of the offender, restraint, restorative justice, and the promotion of responsibility in offenders.

[70] In cases of dangerous driving causing death and “over 80” causing death, the primary sentencing goals are denunciation and general deterrence: R. v. Altiman, 2019 ONCA 511, at para. 31, citing R. v. Ramage, 2010 ONCA 488, at para. 74. However, I am mindful that I am not to overemphasize these principles and cannot disregard the other sentencing principles including rehabilitation and the principle of restraint.

[71] Any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender: section 718.1.

[72] Section 718.2 instructs the Court to consider the aggravating and mitigating factors relating to the offence and offender; the sentence must be similar to offences imposed for similar offenders and must not be unduly harsh. The Court must consider other sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the community, and the offender should not be deprived of liberty if less restrictive sanctions are appropriate.

[73] In measuring the seriousness of the offence, the Court must also consider the maximum penalty for the offence. At the time of the offence, the maximum penalty for “over 80” causing death was life imprisonment. For the offence of dangerous driving causing death the maximum sentence was 14 years. That is the framework I must apply in determining the appropriate sentence. Parliament has since increased the maximum sentence to life imprisonment to reflect Parliament’s concern regarding the seriousness of dangerous driving.

Positions of the Parties

[74] The Crown submits that a sentence of six to seven years’ imprisonment concurrent on both counts is appropriate.

[75] The Crown also seeks an 8-year driving prohibition and a non-communication order pursuant to s. 743.21 of the Criminal Code.

[76] Counsel for Mr. Canono submits that an appropriate sentence is one of 3 years’ imprisonment, followed by a five-year driving prohibition. Counsel is not opposed to a non-communication order.

Sentencing Range

[77] The Supreme Court of Canada in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496 held that the sentencing ranges for impaired driving causing death and the offence of driving “over 80” causing death are quite broad because the offences can cover a broad spectrum of offenders and circumstances. Sentences range from “low penitentiary sentences of 2 or 3 years to more substantial penitentiary sentences of 8 to 10 years.”

[78] In Altiman, at para. 49, the Court of Appeal for Ontario recognized the sentencing range set out by the Supreme Court of Canada in Suter; then focused on the sentences imposed in Ontario. The Court of Appeal noted that there has been a move towards increased sentences over the past 20 years. The Court also considered that the frequency of the commission of an offence in a particular region can operate as a relevant factor when balancing the various sentencing objectives. After reviewing the relevant jurisprudence in Ontario, the Court of Appeal concluded that “since the turn of the decade, in this province sentences for impaired driving causing death typically have fallen in the four to six-year range”, unless the offender has a prior criminal record or driving offence record: at paras. 51, 60-61 and 70.

[79] Sentencing ranges are primarily guidelines. They are not hard and fast rules. The Court must tailor a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 60.

Case Law

[80] The Crown and Defence referred to several cases in their sentencing submissions. No two cases are the same. Sentencing decisions can always be distinguished on their facts. Nonetheless, the case law provides some assistance in determining the appropriate sentence.

[81] I have read all the cases filed by both sides, I will only refer to those cases that I found to be the most helpful and instructive in my analysis of what would be a fit sentence for Mr. Canono.

[82] In R. v. Ramage, 2010 ONCA 488, the Court of Appeal for Ontario upheld a trial judge’s sentence of four years’ imprisonment for impaired driving causing death, dangerous driving causing death, impaired driving causing bodily harm and dangerous driving causing bodily harm after a jury trial. The offender’s vehicle crossed four lanes of traffic and struck two oncoming vehicles. His BAC at the time of the collision would have been between 229 and 292. The Court of Appeal held that the offender was of exemplary character. The Court also noted that he would probably never forgive himself for killing his friend, that he was truly remorseful for his actions and that the deceased family forgave him.

[83] In R. v. Junkert, 2010 ONCA 549, the Court of Appeal for Ontario upheld a trial judge’s sentence of five years for impaired driving causing death and three years for dangerous driving causing death and a ten-year driving prohibition after trial. The offender drove significantly over the speed limit in a residential area; estimated between 90 and 93 km per hour in a 50 km per hour speed zone. The offender failed to navigate a turn and mounted the curb onto the sidewalk when he struck and killed a pedestrian. His car then continued and struck a streetlamp pole knocking it down. The vehicle was demolished. The offender’s BAC at the time of the collision would have been between 130 and 170. The offender had breached his bail and had made only minimal attempts to find employment.

[84] In Lacasse, the offender pleaded guilty to two counts of impaired driving causing death. The offender was speeding, impaired, and he lost control of a vehicle while entering a curve. His two passengers died instantly. The Supreme Court of Canada reinstated the trial judge’s sentence of six years.

[85] In R. v. Carreira, 2015 ONCA 639, the accused pleaded guilty to criminal negligence causing death. He drove a motorcycle the wrong way on a one-way street and killed his passenger. His BAC was 160. It was an early guilty plea. The Court of Appeal upheld a sentence of 6 years’ imprisonment and 10-year driving prohibition finding that the sentence “reflects the upward trend for sentencing involving drunk driving offences, a trend that corresponds to society’s heightened recognition of the need for sentences in these cases to focus on general deterrence and protection of the public”: at para. 26.

[86] In R. v. Eden, 2021 ONCA 733 the accused pleaded guilty to impaired driving causing death, impaired driving causing bodily harm and failing to remain at the scene. She was speeding 113 km per hour in an 80 km zone and her BAC was between 70 to 135. The accused had some mental health issues. The Court of Appeal upheld the trial judge’s sentence of five years’ imprisonment.

[87] In R. v. Osman, 2019 ONSC 327, the accused was found guilty of impaired driving causing death and criminal negligence causing death. He was driving home from a bar at a high rate of speed. While driving, the passenger grabbed the steering wheel. The vehicle jumped the curb and collided with a building. The accused’s BAC was between 100 and 124. The trial judge imposed a sentence of five years’ imprisonment.

Aggravating and Mitigating Factors

[88] In deciding the appropriate sentence, the Court must consider the relevant aggravating and mitigating factors.

[89] The aggravating factors in this case are obvious. Mr. Canono operated a motor vehicle with over 80 grams of alcohol in 100 ml of blood. He was travelling twice the speed limit in a residential area. The consequences of his actions were tragic. He killed his friend. Mr. Isanan’s family must bear the loss of Mr. Isanan because of Mr. Canono’s senseless actions.

[90] There are also mitigating factors. Mr. Canono is a young man with a family. He has no criminal record and no driving infractions. He is hardworking and has been gainfully employed since leaving high school in the tenth grade.

[91] He is married and has the love and support of his wife and his entire family.

[92] Mr. Canono did not plead guilty and therefore does not receive the benefit of that being considered as a mitigating factor. His decision to have a trial has no bearing on my sentencing decision. Mr. Canono did, however, express remorse to the Court. He stated that he often wishes that it was him who died instead of his friend. While the Crown submits that Mr. Canono lacks insight, I am not prepared to make that finding. I find that Mr. Canono has shown concern for what will happen when he is incarcerated, but I do not find that this detracts from the remorse that he showed for causing the death of his own friend.

[93] While I do not find that anything turns on this, I have decided not to give any weight to the evidence that Mr. Canono attended Mr. Isanan’s family residence the day after the collision to apologize as a sign of his remorse. Mr. Canono’s true motivation for attending at Mr. Isanan’s family home cannot be determined. He had not been charged yet and given the statement of Ms. E. Isanan it appeared that Mr. Canono attempted to downplay his role in the collision.

Other Factors

[94] There are other factors to consider when determining the appropriate sentence in this case.

[95] The Crown filed statistical information regarding the number of charges laid by Peel Regional Police for impaired driving and driving offences.

[96] The frequency of the commission of an offence in a particular region can be a relevant factor in sentencing. It is not an aggravating factor, but it is a factor the Court may consider when balancing the various sentencing objectives. However, consideration of this factor may not lead to a sentence that is demonstrably unfit: Lacasse, at paras. 89-90 and 93.

[97] There are limitations to the statistics provided. The information relates to charges laid and not convictions. Nonetheless, the number of charges is saddening. Between 2011 and 2021 police laid 781 to 1,532 charges of driving “over 80” annually. Each year there have been between 1 and 6 charges of impaired driving or “over 80” causing death.

[98] The organization MADD, various police campaigns, and highway signs remind everyone repeatedly: Don’t drink and drive. Yet approximately 1000 individuals in the community continue to do so each year. Deaths as a result of drinking and driving are totally preventable. People have a choice. Every time a person decides to drink and drive, they put not only themselves at risk of serious injury or death but other members of the community as well.

[99] With respect to dangerous driving, between 2011 and 2021 the Peel police have laid between 156 and 325 charges each year. Charges of dangerous driving causing death ranged from 2 to 21 annually which is equally disheartening. Driving is a privilege, not a right. Everyone who chooses to drive has a responsibility to drive in a responsible manner to ensure their own safety and the safety of others.

[100] The Court may also consider time spent under strict bail conditions as a relevant mitigating circumstance when sentencing, particularly where the accused has been under house arrest: R. v. Downes, at para. 33 (C.A.).

[101] The amount of credit to be given is within the trial judge’s discretion. It is not a mathematical formula. The Court should consider the period spent on bail, the stringency of the conditions, the impact of the offender’s liberty and the ability of the offender to carry on normal relationships, employment, and other activities: R. v. Adamson, 2018 ONCA 678, at para. 107.

[102] Mr. Canono was arrested on November 21, 2018 and spent one day in custody. He was then released on bail. As of May 12, 2023, Mr. Canono had been subject to his bail conditions for 53 months and 23 days (approximately 4.5 years). The Defence submits that Mr. Canono should be given 10 months’ credit for this restrictive bail.

[103] The Crown submits that it is within my discretion whether to give any credit and that if credit is granted it should be for no more than one or two months. See for example, R. v. Dodman, 2021 ONCA 543, at para. 13; R. v. Deidun and Bernard, 2022 ONSC 3014, at para. 155; R. v. Johnson, 2021 ONCA 257, at para. 40.

[104] The terms of Mr. Canono’s bail were not akin to a house arrest. He had a curfew from 9 a.m. to 6 a.m., unless he was in the presence of his surety or for medical emergencies. I accept that the curfew had some impact on Mr. Canono’s liberty as a young man who could not go out at night without his surety. He was, however, able to obtain employment and carry on meaningful relationships during this time. I do not agree with Defence counsel’s submission that this should result in a 10-month reduction in his sentence. While the bail provisions impacted his liberty, they did not do so in a significant manner.

[105] I am of the view Mr. Canono is entitled to some credit for the time he has been on bail. I have factored the time that he has spent on bail in formulating the appropriate sentence.

Appropriate Sentence

[106] As I have stated, driving is a privilege not a right. Members of society expect and deserve that those sharing the roads will not drink and drive and will drive in a reasonable and prudent manner to ensure the safety of everyone on the roads. That is why general deterrence and denunciation are important sentencing principles in these types of cases.

[107] However, while the principles of general deterrence and denunciation are important, the Court must also consider individual deterrence, restraint, and Mr. Canono’s rehabilitative prospects in determining what is a fit sentence. I find that Mr. Canono’s rehabilitative prospects are very good, particularly in light of the love and support he has from his family.

[108] After balancing all these factors, I do not find that a sentence of 3 years’ imprisonment appropriately addresses the relevant sentencing principles. These types of crimes are often committed by people such as Mr. Canono — persons who are generally good people with no criminal records but who nonetheless choose to drink and get behind the wheel of a vehicle and endanger the community.

[109] Having considered the relevant sentencing principles, the aggravating and mitigating factors in this case, as well as the time that Mr. Canono spent on bail pending his trial, I find that Mr. Canono should be sentenced to a period of 5 years’ imprisonment on each count to be served concurrently.

Ancillary Orders

[110] I am also making an order pursuant to s. 743.21 of the Criminal Code that Mr. Canono be prohibited from communicating with Thea Barredo and direct members of Mr. Isanan’s family.

[111] I am also ordering a 5-year driving prohibition following Mr. Canono’s term of imprisonment. As explained in Lacasse, where a driving prohibition is one of the conditions of bail but also part of a sentence imposed, the length of the pre-sentence driving prohibition must be subtracted from the prohibition imposed in the context of sentence. This order takes into account that Mr. Canono has already been prohibited from driving for 4 years.

Conclusion

[112] I realize that this sentence will not make Mr. Canono’s or Mr. Isanan’s family happy.

[113] No sentence can bring back Mr. Isanan. I hope that the family and friends of Mr. Isanan understand why I imposed the sentence that I did, even if they do not agree with it.

[114] Similarly, this sentence is not meant to crush Mr. Canono. It is meant to impose justice in a fair manner balancing the relevant sentencing principles.

Justice Dennison

Released: June 15, 2023