Court File and Parties

Court File No.: CR-22-10000673-0000 Date: 2024-06-26 Ontario Superior Court of Justice

Between: His Majesty The King – and – Ertug Direk

Counsel: Tom Goddard, for the Crown John Collins, for Ertug Direk

Heard: March 18 and April 19, 2024

Before: Himel J.

Reasons for Sentence

[1] Ertug Direk entered pleas of guilty to the following charges: dangerous driving causing death contrary to s. 320.13(3) of the Criminal Code of Canada, R.S.C., 1985, c. C-46 and fail to stop at the scene of an accident, causing death contrary to s. 320.16(3) of the Code. He had elected to be tried by a judge sitting alone.

[2] The plea inquiry pursuant to s. 606(1) of the Criminal Code was satisfied. Mr. Direk confirmed that he was entering these pleas voluntarily, that he understood that the pleas were an admission of the essential elements of the offences, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the pleas, and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence.

[3] Counsel have made their submissions on sentence which is essentially a joint position except for the issue of credit for pre-sentence custody. The following are my reasons for sentence.

Factual Background

[4] At about 3:13 a.m. on April 14, 2022, Ertug Direk, entered the driver’s seat of a Mercedes Benz AMG GT convertible motor vehicle located in an underground parking garage at 621 King Street West in Toronto. At the same time, a single male passenger entered the front passenger seat of the same vehicle. Mr. Direk was not the registered owner of this vehicle but was operating it with the owner’s consent.

[5] Video surveillance recordings establish that Mr. Direk drove this vehicle eastbound on King Street West and then northbound on Brant Street. After making a right-hand turn, he then travelled eastbound in the centre lane on Adelaide Street for one city block. At a speed in excess of the 40 km/hr posted limit, he then passed another eastbound vehicle which was travelling in the curb lane. Mr. Direk’s vehicle was travelling at a speed noticeably higher than the vehicle he passed in the curb lane.

[6] At the intersection of Adelaide Street and Spadina Avenue, Mr. Direk moved his vehicle in front of the vehicle in the right-hand curb lane and made a right turn from Adelaide Street on to Spadina Avenue southbound without bringing his vehicle to a full stop at a red light. At 3:15 a.m., the Mercedes entered the intersection of King Street West and Spadina Avenue, travelling southbound through a green light at an approximate speed of 109 km per hour. The posted speed limit on Spadina Avenue southbound is 40 km/hr. The road condition of Spadina Avenue at this time was wet.

[7] At a location approximately 50 metres south of this intersection, a pedestrian, Erin Yoxall, a 29-year-old female was attempting to cross Spadina Avenue eastbound from her location on the west side of Spadina. At this location, there is no intersection, no stop lights and no designated pedestrian crosswalk. Spadina Avenue is three lanes southbound, three lanes northbound and is bifurcated by two sets of TTC tracks for both northbound and southbound streetcars. There are cement barricades 7” deep and 12” wide on both boundaries of these streetcar tracks.

[8] When she entered the second lane from the curb of Spadina Avenue southbound and possibly the third lane from the curb, Ms. Yoxall was struck by the right front quarter of the Mercedes vehicle and thereafter the passenger side windshield. This projected her over the vehicle’s roof to where she landed on the road behind the point of collision, at this time striking her head on the pavement.

[9] In the report of the defence accident reconstructionist, Barry Raftery, of Raftery Engineering Investigations Ltd., the author concludes that at the time of the collision with the pedestrian, Mr. Direk had slowed his vehicle to between 59 and 63 km/hr if the point of impact was in the second lane from the curb, or between 70 and 75 km/hr if the point of impact was in the third lane from the curb. The expert witnesses were unable to determine from the video surveillance recordings whether the point of impact was in the second or third lane of the roadway, or at a point in between these two lanes.

[10] In the report of the Crown accident reconstructionist Detective Constable Aaron Putman, the author concludes that when travelling at a speed of 129 km/hr on a wet road, a driver reacting and braking his vehicle would need between 100 and 130 metres in order to come to a full stop. Both expert witnesses agreed that the point at which the Mercedes struck the pedestrian was about 50 metres south of the intersection of King Street and Spadina Avenue.

[11] Ms. Yoxall was taken by ambulance to St. Michael’s Hospital but succumbed to her injuries on April 16, 2022. The Post-Mortem Report lists the cause of death as blunt head trauma from injuries which included multiple skull fractures, facial and neck fractures, and bleeding from the brain. A companion Centre of Forensic Sciences Report established that at the time she was struck by the Mercedes vehicle her blood/alcohol concentration was 291 milligrams of alcohol in 100 millilitres of blood.

[12] Mr. Direk failed to remain at the scene of the accident. Video surveillance recordings establish that after the collision, the Mercedes continued travelling southbound on Spadina Avenue to the intersection of Wellington Street where it made a right-hand turn and travelled westbound. Thereafter, it travelled westbound on King Street West and made a right hand turn on to Dufferin Street. At about 3:20 a.m. on the same date, Mr. Direk arrived at 295 Dufferin Street and entered an underground parking garage at this address. Video surveillance recordings establish that after the Mercedes was parked, Mr. Direk exited the vehicle and surveyed the damage sustained to it which included damage to the passenger side front bumper, headlight, and windshield of the Mercedes vehicle.

[13] The video surveillance also establishes that Mr. Direk exited the underground parking garage by means of an elevator and returned the same way several minutes later. Mr. Direk then entered the driver’s seat of a different Mercedes vehicle which he then drove out of this parking garage.

[14] On April 16, 2022, the Traffic Services Division released to the media an image of the Mercedes vehicle and its driver captured from the April 14 video surveillance. On April 18, 2022, this Division provided a further press release advising that the authorities had located this vehicle. On April 18, 2022, Mr. Direk’s counsel spoke directly with Officers Philip Kumah and Zee Dhukai at the Toronto Police Service Traffic Services Division to schedule a date for Mr. Direk to surrender. The following day on April 19, 2022, Mr. Direk presented himself to the authorities at this Division located at 9 Hanna Avenue in Toronto. At this time, he was charged with dangerous driving causing death and fail to remain at the scene of an accident causing death.

[15] On the basis of these facts and the admission of the defence, I found Mr. Direk guilty on the charges of dangerous driving causing death and fail to remain at the scene of the accident, causing death.

Evidence at the Sentencing Hearing

[16] Crown counsel, Mr. Goddard, filed a copy of the Collision Reconstruction Report dated April 14, 2022, the Collision Reconstruction Supplementary Info dated April 14, 2022, the Report of Postmortem Examination prepared by Dr. Joel Ross dated April 19, 2022, and the Toxicology Coroners Case Analytical summary dated July 14, 2022. Crown counsel also submitted Mr. Direk’s criminal record as an exhibit. It consists of the following entries:

• November 8, 1993: In Youth court, possession of property obtained by crime over $1,000 (two counts) for which he received time served of 18 days and 12 months’ probation on each charge concurrent.
• January 6, 1994: In Youth court: theft over $1,000 and possession of property obtained by crime over $1,000: two months open custody and 1 year probation on each charge concurrent.
• February 1, 1994: In Youth court, possession of property obtained by crime over $1,000, fraudulent use of credit card, theft under $1,000, break and enter and theft and possession of property obtained by crime under $1,000: 6 months open custody and 18 months’ probation on each charge concurrent.
• May 12, 1994: In Youth court, possession of property obtained by crime over $1,000, possession of prohibited weapon and escape lawful custody: time served of 3 months and 18 months’ probation on each charge concurrent.
• June 22, 1994: In Youth Court, theft over $1,000 (2 counts), dangerous operation of motor vehicle, possession of property obtained by crime over $1,000 and escape lawful custody: 6 months secure custody and 18 months’ probation on each charge concurrent.
• May 30, 1995: In Youth Court, break and enter and theft, possession of property obtained by crime over $5,000 (two counts) for which he received 8 months secure custody and 4 months secure custody and one year probation respectively.
• May 16, 1996: In Youth Court, assault: 45 days consecutive to sentence serving and 19 months’ probation.
• September 2, 1997: In Youth Court, robbery: 3 months open custody and probation of 18 months and 6 months of pre-sentence custody and order prohibiting firearms.
• August 11, 1998: assault and fail to comply with probation order: 3 months on each charge concurrent in addition to 23 days of pre-sentence custody and s. 109 order for life.
• May 13, 1999: careless storage of firearm and possession of prohibited weapon: 47 days in addition to time served of 159 days on each count concurrent;
• September 29, 1999: traffic in Schedule I substance: 16 days and one year probation in addition to time served of 99 days.
• July 4, 2000: traffic in schedule I substance, fail to comply, obstruct peace officer: time served of 6 months and probation of one year.
• January 26, 2001: possession of a schedule I substance for the purpose of trafficking and possession of a schedule I substance: 3 months on each charge concurrent.
• March 27, 2002: possession of a prohibited firearm contrary to a prohibition order, possession of a restricted firearm with ammunition and possession of a prohibited weapon obtained by crime: 3 months in addition to time served of 9 months on each concurrent and a s. 110 order for 10 years.
• July 3, 2003: possession of a scheduled substance for the purpose of trafficking and possession of a scheduled substance: 1 day on each with credit for the equivalent of 2 years of pre-sentence custody and s. 109 order.
• January 7, 2005: dangerous operation of a motor vehicle, assault with a weapon and traffic in Schedule II substance: 239 days in addition to 8 months of pre-sentence custody and s. 109 order.
• September 15, 2005: Possession of a firearm or ammunition contrary to a prohibition order: 44 days in addition to 23 days of pre-sentence custody.
• February 11, 2009: possession of a Schedule I substance for the purpose of trafficking and possession of a Schedule III substance for the purpose of trafficking: 9 months on each charge concurrent in addition to 56 months of pre-sentence custody and s. 109 order.
• March 1, 2010: assault: suspended sentence and probation of 12 months in addition to 4 months of pre-sentence custody.
• April 27, 2011: fail to comply, obstruct peace officer and possession of a Schedule II substance: 90 days intermittent and probation and $1,000 fine on count 3.
• April 10, 2014: driving while disqualified: 50 days.
• January 23, 2015: living on avails of juvenile prostitution, attempt to procure to become a prostitute and exercise control for which he received 3 years s. 109 order, 1 year and 10 months and 15 days in addition to 5 weeks of pre-sentence custody.
• June 7, 2016: Conspiracy to traffic Schedule III substance and possession of ammunition: 5 years concurrent to previous sentence.

[17] Crown counsel submitted the driving record of Mr. Direk. It shows three drive while licence was suspended convictions in 1998, one speeding conviction at 123 km/h in a 90/km zone in 1998, fail to display plates, fail to have insurance in 1998, fail to surrender permit for motor vehicle and drive while suspended in 2001, fail to surrender permit and fail to have insurance in 2002, dangerous driving, driving while licence is suspended and speeding at 130 km in a 100 km zone, in 2005, driving while licence was suspended; in 2006, speeding 68 km in a 40 km zone and fail to produce driver’s licence, fail to surrender permit for motor vehicle and fail to have insurance card in 2011, driving while licence was suspended (twice) in 2012, dangerous driving in 2013 and drive while disqualified in 2014. In 2022, he was convicted of exceeding the speed limit.

[18] Crown counsel submitted a Victim Impact Statement from Rosanne Yoxall who is Ms. Yoxall’s mother. She also provided the court with some photographs of her daughter. The Victim Impact statement was read aloud to the court. The family resides in Scotland. Ms. Yoxall’s mother expressed that “our lives are shattered and remain unrecognizable”. She said that they have experienced a “myriad of emotions” and that they are “carrying the burden of immeasurable grief, anger, frustration and despair.” The family was contacted by Toronto Police on April 14, 2022, and told the devastating news. They spoke to a neurosurgeon who described that, as a result of being hit by the car, their daughter was thrown, landed on her head and this impact had caused a catastrophic brain injury and that there was “zero chance that Erin would recover from the injuries she sustained.” The parents travelled to Toronto and arrived to find their daughter in a lifeless state, and she shortly passed away. In accordance with their daughter’s wishes, they arranged for organ donation. Erin Yoxall was 29 years old and had completed her Master’s degree in Toronto and had plans to settle in Toronto.

[19] They were particularly affected by the fact that the driver had driven off and left their daughter in such a state. The legal process has been “traumatic, lengthy, stressful and cruel”. Their words are that this has been “devastating” and that “Erin leaves a massive void in our lives.” They are hopeful that one day they can remember happier times, Erin’s as a child, her many academic achievements and as the young woman she was becoming.”

[20] Counsel for Mr. Direk, Mr. Collins, filed “Raftery Engineering Investigations Ltd. Report” prepared on February 17, 2023, the records from the Toronto South Detention Centre outlining lockdowns, as well as an affidavit of Ertug Direk. Further, there is a health care record, a letter from Angela Calce dated August 9, 2022, a letter from Michael Marin dated November 2, 2022, a letter of Dr. Elghamari dated April 4, 2024, institutional records with blood glucose levels filed and emails from Angela Calce to Mr. Collins regarding Mr. Direk’s health issues in custody and a copy of the release order.

[21] Mr. Direk was arrested on these charges on April 19, 2022, following his surrender to police. He was released on February 23, 2023, with a recognizance in the amount of $50,000 and with the conditions of house arrest, with a requirement that he reside at 194 Pleasant Avenue in North York and be in his house except for attending medical appointments, court, or appointments with his lawyer provided that he was in the presence of his surety who was Shayabn Afshar. Mr. Direk was also placed on electronic monitoring and was subject to other conditions. On October 31, 2023, he was charged with other offences and consented to a cancellation of bail on these charges. He has been detained since that time, almost entirely at the Toronto South Detention Centre.

[22] The lockdown records summarize the period from April 21, 2022, until April 11, 2024, when Mr. Direk was incarcerated at the Toronto South Detention Centre less the time that he was released on bail. They show 91 lockdowns during this period which were either partial or full and which were caused by either isolation protocols or staff shortages. The institution indicated that during lockdowns, inmates are given 30 minutes to complete phone/shower and in some cases going out to the yard. Only two inmates are housed per cell at the Toronto South Detention Centre.

[23] Mr. Direk stated in his affidavit that, as of the date of swearing it, he had been in pre-trial detention for 483 days or just over 16 months and that for 196 days, the institution was in full or partial lockdown. He said that conditions have been harsh, unhygienic and at times inhumane, especially during the extensive periods of lockdown. He says during those days, he had no access to showers, telephones, common areas or the outdoor yard and no visits from family or his lawyer. He said that many problems are due to lack of staff and inmate overcrowding which leads to stress and tension and that many abuse illicit narcotics within the incarceration.

[24] Mr. Direk suffers from diabetes, asthma, orthopedic issues including pain and mobility, an untreated hernia and long-standing severe sleep apnea for which he is dependent on a CPAP machine. He says when he is unable to use the machine, he has “difficulty breathing and significantly interrupted sleep causing fatigue, nausea and mental distress.” He was cross-examined on his affidavit by Crown counsel. He has suffered from diabetes and asthma for over ten years. In addition, he has orthopedic issues which cause pain and mobility problems because of a bulging disc and injury to his back. The sleep apnea problem was referenced by Justice McMahon in a case in 2015 when he had served time in penitentiary in British Columbia where he used the CPAP. When he surrendered to police on this case, he knew he needed a CPAP and brought it with him. However, it took two weeks to get the machine approved by security. The issue was an extension cord which he required so he could use the machine.

[25] Mr. Direk explained that he did not attend at a doctor regularly because he did not have his health card. He has had his machine in custody but the mask broke and it took a while to obtain a replacement which his partner handled and brought to the institution. On November 19, 2022, he had a problem with the cord and the institution obtained a new one but not until February 9, 2023. During this time, he experienced vomiting, shortness of breath, chest pain and headaches and requested medical attention. He also requested medical attention for nausea, blood in his stools and constipation attributed to the untreated hernia. He says that he has been deprived of CPAP cleaning kits and air filters for the machine and the unhygienic conditions result in nausea, interrupted sleep, and mental distress.

[26] Following his arrest on October 31, 2023, when he was returned to the Toronto South Detention Centre, he was not given his CPAP machine until November 8, 2023, which resulted in his admission to North York General Hospital on November 1, 2023, due to compromised breathing. As for the treatment of diabetes, he requires injections but did not receive his first until June 1, 2022, putting him at risk. He has not been able to manage his blood/glucose readings which have been registering between 10 and 15 and even as high as 23, 29 and 33 when a normal reading is 6 or 6.5. He says he would normally take blood/glucose readings twice daily but could not during incarceration.

[27] On January 6, 2023, Mr. Direk was removed from the cell and placed in isolation because his cell mate had unauthorized possession of a cell phone. He says he was not cleared of misconduct until January 10, 2023, and not released from isolation until January 13, 2023. The isolation cell smelled of urine and feces. He requested medical attention on January 7, 2023. He contracted COVID 19 on February 13, 2023, but is not vaccinated for it. He was placed in isolated medical segregation for 14 days but when he returned to the general population, he was not able to use his CPAP machine because it emits the user’s breath.

[28] He also said in his affidavit that he has only had five inmate clothing changes since his arrest on October 31, 2023, because of his size and although he was to have a lower bunk to accommodate the cord for his CPAP machine, he was forced to sleep on the upper bunk and ended up putting the mattress on the floor.

[29] The health records filed confirm Mr. Direk’s conditions of diabetes, sleep apnea requiring a CPAP machine, his requests to see doctors and his attendance at the emergency department overnight at North York General Hospital on November 1, 2023, when he was suffering from some dizziness, mild chest heaviness and headaches.

[30] Mr. Collins submitted a letter from Ms. Calce which is undated but was filed at the bail application on February 23, 2023. She is Mr. Direk’s partner and the mother of three children. They have been together for 18 years.

[31] Mr. Direk made a statement in court expressing his apologies and stating his remorse. He is taking responsibility for his actions. He said he wishes he could take it back and he did not set out on this night to do this, and he is so sorry for what he has done.

Positions of the Parties on Sentence

[32] The Crown and defence join in their submission to the court that an appropriate sentence in this case is one of 4.5 years imprisonment. They both agree that Mr. Direk should receive credit for pre-sentence custody. However, they disagree on the amount of credit.

[33] Crown counsel submits that credit should be at 1.5:1 in accordance with R. v. Summers (2014), 2014 SCC 26, 308 C.C.C. (3d) 471 (S.C.C.). Counsel argues that in accordance with Summers and R. v. Duncan, 2016 ONCA 754, one of the factors is whether the pre-trial conditions are particularly punitive. It is highly discretionary whether the sentence should be reduced.

[34] Crown counsel asks the court to impose ancillary orders of a driving prohibition for life and an order that a sample of Mr. Direk’s DNA be taken. The defence does not oppose the DNA order.

[35] Mr. Goddard, on behalf of the Crown, highlights that the aggravating factors are (1) the moral blameworthiness of the offences: that a driver commits the offence of dangerous driving causing death by driving approximately 130 km in a 40 km zone and speed is the basis of the dangerous driving. Here, not only did Mr. Direk drive in such a dangerous fashion but he drove off after a young woman was hit and went over the windshield of the car; (2) Mr. Direk has a terrible criminal record with 53 prior convictions. This will be his third for dangerous driving. He had 22 convictions while a youth and received nine months of custody. He was also sentenced for firearms and drug offences and received a five-year sentence. (3) Mr. Direk’s driving resulted in the death of a young woman and he has caused sorrow to her family and friends.

[36] The mitigating factor is that after the vehicle was found, Mr. Direk turned himself into police and he has pleaded guilty. It would have been extremely difficult for the family to endure a trial.

[37] With respect to the issue of credit for pre-sentence custody, Mr. Goddard highlights that at the time of the sentencing hearing, according to the institution’s records, there had been full and partial lockdowns for a total of 91 days. On some occasions, he was in lockdown two- or three-days consecutively. Counsel accepts that when there is a lockdown, the inmate cannot take a shower but says he can on the next day. Crown counsel asks the court to assess the records for this individual in this case.

[38] As for his medical conditions, Mr. Goddard submits that, clearly Mr. Direk has medical conditions which impact on him, but he has had them for a long time. Seeking extra credit for his medical conditions is not appropriate as they predated his incarceration and whatever harsh conditions or difficulties, he has from being in custody were not enough to deter him from staying out of the criminal justice system. This goes back to the issue of moral blameworthiness. For example, there is no evidence that he was doing better at home with his blood sugar readings than he is in custody. There is no information about his hernia condition and that incarceration has created a bigger problem for him. He has his CPAP machine although he would have liked to get it sooner. He says that because he did not have a health card, he could not get treatment sooner. Crown counsel points out that the letter from Ms. Calce filed at the bail review does not say that Mr. Direk was at risk or danger in custody.

[39] In summary, Crown counsel submits that it is discretionary how much, if any, credit should be given for what are alleged to be harsh conditions of pre-sentence custody. He suggests that any extra credit should be no more than one month. The impact of the conditions in jail are the natural consequence of being in custody. Again, as for medical treatment, he says the jail is doing the best they can. They sent Mr. Direk to the North York General Hospital when he required specialized treatment. The fact that it is difficult for Mr. Direk, does not mean that the facility is not doing a good job.

[40] Relying on R. v. Marshall, 2021 ONCA 34, Mr. Goddard submits that if the credit for pre-sentence custody devours the sentence, the sentence would be unfit. As for credit in accordance with R. v. Downes, (2006), 79 O.R. (3d) 321, 205 C.C.C. (3d) 488 (C.A.) as requested by the defence, again, Crown counsel submits that any further credit is discretionary and that it has been considered in the balancing of the aggravating and mitigating factors in reaching the sentence already.

[41] The defence joins the Crown in the sentence of 4.5 years of imprisonment to be imposed but asks the court to consider the impact of lockdowns and conditions in the jail in terms of his medical needs in determining credit for the pre-sentence custody. Mr. Collins advises that the sentence proposed by counsel falls in the range of sentences for dangerous driving and fail to remain to which Mr. Direk has pleaded. Counsel points to the case of R. v. Bouchev, 2003 O.J. No. 3944 (C.A.), where the offender was speeding, ran two red lights and struck a 20-year-old. He had a horrendous driving record and licence suspensions. The Ontario Court of Appeal adjusted the sentence to 5 years of imprisonment. In R. v. Eden, 2021 ONCA 800, 2021 O.J. No. 5347, the offender collided with another vehicle, stopped at the intersection, and hit a motorcycle. The driver fled on foot and had 135 mg of alcohol in his blood. He was convicted of dangerous driving and fail to remain. The Court of Appeal upheld a sentence of five years.

[42] Mr. Collins submits that the cases are determined on their own circumstances but that the case at bar falls in this range. The joint submission is the result of extensive negotiations between Crown and defence which have led to the position of 4.5 years. Regarding the dangerous driving, counsel submits that there is an absence of the statutory aggravating circumstances set out in s. 320.22. None of those circumstances are present in this case.

[43] In the absence of aggravating circumstances and where there were some triable issues, the sentence ought to fall in the range proposed by counsel. As the Crown conceded, there are mitigating circumstances, namely, that Mr. Direk surrendered to police, he pleaded guilty and accepted responsibility for his actions. He has saved the court precious resources and he has avoided further trauma to the family of the deceased by having to endure a trial.

[44] Mr. Collins also points out that while Mr. Direk has a criminal record, the offences to which he has pleaded guilty can be distinguished. These were not planned or intended actions but arise from reckless criminal operation of a motor vehicle, that is, driving at 129 km in a 40 km/hr. zone on King and Spadina streets in Toronto. According to the expert, he had slowed to approximately 59 to 75 km /hr. but the speeds were all in excess of the speed limit. This would constitute dangerous driving. The further misconduct is that he failed to remain at the scene. When Mr. Direk left the garage on April 19, 2022, he did not intend to commit a crime. He accepts responsibility for his actions and has demonstrated remorse.

[45] On the issue of credit for presentence custody, at the outset he submits that Mr. Direk is entitled to Summers credit at the rate of 1.5:1 for each pre-trial day served. The issue is whether his pre-trial detention was sufficiently harsh so that it warrants enhanced credit in accordance with R. v. Duncan, 2016 ONCA 754.

[46] Because of lockdowns, Mr. Direk was denied access to showers, common areas, visits with family or his counsel. The operation of his CPAP machine was compromising his health as outlined in his affidavit. Because he suffers from diabetes, he requires medication, but his medication was administered intermittently. A safe range for his blood glucose level would be 6 to 6.5 but his levels were registering at 10 to 15. Counsel attempted to subpoena records of his blood glucose level but did not receive them. The institution was not taking his readings with any frequency.

[47] Mr. Collins referenced the experience on January 6, 2023, when Mr. Direk was removed from his cell and placed in isolation because a cellmate had unauthorized possession of a cell phone. The cell he was placed in reeked of urine and feces and there were feces on the wall of the cell. He was vomiting and unable to sleep. There was COVID-19 in the institution, and he could not use his CPAP machine. When he was placed in medical segregation, he was in an upper bunk, and he could not get access to a cord to operate his CPAP machine. Often, he was sleeping on a mattress on the floor.

[48] Counsel for the defence says that the Crown seems to be submitting that it is too much to expect a correctional facility to address medical conditions of inmates. The Ministry of Corrections does not take that position. The issue is not that the correctional facility cannot be expected to address an inmate’s health conditions but rather, the conditions in custody have exacerbated the situation. Mr. Collins submits that the institution has unremedied failures and in particular for those who are vulnerable with health conditions, such that enhanced credit is intended to recognize that. Mr. Direk has suffered from numerous infirmities that make him vulnerable which is more than the medically unencumbered inmate.

[49] The public and the Ministry of Corrections are already aware of the failures in the Toronto South Detention Centre. Mr. Collins quoted an article in the Toronto Star of April 16, 2024, which references a decision of Justice Molloy that inmates are held in windowless cells, restricted from religious services, telephone calls, fresh air, meetings with their lawyers until a lockdown is lifted. The Canadian public would be outraged. For these reasons, the defence position on pre-sentence custody credit is that for the 486 days (the amount of time he has served as of April 19, 2024), Mr. Direk was in 96 days of lockdown (full or partial).

[50] Counsel points to the case of R. v. Clarke, 2020 ONSC 3878, where Justice Kelly sentenced the offender to five years imprisonment for robbery and gun offences with 1.5:1 credit for 530 days of presentence custody for a total of 800 days and gave credit for harsh conditions in accordance with R. v. Duncan: see paras. 37 and 38. She cited, with approval, the case of R. v. Studd, 2020 ONSC 2810 on the issue of partial as opposed to full lockdowns. In Studd, Justice Davies wrote on this issue at para. 32: “It is not simply the number of hours that detainees are locked down that make the conditions at the TSDC intolerable. It is the persistence of the problem, the cumulative effect of repeated lockdowns and the unpredictability of how long any lockdown will last that causes unacceptable stress and tension for the detained.” Counsel for Mr. Direk takes this position.

[51] Mr. Collins also submits the case of R. v. Persad, 2020 ONSC 188 at paras. 36 and 53, where Schreck J. granted one half to one day for each day in custody. The question of enhanced credit for harsh conditions is discretionary and there is no mathematical formula. However, Mr. Collins says that for the 486 days in pre-sentence custody, in accordance with Summers at 1.5:1, he should receive 729 days of credit and he should receive 2 for 1 for the number of lockdown days which would be a credit of 392 days.

[52] Counsel for the defence also asks the court to grant credit in accordance with R. v. Downes for the period of February 23, 2023, until October 3, 2023, when Mr. Direk was on strict conditions of bail. In R. v. Donison, 2022 ONSC 741, Schreck J. at para. 59 wrote: “I note that “Duncan” credit is conceptually distinct from “Summers” credit in that it is a factor to be considered in determining an appropriate sentence rather than a deduction from the appropriate sentence: R. v. Marshall, 2021 ONCA 34 at paras. 51-52. However, it is not inappropriate to quantify a specific amount of time when determining the effect of harsh custodial conditions: Marshall, at para. 53. He then went on to consider Downes credit for time spent on restrictive bail conditions and awarded credit for both totaling, 14.5 months.

[53] Mr. Collins asks that credit be given for the time spent on restrictive bail which was house arrest and that he had to be in the presence of his surety at all times. For the time spent on bail, he asks that Mr. Direk receive one quarter to one third of the total time in accordance with Downes.

[54] In summary, counsel for the defence submits that the credit for Summers is 729 days and with the credit in accordance with Duncan and Downes that would total 1,203 days or approximately 40 months of pre-trial detention. Mr. Collins says that Mr. Direk is already serving his sentence and being punished appropriately, and the conditions cannot be ignored.

[55] As for the driving prohibition, counsel for the defence asks the court to impose a 10-year prohibition given the guilty pleas and that there were no aggravating features as set out in s. 320.22 of the Code.

Analysis and the Law

[56] Before turning to the specific circumstances of this case, I first consider the general sentencing principles which apply. The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code. It is to ensure respect for the law and to promote a just, peaceful, and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section. They are denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.

[57] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh. The offender should not be deprived of liberty if less restrictive sanctions are appropriate and all available sanctions other than imprisonment, that are reasonable in the circumstances, should be considered for all offenders, particularly Aboriginal offenders.

[58] I now turn to the relevant legislative provisions and jurisprudence on sentencing applicable to the offence in this case. The Criminal Code provides as follows:

s. 320.21 Every person who commits an offence under subsection 320.13(3) 320.14(3), 320.15(3) or 320.16(3) 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.

[59] While the penalty for dangerous driving causing death and for fail to remain causing death has a maximum sentence of life imprisonment, the sentences imposed can range dramatically depending on the circumstances of the offence and of the offender. However, the jurisprudence emphasizes the objectives of denunciation and deterrence, particularly, where the offender has a poor driving record or criminal record. Section 320.22 outlines aggravating circumstances for sentencing purposes which apply where, for example, there are multiple deaths or bodily harm to more than one person or the offender had a blood alcohol concentration of or more than 120 mg. of alcohol in 100 ml of blood. Those circumstances do not apply in the case at bar.

[60] The offence of dangerous driving causing death involves driving in a manner that was a marked departure from the standard of care that a reasonable person would observe in the situation. Excessive speeding can be deemed a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited: R. v. Chung, 2020 SCC 36, 443 D.L.R. (4th) 303 (S.C.C.). The offence of failure to stop after an accident involves knowing that or being reckless as to whether the accident resulted in the death of any other person or in bodily harm to another person whose death ensues.

[61] In the case of R. v. Linden, [2000] O.J. No. 2789 (C.A.), while the case involves the appropriateness of a five-year sentence for criminal negligence causing death, the Court of Appeal made comments that are also applicable to the offences before me.

[62] The court wrote at paras. 2-3 as follows:

The cases demonstrate that criminal negligence causing death can be committed in so many different ways that it defies the range-setting exercise. The cases do not demonstrate a range, only a series of examples that are driven by the almost infinite variety of circumstances in which this offence can be committed. As counsel for the appellant submitted, cases can be found in the reformatory range and there are even examples of suspended sentences.

The only principle that can be stated with assurance concerning this offence is that, where the offence involves not only reckless driving conduct but the consumption of alcohol, the sentences have tended to increased severity over the past twenty years. Otherwise, the particular offence is very much driven by individual factors, especially the blameworthiness of the conduct. The more the conduct tends toward demonstrating 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.

[63] In R. v. Boukchev, [2003] O.J. No. 3944 (C.A.), the court allowed a Crown appeal of a sentence of 21 months’ imprisonment and a five-year driving prohibition for dangerous driving causing death and fail to remain at the scene of an accident. The offender ran over and killed a pedestrian while running a red light. The victim was 20 years old and had been dragged by the car. Boukchev fled the scene and was later arrested. The offender was 52 years old and had a lengthy criminal record of driving offences as well as careless driving and seven convictions for driving while suspended or disqualified and a previous conviction for impaired driving. He had an odour of alcohol on his breath detected by the investigating officer. He had pleaded guilty to the charges. On appeal, the court held that the sentence by the trial judge was demonstrably unfit and that it did not achieve an appropriate level of denunciation and deterrence. The appellate court imposed a sentence of four years and three months and a lifetime driving prohibition was substituted.

[64] In R. v. Regier, 2011 ONCA 557, [2011] O.J. No. 3749 (C.A.), the court upheld a sentence of six years imposed by the trial judge where the appellant had a lengthy driving record involving 25 highway traffic infractions over 28 years and was charged with careless driving in the same location two years after this accident. As a result of the driving in the case before the court, two young people were killed, and the driver of another vehicle was seriously injured because of the aggressive driving of the appellant. He was sentenced on two counts of dangerous driving causing death and one count of dangerous driving causing bodily harm. The court cited the decision of Boukchev, supra and quoted at para. 6 as follows: “…sentences have tended to increase in severity for these types of offences because of the heightened recognition of the need for general deterrence and protection of the public’. The court did not mention whether alcohol was involved in its endorsement.

[65] Many of the cases of dangerous driving causing death or fail to remain involve some level of alcohol consumption in the context of the driving. In the case of R. v. Laine, 2015 ONCA 519, [2015] O.J. No. 3619 (C.A.), the appellant was 21 years old at the time of the offences, no drugs or alcohol were involved, he was a first offender and he had made some effort at rehabilitation. The court reduced the sentence imposed by the trial judge of four years as she had overemphasized denunciation and deterrence and substituted a sentence of two years less a day. There, the offender was driving on a poorly marked road with friends, drove quickly to give them a thrill on the hills, lost control, flipped and crashed into a pole killing two friends and injuring another seriously.

[66] In R. v. Lam, [2003] O.J. No. 4127 (C.A.), the Ontario Court of Appeal dismissed the Crown’s appeal and upheld a sentence of two years less a day followed by three years’ probation and a lifetime driving prohibition for criminal negligence causing death. There, the offender was speeding on a busy six lane highway in a commercial area at one of the busiest times of day and was engaged in a “show of speed” with another car. The offender suffered a brain hemorrhage, and the victim was a 29 year old mother of two young children. The court cited Linden, supra, noting that there is no set range for the offence of criminal negligence causing death offence but that driving offences involving reckless conduct and consumption of alcohol are generally subject to more severe sentences and said at para. 10: “…In addition to the consumption of alcohol or drugs, courts have also treated multiple deaths, racing, reckless driving for a lengthy period of time, a lengthy criminal record, a bad driving record, flight from the police, and leaving the scene of the accident as aggravating circumstances.” In upholding the sentence, the court commented that the consequences of the offences were tragic but that the sentence imposed was not so inadequate that the interests of justice require the court’s intervention. The court wrote that the trial judge’s sentence was entitled to appropriate deference, and that the sentence was not demonstrably unfit in light of the otherwise good character of the offender and favourable pre-sentence report.

The issue of credit for pre-sentence custody

[67] In the case of R. v. Summers, the Supreme Court held that the “circumstances” justifying enhanced credit under s. 719(3.1) of the Code permits a judge to credit pre-sentence custody up to a maximum of 1.5 to 1 for each day in pre-sentence custody, where in considering all relevant circumstances, “enhanced credit” is necessary to achieve a fair and just sanction. Lack of remission and loss of early release will generally be a sufficient basis to award credit at the rate of 1.5 to 1 even if the conditions of detention are not particularly harsh. The court concluded that a rule that resulted in longer sentences for offenders who do not obtain bail compared to otherwise identical offenders would be incompatible with the sentencing principles of parity and proportionality.

[68] In R. v. Duncan, the Ontario Court of Appeal held that in appropriate circumstances, particularly harsh presentence incarceration conditions, enhanced credit may be given for harsh conditions in the jail during pre-sentence custody and the impact of those conditions on the accused: see para. 6. In R. v. Marshall, however, Justice Doherty wrote at para. 52:

Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[69] There is considerable jurisprudence on the impact of harsh conditions of pre-sentence custody and courts have expressed concern about the number of lockdown days and the conditions of incarceration at the Toronto South Detention Centre in particular: see R. v. Persad, 2020 ONSC 188; R. v. Spicher, 2020 ONCJ 340 at paras. 59-68; R. v. Jama, 2021 ONSC 4871 at paras. 51, 53, 55. In R. v. Steckley, 2020 ONSC 3410, Justice Kelly gave 10 months of Duncan credit where the accused spent 132 days in lockdown with 57 days during the pandemic. In R. v. Clarke, she awarded credit of 10 months for harsh pre-sentence conditions. In R. v. Baldwin, 2021 ONSC 7025, Maxwell J. deducted one year for harsh circumstances involving 124 days in lockdown.

[70] This case also raises the issue of the medical care that Mr. Direk received while in custody at the Toronto South Detention Centre. I have considered the jurisprudence on this issue from the Court of Appeal and the Superior Court of Justice. The court will require some form of evidence supporting the claim of inadequate care, which the court can accept or reject. If the court accepts the evidence, it will be considered in mitigation of the sentence.

[71] In R. v. Green, 2021 ONCA 932, the court considered that the trial judge reviewed the appellants’ affidavit and his viva voce evidence at the sentencing hearing as well as his extensive medical records which she rejected. The court wrote at para. 19: “In the end, she was not satisfied that the appellant’s pre-sentence incarceration, including his time spent in lockdown, warranted being treated as mitigating on his sentence, and therefore did not justify a further enhanced pre-sentence credit beyond the 1.5 to 1 basis. Her exercise of discretion is entitled to deference. We see no basis to interfere.”

[72] Generally, the amount of credit for failure to receive appropriate or timely medical care has been considered in the overall assessment of the impact of harsh conditions of presentence custody: see for example, R. v. McEwan, 2023 ONSC 1608 where Di Luca J. considered that the offender suffered an injured finger while in custody, there was delay in gaining access to medical attention, the offender said he was in constant pain and the court granted six months’ credit for the harsh conditions experienced in the 315 days spent in custody. R. v. Williams, 2022 ONSC 3080, where the offender suffered from urinary issues while in custody, the court found the initial response to his problem was inadequate and the court considered the health issue and institutional response as mitigating: at para. 19. Justice Goldstein did not state how much credit was being given for this issue in particular, nor how much Duncan or Marshall credit was being given.

[73] In R. v. Ellison, 2023 ONSC 6843, Forestell J. wrote at paras. 34 and 35:

It is not disputed that Mr. Ellison has been in custody under punitively harsh conditions. He has spent almost 10 months in harsh lockdown conditions that have impacted his physical and mental health. His pre-existing medical condition has made this period of detention even more onerous.

Having the relevant factors and principles of sentencing and taking into account the exceptionally harsh conditions and their impact on this offender, I am satisfied that the otherwise appropriate sentence of eight years should be reduced by six months to a sentence of 7.5 years to reflect the mitigation for harsh conditions.

The issue of credit for restrictive bail conditions

[74] In the decision of R. v. Downes, Rosenberg J.A. on behalf of the Court of Appeal, held that time spent while on stringent bail conditions is a relevant mitigating factor that a sentencing judge must consider at para. 37.

[75] In considering the terms of release pending sentence, the court is to look at the factors of the length of time on bail subject to the conditions; the stringency of the conditions; the impact on the offender’s liberty; and the offender’s ability to carry on normal relationships, employment, and activity. The judge has discretion to determine the impact of such mitigation. There is no set formula for credit.

[76] In R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, the court wrote at para. 108:

The propriety of treating “stringent bail conditions, especially house arrest”, as a sentencing consideration was affirmed in R. v. Downes (2006), 79 O.R. (3d) 321, 205 C.C.C. (3d) 488 (C.A.), at para. 33. Although it is not uncommon to speak of providing “credit” for stringent bail conditions, “pre-trial bail is conceptually a mitigating factor” in assessing a fit sentence: R. v. Panday (2007), 2007 ONCA 598, 87 O.R. (3d) 1, [at para. 28]. Mitigation is given because stringent bail conditions can be punitive and therefore “akin” to custody: Downes, at para. 29. The criteria to be considered in assessing the weight of the mitigation to be given therefore include the amount of time spent on bail conditions; the stringency of those conditions; their impact on the offender’s liberty; and the ability of the offender to carry on normal relationships, employment, and activity: R. v. Place, 2020 ONCA 546 (C.A.), at para. 20. The mitigating effect that such considerations have on the sentence to be imposed falls with the discretion of the trial judge: Downes, at para. 37. However, where a trial judge places unreasonable emphasis on any mitigating factor, appellate intervention is warranted: Lacasse, at para. 49. The same holds true in the case of mitigation for strict bail conditions. We are persuaded that the trial judge exercised his discretion unreasonably when sentencing Mr. Joseph by giving excessive weight to the bail conditions he was under.

Result

[77] Sentencing involves the exercise of discretion and requires the sentencing judge to consider the individual circumstances of the offender, the circumstances of the offence and the need for the sentence to meet the sentencing objectives outlined by Parliament. The goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence: see R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455 at para. 44.

[78] What occurred on April 14, 2022 had extraordinarily tragic consequences for Erin Yoxall and her family. She and her family and friends lost out on so much by having her life cut short in these circumstances. The criminal justice system cannot right the wrong that occurred by undoing these events nor can a sentence compensate for the loss of Erin Yoxall’s life. A sentence must reflect the principles of sentencing set out in our Criminal Code and take into account the specific circumstances of the offence and the specific circumstances of this offender. The following is what I deem the appropriate result in this case, taking these issues into account.

[79] In considering both the circumstances of the offence and the circumstances of this offender, I consider the relevant aggravating and mitigating circumstances. I must also consider that like offenders should be treated alike. In the case of Mr. Direk, I consider the following circumstances to be relevant:

1. Mr. Direk is 44 years of age. He was born on September 20, 1979, in Cyprus and moved to Canada at the age of 8 years. He is a Canadian citizen.
2. Mr. Direk completed his high school education and enrolled in some college courses. He has been employed in construction. A letter prepared on November 2, 2022 stated that he had been working for Three Brothers doing fencing for commercial and residential properties. He was doing site inspections, corresponding with customers, and reviewing job details.
3. Mr. Direk has been in a relationship with Angela Calce for 18 years and they have three sons. He has been a support to her and the children over the years. She said in her letter that he had changed since he was released from jail in 2018 which she believes was due to the programs in the federal penitentiary. Her emails also discuss Mr. Direk’s medical needs and her requests to counsel to have these conditions treated at the jail.
4. Mr. Direk has a number of medical problems which were listed by Dr. Elghamari in a letter dated April 4, 2024. They are diabetes, severe sleep apnea, high cholesterol, fatty liver with abnormal liver enzymes and morbid obesity. He needs regular blood sugar checks and lab tests and should see a doctor regularly as well as a special program for diet and examination of his eyes and his liver. I note from the health records filed from the prison that the prison authorities took him to the hospital or had a doctor see him at the jail when necessary and have prescribed and administered the medication needed.
5. Mr. Direk entered a plea of guilty and has demonstrated his remorse. He has saved valuable court time.
6. Mr. Direk’s criminal record is detailed above. It begins as a Youth record for possession of property obtained by crime, assault, possession of firearms and then as an adult for trafficking in controlled substances and dangerous operation of a motor vehicle, drive while disqualified, living on the avails and conspiracy to traffic in a Schedule III substances. The last sentence was for five years of imprisonment in addition to pre-sentence custody.
7. Mr. Direk’s driving record was outlined above and began in 1998 with two dangerous driving offences, speeding and several drive while disqualified convictions through to a conviction for speeding in 2022.
8. Since his arrest on April 19, 2022 and until February 23, 2023, he was detained mainly at the Toronto South Detention Centre. He was released on a strict house arrest bail with electronic monitoring but then reincarcerated on October 31, 2023, and has remained in custody until today’s date. The details of his time spent at the Toronto South Detention Centre and the conditions of his incarceration are outlined above.
9. The lockdown summary from the Toronto South Detention Centre lists 91 full or partial lockdowns during the period to April 2024. Mr. Direk swore an affidavit which says that he was in lockdown for 196 days. This was not challenged by the Crown in cross-examination. As the records do not cover the period of April to June 2024, I will consider both pieces of evidence and deem the number of lockdowns to be 144.

[80] With respect to the circumstances of the offences, Mr. Direk was convicted of extremely serious crimes. As a result of his driving, he caused the death of Erin Yoxall, an accomplished 29-year-old woman who was crossing the road against a traffic light. He was travelling at such a speed that he could not reduce his speed in time to avoid hitting her. The egregious conduct of leaving the scene without checking on the consequences of his driving and the condition of the victim after he struck her, show the highest of moral blameworthiness.

[81] There is not evidence filed regarding programs that Mr. Direk has attended while in custody.

[82] The Victim Impact Statement describes the terrible pain and loss that Erin Yoxall’s family have endured as a result of her untimely death. There is a profound sense of loss following this tragic event. Unfortunately, no sentence will undo the wrong nor fill the void that has been created.

[83] The jurisprudence emphasizes that general deterrence and denunciation are of paramount concern for offences of this kind. However, the cases also recognize that each case must be considered in light of its circumstances and the aggravating and mitigating factors, and that rehabilitation and the other purposes of sentencing must also be considered.

[84] As stated above, there is no set range of sentence for the offences of dangerous driving causing death and fail to remain causing death. As the Court of Appeal has said and is outlined above, the more the conduct tends toward demonstrating 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 needed. In the case at bar, on the one hand, there was no evidence of consumption of alcohol. The circumstances of the speeding, the previous criminal record and even more important, the horrendous driving record are aggravating circumstances. They show complete disrespect for the law. Furthermore, Mr. Direk’s moral blameworthy conduct following the collision where he did not check on the condition of the pedestrian that he struck is an aggravating factor. It cannot be said that this offender was of an impeccable background or of previous good character and that there is evidence of prospects for rehabilitation which would have been mitigating factors.

[85] In the case of R. v. Anthony Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, the Supreme Court of Canada considered the effect of a joint submission on sentence from Crown and defence counsel where the trial judge departed from the joint submission. There, Justice Moldaver on behalf of the court set a high threshold for a court to deviate from a joint submission, namely, that the sentence proposed would bring the administration of justice into disrepute or that it is contrary to the public interest.

[86] In the case at bar, counsel submit that the sentence satisfies the sentencing principles. I am very mindful of the words of Justice Moldaver in Anthony-Cook where he explained that there is good reason for acceding to the joint submission of counsel as both the accused and Crown counsel rely on joint submissions for certainty in the resolution of a case. Joint submissions play a vital role in contributing to the administration of justice and, “Without them, our justice system would be brought to its knees, and eventually collapse under its own weight”: at para. 41. In my view, this joint submission is made by experienced counsel who have arrived at a resolution which is fair and consistent with the public interest, and I endorse it.

[87] Accordingly, I am of the view that an appropriate sentence in this case is a sentence of four and one-half years’ imprisonment for the offence of dangerous driving causing death and four and one half years for the offence of fail to remain causing death to be imposed on a concurrent basis. This sentence meets the objectives of general deterrence and denunciation and reflects society’s abhorrence of this type of crime and its devastating consequences to those specifically affected and to the community at large. It also balances the possibility of rehabilitation, that Mr. Direk may be productive in the remaining years of his life as against those objectives. The sentence, in my view, considers his age, his background and his criminal and driving record.

[88] I turn to the issue of credit for pre-sentence custody. I apply the provision of s. 719(3.1) as now interpreted by the Supreme Court in Summers and the evidence before me concerning the conditions of Mr. Direk’s incarceration since the date of arrest. In these circumstances, I exercise my discretion and award him enhanced credit of the maximum of 1.5 to 1 for each day spent in pre-sentence custody as I am satisfied that “the circumstances justify it”. Crown counsel concedes that credit of 1.5:1 is appropriate for time in pre-sentence custody.

[89] I now consider the issue raised by the defence and opposed by the Crown that, in addition to credit on a 1.5 to 1 basis in accordance with s. 719(3), there should be further mitigation in Mr. Direk’s sentence because of the circumstances of his pre-sentence detention. There is no doubt that during Mr. Direk’s incarceration at the Toronto South Detention Centre he has been subject to many lockdowns which have resulted in limited access to showers, telephones, visits, yard access and meeting with counsel. I agree with Justice Kelly’s comments in Clarke and Justice Davies in Studd, that although many of the lockdowns were partial as opposed to full, there is still the stress and tension for the inmate regardless. And, as Justice Kelly wrote, there is no mathematical formula to determine the amount of credit, but the message must be sent that inmates awaiting trial should not be punished with harsh conditions.

[90] In the case before me, the issue of harsh conditions is complicated by the fact that Mr. Direk has several medical conditions. He has provided evidence of these conditions through his own affidavit and some medical records from the jail. The medical ailments include diabetes, orthopedic issues, asthma, an untreated hernia, and sleep apnea. On the evidence filed, I find that the institution has been responsive to his medical needs with the exception that there has been some delay in replacing or repairing equipment for the CPAP machine or, for a period of time, accommodating him with a bottom bunk to allow the extension cord to reach his machine which he clearly requires for sleep apnea. I factor this into the overall assessment of the impact of harsh presentence conditions at the Toronto South Detention Centre. I have determined that for numerous lockdowns and the impact of lockdowns on Mr. Direk including the treatment for Mr. Direk’s pre-existing medical conditions, he is granted .5 days for each day of lockdown that I have accepted which is 144.

[91] As for credit for restrictive bail conditions, Mr. Direk was on bail for approximately eight months on house arrest and with electronic monitoring. As I have outlined above, the question of credit for restrictive bail conditions is in the discretion of the judge who is to take into account a variety of factors. Clearly, the terms of the release were stringent in Mr. Direk’s case, and they impacted his liberty and his ability to carry on normal relationships, employment and activity. However, he was on bail for only eight months. In these circumstances, I exercise my discretion and award him credit of one month or 30 days.

[92] In summary, I sentence Mr. Direk to 4.5 years of imprisonment for each offence served concurrent to the other which is equal to 1,647 days. He has been in custody for 561 days (which does not include the time on house arrest) which at 1.5:1 in accordance with Summers, is 842 days. In addition, for the time spent in harsh pre-sentence conditions at the Toronto South Detention Centre, he is credited in accordance with Duncan and Marshall to reflect lockdowns and his medical issues, with an additional .5 days for each day of lockdown which is 72 days. He is credited with 30 days for restrictive bail conditions in accordance with Downes. The total amount of credit to be given is 944 days. He has a balance to serve of 703 days of imprisonment.

[93] I now turn to the question of the driving prohibition. Where an offender has been convicted of dangerous driving causing death or fail to remain causing death, the sentencing judge 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 for any period that the court considers proper. It is a privilege to possess a driver’s licence and to operate a motor vehicle. That privilege was abused over the years of Mr. Direk’s driving as shown with the convictions for dangerous driving, speeding, and driving while disqualified. The privilege of driving was violated again on April 14, 2022, and his driving resulted in the death of Erin Yoxall. In light of his driving record and the circumstances of the offences, I view this case as an appropriate one for a 12-year driving prohibition. In keeping with R. v. Lacasse at para. 109, the driving prohibition commences at the end of the period of imprisonment. There will also be an order under s. 487.051(3) that a DNA sample be taken.

Himel J. Released: June 26, 2024