Appeal Court avoids addressing efficacy of imprisonment

By John L. Hill

Law360 Canada (March 23, 2023, 11:15 AM EDT) --
John L. Hill
John L. Hill
Was it an accident or a case of road rage? It took Adib Ibrahim over a decade before Ontario courts provided the final answer. On May 14, 2012, Ibrahim was driving a taxi in the westbound curb lane in front of 160 King Street E. in Toronto. The streets were busy with heavy evening rush hour traffic. Ralph Bissonnette was riding his longboard parallel to the right front side of the taxi.

Bissonnette and the taxi collided with the skateboarder coming into contact with the windshield and his arm hitting the passenger mirror of the cab. The taxi veered abruptly to the right causing Bissonnette to fall backwards and being run over. A crushing head injury killed Bissonnette instantly.

A security camera mounted on a nearby building captured the moments of contact. Another six people later testified at trial as to their observations. A 2015 conviction for manslaughter by a jury was thrown out and a new trial ordered. The ensuing judge-alone trial in 2019 resulted in the conviction being sustained. Ibrahim was sentenced to four years’ imprisonment but credited with one month pretrial custody in 2021. An appeal of conviction and sentence was heard on March 6, 2023, with reasons for upholding the conviction and sentence handed down by a unanimous three-judge panel of the Ontario Court of Appeal three days later (R. v. Ibrahim 2023 ONCA 167).

The brief written reasons of the Appeal Court (seven pages) deal mostly with the court acceptance of the trial judge’s finding that the witnesses and the video allowed the conclusion that Ibrahim steered his vehicle into Bissonnette’s pathway and caused his death. Two paragraphs of the judgment deal with the dismissal of the sentence appeal.

The appellate reasons note that Ibrahim was 44 years old when the collision occurred; he had no criminal record, and he maintained strong family and community support. The panel rejected the defence counsel submission that a conditional sentence of two years less a day be imposed stating only that “the appellant had intentionally driven into Mr. Bissonnette’s path” and there was “a high degree of moral blameworthiness.” The four-year term was not demonstrably unfit.

Never once does the Appeal Court question what is to be gained by subjecting a first-time offender to federal penitentiary. The trial judge’s reasons for sentence (R. v. Ibrahim 2021 ONSC 1112) tell us that Ibrahim, originally from Ethiopia, became a Canadian citizen in 1990, three years after coming to this country. He is a devoted adherent to the Islamic faith. He had been driving taxi for many years to support himself, a wife, and three children but had to quit driving due to bail conditions. In 2014 he suffered a heart attack and continues on medication.

When Ibrahim goes before the Parole Board of Canada, the main question the board will decide is if Ibrahim poses an undue risk to society. From the material presented before the trial judge, most prison law lawyers would agree that Ibrahim presents as a prima facie manageable risk.

It is likely that the Court of Appeal relied on the principles of denunciation and deterrence in imposing the prison term. After all, once it had accepted that Ibrahim intentionally used his taxi to strike the victim he meant to cause bodily harm even though death was not intended. In R. v. Parent 2012 BCSC 769, a case used to support the four-year term, the accused was involved in a road rage situation where Parent ran a motorist off the road, returned to the scene and intentionally swerved his car into the passengers of the car that had been run off the road killing one of them. He received a four-year, six-month sentence — a fact situation somewhat distinguishable from Ibrahim.

Perhaps it is time to re-examine the notion that motorists will be deterred from road rage and unintentional killing if we impose penitentiary terms. Wouldn’t a more enlightened approach use a conditional sentence to impose mandatory anger management if indeed, road rage was the problem? Ibrahim’s 10-year ordeal to date will continue for another four years because our Court of Appeal could not spare an extra paragraph in its reasons to enlighten us how the imposition of the harsh penalty will make our roads safer.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the authors firm, its clients, Law 360Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.  

Photo credit / Vladimir Cetinski ISTOCKPHOTO.COM

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