R. v. Serré, 2020 ONCA 311

Court File and Parties

Court of Appeal for Ontario Date: 2020-05-25 Docket: C64480

Before: Doherty, Juriansz and Miller JJ.A.

Between: Her Majesty the Queen Respondent

And: Luc Maurice Serré Appellant

Counsel: Anne Marie Morphew, for the appellant Samuel Greene and Molly Flanagan, for the respondent

Heard: May 19, 2020 via videoconference

On appeal from the sentence imposed on May 31, 2017 by Justice Mitch Hoffman of the Ontario Court of Justice.

Reasons for Decision

[1]

Overview

The appellant abandoned his conviction appeal and appeals his sentence of six years less credit for 26 months he spent in custody that he received after being convicted of impaired driving, dangerous driving, failing to stop while being pursued by the police, and driving while disqualified.

[2]

The Appellant's Position

The appellant submits that the trial judge erred by failing to fully apply Gladue principles when considering the appellant’s criminal record. The appellant has a lengthy criminal record with 40 convictions, of which 20 convictions are directly or indirectly related to driving and alcohol. However, this is the first sentence for which a comprehensive Gladue report was prepared. A number of the appellant’s previous sentences were imposed before the enactment of s. 718.2(e) of the Criminal Code, R.S.C., 1985, c. C-46 and the Supreme Court's decisions in R. v. Gladue, [1999] 1 S.C.R. 688, and R. v. Ipeelee, [2012] 1 S.C.R. 433.

3The appellant submits that Gladue principles were not properly applied in his previous sentences and that these previous sentences established an artificially high baseline for the imposition of the present sentence. He submits the trial judge erred by failing to inquire into his previous sentences and exercise additional restraint before imposing a greater sentence on this occasion. He seeks a reduction of his sentence to four years and two months less credit for his pre-sentence custody, or time served. We were advised the appellant was placed on statutory release on April 16, 2020 subject to terms seeking to ensure he refrains from alcohol use.

[4]

Analysis and Disposition

We see no basis for interfering with the sentence imposed. The appellant does not argue that the sentence is demonstrably unfit. The trial judge carefully reviewed the Gladue report and took into account the systemic factors that contributed to his offending. He made specific reference to links between the appellant’s alcohol use and events in the appellant’s personal life, noting the appellant’s moral blameworthiness was reduced. The “step up” principle played no role in the trial judge’s imposition of sentence. Rather, the trial judge stated that the paramount consideration on sentencing was the protection of other drivers and other users of the roads.

5The Crown agrees that the victim surcharge imposed should be set aside. The appeal is allowed only to the extent of setting aside the victim surcharge imposed, and in all other respects is dismissed.