minicounsel

Court: Ontario Court of Justice Location: Newmarket Date: March 11, 2020

Between:

Her Majesty the Queen

— And —

Nateram Persaud Babulal

For the Crown: Anthonie Vanden Ende

For the Defendant: Ranbir Mann

Before: Justice Joseph F. Kenkel

Introduction

1Mr. Babulal spent an evening drinking beer and working on his car. At the end of the evening he decided to drive to a major highway to test whether a brake system light was working. A driver on the 400 Highway called police to report Mr. Babulal's erratic driving. Just before an exit, Mr. Babulal crossed several lanes without signalling then drove at slow speed directly into the path of a pickup truck. The truck narrowly avoided a collision. Police intercepted Mr. Babulal as he returned to his residence and they found that he was heavily intoxicated. Breath tests at the station showed his blood alcohol concentration (BAC) was 297mgs and 280mgs/100ml. Mr. Babulal was convicted at trial of Impaired Operation.

2This is the fifth time Mr. Babulal has been convicted of a drinking and driving offence. The Crown requests the maximum summary custodial term of 18 months with a driving prohibition for life. The defence submits that the minimum four-month jail term along with a 10 year prohibition would be sufficient to meet the purpose and principles of sentence in this case.

Aggravating Factors

3There are several circumstances that aggravate sentence:

The erratic and dangerous manner of driving.
The specific instance where Mr. Babulal almost caused a collision on the 400 highway.
Mr. Babulal's high degree of intoxication and impairment.
Mr. Babulal's prior record of drinking and driving offences.

4Mr. Babulal's speed on the 400 highway varied from 50 to 100km/hr in a 100km/hr zone. He drove at an "abnormally slow speed" on Major MacKenzie Drive. He failed to signal lane changes. He stopped 15 to 20 metres away from the light at an intersection, then failed to react to a green light. His driving was unsafe throughout, posing a significant danger to others.

5On the 400 Highway, Mr. Babulal drove across multiple lanes at an unsafe speed without signalling the changes. He drove into the path of an oncoming pickup truck travelling at highway speed. It's lucky that the driver of the pickup truck was alert. The independent witness saw the pickup truck "just narrowly missed" colliding with Mr. Babulal's car. A collision at highway speed would have resulted in serious bodily harm or death to both drivers.

6The Crown proved at trial that Mr. Babulal's ability to drive was impaired to a high degree by his alcohol consumption. The officers observed significant signs of intoxication including:

Wearing sunglasses while driving late at night.
He was unable to open his driver's door and had to make several attempts to lift the handle.
He had problems with balance and his speech was very slurred. He appeared to be "zoned out" and was slow to respond to questions.
When he was permitted to go speak to his wife, he pressed the brick wall several times instead of the doorbell to the house.
Mr. Babulal was belligerent and argumentative with the officers. He was belligerent with the booking Sergeant, talking over her while she tried to book him into the station.

7Two breath tests at the station showed Mr. Babulal's blood alcohol level was 297mgs/100ml and 285mgs/100ml. Both readings are more than triple the 80mg criminal limit. They are almost six times the 50mg limit that the province has established for safe driving.

8Mr. Babulal has five prior drinking and driving related convictions from four dates starting in 1988, with a last conviction in 2007.

9The aggravating circumstances show that there is a high risk Mr. Babulal will hurt or kill someone else in the future through drinking and driving. He almost did so in this case.

Mitigating Factors

10Notwithstanding the gravity of the offence, there are several personal circumstances that show the potential for rehabilitation remains:

Mr. Babulal's criminal record consists only of drinking and driving offences.
There are significant gaps in his record.
Although he's been convicted 4 times, Mr. Babulal has never received the minimum statutory sentence. He has never received the minimum 4 month jail sentence proposed by the defence.

11As R.S.J. Fuerst observed in R v Muzzo, it's common in drinking and driving cases that the offender is employed and is not otherwise anti-social. The fact that Mr. Babulal has a regular history of employment and continues to enjoy the support of his family is positive and relevant to sentence, but does not distinguish this case from others cited by counsel.

12There was an 11-year gap between his last conviction in May of 2007 and this offence in August of 2018. There was a similar 11-year gap between the 2007 offence and his prior 1996 offences. The fact of lengthy gaps is relevant to the potential for rehabilitation.

13Mr. Babulal was sentenced as a repeat offender for impaired driving offences three times, but not once did he receive the minimum statutory sentence. On his second offence he received a fine instead of the minimum 14 day jail sentence applicable in 1988. For impaired driving and refusing to provide a breath sample in 1996 he received a 14 day intermittent sentence which was below the s 255 statutory minimum of 90 days then applicable to both offences. On his fourth drinking and driving conviction, Mr. Babulal was liable to a minimum sentence of 4 months imprisonment. He was sentenced to a conditional sentence of 4 months. The defence submits that the result of this sentencing history is that Mr. Babulal has not been subject to the incremental increases in custodial punishment Parliament provided for in what was then s 255. There is therefore a "jump" in the sentence proposed by the Crown. I find that circumstance to be relevant to the principle of restraint.

14There are two mitigating factors that are absent in this case. First, there was no genuine expression of remorse either directly by Mr. Babulal when he was invited to speak on sentencing or through his counsel during submissions. Second, the defence was asked by the court well in advance of sentencing to provide information about any counselling or rehabilitative steps Mr. Babulal had taken. Even if Mr. Babulal had not taken any steps to that point, the defence was alerted to the fact that such information would be helpful on sentence. Mr. Babulal was also aware that after conviction the Crown was seeking the maximum custodial sentence. Mr. Babulal chose not to take any counselling. Mr. Mann advised that Mr. Babulal feels he can manage his drinking by himself. He's, "not completely sober now but he's drinking less."

15The absence of mitigating factors does not aggravate sentence, but the two missing circumstances mentioned are relevant to principles of sentence such as promoting responsibility in the offender and the protection of the public. The absence of certain factors also distinguishes this case from others cited by both counsel where those mitigating circumstances were present.

The Principles of Sentence — ss 718-718.1

16In R v Muzzo, Regional Senior Justice Fuerst repeated the statement of the Court of Appeal some thirty years earlier that "members of the public who travel the roadways of the province should not live in fear that they may meet with a driver whose faculties are impaired by alcohol." Four prior sentences have failed to specifically deter Mr. Babulal from driving while impaired. This sentence must send a plain message to Mr. Babulal that such a high level of risk to the community will not be tolerated. At the same time, it is essential that the community be protected from that risk.

17Denunciation of the offender's conduct is also important. As the Court of Appeal said, "The public should not have to wait until members of the public are killed before the courts' repudiation of the conduct that led to the killing is made clear". It's necessary in this case to impose a sentence that promotes in Mr. Babulal an appreciation of the risk he posed to others in this incident and his responsibility for that risk. Denunciation is necessary in this case to achieve those further goals.

18Rehabilitation remains an objective, with some hope given the gaps in his record and his history of employment. The sentence imposed must direct Mr. Babulal towards the alcohol counselling that's plainly required and permit the probation officer to monitor that counselling to enforce compliance. However, the circumstances of the offence, the failure of four prior rehabilitative sentences and the fact that Mr. Babulal has not engaged in alcohol treatment all show other sentencing factors must now prevail.

19Sentencing also requires consideration of the impact of a disposition on the community at large. General deterrence is important in drinking and driving cases, particularly for repeat offenders who pose the highest risk to the public. While there may be some skepticism about the deterrent effect of sentences in other contexts, persons charged with impaired driving offences are most often established members of the community, not otherwise anti-social. They are precisely the type of person most likely to heed sentencing messages sent by the courts. As Justice Dunphy recently explained, "The role of exemplary sentences is to alter the mindset of the person who is about to get behind the wheel while impaired. Such sentences are designed to result in more people saying 'it's not worth the risk of being caught' if the objective risk of harming their fellow citizens is insufficient to deter their behaviour." – R v Gomes, 2020 ONSC 2013 at para 19. The Gomes case involved a first offender with a BAC between 150 and 180mgs who hit two pedestrians causing them permanent injury. He received a sentence of three years imprisonment. Mr. Babulal is a fifth offender with a BAC almost double the lower end of that range. It was simply luck that his driving did not result in a similar tragedy.

20Sentencing is always an individualized process. Section 718.1 sets out the central goal – that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The Record — A Gap and A Jump

21As the Alberta Court of Appeal recently explained, in some cases, a gap since the last offence may indicate that prospects for rehabilitation might be better than the current offence and past record might suggest. The jump concept suggests that where an offender has not received past sentences increasing in increments towards the sentence proposed by the Crown, a lesser sentence may still have a significant specific deterrent effect on that offender. The "gap" and "jump" concepts serve the principles of restraint and individualization of sentence – R v Kibite 2019 ABCA 75 at para 10.

22Mr. Babulal's record contains significant gaps. However, where an offender resumes conduct that is dangerous to the public and has a history of similar offences, the fact of a "gap" may be of little weight – R v Kibite at para 11, R v Patriquin 2012 ONCA 67 at para 5. That applies in this case where Mr. Babulal was highly intoxicated at the time of the offence but has not taken any treatment since and apparently does not appreciate the need to do so. The principle of rehabilitation that finds some support in the gaps in the record cannot be given as much weight in this case.

23The defence submitted that the proposed maximum sentence also results in too much of a "jump" from prior sentences. Three times as a repeat offender Mr. Babulal received a sentence below the statutory minimum. His last sentence for two offences resulted in a conditional sentence in the community for the minimum term that would have been imposed if he served the sentence in jail. The defence submits that at this point to suddenly increase sentence significantly past the statutory minimum would be unfair.

24I recognize the irony in this submission. Having asked for and received the benefit of lenient sentences in the past, the defendant now submits that those sentences did not provide him with incremental increases in punishment that would have alerted him to the severity of his actions. I disagree that the Crown is estopped from requesting a lengthy sentence if otherwise justified because of their past agreement to rehabilitative sentences below the statutory minimums. Where an accused has received the benefit of several such sentences but has returned to the same conduct, the jump concept does not require that the next sentencing step be an incremental one. Having said that, I agree with the defence more generally that the circumstances of the offender still leaves some room for restraint.

Local Circumstances

25The frequency of an offence in a particular region is a relevant factor on sentencing. The fact that a particular type of crime occurs frequently in a region is not an aggravating factor as it doesn't relate to the circumstances of the accused or the offence, but it does inform the overall range of sentence and is relevant to sentencing principles such as denunciation and general deterrence. The Crown provided impaired driving statistics from York Region with notice to the defence. The numbers show that despite the tragic local example in Muzzo, impaired driving related offences have not declined since 2015 and citizen reports of impaired driving have risen every year. From 2015 to 2019 twelve people were killed in impaired driving related incidents.

26The unfortunate prevalence of drinking and driving offences in this region was recognized in R v Muzzo in 2016 and has been cited in numerous cases since as summarized by Justice Tetley in R v Davis-Locke 2020 ONCJ 13 at paras 100 to 113. A similar problem has been observed in neighbouring Peel Region, also a suburban area with a large, mobile population. In this case the prevalence of the offence in this region is yet another circumstance that supports the need for a denunciatory sentence that sends a clear deterrent message.

Range of Sentence

27Sentences for impaired driving offences have generally been going up in recent years, particularly in cases where death or bodily harm is caused. Considering the prevalence of the offence and its impact in York Region, cases involving high BAC readings have attracted custodial sentences even for first offenders. See: R v Sivanandi 2017 ONSC 5749 and the cases that have followed. Given the many ways in which impaired driving offences are committed, the Ontario Court of Appeal has declined to define formal sentencing ranges.

28I acknowledge that there is some authority for minimal custodial sentences being imposed even for chronic repeat offenders. Such a sentence would not generally be consistent with the purpose and principles set out in s 718, but may be appropriate in an exceptional case. The defence refers to examples like R v Stone where the defendant had a similar record with a similar gap, and the Court of Appeal indicated the minimum sentence should have been imposed. That case involved a much different analysis – a guilty plea, a history of treatment for alcohol abuse and a willingness to return, and a Gladue report that significantly reduced the moral blameworthiness of the offender. None of those circumstances are present here. In R v Mejia, the trial court did impose a 6 month sentence on an offender with 9 prior related convictions, but note that by the time the Summary Conviction Appeal was heard he had been convicted of further impaired driving and drive disqualified offences. That case provides no support for the effectiveness of a minimum sentence in this context.

29With Mr. Babulal's record and the risk posed by the accused's high level of intoxication at the time of the offence, it's plain that the minimum sentence submitted by the defence would not be fit. A minimum term would not address any of the principles of sentence discussed above. It would not be proportionate to the gravity of the offence or to the degree of responsibility of Mr. Babulal.

30Maximum sentences should be rare, although a summary election in a serious case may result in a term towards that limit. Given the many aggravating circumstances in this case, I find a fit sentence falls closer to the summary maximum submitted by the Crown.

Conclusion

31York Region is the one place in Canada that should know better. In September of 2015 in Vaughan, Marco Muzzo crashed into a family van killing three young children and their grandfather and seriously injuring their grandmother and aunt. In a case that received extensive national attention, Mr. Muzzo's case demonstrated the worst that can happen when persons choose to drive while impaired. His BAC was lower than Mr. Babulal's, within the range of 190mgs to 245mgs/ml. As Regional Senior Justice Fuerst observed in that case, "the message that every drinking driver is a potential killer of innocent members of the community continues to go unheeded."

32Mr. Babulal was heavily intoxicated. He knew he was completely unfit to drive yet chose to do so for a trivial reason. He showed a complete disregard for his own safety and for the safety of everyone else on the road. He made that choice even though he has been convicted and punished four times for the same offence. He created a high degree of risk which almost resulted in tragedy. He bears a high degree of responsibility for the offence. Mr. Babulal's choice to resume this dangerous conduct and the very high level of his intoxication at the time diminishes the significance of the gaps in his record. He presents a serious, ongoing risk to public safety.

33Considering all of the circumstances, I acknowledge that the Crown's submission of 18 months imprisonment with a life prohibition would be within the range. However, I find the circumstances of the offender still leaves some room for restraint. I find that a sentence of 14 months imprisonment would be proportionate to the gravity of the offence and the particular circumstances of this offender. It would send a plain message of denunciation and deterrence to the community. The repeated failure of minimal or non-custodial sentences in this case demonstrates why a lesser sentence would be unfit.

The Sentence

34Mr. Babulal is sentenced to 14 months imprisonment to be followed by 3 years of probation. In addition to the statutory conditions he will:

Report to probation as required.
Take counselling for alcohol use as directed by his probation officer.
Sign any releases necessary to permit probation to monitor that counselling condition.
Not occupy the driver's seat of any conveyance (as defined in s 320.11 of the Criminal Code) for any purpose.
Not possess the keys for any conveyance (as defined above).

35The prohibition is a separate component of sentence but the principles in s 718 apply. Considering Mr. Babulal's record for drinking and driving offences, his high level of intoxication in this incident and the degree of risk posed, I find it necessary to prohibit Mr. Babulal from operating a motor vehicle for life. The evidence shows that if he were ever permitted to drive again, he would pose a high risk to public safety. Even if he successfully completed the treatment component of this sentence, his history of re-offending shows that a real and significant risk would always remain. At this point the need to protect the public strongly outweighs any concern for the offender's convenience.

Delivered: March 11, 2020

Justice Joseph F. Kenkel

Introduction

Aggravating Factors