ONTARIO COURT OF JUSTICE

DATE: 2024 12 13

COURT FILE Nos.: Oshawa 21-28100763 22-28104304 22-28101227 23-28100064 23-28108447

BETWEEN:

HIS MAJESTY THE KING

— AND —

GIUSEPPE FAZZINA

Before: Justice Joseph Hanna

Heard on: November 5 – 6, 2024; December 12, 2024

Reasons for Judgment released: December 13, 2024

Counsel: P. Affleck ................................................................................................ counsel for the Crown N. Spear-Balka ………………………………………………………………..for the accused

HANNA J.:

OVERVIEW

1Giuseppe Fazzina is a chronic recidivist – particularly concerning criminal driving offences. He has entered guilty pleas to the following Criminal Code offences:

• two counts of driving with an excessive blood alcohol concentration, contrary s. 320.14(1)(b);
• five counts of driving while prohibited, contrary to s. 320.18(1);
• and four counts of failing to comply with an undertaking, contrary s. 145(4)(a).

2These are my reasons for sentence.

CIRCUMSTANCES OF THE OFFENCES

April 21, 2020: drive while prohibited, and “80 plus”

3On April 21, 2020, police pulled over Mr. Fazzina after receiving reports relating to a suspected drunk driver. Officers observed him to have slurred speech, glassy eyes, and to be unsteady on his feet. While being transported by the police he damaged a window of the police cruiser. He registered blood alcohol readings of 170 milligrams of alcohol in 100 millilitres of blood. Mr. Fazzina was on parole and subject to multiple lifetime driving prohibitions at the time.

August 22, 2021: drive while prohibited, and fail to comply with an undertaking

4On August 22, 2021, a police officer observed Mr. Fazzina driving contrary to his prohibition orders. Mr. Fazzina was observed aggressively changing lanes while driving, and almost causing an accident. Mr. Fazzina had alcohol in his body at the time, which was contrary to a term of his undertaking that required he be in an “alcohol free state” while outside of his residence.

January 29, 2022: drive while prohibited, “80 plus”, and fail to comply with an undertaking

5On January 29, 2022, police responded to a call to attend a McDonald’s parking lot. Mr. Fazzina had been observed sitting in the driver’s seat of a vehicle, with the engine running, his head slumped on his chest. When the officers attended, they observed Mr. Fazzina to have slurred speech and glassy eyes. Upon exiting his vehicle, he was unsteady on his feet. Mr. Fazzina subsequently provided two breath samples into an approved instrument, registering readings of 150 and 147 milligrams of alcohol in 100 millilitres of blood. Mr. Fazzina was in violation of his driving prohibitions. He was also in breach of his undertaking because he was outside of his residence with alcohol in his body.

March 5, 2023: drive while prohibited, and fail to comply with an undertaking

6On March 5, 2023, contrary to his prohibition orders and his undertaking, Mr. Fazzina briefly drove a vehicle to move it a very short distance.

November 18, 2023: drive while prohibited, and fail to comply with an undertaking

7On November 18, 2023, police officers again observed Mr. Fazzina driving in violation of his prohibition orders and his undertaking.

FACTS RELATING TO THE OFFENDER

8Mr. Fazzina is 57 years old. He has two adult children and four grandchildren. He has been employed as a cement finisher.

9The defence filed a letter from Mr. Fazzina’s family physician, Dr. Rajeev Erry. It indicates that Mr. Fazzina has had a longstanding history of psychiatric illness related to PTSD and generalized anxiety disorder. It also states that he requires psychotherapy and medication for stabilization and to allow him to function.

10I was provided with Mr. Fazzina’s health records from the Orthopaedic Rehabilitation Institute in Toronto for the period prior to his recent incarceration. A document dated October 19, 2023, indicates that Mr. Fazzina was being seen regarding hip pain. Recurring sciatica was mentioned as an area of concern. It is noted that Mr. Fazzina felt significant improvement in pain and functioning following having received injections. It was also noted that there were no acute psychiatric concerns at that time.

11I also received Mr. Fazzina’s institutional medical records. These records contain the following information:

• On December 31, 2023, Mr. Fazzina apparently suffered an overdose while in his cell. He was given three doses of Narcane which quickly improved his condition. The next day when he spoke with staff, Mr. Fazzina was reportedly embarrassed, emotional, and apologetic about the situation.
• On February 6, 2024, Mr. Fazzina advised medical staff that he was doing okay. He complained about anxiety but denied any thoughts of suicide. He was noted to have a happy affect. He was advised to use breathing techniques and given workbooks to assist with anxiety and sleeping.
• On March 13, 2024, Mr. Fazzina was assessed following an altercation he had with another inmate. It was noted that he did not have any visible injuries and he denied having any injuries.
• On March 16, 2024, Mr. Fazzina got into a dispute with a guard. The guard believed Mr. Fazzina was hoarding his medication.
• Between April and June 2024, Mr. Fazzina received treatment for dental problems and a fungal infection.
• In May 2024, Mr. Fazzina made complaints regarding his mental health. I note that this was around that time that his father passed away.
• On July 17, 2024, Mr. Fazzina was assessed following his involvement in an altercation with several inmates. No injuries were noted, and he denied having any.
• Similarly, on August 12, 2024, he was again assessed following an altercation with another inmate. Again, no injuries were noted or reported at that time.
• On Aug 25, 2024, Mr. Fazzina complained to medical staff about his anxiety. He was told to take deep breaths.

12Mr. Fazzina has been in pre-sentence custody since November 18, 2023. Lockdown records from the Central East Detention Centre show that up until September 23, 2024, he had been subjected to 338 lockdowns for less than six hours and 61 lockdowns which lasted six hours or more. [1] He was also triple bunked during that period on 262 occasions. It is reasonable to infer that Mr. Fazzina would have experienced further lockdowns and triple bunking at a similar rate between September 23, 2024, and today.

13The defence submitted an affidavit and a letter from Mr. Fazzina’s wife, as well as numerous letters of support from Mr. Fazzina’s friends and co-workers. Collectively, they describe Mr. Fazzina as a courteous, compassionate, and hardworking man.

14His wife, Nicolette Andrews, describes Mr. Fazzina as being very upset about missing his father’s funeral. She advises that Mr. Fazzina has a compressed root nerve which causes him pain. She relays that Mr. Fazzina advised her that he has neither received proper medication for his root nerve nor proper support for his mental health issues. She also writes that she has experienced Mr. Fazzina not be able to walk without her assistance for multiple days at a time. She mentions that Mr. Fazzina has provided care for his sister by often walking with her and providing her with emotional support. She further advised that Mr. Fazzina provides support to his parents “when they require some assistance”. Finally, she mentions that Mr. Fazzina suffers from PTSD and anxiety.

15I also received a letter written by Mr. Fazzina. It describes the difficult conditions he has experienced in jail and the impact his incarceration has had, and will have, on him and his family. He mentions his father having passed away while he was incarcerated. He refers to his current offences as “white collared crime” and points out that there was no death or injuries involved in these offences. In his letter he states that he knows he “messed up” and that he is “truly sorry for the mess”.

16As I outline in greater detail below, Mr. Fazzina has an extensive criminal record. It includes convictions for violence, many drinking and driving related offences, and numerous breaches of court orders – especially driving prohibitions.

POSITIONS OF THE PARTIES

17The Crown argues that the appropriate total sentence in this case is between 10 – 12 years, less Summers [2] credit for time spent in pre-sentence custody.

18The defence submits that a global sentence of seven years, less Summers credit is appropriate.

ANALYSIS

General Principles

19The maintenance of a just, peaceful, and safe society is the fundamental purpose of sentencing: Criminal Code, s. 718. In arriving at a just sanction, judges are required to blend and prioritize the objectives listed in s. 718 (a) – (f): R. v. Morris, 2021 ONCA 680, at para. 58. These objectives are:

• denunciation;
• general and specific deterrence;
• separation from society, when necessary;
• rehabilitation;
• reparations for harm done;
• promoting a sense of responsibility, and acknowledgement of the harm done.

20Proportionality, which is the fundamental principle of sentencing, guides how these objectives must be blended: Morris, at para. 59. A sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender": s. 718.1 of the Criminal Code.

21Sentencing involves balancing the aggravating and mitigating circumstances relating to the offence and the offender: Criminal Code, s. 718.2(a). Parity, totality, and restraint are also principles which must be considered when determining the appropriate sentence: Criminal Code, ss. 718.2(b)-(e).

Aggravating factors

22The most serious aggravating factor in this case is Mr. Fazzina’s extremely lengthy and related criminal record. He has 74 prior convictions, which include:

• 13 convictions for impaired driving, one of which involved bodily harm.
• 6 convictions for refusing to provide a breath sample.
• 10 convictions for driving while disqualified.
• 6 convictions for failing to comply with a recognizance.
• 2 convictions for failing to comply with probation.
• 19 convictions for assault related offences.
• 9 convictions for uttering threats.

23Mr. Fazzina’s criminal record begins in 1989 and it continues essentially uninterrupted until today. While his last entries were in 2015, he received a substantial penitentiary sentence at that time. His current offences span between April 21, 2020, and November 18, 2023. He has been in custody since his arrest on November 18, 2023.

24Mr. Fazzina received his first lifetime driving prohibition in 2005. He received two further lifetime prohibitions in 2009, and four more in 2015.

25Mr. Fazzina’s criminal record is an offender-related aggravating factor which is relevant to all the offences I must sentence him for. I find the following additional offence-specific aggravating factors.

26With respect to the 80 plus offence from April 21, 2020:

• Mr. Fazzina was on a parole for similar offences: R. v. Brown, 2024 ONCA 763, at para. 27.
• His level of impairment was considerable. He had slurred speech and was unsteady on his feet.
• His breath readings were more than twice the legal limit.
• He damaged the police cruiser window during transport. [3]
• At the time Mr. Fazzina committed this 80 plus offence he was subject to driving prohibitions. Since this fact is the basis for its own conviction it would be impermissible double counting to treat this as an aggravating factor if I imposed consecutive sentences for the two offences from this incident: R. v. Bertrand Marchand, 2023 SCC 26, at para. 98. However, because I intend to impose a concurrent sentence for the drive while prohibited offence arising from this incident it is appropriate to treat this as an aggravating factor: R. v. Codina, 2018 ONSC 2180, at para. 153, aff’d 2019 ONCA 986; R. v. Mansingh, 2016 ONSC 94, at para. 47, aff’d 2017 ONCA 68; R. v. Gorgievski, 2024 ONSC 5899, at para. 25.

27Regarding the August 22, 2021 operate while prohibited offence:

• Mr. Fazzina was aggressively changing lanes and almost caused an accident.
• Mr. Fazzina breaching his undertaking by having alcohol in his body can either warrant a consecutive sentence or be treated as aggravating factor on the drive while prohibited count if sentenced concurrently. I intend to impose a concurrent sentence on this breach undertaking count and treat it as an aggravating factor: Codina, at para. 153, Mansingh, para. 47, Gorgievski, at para. 25.

28Relating to the January 29, 2022 offences:

• Mr. Fazzina’s level of impairment was high. He was found with his head slumped on his chest. He had slurred speech, glassy eyes, and was unsteady on his feet.
• He had elevated breath readings of 150 and 147 mg of alcohol per 100 ml. of blood.

Mitigating factors

29The two main mitigating factors in this case are Mr. Fazzina’s guilty pleas and that he has experienced harsh jail conditions while in pre-sentence detention, such as triple bunking and numerous lockdowns: R. v. Marshall, 2021 ONCA 344, at paras. 50 – 53.

30I have considered Mr. Fazzina’s comments in his letter about having “messed up” and being “truly sorry for the mess”. The letters filed by the defence also made references to Mr. Fazzina having expressed remorse to his friends and family about his conduct. In R. v. Friesen, 2020 SCC 9, at para. 165, the Court said this regarding the role of remorse at sentencing:

Remorse is a relevant mitigating factor (see Lacasse, at paras. 77-78). However, remorse gains added significance when it is paired with insight and signs that the offender has "come to realize the gravity of the conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending" (R. v. Anderson (1992), 74 C.C.C. (3d) 523 (B.C.C.A.), at p. 536 (emphasis in original)).

31I find it difficult to assess the sincerity of Mr. Fazzina’s remorse from the brief statements I have received regarding them: R. v. Plowman, 2015 BCCA 423, at para. 31; R. v. Mulligan-Brum, 2013 BCCA 231, at paras. 20 – 21.

32Moreover, his statements relating to remorse do not lead me to conclude that he has gained significant insight into the seriousness of his offences or the risk he exposed the community to.

33While the letters filed on Mr. Fazzina’s behalf refer to him making strides to stay sober, I note that the facts underlying his offences committed in 2020, 2021, and 2022, all involve his consumption of alcohol. Even if he did stay sober following those offences, this did not prevent him from committing further offences on March 5, 2023 and November 18, 2023.

34I am not satisfied Mr. Fazzina has “achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending.”

35Ultimately, I would assign limited weight to Mr. Fazzina’s expressions of remorse. This is not aggravating: R. v. Fraser, 2016 ONCA 745, at para. 13; R. v. Valentini, at paras. 80 – 85. Moreover, his guilty pleas remain significantly mitigating.

36While Mr. Spear-Balka referred in his submissions to Mr. Fazzina being attacked in jail, the records provided to me show only that he had multiple altercations with inmates none of which resulted in any injuries to Mr. Fazzina. I therefore do not find that a mitigating circumstance has been demonstrated on this issue.

37The support Mr. Fazzina has from his friends and family in the community, as well as his ability to be a productive worker are mitigating factors. I observe, however, that these community factors have been in place for some time now and have not prevented Mr. Fazzina from committing offences. These factors have therefore not given me optimism regarding Mr. Fazzina’s rehabilitative potential.

38With respect to Mr. Fazzina’s mental health challenges, I do not find that a causal link has been established between Mr. Fazzina’s mental illnesses and the commission of his offences: R. v. Fabro, 2021 ONCA 494, at para. 25; R. v. Megill, 2021 ONCA 253; and R. v. Pioriello, 2012 ONCA 63, at paras. 11-12. I am told he has suffered from alcohol dependency. This may provide a partial explanation for some of Mr. Fazzina’s alcohol related offences. That said, I do not infer based on this that his decision to repeatedly drive was the result of a mental illness: R. v. Nickerson, 2019 ONCJ 756, at para. 39. I do not consider his mental illnesses, including his addiction issues, to be a significant mitigating factor which would reduce his moral culpability: R. v. Husbands, 2024 ONCA 155, at paras. 85 – 87.

39I accept that Mr. Fazzina will have some difficulties in prison because of his problems with pain, his PTSD and anxiety. I note, however, that I do not have evidence that his pain and mental health issues cannot be managed in the penitentiary or that they would be expected to seriously deteriorate while incarcerated there. Keeping in mind the seriousness of Mr. Fazzina’s conduct, his moral blameworthiness, and the fact that I consider him to be an ongoing danger to the public, I do not find that Mr. Fazzina’s physical and mental health issues warrant a significant reduction in his sentence: R. v. Corpus, at para. 8; R. v. Esseghaier, 2015 ONSC 5855, at para. 86; Husbands, at paras. 87 – 88.

40Finally, I have considered that Mr. Fazzina’s incarceration will have an impact on his family. This is to be expected. While this is a factor, the sentence I impose must remain proportionate to the gravity of the offence and the responsibility of the offender: R. v. L.C., 2022 ONCA 863, at para. 24. Having regards to the principle of proportionality, the limited evidence I have been presented on this issue has had little impact on my overall decision.

The step/jump principle, specific deterrence, and rehabilitation

41An offender should not be repunished for past offences: R. v. Calliou, 2019 ABCA 8, at para. 8; R. v. Muyser, 2009 ABCA 116 at paras 7 and 8.

42Keeping that in mind, a sentence for the same type of offence should typically be higher than the previous sentence received: R. v. U.A., 2019 ONCA 946, at para. 12; R. v. Clarke, 2024 ONSC 436, at para. 28; R. v. Daye, 2010 NBCA 53, at para. 11.

43In R. v. M.V., 2023 ONCA 724, Paciocco J.A., while discussing the rationale for the “Coke principle”, stated that “prior criminal convictions are ordinarily aggravating because it is contemptuous for offenders who have already been convicted to disregard that experience and offend again.” He added, “a prior criminal record can be a predictor of the need for a harsher sentence to specifically deter the offender since the last penalty was not effective in doing so, given the subsequent offence.” As Paciocco J.A. explained, when an offender has not already been sentenced for an offence, these aggravating features are absent. The Coke principle is of course not relevant to this sentencing given that Mr. Fazzina had been sentenced for all the entries on his record prior to committing the offences before this court. Accordingly, the ordinary aggravating features relating to prior convictions, as described by Paciocco J.A., apply in this case.

44Mr. Fazzina has a very lengthy and cognate record. He must be sent the message that he will face increasingly long sentences if he continues to engage in this type of criminality: R. v Prasad, 2019 ONSC 2953, at para. 39; R. v. T.W., 2015 ONSC 2167, at para. 55.

45The “jump principle” warns “against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past”: R. v. Parker, 2024 ONCA 591, at para. 41; R. v. Borde, [2003] O.J. No. 354 (C.A.), at para. 39. This principle, however, “has little application” when there has been a dramatic increase in the severity of the offender’s crime”: Borde, at para. 39. This is also true when “dealing with multiple convictions for an offender with a lengthy criminal record, or where previous sanctions have been ineffective in deterring the offender”: R. v. Green, 2021 ONCA 932, at para. 12; R. v. Simeunovich, 2023 ONCA 562, at para. 21.

46Mr. Fazzina is an incorrigible offender. He has persistently ignored the numerous driving prohibitions imposed upon him. Furthermore, he has been undeterred by the six-year penitentiary sentences he received in 2009 and 2015 for similar offences. Moreover, he was on parole when he committed the April 21, 2020 offences. Despite the letters of support the defence has filed, the fact remains that on five occasions between 2020 and 2023 Mr. Fazzina committed similar offences to the ones he had committed many times prior. Unfortunately, I do not consider rehabilitation to be a significant factor in this case. I accordingly do not see the caution found in the jump principle to be applicable to this sentencing: Simeunovich, at para. 23; R. v. Thomson, 2013 BCCA 220, at paras. 7 – 8; R. v. Moreau, 2007 BCCA 239, at para. 9; R. v. St. Constantine, 2022 BCCA 6, at para. 49.

Increase in the maximum penalties

47In Friesen, at para. 99, the Court indicated that when Parliament increases the maximum penalties for an offence, “courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum”. In 2018, Parliament increased the maximum sentences for the offences of impaired operation, 80 plus, and driving while prohibited from five years imprisonment to 10 years imprisonment. The direction in Friesen is relevant to these increases: R. c. Séguin, 2024 ONCA 355, at para. 14; Simeunovich, at para. 20; R. v. Romaniuk, 2024 MBCA 20, at paras. 30 - 32; 39, 61 – 62.

Parity: identifying the appropriate range

48Sentencing ranges are useful guidelines aimed at giving effect to the principle of parity. While parity is important, it is only one of the objectives of sentencing. Proportionality is the fundamental organizing principle in reaching the goal of a just sanction. Because proportionality requires that sentencing be an individualized exercise, there will be circumstances where it is appropriate to deviate from a range: R. v. Parranto, 2021 SCC 46, at paras. 10 – 12; R. v. Lacasse, 2015 SCC 64, at paras. 56-61, 67; R. v. Ruthowsky, 2024 ONCA 432, at para. 173.

49The demands of proportionality are calibrated through examining prior decisions: Friesen, at para. 33. While no two cases are the same, I found the following decisions to be helpful comparators to Mr. Fazzina’s. I note that the decisions dated prior to 2018 are of limited assistance given that they pre-date the sentencing increases: Simeunovich, at para. 20.

Pre-2018 cases

• R. v. Walker, 2017 ONCA 39: The Court imposed four years in total for the offences of operation while impaired, resisting a peace officer, dangerous driving, flight while being pursued by a peace officer, driving while disqualified and failing to provide a breath sample, where the accused had seventeen prior convictions for driving offences.
• R. v. Malicia: The Court upheld a four-and-a-half-year sentence for the offender’s 10th impaired driving conviction, where he had received three years for his ninth conviction.
• R. v. Patriquin, [2011] O.J. No. 6246 (OCJ); aff’d 2012 ONCA 67: The Court upheld a global sentence of five years on convictions of operating a motor vehicle with an excessive blood alcohol concentration and leaving the scene of an accident. The offender had 19 prior convictions for impaired driving or over 80; four for driving while disqualified; three for failing to remain at the scene of an accident; nine for failing to provide a breath sample; and three for dangerous driving.
• R. v. Bear, 2007 SKCA 127: The Court imposed a total sentence of four years for impaired operation and driving while disqualified, where the accused had 15 prior convictions for drinking and driving and 20 prior convictions for driving while disqualified.
• R. v. Moreau, 2007 BCCA 239: The Court upheld a sentence of three years for operation while impaired where the accused had eight prior convictions for drinking-and-driving-related offences.
• R. v. Naugle, 2010 NSPC 11, aff’d 2011 NSCA 33: The offender pleaded guilty to failure to stop at the scene of an accident, impaired driving, and driving while disqualified. He had 68 prior convictions including 22 impaired driving-related offences and 14 drive disqualified offences. The accused was sentenced to 102 months in prison less 21 months credit for time served in pre-sentence custody. The sentence was affirmed on appeal.

Post 2018 cases

• Séguin: The offender pleaded guilty to two counts of driving while impaired, one count of dangerous driving, one count of failing to stop, and driving while prohibited. These were his tenth and eleventh convictions for impaired driving, his second for dangerous driving and his third for driving while prohibited. Prior to committing these offences, he had just finished serving the equivalent of a 16-month sentence for impaired driving, driving while prohibited, and two counts of failing to comply. The Court upheld a 46-month sentence.
• R. v. Romaniuk, 2024 MBCA 20: the offender pleaded guilty to two counts of impaired operation and two counts of driving while prohibited. He had eight drinking-and-driving-related convictions, eight driving while disqualified convictions and two dangerous operation convictions. The court increased the sentence to five years and six months.
• R. v. Serré, 2020 ONCA 311: the Court upheld a total six-year sentence for operation while impaired, dangerous driving, failing to stop while being pursued by police and driving while disqualified. The offender had 40 prior convictions, 20 of which were directly or indirectly related to driving and alcohol. The trial judge had comprehensively considered the Gladue factors present in that case.
• Simeunovich: the offender pleaded guilty to five counts of driving while disqualified relating to one incident with no elements of bad driving. At the time of the offences, he was on parole for a 10-year sentence. The offender had 30 prior convictions for driving offences (including dangerous operation, flight while pursued by police officers, failure to stop and possession of a counterfeit driver’s licence), of which 15 were prior convictions for driving while disqualified during the period from 2008 to 2018. The Court upheld an eight-and-a-half-year sentence which was ordered to be served consecutive to the three years and ten months he had left to serve from his previous sentence.

50By way of comparison, Mr. Fazzina is being sentenced for his 20th and 21st drinking and driving related convictions [4]; his 11th through 15th convictions for driving while prohibited; and his 9th through 12th convictions for violating other court orders. His current offences involve five different driving incidents. He received six years for similar offences in 2009. Furthermore, he was on parole at the time of the first of these incidents after having received another six-year sentence in 2015 for related offences.

The dominant sentencing objectives in this case

51By continuously driving while prohibited, Mr. Fazzina, presents a risk to public safety: Simeunovich, at para. 19; R. v. Lavergne, 2018 ONCJ 901, at para. 86. This risk is heightened given his demonstrated proclivity to commit drinking and driving offences: R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 16; R. v. Moreau, 2007 BCCA 239, at para. 11; Criminal Code, s. 320.12(b). Considering Mr. Fazzina’s antecedents, and the nature of his current offences, I conclude that it is highly likely he would upon release ignore his prohibition orders and commit further drinking and driving offences. In my view, any hope that Mr. Fazzina would not commit such offences would be speculative.

52Because Mr. Fazzina is a serious recidivist who poses a danger to society, I consider the dominant sentencing objectives in this case to be deterrence, denunciation, and his separation from society: R. v. Wolynec, 2015 ONCA 656, at para. 117; R. v. Snake, [2010] O.J. No. 5445 (SCJ), at para. 26; Moreau, at para. 9. Society requires protection from Mr. Fazzina. This can only be achieved through a lengthy penitentiary sentence: Naugle (NSCA), at paras. 37 and 47.

Consecutive versus concurrent sentences and assessing totality

53In deciding whether to impose concurrent or consecutive sentences, I must first decide whether there exists a relationship between the various offences. This is a flexible test. Next, I am required to assess totality by ensuring that the total term is not excessive: R. v. Millard, 2018 ONSC 1299, at para. 30; R. v. W.Q. (2006), 210 C.C.C. (3d) 398 at paras. 11-15 (Ont. C.A.); Criminal Code, s. 718.2(c).

54Even when offences arise from the same transaction, it can be appropriate to impose consecutive sentences when the offences involve different legally protected interests. Though, totality must again be kept in mind: Bertrand Marchand, at para. 97; R. v. Gillis, 2009 ONCA 312; R. v. Fournel, 2014 ONCA 305 at para. 58.

55There are two prominent approaches to applying the totality principle when sentencing an offender for multiple offences. One involves determining a global sentence and then assigning individual sentences and designating them consecutive or concurrent to fit within the determined global sentence. The other consists of first deciding what the individual sentences should be, designating them consecutive or concurrent, and only then adjusting the sentences should totality require it: Friesen, at para. 157; R. v. C.B., 2024 ONCA 160, at para. 43, R. v. Jewell (1995), 83 O.A.C. 81; , at para. 27; R. v. Hutchings, 2012 NLCA 2, at para. 84.

56Until recently the more common approach in Ontario was the “global sentence approach”: R. v. Milani, 2021 ONCA 567, at para. 37; R. v. Owusu-Sarpong, 2023 ONCA 336, at para. 30. Other provinces appear to favour the “the sequential approach”: see the cases cited in R. v. Wisdom, 2024 ONSC 4047, at para. 59. In Bertrand Marchand, at paras. 91 – 93, the Supreme Court appeared to endorse the sequential approach. See also: R. v. C.B., 2024 ONCA 160, at para. 43.

57Regardless of which method is used, it is important to differentiate between the conduct underlying each count as doing so provides transparency and permits meaningful appellate review: C.B., at para. 43; R. v. J.H., 2018 ONCA 245, at paras. 51 and 53; Bertrand Marchand, at para. 93. It is also essential to “identify the gravamen of the conduct giving rise to all of the criminal offenses” and ensure that the total sentence is proportional to the gravity of the offences and the conduct of the offender: Jewell, at para. 27; Milani, at paras. 40 – 43; R. v. C.P., 2024 ONSC 6101, at paras. 80 – 82.

58In this case, I will identify what I have found to be the fit sentence for each offence. In doing so, I have been mindful not to double count when imposing consecutive sentences: Bertrand Marchand, at para. 98.

59I will indicate that but for totality, I would have found consecutive sentences to have been appropriate for each of the offences I am sentencing Mr. Fazzina for. I do not find a relationship between the five different driving incidents. I do not consider this a “spree”. Each of the driving incidents was several months apart from each other and I consider them to be truly distinct events: R. v. Chisholm, [1965] 4 C.C.C. 289 at 291 (Ont. C.A.); R. v. Johnston, 2014 ONCA 704, at paras. 17 – 18. Furthermore, within each of the incidents, the individual offences committed – 80 plus, driving while prohibited, and failing to comply with an undertaking – have their own legally protected interests: R. v. Nahnybida, 2018 SKCA 72, at para. 166; R. v. Chambers, 2013 ONCA 680, at paras. 20 – 22; R. v. Tasevski, 2020 ONSC 3724, at para. 56; R. v. Ellis, 2013 ONSC 3092, at para. 30, aff’d 2016 ONCA 598; Criminal Code, s. 718.3(4)(b).

60That said, imposing consecutive sentences on each of Mr. Fazzina’s convictions would result in a crushing sentence which would be disproportionate. Rather than make reductions to the individual sentences, I have achieved what I consider to be a total proportionate sentence by designating several of Mr. Fazzina’s sentences as concurrent.

The appropriate sentences in this case

61I have carefully considered the aggravating and mitigating factors, as well as the relevant sentencing objectives and principles. Having done so, I have concluded that the total sentence in this case should be 10 years, less credit for time served in pre-sentence custody. This sentence addresses Mr. Fazzina’s risk to the public and reflects the seriousness of Mr. Fazzina’s offences and his level of culpability. But for Mr. Fazzina’s guilty pleas and the harsh conditions he has experienced in pre-sentence custody, I would have imposed a total sentence closer to the upper end of the range suggested by the Crown.

62Mr. Fazzina has spent 391 days in pre-sentence custody for which he is entitled to 587 days of Summers credit.

63In conclusion, I sentence Mr. Fazzina as follows:

Information 22 28104304 (April 21, 2020 offences)

• Count 14 (80 plus): 66 months.
• Count 1 (operate while prohibited): 48 months concurrent.

Information 21 28100763 (August 22, 2021 offences)

• Count 1 (drive while prohibited): 54 months less Summers credit of 587 days resulting in 34 months and 20 days consecutive.
• Count 2 (breach undertaking): 12 months concurrent.

Information 22 28101227 (January 29, 2022 offences)

• Count 1 (breach undertaking): 12 months concurrent.
• Count 3 (operate while prohibited): 48 months concurrent.
• Count 4 (operate with excessive blood alcohol concentration): 60 months concurrent.

Information 23 28100064 (March 5, 2023 offences)

• Count 1 (breach undertaking): 12 months concurrent.
• Count 2 (operate while prohibited): 36 months concurrent.

Information 23 28108447 (November 18, 2023 offences)

• Count 1(breach undertaking): 12 months concurrent.
• Count 2 (operate while prohibited): 48 months concurrent.

Totals

• The total sentence before credit for pre-sentence custody is 120 months.
• Mr. Fazzina will receive 587 days of Summers credit for 391 days time served.
• Time left to serve is 100 months and 20 days.

64A DNA order pursuant to s. 487.051 of the Criminal Code will be made on each count as they are all secondary designated offences.

65Finally, driving prohibitions will be imposed on the two 80 plus convictions for life, pursuant to s. 320.24(2) of the Criminal Code and for a period of 10 years on the five drive while prohibited convictions, pursuant to s. 320.24(5) of the Criminal Code.

Released: December 13, 2024 Signed: Justice Joseph Hanna

1The records indicate a total of 339 lockdowns of less than 6 hours and 62 lasting 6 hours or more. These records include a brief period in 2020 when Mr. Fazzina would have been serving his previous sentence.

2R. v. Summers, 2014 SCC 26.

3The parties agreed I could consider this as an aggravating factor pursuant to the principle set forth in R. v. Garcia and Silva, [1970] 3 C.C.C. 124, at p. 129 (Ont. C.A).

413 prior convictions for impaired driving and six for refusing to provide a breath sample.