Court File and Parties

Ontario Court of Justice

Date: 2017-11-03

Court File No.: Newmarket 15 09818

Between:

Her Majesty the Queen

— and —

Chirag Patel

Before: Justice David Rose

Heard on: November 3, 2017

Reasons for Judgment released on: November 3, 2017

Counsel:

• Mr. Hamilton, counsel for the Crown
• Mr. A. Sobcuff, Counsel for the defendant Chirag Patel

Reasons for Judgment

David Rose J.:

Conviction and Sentencing

[1] On August 30, 2017 I convicted Mr. Patel of Impaired Care or Control and Over 80 Care or Control after a trial. These are my reasons for sentence.

Facts of the Offence

[2] The facts of the offence may be briefly stated. On December 18, 2015 Mr. Patel was driving to a restaurant with his elderly parents when he passed out at the wheel, which brought the car to a stop in the roadway. His parents called a family friend, who arrived but could not wake him. EMS and then police arrived. The EMS attendants aroused him after repeatedly squeezing his shoulder. He was removed from the vehicle on a stretcher to a waiting ambulance. EMS personnel ruled out any medical issues. He displayed gross signs of impairment and was arrested by the police. He had difficulty walking from the ambulance to the police car. When the police car arrived at the police station for breath testing he literally fell out of the car and had real difficulty walking into the booking area. The booking video shows him to have difficulty standing up on his own while the officers conducted a pat down search.

[3] Mr. Patel provided two suitable samples of his breath. Expert evidence from a toxicologist put his Blood Alcohol Content (BAC) at between 330 and 375 mg of alcohol in 100 ml. of blood.

Pre-Sentence Report

[4] The Pre-Sentence Report shows Mr. Patel to be 44 years old, separated for two years and with two children. He does not provide child support but sees his children regularly. He has expertise in the Information Technology sector but has been unemployed since this past June. He has supportive family. There seems to be no dispute that he is a severe alcoholic who has not yet received any treatment. I was told in submissions that Mr. Patel attended AA for a period of time in 2016.

Aggravating Factors

[5] I would identify the most significant aggravating factor being the gross signs of impairment and the BAC. To place this in context, the BAC in R. v. Daviault, [1994] 3 S.C.R. 63, was 400 – 600 mg of alcohol in 100 ml. of blood. That was in the toxic range. At a level of 330 – 375, Mr. Patel's BAC was just below that. It is therefore not just a matter of exceeding the point at which Parliament deems a high BAC level aggravating in such cases under s. 255.1 of the Criminal Code, but rather one of exceeding that level of 160 mg of alcohol in 100 ml. of blood by more than double. The gross signs of impairment insofar as Mr. Patel passed out at the wheel in the roadway, fell out of the police car and had difficulty standing and walking are completely consistent with the extraordinarily high BAC.

[6] It is also aggravating that Mr. Patel had two elderly passengers in the car. They were not in a position to assist by taking over the driving. While no one was harmed in this case, that is really just a matter of luck. Had the EMS not intervened, there was a very high risk that bodily harm or worse would have resulted from Mr. Patel's impaired driving.

Mitigating Factors

[7] It is mitigating that Mr. Patel has no prior criminal record, a supportive family and real prospects for good employment. His untreated alcoholism requires a rehabilitative component in the sentence. It also requires a sentence which will protect the public from Mr. Patel driving until his risk to re-offend is substantially lower.

Denunciation and Deterrence

[8] In this case I would identify denunciation and deterrence as factors which stand out. The gross impairment and extraordinarily high BAC make this clear.

[9] Mr. Patel's arrest was some 3 months after the tragedy which yielded R. v. Muzzo 2016 ONSC 2068, 96 M.V.R. (6th) 310. In that case a family was killed in late September 2015 by an impaired driver here in York Region. Publicity of that case was high both locally and nationally, from the moment of the incident. In the words of Fuerst RSJ, the case received "intense public attention" see R. v. Muzzo, 2016 ONSC 2068 at par. 5. It could not have escaped anyone's notice after September 27, 2015 that impaired driving in York Region has tragic consequences for the community. I infer from this case that the extreme publicity surrounding R. v. Muzzo was of no moment in preventing Mr. Patel from driving his parents to a restaurant with a BAC more than four times the legal limit. That, and my 3 years' experience on the Bench here in Newmarket lead me to conclude that impaired driving in this community is not on the wane, but rather on the rise.

Impaired Driving Statistics

[10] In my review of statistics provided publically by the Ontario Court of Justice, it appears that the number of impaired driving cases has risen noticeably in recent years. The figures for impaired driving cases received in the Newmarket Courthouse are:

• 2012: 833
• 2013: 819
• 2014: 875
• 2015: 1141
• 2016: 1100

[11] Counsel were given these figures at sentencing. Therefore, there has been roughly a one-third increase in the number of impaired driving cases in Newmarket from 2012 to 2016. The Crown argues that there is an impaired driving problem in York Region which is getting worse. I agree. As RSJ Fuerst said in R. v. Muzzo (supra at par. 2), "the message that every drinking driver is a potential killer of innocent members of the community continues to go unheeded".

Relevant Case Law

[12] The devastating consequences of impaired driving have been consistently noted from all levels of Courts, see R. v. Alex, 2017 SCC 37, R. v. Bernshaw, R. v. Ramage, 2010 ONCA 488, or more recently R. v. Sivandi, 2017 ONSC 5740. In Sivandi the offender had no prior criminal record, a high BAC and also had his family in the car. In upholding a jail sentence De Sa J. quoted from R. v. Proulx, 2000 SCC 5, to underscore the authority of a Court to impose a jail sentence where denunciation and deterrence are particularly pressing, aggravating factors. Summary Conviction Appeal cases on sentencing in impaired driving cases are relatively rare. Sivandi is welcome guidance.

Conditional Sentence Rejected

[13] Mr. Sobcuff argues that if a custodial sentence is to be imposed then it should be a Conditional Sentence under s. 742. A Conditional Sentence is an available sentence. That said, having reflected on the matter I find that it is not appropriate. This is one of those cases where a Conditional Sentence simply would not meet the fundamental principles of sentencing, notably deterrence and denunciation objectives; see R. v. Chao, [2007] O.J. No. 1887 (Ont. S.C.J.), and R. v. Nguyen, [2005] O.J. No. 6019 (Ont. S.C.J.).

Sentencing Decision

[14] The decision to incarcerate a first offender must not be taken lightly. That said, this case has a number of aggravating factors which elevate it to that range. Effect must be given to Mr. Patel's rehabilitation. Sentencing is not an exercise in precision. Balancing all of the factors identified in evidence and submissions I would impose a 45-day jail sentence. There will be a two year driving prohibition. After Patel completes his sentence he will be placed on probation for two years with terms that he report, take counselling for alcohol abuse, and not occupy the driver seat of a motor vehicle unless he holds a valid licence.

Released: November 3, 2017

Signed: Justice D.S. Rose