Court File and Parties

Ontario Court of Justice

Date: 2017-11-23

Court File No.: Newmarket 15-03687

Between:

Her Majesty the Queen

— and —

Nerjet Persaud

Before: Justice Joseph F. Kenkel

Sentence

Delivered November 23, 2017.

Counsel:

• Michael Ventola, counsel for the Crown
• Ernst Ashurov, counsel for the defendant

KENKEL J.:

[1] Mr. Persaud was convicted at trial of operating a motor vehicle with a blood alcohol level in excess of the legal limit – Over 80. The Crown requests a $1600 fine plus probation and an 18 month suspension. The defence concedes an elevated fine is appropriate but asks for a lower amount with the minimum 12 month prohibition.

[2] Mr. Persaud has no record and I accept that any driving prohibition will pose difficulties in relation to his employment. I also accept that he is otherwise a person of good character.

[3] The central aggravating feature in this case is the very high readings. A few months after Mr. Persaud's arrest, a person named Marco Muzzo killed four people including three children in Vaughan while driving with a blood alcohol level in the same range as Mr. Persaud – 210 to 240mgs. Mr. Muzzo was also a person of prior good character without a criminal record, but he didn't have the good fortune to be stopped by a RIDE checkstop before he caused a tragedy.

[4] In a recent decision Justice Rose noted that impaired driving offences have been increasing significantly in this region over the past few years despite the tragic example in the Muzzo case – R v Patel 2017 ONCJ 728. It's necessary that sentences imposed on drivers like Mr. Persaud reflect the high risk to public safety created when someone chooses to drive with a high blood alcohol level.

[5] The Crown has not asked for a custodial sentence but does seek an elevated fine. The defence concedes an elevated fine is appropriate. I find the $1600 fine with mandatory victim fine surcharge is at the low end of an appropriate sentence given the aggravating readings but for this accused it presents a significant financial penalty. Mr. Persaud will be fined in the amount of $1600 plus victim fine surcharge and given his circumstances he will have 12 months to pay both.

[6] Probation with terms directed towards alcohol treatment and counselling for drinking and driving is essential for public safety. I will place Mr Persaud on probation for 18 months. In addition to the statutory conditions the following conditions apply:

• Keep the peace and be of good behaviour
• Report to probation as required
• Take counselling for alcohol use as directed by probation
• Take counselling related to drinking and driving as directed by probation
• Sign any releases required for probation to monitor your counselling
• Not operate or have care or control of any motor vehicle

[7] The high readings indicate a threat to public safety that will not be addressed without the counselling pursuant to probation. In that context I find it would not be safe to permit Mr. Persaud to operate a vehicle until his probationary term is completed. Mr. Persaud is prohibited from operating a motor vehicle for 18 months.

Delivered: November 23, 2017.

Justice Joseph F. Kenkel