Court File and Parties

Ontario Court of Justice

Date: 2018-07-31

Court File No.: Central East – Newmarket 4911-998-17-02242-00

Between:

Her Majesty the Queen

— and —

Frederick Darryl Thomas

Before: Justice P.N. Bourque

Reasons for Sentence

Released on July 31, 2018

Counsel:

• B. McCallion, counsel for the Crown
• D. Cunningham, counsel for the defendant Frederick Thomas

Decision

BOURQUE J.:

[1] The following is my decision with regard to the sentencing of Mr. Frederick Darryl Thomas.

[2] Mr. Thomas pled guilty before me on October 18th, 2017 to the offence, first, of driving with excess alcohol from March 7th, 2017; and also on March 7th, 2017 he was operating a motor vehicle while disqualified from doing so.

[3] The facts of this matter are relatively simple. The defendant's drunken state came to the attention of an employee in a McDonald's drive thru. The employee was so concerned about the driver's condition that he called the police. After the police located the defendant's vehicle he was stopped. He was driving while disqualified. He had a previous lifetime ban and eventually blew 170 and 160 milligrams of alcohol in 100 millilitres of blood.

[4] He pled guilty, as I said, to those offences and I find that his readings for the purpose of the plea were 160 milligrams of alcohol in 100 millilitres of blood.

Criminal Record

[5] I first look at the record of this defendant and I note that between 1988 in Newmarket, January 19th, 1988 and April 29th, 2013, he has been sentenced some 24 different times. He has approximately 47 different convictions for various offences. Of note, he has been found guilty of four previous drinking and driving offences between 1995 and 2003 and I count seven previous driving while disqualified or prohibited offences between 1998 and April 29th, 2013. I note that four of those drive disqualified offences took place between, or at least the findings of guilt took place between, March 13th, 2012 and April 29th, 2013.

Personal Background

[6] This gentleman is 51 or 52 years of age. From the pre-sentence report it is noted that he discovered that when he was a teenager his biological father was not the man who had raised him with his mother. This had a significant effect upon him. He indicates, and it is indicated by the record, that he has been in and out of the youth justice system and then as an adult has also been in and out of the criminal justice system. He has obtained his Grade 12 equivalency. He has not worked for some seven or eight years. He is, however, in a stable relationship. It is clear that he has had an alcohol problem for many, many years.

[7] As indicated in the pre-sentence report, he has never, before these offences, taken any real alcohol treatment programs. His addiction to, and his dependence upon, alcohol became so great, and I quote from page 8 of the pre-sentence report, "He could drink up to 24 beers a day and his demeanour would not change. At times he would awake in the morning with the shakes and could not function or even eat until he had consumed a few beers." I am informed and I accept it that he has recently attended an alcohol treatment program. He spent some two months in a residential treatment program with the Salvation Army.

[8] I also note his counsel has filed a booklet of letters from friends, family, and others setting out this defendant's good character. Opinions were quite often expressed that they wished that this gentleman did not have to go to jail because of the good things that he is now doing and the fact that they believe that he has turned his life around and will not re-offend in the future.

Sentencing Principles

[9] The offences for which this gentleman has pled guilty have been the subject of literally thousands of sentencing decisions. Drinking and driving offences are one of the most consistently continuous offences in our criminal law. The vast majority of persons found guilty of a drinking and driving offence receive a minimum sentence, which is a fine and a licence prohibition, and they do not re-offend. There are, however, a not insignificant group of people who continue to drive while impaired. It is my belief that this defendant falls into that latter category. And as their lives continue the potential for significant human harm and misery increases. From the cases of R. v. McVeigh ONCA, through to and up to R. v. Muzzo, 2016 ONSC 2068, it is clear that drunk drivers cause tremendous suffering and place a substantial burden on the criminal justice system; and every year drunk driving leaves a terrible trail of death, injury, heartbreak and destruction.

[10] In the recent case of R. v. Greavette, 2018 ONCJ 10, my brother Justice Rose felt that there were appropriate cases, even for a first offender who has not caused injury as part of his drinking and driving offence, could indeed be entitled to a period of imprisonment for the offence. The defendant has brought to my attention a decision that I made in a case of R. v. Krivenko, 2016 ONCJ 94. In that decision I sentenced a recidivist drinking and driving offender, it was his third offence for drinking and driving, he had two dangerous driving offences and he had a previous drive disqualified. I sentenced him to over nine months' imprisonment. I commented then that, at paragraph 14:

The potential for serious harm which this man represents is mind numbing. A serious amount of incarceration may not deter him in the future, but if not, what other tools are left to us?

[11] Sadly, I believe that those comments could apply to this defendant. I understand that while he had taken some recent steps to deal with his alcohol problem, his record of impaired driving and driving while disqualified is greater than it was for the defendant in Krivenko. I note that his penalty for his most recent drive while disqualified was eight months conditional sentence.

[12] As I look at his record, his most recent drinking and driving conviction, that was in 2003 and it was his fourth, was a sentence of 90 days intermittent with 23 days pre-trial custody. Upon my review of that record, I believe that he has been treated quite leniently in the past for these types of offences.

Aggravating and Mitigating Factors

[13] I find the following significant factors.

[14] First, this is the defendant's fifth drinking and driving offence. I do, however, note the last one was in 2003 and it is his eighth drive disqualified or drive prohibited offence. He has a very long criminal record which also includes about 14 breaches of court orders. He was driving a motor vehicle on this occasion with almost double the legal limit. He was driving while disqualified. I have noted that up to this offence he has not taken any serious steps to deal with his drinking problem. I note, however, the steps he has taken on this occasion including the residential treatment program at the Harbour Light Centre in Toronto. I note he did not cause any personal injury or property damage during the course of this offence. I also note he has a stable family relationship that is also evidenced by the number of family members and friends in court to support him today. He has pled guilty. He has written a letter of apology to this court, which I accept at face value. And when I pronounce sentence in this matter I must also be aware of the principle of totality.

Crown and Defence Submissions

[15] The Crown seeks a period of custody of 12 months in total for both offences and a further lifetime license prohibition. The defendant seeks a term of custody in total of six months and wants the driving ban limited to 10 years.

Sentencing Decision

[16] First, in conclusion, I will prohibit this defendant from operating a motor vehicle anywhere in Canada for his lifetime. I note the defence had asked that it be for 10 years to mirror the Faint Hope Provisions of the Highway Traffic Act, I decline to do so respectfully. I do not think that this man should ever again get behind the wheel of an automobile.

[17] This defendant will be sentenced to a period of imprisonment. The Crown has proceeded by summary conviction on both charges. For the over 80 charge that would lead to a maximum of 18 months. With regard to the offence of drive disqualified the maximum is six months.

[18] In my opinion, for either of these offences with regard to his record he could be entitled to the maximum period in custody under summary conviction. However, taking into account the doctrine of totality, taking into account the steps he has taken for alcohol counselling, taking into account his plea of guilty and his statement of remorse and considering the Crown is only seeking a total of 12 months, I believe the lowest possible period of imprisonment is a total of 12 months.

[19] The defence has asked that I treat the periods he was in Salvation Harbour Light Program as credit for pre-trial custody. I choose not to do so as they are not, strictly speaking, custody. I believe I have and will take it into account in assessing the total sentence.

[20] He will, therefore, be sentenced that for the offence of driving with excess alcohol a period of 12 months in custody from today's date. He will be sentenced to a further six months in custody on the drive while disqualified offence, but both offences are to be served concurrently for a total of 12 months.

Probation Order

[21] Notwithstanding the submissions of the Crown, I believe this man should be placed on probation. It is my belief that this court would be remiss to its duty to protect the community if it did not take some active steps to see that he continues his alcohol counselling and that he never gets behind the wheel of an automobile.

[22] I will place you on probation. Following the completion of your sentence, 36 months of probation. There will be the standard statutory terms and you have heard this before, the most important of which is to keep the peace and be of good behaviour. You will report to probation within 72 hours of your release from custody and after that at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision. You will cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to your probation officer on request. You will also live at a place approved of by the probation officer and do not change without obtaining the consent of the probation officer.

[23] You will attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer, complete them to the satisfaction of the probation officer for substance abuse and alcohol abuse. You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling, or rehabilitative programs as directed and you shall provide proof of your attendance and completion of any assessments, counselling, or rehabilitative programs as directed.

[24] You will also not be in the driver's seat of any automobile, truck, van, SUV, motorcycle or any other motorized conveyance.

Released: July 31, 2018

Signed: Justice P.N. Bourque