DATE: 20001204

DOCKET: C33877

COURT OF APPEAL FOR ONTARIO

McMURTRY C.J.O., LASKIN J.A. AND BLAIR R.S.J. (ad hoc)

BETWEEN: )

HER MAJESTY THE QUEEN ) Christine Tier

) for the appellant

(Appellant) )

and )

RAMESH DHARAMDEO ) L. Ben-Eliezer

) for the respondent

(Respondent))

) Heard: October 18, 2000

On appeal from the sentence of Justice Russell J. Otter dated February 15, 2000.

McMURTRY C.J.O.:

[1] This is a sentence appeal by the Crown from the sentence imposed on February 15, 2000 by Mr. Justice Otter of the Ontario Court of Justice with respect to pleas of guilty to one count of Impaired Driving in relation to an offence which occurred on April 3, 1999 and one count of Impaired Driving Causing Bodily Harm in relation to an offence which occurred on November 14, 1999.

[2] The sentence imposed for the two offences was a six-month conditional sentence, a $1,000 fine, a five year driving prohibition and three years probation. The respondent had served 21 days in pre-sentence custody.

THE FACTS

The April 3, 1999 Offence

[3] On April 3, 1999 at approximately 1:40 a.m., the respondent was driving a vehicle alone, in contravention of his Learner’s Permit which required him to be accompanied by a licensed driver. As he approached the intersection of Lawrence Avenue East and Warden Avenue, he lost control of his car, left the roadway and mounted the sidewalk. The car struck a concrete lamp base and split in two. The front half of the car, in which the respondent was sitting, continued travelling along the sidewalk and demolished a bus shelter. The respondent was seriously injured and was hospitalized for eight days. The breath samples that were taken after the collision indicated a blood alcohol level of between 249 and 264 milligrams of alcohol per 100 millilitres of blood.

The November 14, 1999 Offence

[4] Seven months later, on November 14, 1999, the respondent was involved in another collision at the same intersection at approximately the same time as the April 3, 1999 offence. He was driving a friend’s car, with the friend in the passenger seat. The respondent was attempting to make a right-hand turn when, because of his impairment and the speed of the vehicle, the vehicle mounted the centre median, became airborne and crashed into two other vehicles that were stopped at the intersection. The vehicle driven by the respondent then rolled onto its roof and caught fire. The breath samples that were taken after the collision indicated that the respondent’s blood alcohol level was between 190 and 200 milligrams of alcohol per 100 millilitres of blood. An occupant of one of the vehicles struck by the respondent’s vehicle at the intersection was injured.

The Sentencing Hearing

[5] The pre-sentence report included the following comments:

Ramesh Dharamdeo admits that he is a heavy “weekend drinker”. He states that he started consuming alcohol at age 12 when he was in Trinidad. He admits he is able to refrain from drinking during the week, but on weekends usually gets “carried away”.

[6] The pre-sentence report also indicated that sources described the respondent as “a good worker”, and generally as a good person when he is not consuming alcohol.

[7] After the second offence, the respondent commenced a residential substance abuse treatment program at the Renascent Centre in Toronto. However, he did not complete the program as he was discharged for “lack of progress” on February 1, 2000 two weeks before his sentencing. The respondent was told that he was discharged because he did not abide by the rules of the rehabilitation program which involved getting up in the morning, shaving, showering and making his bed.

[8] The respondent’s father testified at the sentencing hearing. He was aware of the fact that his son drank every weekend. He was sufficiently concerned about his son’s drinking and driving that he sold the family cars so that the respondent would not have a vehicle to drive.

[9] The respondent also testified at the sentencing hearing. He confirmed that he habitually got very drunk on weekends with his friends. He stated that he had been drinking heavily since he was 16 or 17 years old when he used to frequent the bars in Trinidad. His parents, aware of his behaviour, used to beat him and lock him in closets to try to control him. The respondent conceded that he did not have his alcoholism under control. He had learned at the Renascent Centre that alcoholism is a disease that “controls you and from which you are never cured”.

[10] The respondent described his drinking problem in the following exchange with his counsel in examination-in-chief:

Q. How much do you drink?

A. Um – a lot, like I’ll spend like almost 200 bucks on – on alcohol on one night.

Q. How drunk would you get?

A. Pretty stoned.

[11] In cross-examination, the respondent conceded that his drinking had been “out of control” and when asked whether he now had his drinking under control he replied:

A. Right now? No, not really.

[12] In sentencing submissions, defence counsel asked for probation, or in the alternative, a conditional sentence in the range of three to four months, in addition to the 21 days time served. Crown counsel asked for a further period of six months incarceration, in addition to time served, followed by three years probation.

Reasons for Sentence

[13] The trial judge made the following comments in his reasons for sentence:

The facts in both cases are quite frightening. The potential for harm was even greater than the substantial property damage and bodily harm that was incurred as a result of these two.…The readings [breathalyzer] were enormously high.

(Y)ou are a model citizen who works, stays home, is polite, hard working, reliable, with one very significant flaw, alcoholism. When you combine that with a motor vehicle and put you behind the wheel, it creates some real danger.

Sentence

[14] The respondent was sentenced as follows:

Impaired (April 3, 1999)

1 year driving prohibition plus $1,000.00 fine.

Impaired Causing Bodily Harm (November 14, 1999)

4 year (consecutive) driving prohibition

Pre-trial custody of 21 days

6 month conditional sentence, conditions to include:

• Not to possess or consume alcohol

• Curfew between 10:00 p.m. and 6:00 a.m. Fridays and Saturday nights

• Counselling

• 50 hours community service

3 years probation, conditions to include:

• Not to possess or consume alcohol

• Curfew between 10:00 p.m. and 6:00 a.m. Friday and Saturday nights (first 6 months of probation)

• Counselling

• 50 hours community service (within first year of probation)

ISSUES AND THE LAW

[15] The issue raised by his appeal is whether the conditional sentence imposed by the trial judge represents an error in law or an error in principle, or is demonstrably unfit. Only in such circumstances is an appellate court entitled to intervene and substitute a fit sentence. R. v. Shropshire (1995) 1995 CanLII 47 (SCC), 102 C.C.C. (3d) 193 (S.C.C.)

[16] In addressing this issue the provisions of s. 742.1 must, of course, be considered:

s. 742.1 Where a person is convicted of an offence except an offence that this punishable by a minimum term of imprisonment and the court

(a) imposes a sentence of imprisonment of less than two years and

(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community subject to the offender’s complying with the conditions of a conditional sentence order made under s. 742.3.

[17] In R. v. Proulx (2000) 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.), Lamer C.J. commented at 481 that s. 742.1(b) “ensures that objectives such as denunciation and deterrence will be dealt with in the decision to impose a conditional sentence”. Lamer C.J. then went on to deal with the manner in which courts should evaluate danger to the community at 482 as follows:

In my opinion, to assess the danger to the community posed by the offender while serving his or her sentence in the community, two factors must be taken into account: (1) the risk of the offender re-offending and (2) the gravity of the damage that could ensue in the event of re-offence.

[18] The appellant submits that the sentencing judge did not conduct a proper assessment of dangerousness.

[19] The appellant submits that the respondent’s repetition of driving while seriously impaired only a few months after his first impaired offence (while the first offence was still before the courts) should have raised for the sentencing judge a grave concern in relation to danger to the community. Furthermore, the respondent’s discharge from the Renascent program indicated his unwillingness and/or inability to change his behaviour.

[20] The appellant further submits that the danger that the respondent posed for the community was not in any way ameliorated by releasing him to the care of his parents who had demonstrated a history of being completely unable to control him or effect any change in his behaviour.

[21] First, it should be noted that the sentencing judge did in fact acknowledge dangerousness, stating that when the respondent’s problem with alcohol is combined “with a motor vehicle and put you behind the wheel, it creates some real danger”. The sentencing judge simply concluded that the driving prohibitions, coupled with the requirement of abstaining from alcohol and the curfew would satisfactorily address the danger to the community. However, it is my view that a conditional sentence is not proportionate to the gravity of the cumulative character of the two offences. It was probably mere good fortune that one or more people were not killed given the circumstances of both offences. The facts of this case demanded a sentence which both reflected society’s abhorrence of the respondent’s conduct and was proportionate to the respondent’s level of blameworthiness.

[22] Imprisonment has been recognized by the courts as properly promoting general deterrence and denunciation in the context of drinking and driving related offences.

[23] In R. v. McVeigh (1985) 1985 CanLII 115 (ON CA), 22 C.C.C. (3d) 145 (Ont. C.A.), MacKinnon A.C.J.O. at 150 recognized the relationship between general deterrence and drinking and driving as follows:

It is true that many of those convicted of these crimes have never been convicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence would be in their best interests and be the most effective form of rehabilitation. However, it is obvious that such an approach has not gone any length towards solving the problem. In my opinion these are the very ones who could be deterred by the prospect of a substantial sentence for drinking and driving if caught. General deterrence in these cases should be the predominate concern, and such deterrence is not realized by over emphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving.

[24] In R. v. McPhee (1990) 21 M.V.R. (2d) 318 (Ont. C.A.), Brooke J.A. held that “ordinarily” the objective of general deterrence required a custodial sentence for the offence of impaired driving causing bodily harm.

[25] In R. v. Biancofiore (1997) 1997 CanLII 3420 (ON CA), 119 C.C.C. (3d) 344, Rosenberg J.A. commented at paras 22-24 that:

There is nothing to indicate that the need for harsh measures in the interests of general deterrence has abated. Only two years ago, Cory J. again drew attention to the problem of drinking and driving in R. v. Bernshaw (1995) 1995 CanLII 150 (SCC), 95 C.C.C. (3d) 193 (S.C.C.) at 204.

Every year drunk driving leaves a terrible trail of death, agony, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalizations, drunk driving is clearly the crime which causes the most significant social loss to the country.

For the reasons expressed by this court in McVeigh as reinforced by the 1985 statutory initiatives, it is my view that incarcerations for crimes like those committed by this respondent can be justified on the basis of general deterrence.

The sentence for these crimes must bring home to other like-minded persons that drinking and driving offences will not be tolerated.

[26] In Proulx, supra, Lamer C.J. stated at para 129:

Moreover, dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law-abiding persons with good employment records and families. Arguably such persons are the ones most likely to be deterred by the threat of severe penalties. See: R. v. McVeigh.

And in relation to denunciation Lamer C.J. stated, in Proulx, at para 102:

Denunciation is the communication of society’s condemnation of the offenders conduct. In M. (C.A.), supra, at para 81, I wrote:

In short, a sentence with a denunciating element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated at R. v. Sargeant (1974) 60 Cr. App. R. 74 at 77: “society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentence they pass.

CONCLUSION

[27] It is my view that the sentencing judge erred in law in failing to give proper consideration to the principle of general deterrence and the need for a denunciatory sentence, as reflected in the case law on drinking and driving offences.

[28] In my opinion a sentence of six months is appropriate but it should be a period of incarceration and not served in the community. However, there should be some consideration given to the fact that the six months conditional sentence has been served.

[29] Leave to appeal the sentence is therefore granted and the sentence varied as follows:

(a) The six month conditional sentence is set aside and a five month period of incarceration substituted therefor to commence as of this date.

(b) The conditions of the three years probation are amended to extend the curfew between 10:00 p.m. and 6:00 a.m. Friday and Saturday evenings to the first two years of probation.

_____ “R. Roy McMurtry CJO”

_____ “I agree. John Laskin J.A.”

_____ “I agree. R.J. Blair R.S.J. (ad hoc)

Released: December 4, 2000

“RRM”