Her Majesty the Queen v. Demchuk [Indexed as: R. v. Demchuk]

68 O.R. (3d) 17

[2003] O.J. No. 4215

Docket No. C38861

Court of Appeal for Ontario

Doherty, Feldman and MacPherson JJ.A.

November 3, 2003*

* Reasons released November 4, 2003.

Criminal law -- Sentencing -- Drinking and driving -- Greater punishment by reason of previous conviction -- Accused having lengthy record for drinking and driving -- Accused not served with notice seeking increased punishment due to prior convictions -- Conditional sentence not foreclosed as failure to serve notice meant accused not convicted of offence for which is minimum term of imprisonment -- Trial judge erred in imposing conditional sentence -- Appropriate custodial sentence one year's incarceration -- Accused entitled to six months' credit for pre-trial custody -- Given accused had already served 13 months of conditional sentence with strict conditions custodial sentence varied to time served -- Lifetime driving prohibition upheld -- Three years' probation added.

Criminal law -- Sentence -- Conditional sentence -- Conviction for second or subsequent drinking and driving offence not constituting conviction for "offence punishable by minimum term of imprisonment" under s. 742.1 where Crown did not serve notice required by s. 727 -- Conditional sentence not foreclosed -- Given accused's criminal record for related offences trial judge erred in imposing conditional sentence -- Appropriate sentence one year's incarceration -- Accused served 14 months of strict conditional sentence -- Custodial portion of sentence varied to time served -- Lifetime driving prohibition upheld and three years' probation added -- Criminal Code, R.S.C. 1985, c. C-46, ss. 727, 742.1.

The accused was convicted of drinking and driving. He had 14 prior convictions for drinking and driving and seven prior convictions for driving while disqualified. He spent 90 days in pre-trial custody. The trial judge imposed a conditional sentence of two years less a day. The Crown appealed.

Held, the appeal should be allowed.

Where an accused is convicted of a subsequent drinking and driving offence, but the Crown has not served the notice required by s. 727 of the Criminal Code, the accused does not stand convicted "of an offence that is punishable by a minimum term of imprisonment" as described in s. 742.1 of the Criminal Code, and a conditional sentence is not foreclosed. However, the trial judge erred in imposing a conditional sentence in this case. An appropriate custodial sentence was one year's incarceration. The accused was entitled to six months' credit for the three months in pre-trial custody. As he had already served 14 months of his conditional sentence, eight months of which had very strict conditions, the sentence was varied to time served. The lifetime driving prohibition imposed by the trial judge was upheld. In addition, three years' probation was imposed prohibiting the accused from owning a motor vehicle, being in the driver's seat of a vehicle and ordering that he continue treatment for his alcoholism as direced by the probation officer. [page18 ]

APPEAL by the Crown from a sentence for drinking and driving.

Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 255.1(a), 726.2, 727, 742.1

Gregory J. Tweney and Philip A. Perlmutter, for appellant. Daniel Moore, for respondent. Rick Visca and Nicholas E. Devlin, for intevenor.

Endorsement

[1] Endorsement BY THE COURT (orally): -- We cannot accept the Crown's submission, grounded in s. 255.1(a)(ii) and (iii) of the Criminal Code, R.S.C. 1985, c. C-46, that where an accused is convicted of a subsequent drinking and driving offence, but the Crown has not served the notice required by s. 727, the accused stands convicted of "an offence that is punishable by a minimum term of imprisonment" as described in s. 742.1 of the Code. Absent the notice, the accused is not subject to a minimum term of imprisonment and a conditional sentence is not foreclosed for that reason. It follows that we do not reach the issue of the constitutionality of the minimum sentences set out in s. 255.1(a)(ii) and (iii).

[2] The trial judge imposed a conditional sentence of two years less a day with stringent terms, including house arrest for the first eight months. Unfortunately, the reasons of the trial judge do not comply with s. 726.2 of the Code. His reasons are simply the imposition of the terms of the sentence without any explanation for any of those terms. Moreover, the sentence bears no relationship to the positions of either the Crown or the defence. Both made submissions concerning a custodial sentence; without explanation, the trial judge imposed a conditional sentence.

[3] This error requires this court to impose a fit sentence. A conditional sentence for this offender and this offence is not warranted. The respondent has been convicted 14 times for drinking and driving and seven times for driving while disqualified. On three previous occasions, he has received a custodial sentence of six months. In light of this record, there was simply no basis for imposing a conditional sentence.

[4] The offence committed by the respondent is a very serious one. A second aggravating factor is the long record of the respondent for various drinking and driving offences.

[5] However, there are several mitigating factors. First, the respondent had committed no criminal offence, including drinking and driving offences, for a six-year period (1996-2002). Second, the respondent has recently benefitted from, and can continue to count on, the exceptional support of his employer and friend, which holds out some promise that the respondent can [page19 ]overcome his alcoholism. Third, after a person has served a period of pre-trial custody (here 90 days) as well as a substantial portion of a conditional sentence and complied with its strict terms, including house arrest for many months, caution should be exercised before converting it into a custodial term.

[6] We think that at this point in time an appropriate custodial sentence in this case is 12 months in custody. The respondent is entitled to six months' credit for the three months in pre-trial custody. He has served 14 months of his conditional sentence, eight months of which had very strict conditions. We would be inclined to equate the 14 months of the conditional sentence to the additional six months of the sentence we would impose. In addition, the lifetime prohibition from driving anywhere in Canada and from applying for a driver's licence imposed by the trial judge are affirmed.

[7] We would also impose a three-year term of probation on the following terms:

(1) The respondent is not to occupy the driver's seat of a motor vehicle;

(2) The respondent is not to own a motor vehicle;

(3) The respondent on consent is to continue treatment for alcohol abuse, as directed by his probation officer;

(4) The respondent must consent to the release of information from his caregivers to his probation officer; and

(5) The respondent is to report to his probation officer within one week of the release of these reasons to sign the Probation Order.

[8] The appeal is allowed in part in accordance with these reasons.

Appeal allowed.