DATE: 20041026
DOCKET: C41195
COURT OF APPEAL FOR ONTARIO
LABROSSE, MacPHERSON and CRONK JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Tina Yuen and Julia Forward
for the respondent
Respondent
- and -
RENÉ GOUDREAULT
Gregory Lafontaine
for the appellant
Appellant
A N D B E T W E E N :
DOCKET: C41299
HER MAJESTY THE QUEEN
Tina Yuen and Julia Forward
for the appellant
Appellant
- and -
RENÉ GOUDREAULT
Gregory Lafontaine
for the respondent
Respondent
Heard: October 13, 2004
The appellant appeals from the conviction entered by Justice Yvon Renaud of the Ontario Court of Justice on October 29, 2003. The Crown appeals from the sentence imposed by Renaud J. on January 12, 2004.
LABROSSE J.A.:
[1] The appellant appeals his conviction for impaired driving causing bodily harm. He was sentenced to sixty days imprisonment, two years probation plus a four-year driving prohibition. The Crown appeals the sentence.
[2] Marc Chenard was injured as the result of an accident that took place in Sudbury on November 1, 2002. He was driving a pick-up truck and had stopped at an intersection for a red light when he was hit from behind with considerable force by a black pick-up truck.
The conviction appeal
[3] There were two issues at trial: first, whether the appellant had been the driver of the truck that drove into Mr. Chenard’s truck; and second, whether the appellant was impaired in his ability to operate a motor vehicle at the time of the accident. With respect to the second issue, the finding of the trial judge, that at the scene of the accident the appellant was impaired in his ability to operate a motor vehicle, is amply supported by the evidence. The real issue was the first, namely, whether the appellant was the driver of the truck that ran into the rear of the Chenard vehicle.
[4] When Constable Rhéaume arrived at the scene shortly after the accident, Mr. Chenard was seated in his vehicle being treated by two ambulance personnel. There was no one in the black pick-up truck that had struck the Chenard vehicle. Approximately eight to ten persons were gathered around the ambulance attendants. The officer asked: “Who was the driver of that pick-up truck?” A man in his fifties raised his hand and said: “I am.”
[5] That person was the appellant. The officer asked the appellant for his driver’s licence, ownership and proof of insurance. The appellant walked to the black pick-up truck, removed a wallet from the console and provided his driver’s licence, the ownership of the vehicle, which was in his name, and insurance papers. The appellant was arrested and placed in the back of the police cruiser.
[6] At trial, the defence challenged the admissibility of the appellant’s answer to the officer’s question as well as his subsequent conduct in providing his driver’s licence, ownership and insurance papers for the vehicle. The defence submitted that this information was statutorily compelled by virtue of the Highway Traffic Act and, therefore, that its admission into evidence would constitute a breach of the right against self-incrimination. Stating that he was relying on the decision of the Supreme Court of Canada in R. v. White (1999), 1999 689 (SCC), 135 C.C.C. (3d) 257, the trial judge found that a s. 7 breach of the Charter had been made out and that the appropriate remedy was to exclude the answer given by the appellant and ignore the documentation evidence.
[7] However, the trial judge still convicted the appellant of the offence on the basis of the in-dock identification evidence given by Mr. Chenard and Marc Bélanger, a witness to the accident, and other circumstantial evidence of guilt.
[8] The appellant submits that the appeal turns on the issue of identification such as it was after the appellant’s utterances and related conduct were excluded. According to the appellant, the only evidence of identification left was the in-dock evidence and a conviction on that basis is unreasonable.
[9] The Crown takes the position that the trial judge was in error in excluding the evidence of identification of Constable Rhéaume. There can be no doubt that if that evidence had been ruled admissible, the Crown’s case was overwhelming. However, the trial judge excluded and ignored it. The Crown does not dispute that a conviction based solely on in-dock identification may well be unreasonable, but it argues that is not the case here and that, in any event, there was certainly sufficient supporting evidence to support the finding of guilt.
[10] I have serious reservations about the correctness of the trial judge’s ruling. However, assuming that the ruling to exclude and ignore the evidence was correct, it is my view that the trial judge correctly dealt with the in-dock evidence and sought and articulated sufficient confirmatory evidence to render a verdict that a properly instructed jury, acting judicially, could reasonably have reached (R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381).
[11] The trial judge instructed himself on the frailties of eyewitness evidence in general and in-dock identification in particular. He noted, correctly in my view, that the present case is not like the fleeting glance cases. Both Mr. Chenard and Mr. Bélanger had ample opportunity to observe the driver of the black pick-up at a close distance with no obstructions. The driver spoke to both witnesses and was observed to go back to the black pick-up. At that time, they were the only three persons on the road.
[12] The trial judge also properly noted that the arrest of the appellant at the scene tends to confirm the identification evidence. The fact that the person arrested is one of eight to ten persons at the scene reduces the risk that the wrong person was identified in the stand. The fact that there was no evidence of anyone fleeing the scene is another factor that supports the identification evidence.
[13] It is important to note that the appellant was the only person at the scene who displayed obvious signs of impairment as described by both witnesses. Although this evidence was not mentioned by the trial judge in his reasons when he dealt with the issue of identification, he was clearly aware of it as he specifically referred to it when he dealt with the issue of impairment. This evidence is another factor that supports the identification of the appellant as the driver. It must be remembered that when determining whether the verdict is unreasonable, the court is required to look at the entire record (R. v. Pan (1999), 1999 3720 (ON CA), 44 O.R. (3d) 415 (C.A.) at page 485, aff’d 2001 SCC 42, [2001] 2 S.C.R. 344).
[14] In addition, the signs of impairment of the appellant observed by Constable Rhéaume when he arrived at the scene provide additional confirmatory identification evidence. There had been a serious collision with no apparent cause and no attempt to brake and one man in a group of eight to ten persons showed obvious signs of impairment.
[15] The trial judge was alive to the potential pitfalls of identification evidence. He was alert to the discrepancies between the initial descriptions provided by the witnesses and the evidence led at trial as to the appellant’s actual appearance. However, both descriptions provided several details of the most obvious and distinguishing feature of the appellant, namely, his impairment.
[16] In my view, the cumulative effect of all the evidence supports the finding of the trial judge that the appellant was the impaired driver and the verdict is not unreasonable.
[17] It must also be kept in mind that without the appellant’s utterance at the scene, Constable Rhéaume would have spoken to any witness at the scene who may have seen the driver. He would also undoubtedly have run the licence plate of the vehicle and would have searched the damaged vehicle which would have revealed the appellant’s wallet and identification and registration papers. I also note that the appellant did not testify during the trial proper.
[18] Accordingly, I would dismiss the conviction appeal.
The sentence appeal
[19] The sentence of sixty days imprisonment plus two years probation and a four-year driving prohibition is, at first glance, demonstrably unfit. The appellant had three previous driving and drinking offences: his first conviction in 1986 resulted in a $1,000 fine; his second in 1990, 14 days imprisonment; and his third in 1999, a $2,000 fine.
[20] Although the minimum punishment provisions in the Criminal Code were not triggered in this case, the very fact that Parliament has legislated a ninety-day minimum term of imprisonment for a third conviction of impaired driving simpliciter demonstrates that the sixty-day sentence imposed in this case is a marked departure from the range of sentences customarily imposed for this type of offence. This was a reversible error. See R. v. M.(C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500. See also Schedule “A” attached for a sampling of cases provided by the Crown in which courts have dealt with similar cases.
[21] At the sentence hearing, the submissions of both counsel centered primarily on the appropriateness of a conditional sentence. Defence counsel was pressing for a conditional sentence and, in answer to a question from the trial judge, defence counsel suggested that the minimum period of driving prohibition of three years would be appropriate in the circumstances, adding that the Court might he thinking of something between three to five years. Crown counsel asked for a sentence of imprisonment of six to nine months. He stated that he agreed with the submission of defence counsel with respect to the length of the driving prohibition. This period of imprisonment suggested by Crown counsel was not excessive and well within the proper range for this offence.
[22] Not surprisingly, the reasons of the trial judge focused on the issue of a conditional sentence. The trial judge also made reference to the thorough submissions of counsel with respect to the aggravating and mitigating circumstances of the case. The aggravating circumstances referenced by the Crown were the degree of impairment of the appellant, the nature of the accident, and the nature of the injuries sustained by Mr. Chenard. As to the mitigating circumstances, defence counsel referred to the health problems experienced by the appellant, including back and arthritic problems, depression and malignant polyps with a serious family history of colon cancer. The trial judge noted that the appellant had worked in demanding employment throughout his life, principally as a heavy construction equipment operator, and that his occupation has required him to travel and to be away from his family. He accepted that the appellant had been abstaining from alcohol.
[23] The trial judge concluded that because of the appellant’s previous related record a conditional sentence would not adequately address the principles of sentencing. As stated above, he imposed a sentence of imprisonment of sixty days to be followed by a period of probation of two years and a driving prohibition of four years.
[24] A probation order was not part of the submissions of counsel. It contains a condition that the appellant participate in alcohol assessment and counseling and a further condition that the appellant abstain from the purchase, consumption or possession of alcohol. Although the trial judge accepted that the appellant has abstained from alcohol since the accident, these conditions are clearly intended to assist in the rehabilitation of the appellant.
[25] In light of the recommendation of defence counsel that the appellant be prohibited from driving for three years and the agreement of the Crown that the recommendation of counsel was appropriate, it was reasonable to expect that the trial judge would accept the recommendation. However, the trial judge ordered a four year prohibition period. In spite of the prohibition, the appellant will still be able to operate heavy equipment which is not usually operated on a street or highway. However, the additional year of driving prohibition will add to the enormous difficulties the appellant is bound to face in getting to and from work in places generally away from city centers. It will affect his ability to continue his livelihood as a heavy equipment operator.
[26] The trial judge is entitled to considerable deference in fashioning a sentence, particularly when considering that he presided over the entire trial and was also in the best position to measure the appropriate community response to the appellant’s action (R. v. M. (C.A.), supra at para. 91). I have said that the period of imprisonment was outside the range for this type of offence. However, the leniency expressed in imposing a short period of imprisonment is offset by the probation order and the added year of driving prohibition.
[27] Notwithstanding the error related to the range of the sentence, I would not interfere. Accordingly, I would dismiss both the conviction appeal and the Crown’s sentence appeal.
Released: OCT 26 2004 Signed: “J.-M. Labrosse J.A.”
JML “I agree. J.C. MacPherson J.A.”
“I agree. E.A. Cronk J.A.”
SCHEDULE “A”
Sentencing Table – Impaired Driving Causing Bodily Harm
(Reverse chronological order)
Offence/Aggravating Factors
Mitigating Factors/Personal Circumstances
Disposition
R. v. Bouchard,
[2002] O.J. No. 5357 (C.A.)
Impaired driving causing bodily harm and breach of undertaking
22-year-old aboriginal accused drove his vehicle dangerously and collided in the wrong lane with an oncoming vehicle causing serious personal injuries to the driver of that vehicle and passenger
• blood/alcohol 3 times legal limit
• extremely dangerous manner of driving
• guilty plea
• 99 days of pretrial credit
• aboriginal
• 22 years old
• no criminal record
• serious drinking problem which made him prone to blackouts
Appeal from sentence of 16 months imprisonment plus 2 years probation and 3 year driving prohibition dismissed
R. v. Dhesi, [2001] O.J. No. 1343 (C.A.)
Impaired driving causing bodily harm
Accused wove all over road and clipped another car. While drive inspected damage, accused’s car lunged forward and pinned driver between the two cars. The victim was severely injured.
• one prior conviction for impaired driving
• minimized severity of conduct and other driver’s injuries in PSR
• chronic drinking problem
• high blood/alcohol content
• guilty plea
Appeal from sentence of 18 months imprisonment dismissed.
R. v. Hayre, [2001] O.J. No. 844 (C.A.)
Impaired driving causing bodily harm (and extortion)
• at time of offence on bail for 2 other offences, one of which was a drinking and driving offence
• serious injuries to several victims
• aggressive and erratic driving
• no criminal record
• guilty plea
The sentence of 60 days imprisonment for impaired driving causing bodily harm was set aside and increased to five months imprisonment.
R. v. Levesque, [2001] O.J. No. 210 (C.A.)
Impaired driving causing bodily harm
The accused was involved in a serious accident when he made a left turn without warning and collided with an approaching vehicle. His passenger sustained significant injuries.
• .294 and .288 blood/alcohol readings
• dated conviction for “over 80” in early 1970s
• guilty plea, following a preliminary hearing
• prior alcohol problems and did not seem to recognize the seriousness of his alcohol abuse
The appeal against a sentence of 9 months imprisonment was dismissed.
Offence/Aggravating Factors
Mitigating Factors/Personal Circumstances
Disposition
R. v. Dharamdeo, 2000 17018 (ON CA), [2000] O.J. No. 4546 (C.A.)
Impaired driving causing bodily harm; impared driving
In first incident, accused approached intersection at 1:40 a.m., lost control, left road, mounted sidewalk. Impact caused car to split, demolishing a bus shelter. In second incident, 7 months later, involved in another collision at same intersection. He tried to turn right but due to speed could not and crashed into 2 vehicles, injuring one of the passengers.
• driving in contravention of learner’s permit
• commenced treatment but unable or unwilling to finish
• blood/alcohol level between .249 and .264 on first offence; .190 and .200 on second offence.
• good pre-sentence report – “good worker”
• 21 days pre-trial custody
Crown appeal against 6 month conditional sentence. Sentence varied to 5 months imprisonment. (Consideration given to fact that 6 month conditional sentence had been served. Court found that judge erred in law in failing to give proper consideration to general deterrence and need for a denunciatory sentence.)
R. v. Goulais, [1999]
O.J. No. 199 (Gen. Div.)
Impaired driving causing bodily harm
25 year old accused, while travelling above the posted limit, crossed the centre line of highway and struck another vehicle head-on
• blood/alcohol level of .180
• driving without valid driver’s licence at time of offence
• victim suffered fractured hip, pelvis and skull, serious leg injuries – significant physical, psychological and financial impact
• first offender
• native offender
• guilty plea
• very favourable pre-sentence report
• genuine expression of remorse
• gainfully self-employed
• no substance abuse problems – “weekend drinker”
• total abstinence from alcohol since
12 month conditional sentence, 4 year driving prohibition
R. v. Anderson, [1997]
O.J. No. 2477 (C.A.)
Impaired driving causing bodily harm, fail to remain
(No facts provided in the endorsement.) Trial judge imposed custodial term that was more than three times greater than term suggested by trial Crown.
• “other” mitigating factors present
Sentence varied to 10 months imprisonment on impaired driving. Four months consecutive for fail to remain maintained.
Offence/Aggravating Factors
Mitigating Factors/Personal Circumstances
Disposition
R. v. Szawlawski, [1997] O.J. No. 1016 (Gen. Div.)
Impaired driving causing bodily harm
39-year-old accused while driving at moderate speed through a residential area lost control of vehicle and struck three pedestrians
• empty beer bottle found in passenger seat of vehicle
• half-full bottle found in cup holder
• accused was unsteady on his feet and smelled of alcohol
• blood/alcohol level of 151 mgs/100 ml
• first offender
• considerable remorse
• accepted responsibility for conduct
• quit consuming alcohol after offence
• was a volunteer in local distress centre prior to accident
• wife was totally dependent upon him
• gainfully employed
• pedestrians had fully recovered
12 month conditional sentence, 3 year driving prohibition
R. v. Costron, [1996] O.J. No. 3019 (Gen. Div.)
Impaired driving causing bodily harm, refusing to provide breathalyzer sample
Accused was travelling at a speed greater than posted limit towards an intersection. He was adjusting a malfunctioning wiper through his window when he collided with vehicle stopped at the intersection.
• serious injuries suffered by the victim – lost capacity to be self-sufficient, with repercussions for her family
• 2 prior convictions for impaired driving
• guilty plea
• undertook successful treatment for his alcohol problem since the accident
• genuinely remorseful
• radical changes in his lifestyle
• family and business depended upon him heavily
15 months imprisonment, 3 years probation, 3 year driving prohibition. (Court accepted joint submission, but noted that sentence was at bottom of acceptable range.)
R. v. Williams, [1994] O.J. No. 420 (C.A.)
Dangerous driving and impaired driving causing bodily harm
(No facts provided in the endorsement)
• Appellant had been charged with dangerous driving causing bodily harm, impaired driving causing bodily harm and over 80
Appeal against sentence of 9 months for dangerous driving, 3 months concurrent for impaired driving causing bodily harm dismissed.
R. v. Strachan, [1992] O.J. No. 1071 (Gen. Div.)
Impaired driving causing bodily harm
30 year old accused struck pedestrian who was crossing busy street in the middle of the block
• offence while licence suspended due to unpaid fine
• prior conviction for speeding; minor unrelated record
• serious injuries suffered by victim – coma for 7 weeks, memory loss, walks with a cane
• put forward defence of having consumed whiskey right after the accident
• arranged for friend to remove bottles from his truck
• victim contributed to the accident by crossing in the middle of busy street
• driving exhibited some erratic behaviour, but no excessive speed
• first offence for drinking and driving
1 year imprisonment,
3 year driving prohibition.
Offence/Aggravating Factors
Mitigating Factors/Personal Circumstances
Disposition
R. v. McPhee, [1990] O.J. No. 13 (C.A.)
Impaired driving causing bodily harm
Driving home from the company golf tournament with a friend in the backseat, the accused lost control of his vehicle and drove it off the road. It was found upside down in a ditch by police.
• .157 and .160 blood/alcohol readings
• passenger had a crushed vertebra but did not suffer any permanent injuries
• guilty plea
• no criminal record
• remorseful and concerned for the victim and his own family
• 25 years old, support of family
The sentence was varied from a $1,500 fine, 1 year probation, and 1 year driving prohibition to 60 days’ imprisonment.
(The court noted that important principle of general deterrence was not followed at trial.)
R. v. Hayes, [1990] O.J. No. 1991 (C.A.)
Impaired driving
Accused had also been charged with impaired driving causing death, but was acquitted of that charge. Deceased was accused’s friend and a passenger in his car. They were returning from a party when offence occurred.
• 2 prior convictions for impaired driving
• accused displayed arrogance with respect to drinking and driving offences – felt he was in position to determine if he was impaired despite 2 prior convictions
• very high rate of speed
• high blood/alcohol content
• 6 months pre-sentence custody
Appeal from sentence of 2 years less one day, imprisonment dismissed. (Court noted sentence was at high end of range.)
R. v. Morrison, [1989] O.J. No. 782 (C.A.)
Impaired driving causing bodily harm
(No facts provided in the endorsement)
• serious injuries to innocent third parties
• no prior alcohol-related convictions
• blood/alcohol reading not excessively high
• no evidence of alcohol abuse
• favourable pre-sentence report
• support of employer indicating good prospects for rehabilitation
Sentence of 2 years less a day varied to 12 months imprisonment. McVeigh, which involved a more serious offence, was clearly distinguishable from this case.