CITATION: R. v. Spanos, 2007 ONCA 241

DATE: 20070402

DOCKET: C44441

COURT OF APPEAL FOR ONTARIO

MOLDAVER, GILLESE and LaFORME JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

And

ROBERT SPANOS

Appellant

Aswani Datt, for the appellant

Jeanette Gevikoglu, for the respondent

Heard: March 29, 2007

On appeal from the conviction entered May 11, 2005 and the sentence imposed November 14, 2005 by Justice John D. Smith of the Ontario Court of Justice.

BY THE COURT:

[1] The appellant was convicted of operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol per 100 millilitres of blood. He was sentenced to seven months in custody. The appellant appeals both his conviction and sentence.

[2] The sole ground of appeal against conviction is that the designation of the qualified technician under s. 254(1) by the Minister of Public Safety and Security amounted to improper sub-delegation because the Minister was not the “lawful deputy” of the Solicitor General. The appellant makes two submissions on the sentence appeal: first, that the trial judge erred in imposing a sentence one month longer than the custodial term sought by both Crown and defence counsel; second, that the term of custody should be reduced because there was no space available at the correctional institute where it was understood he would be serving his sentence.

The Designation of the Qualified Technician

[3] On March 2, 2004, the appellant provided two breath samples to Peel Regional Police in response to a demand under s. 254(3) of the Criminal Code. The samples were taken by Constable Wright, who had been designated a qualified technician under s. 254(1) of the Criminal Code on May 20, 2003 by Robert W. Runciman, the Minister of Public Safety and Security at the time.

[4] By Order in Council dated April 25, 2002, all of the powers and duties assigned by law to the Solicitor General were assigned and transferred to the Minister of Public Safety and Security, and the Minister was made responsible for the administration of the Ministry of the Solicitor General Act, R.S.O. 1990, c. M.34.[^1]

[5] The appellant submits that the assignment and transfer of the powers of the Solicitor General to the Minister of Public Safety and Security constituted an improper re-delegation of the authority to designate qualified technicians, and the qualification of Constable Wright was therefore invalid.

[6] For the reasons that follow, we would not give effect to that submission.

[7] Parliament delegated to provincial Attorneys General and Solicitors General the power to designate qualified technicians under s. 254(1) of the Criminal Code. The Code does not specify which official holds the office of Solicitor General; instead, that person is properly identified by reference to provincial legislation. Under the Ministry of the Solicitor General Act, the Solicitor General presides over and has charge of the Ministry and is responsible for the administration of the Act.

[8] Pursuant to the Executive Council Act, R.S.O. 1990, c. E.25, the Lieutenant Governor of Ontario may appoint Ministers and prescribe their powers and duties. Those powers and duties may be assigned or transferred by Order in Council. The Order in Council assigning and transferring the powers of the Solicitor General to the Minister of Public Safety and Security did nothing more than change the title of the official responsible for carrying out the duties of the Solicitor General. In substance, the successor Ministers were and are the Solicitor General for the purposes of s. 254(1) of the Criminal Code.

[9] This interpretation accords not only with the provisions of the federal and provincial Interpretation Acts but also with general principles of statutory interpretation, and common sense. The interpretation contended for by the appellant leads to the absurd result that the person charged with performing the duties of the Solicitor General would be disqualified from so doing simply by virtue of a change in title.

The Sentence Appeal

[10] The appellant appeals the length of his sentence, which exceeds by one month the term of custody sought by both Crown and defence counsel. The appellant submits that the length of sentence imposed was predicated on the understanding that space would be available to him in the Ontario Correctional Institute’s alcohol treatment program. That space not being available, the appellant submits his sentence ought to be reduced to four months.

[11] Although the submissions of Crown and defence counsel accorded on the length of the custodial term being sought, there was no joint submission on sentence in this case. The Crown did not join defence counsel in submitting that the appellant’s sentence should be served at the Ontario Correctional Institute, nor in seeking only the minimum three-year driving prohibition. The principles respecting joint submissions therefore do not apply.

[12] The sentence imposed was not unfit. The sentencing judge had regard to the applicable sentencing principles and he considered the circumstances of both the offender and the offence. He noted that this was the appellant’s fourth conviction for driving over 80, and that intermittent custodial sentences for the last two convictions had not deterred the appellant from reoffending.

[13] The sentencing judge sought to fashion a sentence that would meet the appellant’s need for rehabilitation by ensuring that it was of sufficient length to qualify the appellant for incarceration at the Ontario Correctional Institute, and by making an urgent recommendation that his sentence be served there. He emphasized, however, that in his view the offence merited a seven month custodial sentence regardless of whether the appellant had access to that facility. We see no error in his reasons or in the length of sentence imposed.

Disposition

[14] In the result, the appeal against conviction is dismissed; leave to appeal sentence is granted, but the appeal from sentence is dismissed.

Signature: “M. J. Moldaver J.A.”

“E.E. Gillese J.A.”

“H. S. LaForme J.A.”

RELEASED: “MJM” April 2, 2007

[^1]: The powers and duties formerly exercised by the Solicitor General were subsequently assigned to the Minister of Community Safety and Correctional Services.