Court of Appeal for Ontario

CITATION: R. v. Patriquin, 2012 ONCA 67

DATE: 20120201

DOCKET: C53800

Feldman and Watt JJ.A. and Dambrot J. (Ad Hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

Wilfred Patriquin

Appellant

Counsel: David W. Russell, for the appellant Matthew Asma, for the respondent

Heard and released orally: January 24, 2012

On appeal from the sentence imposed on January 10, 2010, by Justice Faith M. Finnestad of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant contends that the sentencing judge committed three errors in principle in imposing a global sentence of five years on convictions of operating a motor vehicle with a prohibited blood alcohol concentration and leaving the scene of an accident.

[2] The errors in principle advanced by the appellant are

i. that the trial judge erred in failing to give appropriate weight to the “gap” principle in light of the substantial time that had elapsed between these offences and the appellant’s last related conviction;

ii. that the trial judge erred in failing to accord appropriate weight to the appellant’s unstable health, a claim reinforced by fresh evidence of his current condition; and

iii. that the trial judge relied in sentencing the appellant on a finding of fact that she had rejected in acquitting the appellant of impaired operation.

[3] We would not give effect to any of the claims there.

[4] The trial judge was well aware of the “gap” principle and its underlying rationale. The gap between related convictions in this case was considerable, but there was evidence, which the trial judge accepted, that, during the conviction free period, the appellant continued to consume excessive amounts of alcohol on a regular basis. In addition, there was evidence that the appellant was observed driving, or at least in charge of a motor vehicle, with open alcohol in the vehicle during the “gap” period.

[5] By his own admission, the appellant had drunk six beers in an hour before getting into his uninsured truck and driving away. It was open to the trial judge to accord less weight to the “gap” principle in these circumstances and we see no error in her having done so.

[6] The trial judge was well aware, as are we, of the appellant’s expressed health concerns. It does not follow from the length of sentence imposed that the trial judge failed to give adequate weight to this factor.

[7] This was an extremely serious offence. The blood alcohol concentration was significantly in excess of the prohibited concentration and the appellant has nearly three dozen prior convictions for related offences involving excess alcohol consumption, as well as disqualified and dangerous driving.

[8] Nor do we agree that a comparison of the reasons for judgment and reasons for sentence reveals an inconsistency in the trial judge’s findings about appellant’s role in an accident that occurred while he was driving his motor vehicle. The trial judge made no determinative finding on factual causation in her reasons finding the appellant not guilty of impaired operation. It was open to her to consider, as she did, that the appellant’s driving involved an accident.

[9] In the result, we see no error in principle in the sentence imposed by the trial judge. Leave to appeal sentence is granted, but the appeal is dismissed.

“K. Feldman J.A.”

“David Watt J.A.”

“M. Dambrot J. (ad hoc)”