COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Walker, 2014 ONCA 919

DATE: 20141223

DOCKET: C54230

Gillese and Lauwers JJ.A. and Speyer J. (ad hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

Raymond Paul Walker

Appellant

John Collins, for the appellant

Kate Robertson, for the respondent

Heard: December 19, 2014

On appeal from the sentence imposed on August 5, 2011 by Justice Malcolm G. McLeod of the Ontario Court of Justice.

ENDORSEMENT

[1] Following his plea of guilty, the appellant was sentenced to a three-year term of imprisonment for the offence of impaired driving causing death. In addition, the appellant was prohibited from operating a motor vehicle for a period of ten years.

[2] The appellant’s custodial term has been served. The only issue in this appeal is whether this court ought to reduce the length of the driving prohibition imposed by the trial judge. As well, the appellant seeks to introduce fresh evidence relating to his employment and volunteer work since release from prison.

BACKGROUND IN BRIEF

[3] On December 19, 2009, the appellant was operating his motor vehicle near Elmview, Ontario, in the Greater Sudbury area. He lost control of his vehicle and struck a Canada Post mailbox and a hydro pole. At the time of the accident, the appellant was drunk and travelling too fast for the road conditions.

[4] The victim, Tyler Goulais, was the appellant’s best friend. Mr. Goulais was seated in the front passenger seat of the appellant’s vehicle when the collision occurred. Investigation disclosed that he was not wearing a seat belt. Tragically, he died from the injuries he sustained. The appellant, who was wearing his seat belt, escaped with relatively minor injuries.

[5] The sentencing hearing took place on the morning of August 5, 2011. The proceedings were not lengthy: the entire transcript, including the reasons for sentence, comprises a mere thirty pages. The facts of the case were read in by Crown counsel, and both counsel, in a focused and economical fashion, made submissions as to the appropriate length of sentence. At the conclusion of his submissions, Crown counsel requested that the trial judge impose a ten-year driving prohibition. He made no argument in support of his recommendation. Although he had an opportunity to do so, the appellant’s trial counsel – not Mr. Collins – did not address the driving prohibition issue.

[6] The trial judge gave short but cogent reasons explaining why he imposed a three-year penitentiary term. Those reasons are unassailable and, as noted, are not in issue in this appeal. The trial judge then went on to impose the ten-year prohibition order saying only this, at page 30 of the transcript:

In addition, there will be a licence prohibition; I believe the request is for ten? Yes. You are prohibited from operating any motor vehicle anywhere in the Dominion of Canada for ten years.

ANALYSIS

[7] The fitness of a sentence imposed at trial is entitled to appellate deference, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 90. One of the reasons justifying appellate deference is that the trial judge is in the best position to assess the merits of counsel’s arguments having regard to his or her perception of the community’s legitimate expectations. See R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at para. 73.

[8] In the present case, neither Crown counsel nor the presiding judge articulated any reasons to warrant a ten-year driving prohibition. Through inadvertence, defence counsel failed to make any submissions on the driving prohibition issue. It appears that the entire focus of the sentencing hearing was on the length of the term of imprisonment appropriate for this offender.

[9] As the transcript reflects, the trial judge simply adopted Crown counsel’s recommendation of a ten-year driving prohibition without turning his mind to its appropriateness.

[10] In the absence of reasons for the length of the driving prohibition, deference is not owed on that matter and it falls to this court to determine the appropriate duration of such a prohibition.

[11] In the circumstances of this case, the following factors are significant:

• First, the accused was 24 years of age at the time of the offence and had no criminal record. He co-operated with the authorities immediately and throughout their investigation.

• Second, he pled guilty to the charge. His remorse, particularly at being responsible for the death of his best friend, was sincere and deep seated. In this regard, the appellant’s decision to speak to various educational institutions and community organizations about the shame, punishment and permanent emotional trauma that he has experienced as a result of his drinking and driving is to be commended. It speaks to his documented efforts at rehabilitation and his acceptance of full responsibility for his criminal misconduct.

• Further, the trial record discloses that due to the close friendship between the appellant and the victim, the victim’s family reached out to the appellant’s family “in a very forgiving way”. Indeed, the victim’s family requested that a victim impact statement not be filed with the court.

• The appellant is employed as a mechanical technician by a drilling and blasting company in Sudbury. Driving time by automobile between the appellant’s residence and his place of employment is just shy of one hour. In order to advance within the company and to attend to his employment obligations at other plant locations where his employer carries on business, for all practical purposes, the appellant requires future driving privileges.

[12] In all of the circumstances, we are of the view that a five-year driving prohibition is appropriate and consistent with driving prohibitions imposed in similar cases such as Ramage and R. v. Mould, [1999] O.J. No. 5202.

DISPOSITION

[13] Accordingly, the application to admit fresh evidence is granted and the appeal is allowed only to the extent of varying the term of the appellant’s driving prohibition from ten years to five years.

“E.E. Gillese J.A.”

“P. Lauwers J.A.”

“Speyer J. (ad hoc)”