Court of Appeal for Ontario

Date: 2023-02-23 Docket: COA-22-CR-0372

Before: Feldman, Thorburn and Coroza JJ.A.

Between: His Majesty the King, Respondent and Allan Dale Sutherland, Appellant

Counsel: Allan Dale Sutherland, acting in person Dan Stein, appearing as duty counsel Nicholas Hay, for the respondent Crown

Heard: February 6, 2023

On appeal from the sentence imposed on September 14, 2022, by Justice Katherine L. McLeod of the Ontario Court of Justice, sitting without a jury.

Reasons for Decision

[1] On September 14, 2022, the appellant pleaded guilty to two offences: (1) operating a motor vehicle while disqualified, on June 9, 2018, contrary to s. 259(4) of the Criminal Code, R.S.C. 1985, c. C-46; and (2) operating a motor vehicle, on September 8, 2019, while prohibited, contrary to s. 320.18 of the Code.

[2] The appellant has a lengthy record, including several convictions for driving while disqualified. At the time of the offences, he was the subject of a lifetime, Canada-wide, driving prohibition.

[3] The parties proposed a joint submission for an 18-month custodial sentence and a lifetime driving prohibition. The sentencing judge accepted the joint submission and, in doing so, imposed two concurrent lifetime driving prohibitions.

[4] The appellant raises two issues on appeal, with the assistance of duty counsel on the second issue.

[5] First, he seeks a reduction in sentence because he is not receiving the proper health care to address his various medical issues, and he has employment that he would like to begin as soon as possible.

[6] Second, the appellant submits that the sentencing judge erroneously imposed lifetime driving prohibitions for the offences. The Crown concedes that the trial judge erred in imposing the lifetime prohibitions.

[7] While the parties agree that it is open to this court to revisit the imposition of driving prohibitions, the parties do not agree as to the result. Duty counsel argues that, since the appellant is already bound by a lifetime prohibition order for previous offences, no further prohibition order is necessary. The Crown disagrees and argues that an 11.5-year driving prohibition should be imposed.

[8] The first ground of appeal can be dealt with briefly. In our view, there is no basis to interfere with the 18-month sentence imposed by the sentencing judge.

[9] The sentencing judge was aware of the appellant’s medical history. She read the pre-sentence report and received submissions which outlined that, in 2013, the appellant was involved in a car accident which resulted in neck, back, and head injuries that required surgery. She was also aware that the appellant had employment to return to. She mentioned this in her reasons for sentence. The medical issues and employment were clearly factors in the proposed length of sentence put forward by the parties. Considering the appellant’s history of breaching driving prohibitions, his criminal record, and the need for specific deterrence, the proposed 18-month sentence was fit. There is no basis to interfere with the sentencing judge’s decision to accept the joint submission.

[10] As to the second ground of appeal, we accept the parties’ position that the sentencing judge erred in imposing concurrent lifetime driving prohibitions. In light of amendments to the Code, the imposition of the driving prohibition orders was discretionary. The maximum driving prohibition that could be imposed on the first count was three years, plus the entire period to which the appellant was sentenced for the offence committed on June 9, 2018. On the second count, the maximum prohibition was ten years, plus the entire period to which he was sentenced for the offence committed September 8, 2019.

[11] It appears that the court and the parties did not turn their minds to the fact that, on December 17, 2018, the offence to which the appellant pleaded guilty under s. 259(4) of the Code was repealed. It was replaced by s. 320.18. This amendment revised the terms of any driving prohibition: R. v. Boily, 2022 ONCA 611, 163 O.R. (3d) 161, at paras. 22 and 39. What was originally a mandatory driving prohibition of not less than three years under s. 259(4) [1] became a discretionary driving prohibition with the following maximum periods, as set out in s. 320.24(5):

(a) if the offender is liable to imprisonment for life in respect of that offence, of any duration that the court considers appropriate, plus the entire period to which the offender is sentenced to imprisonment;

(b) if the offender is liable to imprisonment for more than five years but less than life in respect of that offence, not more than 10 years, plus the entire period to which the offender is sentenced to imprisonment; and

(c) in any other case, not more than three years, plus the entire period to which the offender was sentenced to imprisonment. [Emphasis added.]

[12] In the appellant’s case, the parties agree that the length of the driving prohibition starts with the maximum term of imprisonment that he was subject to when he pleaded guilty on September 14, 2022, and that the maximum period is set out in s. 320.24(5) of the Code.

[13] Duty counsel argues that, since the appellant has already been prohibited from driving for life, there is no need to impose driving prohibitions for these two offences, as the result would be redundant.

[14] We do not accept this submission. Given the appellant’s history of driving while disqualified, as well as the intention of the parties in arriving at the joint submission to impose a driving prohibition, we are of the view that a driving prohibition must be imposed. We note that it is open to the appellant to apply, under s. 109 of the Corrections and Conditional Release Act, S.C. 1992, c. C-44.6, for a variation of any driving prohibition order made under s. 320.24 or s. 259 of the Code, in order to alleviate any perceived hardship.

[15] In sum, the trial judge erred in law in imposing concurrent lifetime prohibitions. We consider the matter afresh. In our view, the appropriate length of the driving prohibition to be imposed under s. 320.24(5) is 11.5 years. This reflects the maximum driving prohibition of 10 years, plus the entire period to which the appellant was sentenced.

[16] For these reasons, the appeal is allowed in part. We vacate the concurrent lifetime driving prohibition imposed on the first count. We vary the driving prohibition imposed on the second count to one of 11.5 years, effective as of the date when the sentence was imposed by the sentencing judge. Otherwise, all aspects of the sentence stand.

“K. Feldman J.A.” “J.A. Thorburn J.A.” “S. Coroza J.A.”

[1] Because the appellant had more than two previous convictions for the same offence, the prohibition had to be for a period of not less than three years: s. 259(1)(c).