Court File and Parties

Ontario Court of Justice

Date: 2014-07-22

Court File No.: Brampton 3111 998 00 8663

Between:

Her Majesty the Queen

— and —

Mr. Richard James Curtis

Before: Justice Patrice F. Band

Heard on: May 15, 2014 and July 22, 2014

Reasons for Judgment released on: July 22, 2014

Counsel:

• Ms. C. Sibian, counsel for the Crown
• Mr. E. Brown, counsel for the defendant Mr. Richard James Curtis

Judgment

BAND, J.:

Facts

[1] On May 15, 2014, Mr. Curtis pleaded guilty to the offence of Driving while Disqualified.

[2] The facts are simple. On May 29, 2013, Mr. Curtis was driving his mother's car, which did not have a valid sticker on its license plate. He was stopped by police and investigated. What came to light were the facts that Mr. Curtis was, at that time, prohibited from driving for 10 years following a 2010 conviction for Driving while Disqualified and that his driver's license had been suspended by the Ministry for life. He was released at the scene.

[3] A pre-sentence report ("PSR") was ordered and the matter was adjourned for sentencing to today's date.

The Parties' Sentencing Recommendations

[4] The Crown seeks a sentence of 8 months' jail and a 10 year driving prohibition. The Defence seeks a conditional sentence of commensurate duration, and invites other accompanying orders such as probation and community service. The 10 year driving prohibition is not controversial.

Mr. Curtis's Testimony at the Sentencing Hearing

[5] Mr. Curtis testified at the sentencing hearing, largely to provide an explanation of his current health as this had not been covered completely in the PSR.

Mr. Curtis' Description of the Offence

[6] Mr. Curtis acknowledges that he has committed the criminal offence as charged. However, in his testimony, he explained that he was driving his mother's car from his home, where it was parked, to hers to avoid it being ticketed and towed for lack of proper documentation. He explained that the drive was less than 4 minutes, and that he was "almost there" when police stopped him.

[7] It may be that this explanation is what caused the author of the PSR to write that he "justified his behaviour."

[8] In any event, it was not submitted that his rationale excused or otherwise mitigated the seriousness of the offence.

Mr. Curtis' Personal Circumstances

[9] Mr. Curtis is a 43 year old man who lives with his wife and children, the youngest of which is 9 months old. He is said to be the sole breadwinner in the family. His work history is irregular because he has a back injury that causes him considerable pain. He also suffered a minor heart attack a short time prior to May 15, 2014.

[10] He testified that he obtains employment through his father-in-law, who is supportive and will be so in the future. He hopes to work with his father-in-law in approximately one month, his health allowing.

[11] Mr. Curtis is being treated by health professionals at a pain clinic, and depends on pain killers including fentanyl. While he has been seen by a cardiologist, he is not currently on heart medication. He explained that this is due to the need to be weaned off of the pain medication.

[12] He also explained that his cardiologist would not prepare a letter for him for less than $400.00.

[13] While this is unfortunate, I do not hold it against Mr. Curtis. I am prepared to accept that he has a number of health conditions including chronic pain, a history of substance abuse, obesity and some issue relating to his heart. As he put it, he is not a healthy man.

[14] The PSR explains that Mr. Curtis suffered a difficult childhood. He claims to have suffered sexual abuse as a child, a fact which he has been able to admit to himself and discuss with others from time to time. He also began to use serious drugs and alcohol at a very young age and for many years. No doubt this background explains much of his early criminal behaviour.

[15] Mr. Curtis indicates that he has been "clean" for approximately 9 years. Unfortunately, his criminal activity did not cease at that time.

Mr. Curtis' Criminal Record

[16] Mr. Curtis' adult criminal record, which begins 1990, is significant and troubling. It contains at least 36 entries. They include violence, property offences, driving offences and breaches of court orders.

[17] Of particular concern today are the following:

• One conviction for Dangerous Driving in 1993;
• Five convictions for Impaired/Over 80 between 1998 and 2004;
• Four convictions for Driving while Disqualified between 2002 and 2010 – he was sentenced to 10 months in jail for such offences in 2004; and
• Ten convictions for Failing to Comply with a Recognizance or Probation Order between 1990 and 2013

The PSR

[18] The PSR rests largely on Mr. Curtis' self-reporting concerning his history and health conditions.

[19] In addition, it highlights the fact that Mr. Curtis has a "very poor reporting habit," that his response to community supervision has been "dismal" and that he is not suitable for community supervision.

The Parties' Arguments

[20] Based on Mr. Curtis' criminal record and the contents of the PSR, the Crown submits that Mr. Curtis is not a candidate for community supervision. Moreover, the principles of denunciation and deterrence must govern in this instance.

[21] Mr. Brown, on Mr. Curtis' behalf, submits that a conditional sentence is appropriate given the length of the jail sentence that the Crown requests, and Mr. Curtis' personal circumstances.

Law and Analysis

[22] I have had the benefit of counsel's arguments and the lunch hour to review sentencing cases and principles. I agree with the Crown that the preeminent sentencing principles in this case are denunciation and deterrence (both general and, to a lesser extent, specific).

[23] I also agree with the parties that a conditional sentence is not prohibited in this case. As the Supreme Court of Canada explained in R. v. Proulx, 2000 SCC 5, [2000] 1 SCR 61, absent legislative language to the contrary, no offense is excluded from the conditional sentence regime. However, for the following reasons, I find that a conditional sentence would be completely inappropriate in this case.

[24] In Proulx, the Court indicated that it is a condition precedent to a conditional sentence that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community. In this context, the court must consider the risk of reoffence and the gravity of an ensuing offence. In assessing the risk, consideration is not limited to violent offences.

[25] Mr. Curtis's past convictions for serious driving offences are cause for great concern that he will re-offend in a similar way. Impaired driving and driving while disqualified are serious offences that place the public at risk and without redress where, as here, the offender is unlicensed and uninsured.

[26] I pause here to note that Mr. Curtis' most recent offences include Criminal Harassment and Uttering a Death Threat.

[27] To meet the goals of deterrence, denunciation and rehabilitation, conditional sentences depend a great deal on the offender's ability and willingness to comply with their terms. Based on Mr. Curtis' criminal record – particularly the numerous convictions for breaching court orders – I am of the view that Mr. Curtis would be unlikely to comply.

[28] The Supreme Court has explained that where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. The record before me leads me to conclude that Mr. Curtis is a poor candidate for rehabilitation and restorative justice.

[29] I have therefore come to the conclusion that nothing short of incarceration will satisfy the most pressing goals of sentencing in this case: denunciation and deterrence.

[30] I am also of the view, based on my research, that a period of incarceration in the reformatory is within the range of sentencing established by the governing cases.

[31] While I have concerns about Mr. Curtis' health and well-being, I am not satisfied based on the record before me that they are sufficient to warrant treating his case as an exception.

[32] That is not to say that I am not mindful of Mr. Curtis' current personal circumstances. His rehabilitation is not a goal that is completely unattainable, and I keep it in mind despite his record. It will best be attained if he is able to take care of his health and get back to work to support his family.

[33] For these reasons, I am of the view that some restraint is required, and I sentence him to 4 months in jail. I am also ordering that he be prohibited from driving anywhere in Canada for 10 years, which is the maximum allowed by the Criminal Code in these circumstances.

Released: July 22, 2014

Justice Patrice F. Band