Court File and Parties

Court File No.: 13-2012 Newmarket Date: 30 May, 2014 Ontario Court of Justice

Between: Her Majesty the Queen — and — Parker Neil Scott

Reasons for Sentence

Heard: May 30, 2014 Reasons: May 30, 2014

Counsel: Mr. Peter Westgate for the Crown Mr. David Laikie Self Represented

KENKEL J.:

Introduction

1. Mr. Scott pled guilty to impaired driving and refusing to provide a breath sample.

2. Mr. Scott and his wife argued about his alcohol use. The argument escalated to the point where he left the home and she called the police. A further count of domestic assault is to be withdrawn. While the accused may have made the right decision in leaving the home before matters went further, he made a dangerous decision in trying to drive to his workplace while intoxicated. He crashed his car into a lightpost and was taken to hospital. He refused to comply with a breath demand. Mr. Scott has been convicted of drinking and driving offences in relation to 6 prior incidents. He's also been convicted in the past of driving while prohibited but he was a licensed driver on this occasion.

3. The Crown submits that general deterrence and protection of the public call for a jail sentence of 2 years less a day. The defence submits that a conditional sentence of 12 months would be sufficient. Both counsel point out the need for probation with both restrictive and rehabilitative conditions.

Aggravating Factors

4. The following circumstances aggravate sentence:

• The level of impairment of the accused leading to a serious single vehicle crash
• The prior record of drinking and driving offences
• Past convictions for failing to comply with court orders

Mitigating Factors

4. The following circumstances mitigate sentence:

• The guilty plea
• The successful service of strict bail conditions for 14 months including a house arrest term with limited exceptions
• A 17 year gap from the date of the last conviction to the time of sentencing
• The fact of successful full time employment in a well paying job
• Participation in counselling with Addiction Services of York Region while on release
• The fact that past treatment led to a lengthy gap in the accused's record

Analysis

5. Mr. Laikie concedes that when they first met his client was resigned to the notion that a significant jail sentence would likely be imposed and "just wanted to get on with it". Given his record and the danger posed at the time of this offence that is the likely starting point in any analysis. As events unfolded though, it's good that he didn't rush ahead with a quick resolution.

6. While on release Mr. Scott learned that his younger brother had cancer. The accused was the only family member nearby who could help care for him through chemotherapy and other treatments. Mr. Scott entered a guilty plea on November 21, 2013 and findings of guilt were made on that day but sentencing was adjourned and the terms of his bail were adjusted to allow him to be with his brother.

7. Mr. Scott's brother's battle with cancer was not successful and after his death sentencing was adjourned further to permit Mr. Scott to tie up his brother's affairs as executor. During that journey with his brother Mr. Scott no doubt had time to reflect as to where he is at in his own life at 57 years of age. Mr. Scott sought out and engaged in counselling for alcoholism with Addiction Services for York Region. I find his efforts in that regard were sincere even though the number of sessions was reduced given the other issues in his life. I accept that Mr. Scott has a genuine interest in continuing that counselling and that his past counselling, while plainly not resulting in perfection over 17 years, did help to prevent further criminal offences over that time.

8. Given the mitigating factors including the lengthy gap, both counsel agree that a penitentiary sentence is not required. The Crown has not served notice so there is no mandatory minimum jail sentence. The Crown has proceeded by indictment so the maximum punishment is 5 years s.225(1)(b) which does not preclude a conditional sentence under s.742.1(c).

9. I agree with both counsel that the record and the circumstances of the offence require a custodial sentence. Considering the 17 year gap in the accused's record, his good conduct while on release, the house arrest provisions of that release, his efforts at treatment and his past success in that regard, I find that a conditional sentence with strict terms including further curfew and electronic monitoring would not put the community at risk, would meet the need for general deterrence and denunciation, and would be consistent overall with the purpose and principles of sentencing as set out in sections 718 to 718.2.

Sentence

10. Mr. Scott will be sentenced to a term of imprisonment of 18 months to be served in the community to be followed by a term of probation for 18 months.

11. The conditional sentence will include the mandatory statutory terms and the Electronic Supervision Program terms which will be read to the accused at the time he signs this order. Mr. Scott will review those terms and not leave the courthouse unless and until they are understood by him. Further conditions of the conditional sentence:

• For the first 9 months obey a curfew to remain in your residence between the hours of 7pm and 6am unless permission is obtained in writing from your conditional sentence supervisor including permission to attend counselling in compliance with this order.
• Not to have any contact directly or indirectly with Deanna Scott except through legal counsel
• Abstain from owning, possessing or carrying any weapon as defined by the Criminal Code
• Attend and comply with a treatment program for Alcoholism as directed by your conditional sentence supervisor and sign any releases necessary for your supervisor to monitor that counselling.
• Not to operate a motor vehicle

12. The conditional sentence order will be followed by a period of probation of 18 months on the following terms:

• Keep the peace and be of good behaviour
• Report to Probation as required
• Continue counselling for alcoholism as directed by your probation officer and sign any releases necessary for them to monitor that counselling.
• Not to have any contact with Deanna Scott except through legal counsel
• Abstain from owning, possessing or carrying any weapon as defined by the Criminal Code
• Not to operate a motor vehicle

13. The Crown requests that the accused be prohibited from driving for life. The defence concedes a lengthy prohibition must follow but asks for a limited term given the gap in his record and his good conduct since this offence.

14. While I'm satisfied that the accused will obey and comply with the terms of the conditional sentence and will not likely reoffend during that period, it's plain that alcoholism has been a lifelong struggle for the accused. Too often he's combined that problem with driving, thereby posing a significant risk to the public. In the most recent offence it's just sheer luck that he drove onto a median and was stopped by hitting a light post. Had the same error in driving occurred moments earlier or later and a car had been coming in the opposite direction a tragedy would have resulted. It's not something that can be allowed to happen again. While I'm hopeful that Mr. Scott will successfully engage in treatment, the consequences of even a one-time slip combined with the ability to drive pose too great a risk to the public. I find it necessary to impose a lifetime prohibition on driving.

15. Mr. Scott I'm required to caution you that an allegation of breach of a conditional sentence can lead to your arrest. If a breach is found you may be ordered to serve the remainder of your conditional sentence in jail. Further, any breach of a term of probation is a criminal offence.

Released 30 May, 2014

Justice Joseph F. Kenkel