Court File and Parties

Court File No.: 130079 Date: January 6, 2015 Ontario Court of Justice

Between: Her Majesty the Queen — and — Ralph Willi Karau

Before: Justice of the Peace D.J. MacKinnon

Heard on: December 9, 2014

Reasons for Judgment released on: January 6, 2015

Counsel:

• S. Burden, for the prosecution
• R. Noel (Paralegal), for the defendant Ralph Karau

JUSTICE OF THE PEACE MACKINNON:

Charge, Plea and Facts

[1] On March 13, 2014, Ralph Willi Karau entered a plea of guilty to a charge of driving a motor vehicle on a highway when his driver's licence was suspended or cancelled contrary to s.53(1) of the Highway Traffic Act.

[2] Mr. Karau admitted that on April 16, 2013 he was driving a white 2004 Dodge Ram truck on Mill Road in the Municipality of Sioux Lookout when he was stopped at a R.I.D.E. program. The truck belonged to his spouse, Deborah Williams and they were travelling from Lac Seul First Nation to Thunder Bay Ontario. At that time he told the officer that he did not have a driver's licence and that his licence had been suspended. Certified documents from the Registrar of Motor Vehicles, confirmed that his licence was suspended at the time of the offence, and had been suspended since July 14th, 1987 by Suspension No. 7SUSP7101700. A finding of guilt was made.

[3] On the same day, a pre-sentence report with Gladue considerations was filed, as Mr. Karau is aboriginal. Submissions were heard on sentencing.

Positions of the Parties

[4] At the time of the plea and conviction, the position of the Crown was that there should be a jail term of 30 to 60 days, plus the statutory minimum fine under s.53(1)(b). The driving record and record of convictions were entered as exhibits. The Crown argued that the record showed 18 convictions for a similar offence and the last two convictions were within the five year period. The PSR reported $27,000 in unpaid fines. While custody was a last resort, the Crown argued that other methods of deterrence were not working. The PSR indicated that the Defendant felt that he was able to "outsmart" the police and preferred to live life on his own terms.

[5] The defence position articulated by Mr. Noel, was that there should be a financial penalty under s. 53(b), and that custody and fines had not worked as a deterrent to his client. The Defendant had paid about $600 toward his fines in the intervening period since the charge, and now had hope that he could make payment arrangements so that he could re-attain his licence. It was argued on Mr. Karau's behalf that he had often come in to court and simply pled guilty without representation. The court was told that the Defendant was working on a skidder for Lac Seul First Nation so that he could run it as a business, and he was part owner of two cabins that he hoped to have ready for rental for the tourist season. He denied making the statement about outsmarting the police.

[6] On April 15, 2014 a full Gladue report was ordered by the court with the consent of the Defendant. The consent was withdrawn on July 17, 2014 because the Crown and the Defence proposed a joint submission on sentence. The Defendant confirmed with the court that he understood that the court may not accept the joint submission. He also agreed that he understood that there may be no benefit to foregoing the Gladue report. The order for a full Gladue report was rescinded.

[7] The joint submission was for 12 months of probation, a $2000 fine and an order for payment of $100 each month toward the outstanding fines. The Crown would take no position regarding a s.59(2) application by the Defendant to reduce the statutory fine.

[8] When questioned by the court, the Crown indicated that the reason the Crown would not be seeking incarceration in this case was that the Defendant had taken some accountability for his fines and was making some payments. The Crown denied that their position could set a precedent in other similar cases where it will ask for custody, and relied on the individual facts in this case. The Crown was unable to articulate what those facts were and looked to the Defendant's representative to inform the court. The Crown would not be calling evidence. The sentencing was adjourned to allow for submissions to support the agreement.

Joint Submission

[9] On the return date of September 16, 2014, the court was informed of a new joint submission proposed by the Crown and the Defence. The joint submission was for 12 months of probation with the statutory conditions with a requirement to make payments toward the outstanding fines, with no fine or incarceration ordered for this offence.

[10] The Crown told the court that the change was the result of "further facts" which came to light and were relied on by the Crown. The Crown was again not able to say what those facts were other than the payments made by the Defendant toward his outstanding fines in the interim period since the laying of charges, of approximately $600.

[11] I indicated that I was disinclined to accept the joint submission and allowed a further opportunity for the Crown and the Defence to present arguments in support of their position on sentence. The Crown relied on the submissions of the Defence and those previously made.

[12] On December 9, 2014 the Defence argued that the joint submission should be accepted for the reasons previously given. Mr. Karau gave evidence that he has been paying $120 each month toward his outstanding fines, for about the last ten months. He and his wife have a monthly income of about $1800 and he gave an accounting for all of the income.

[13] Mr. Karau was asked by his representative why he never paid any of his fines in the past. Mr. Karau stated that, "I never thought I could get a driver's licence." He testified that the first time he became aware of this possibility was since retaining his current representative. He has been paying each month in order to create a record of payments, so that he can ask for extensions of time to pay the fines under s.69 of the POA. Asked by Mr. Noel why he continued to drive over the years without a licence even when it contravened the law, Mr. Karau stated, "...a man has to live."

Rejecting a Joint Submission

[14] The Court of Appeal directed in the case of R. v. Cerasulo, [2001] O.J. No.359 that, while a joint submission is not binding on a trial judge, it should be given deference, especially when accompanied by a plea of guilty. Finlayson J.A. stated:

This court has repeatedly held that trial judges should not reject joint submissions unless the joint submission is contrary to the public interest and the sentence would bring the administration of justice into disrepute: e.g. R. v. Dorsey (1999), 123 O.A.C. 342 at 345. This is a high threshold and is intended to foster confidence in an accused, who has given up his right to a trial, that the joint submission he obtained in return for a plea of guilty will be respected by the sentencing judge.

[15] The plea of guilty was entered in this case at a time when the Crown was seeking a custodial sentence, with no joint submission between the Crown and the Defendant. It may, however, be viewed that the Defendant gave up his right to have the information in a full Gladue report available on sentencing, in consideration of the joint submission.

[16] Even in these circumstances, this court is bound by the principle that a joint submission should be respected and not overturned unless it is contrary to the public interest and would bring the administration of justice into disrepute. It is a very high threshold.

Analysis

[17] For the reasons that follow, I find that the joint submission on sentence is not in the public interest and would bring the administration of justice into disrepute.

The Nature of the Charge

[18] In the case of R. v. Kurtzman, [1991] O.J. No.1285, Tarnopolsky J.A. speaking for the court indicated the following:

It is common ground that the Highway Traffic Act is a public welfare statute, aimed at ensuring public safety through the orderly control of traffic... The apparent object of the Highway Traffic Act is the safe and orderly conduct of traffic on public highways. .. The need for strict regulation for the purposes of safety is thus apparent.

[19] Driving while one's drivers licence is suspended under s.53 (1), falls within Part IV "Licences" of the Highway Traffic Act. The objective of this Part is set out in s. 31 which reads:

s.31 Driving a privilege – The purpose of this Part is to protect the public by ensuring that,

(a) the privilege of driving on a highway is granted to, and retained by, those persons who demonstrate that they are likely to drive safely; and

(b) full driving privileges are granted to novice and probationary drivers only after they acquire experience and develop or improve safe driving skills in controlled conditions.

[20] Thus, the Highway Traffic Act is a remedial public welfare statute, the objects of which are the control of driving privileges to ensure the safety of the public.

[21] The Highway Traffic Act in s.53 (1) sets out the minimum penalties for the offence of driving while suspended.

s.53(1) Driving while driver's licence suspended – Every person who drives a motor vehicle or street car on a highway while his or her driver's licence is suspended under an Act of the Legislature or a regulation made thereunder is guilty of an offence and on conviction is liable,

(a) for a first offence, to a fine of not less than $1,000 and not more than $5,000; and

(b) for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000,

Or to imprisonment for a term of not more than six months, or to both.

[22] A "subsequent offence" is defined in s.53(2):

s.53(2) Subsequent offence – Where a person who has previously been convicted of an offence under subsection (1) is convicted of the same offence within five years after the date of the previous conviction, the offence for which he or she is last convicted shall be deemed to be a subsequent offence for the purpose of clause (1)(b).

[23] In Mr. Karau's case, his record shows that he has had 21 previous convictions for driving while suspended. Within the five year period prior to this charge on April 16, 2013, he had convictions for driving while suspended on January 8, 2009 (30 days in jail), July 17, 2009, and November 22, 2011(30 days in jail):

[24] The court finds that this offence is a subsequent offence that brings this matter within the range of fines set out in s. 53(1)(b).

[25] It is evident from the provisions of the Highway Traffic Act that a subsequent offence for driving while suspended is to receive a greater penalty if it occurs in proximity to a previous offence. This is the intention of the legislation.

[26] While incarceration is not a minimum sentence, the record of the Defendant shows that penalties in his case for convictions for this offence have increased in severity from the imposition of a fine only to a sentence of incarceration, thus moving up the ladder of punishments for this offence.

[27] The joint submission, with no fine and no incarceration, asks the court to ignore the statutorily mandated regime for increased penalty found in s.53(1)(b) of the Highway Traffic Act and the principle of parity in sentencing which this penalty section creates.

[28] The proposed sentence would not deter others from such actions or show the community's denunciation of the continued illegal driving. The principle of increased penalty as a specific deterrent is obviously necessary for repeat offenders who continue to flout the law. The joint submission asks the court to be blind to the record.

[29] The joint submission is contrary to the public interest for these reasons and because it would undermine the public's confidence that a statutory provision, created for the safety of the general public, would be upheld.

Post-offence Compliance as Mitigation

[30] The basis of the Crown's support of this joint submission appears to be the fact that the defendant has made some payments toward the $27,000 in fines and restitution that he has acquired over the years of his illegal driving. The payment of these fines is not a persuasive element on sentencing.

[31] In the case of Ministry of Labour v. Flex-N-Gate Canada Co. 2014 ONCA 53, the Justice of the Peace imposed fines of $25,000 for each of two charges under the Occupational Health and Safety Act. The fines were consecutive. The appeal judge reduced the fines to be concurrent rather than consecutive, on the basis that the employer had since complied with the order of the inspector and had changed the procedures used in the workplace. She stated, " ...because the same way we like to punish with respect to general deterrence we also, as courts are concerned, like to reward with respect to people doing what I consider to be the right thing."

[32] On appeal from that decision, Laskin J.A., speaking for the Court of Appeal, addressed the issue of rewarding post-offence compliance in sentence:

...The court should not have discretion to treat an employer's post-offence compliance, though statutorily required, as a mitigating factor on sentence. Doing so would undermine one of the most important goals of the OHSA – accident prevention – and the statute's most important sentencing principle – deterrence...Rewarding post-offence compliance with an inspector's order also reduces the deterrent effect of sentences for breach of the OHSA...

[33] Similarly in this case, the Defendant was required to pay the fines imposed on him by other sentencing courts. Rewarding him for doing so undermines the deterrent effect of these penalties under the Highway Traffic Act. He ought not to be rewarded for doing what he is required to do. The Defendant clearly indicated that the only reason for complying at this time, was that it was now in his self-interest as he seeks to obtain a licence.

[34] Laskin J.A. in Flex-N-Gate also finds that the appeal judge erred in equating sentencing for commission of a crime with sentencing for a regulatory offence. He states:

However, the two contexts are quite different. Criminal law is concerned with the moral blameworthiness of an accused's conduct; regulatory law is concerned not with the defendant's conduct but with the results of its conduct.

[35] In this case, the result of the defendant's conduct is that he violated the licencing provisions of the Highway Traffic Act, putting the public at risk and defying the law.

Sentencing Considerations

[36] As the joint submission is rejected for the reasons set out, the court must determine an appropriate sentence for the Defendant.

Mitigating Factors

[37] The Defendant is a 50 year old Aboriginal man. His early years were impacted by the lack of an established community for his band of Lac Des Milles Lac First Nation. The result was that the family did not have community ties and supports. His father was a tough worker from the forest industry, but from him the Defendant learned the responsibility of supporting his family and a strong work ethic. His mother was an alcoholic who left the family. The children resided in various boarding homes over the years. Despite these deprivations, the Defendant has been able to maintain a relationship with Deborah Williams since 1999.

[38] Mr. Karau left school in grade nine and worked in the forestry industry as a chain saw and skidder operator, hauling logs and eventually as a mechanic. He owns his own skidder and has worked as an independent contractor, earning as much as $10,000 per month. He addressed his education by completing his grade twelve and a college certificate in Aboriginal Business.

[39] Much of his work occurred at Lac Seul First Nation. He is reported to have been able to establish relationships with the people of this community and to connect with his native culture. Police in Sioux Lookout and Ignace do not report problems with him.

[40] The court must also give consideration to the principles enunciated in the Gladue case. The background of the defendant contains some of the elements of displacement, trauma, social dysfunction and deprivation commonly experienced by Aboriginal people, which result from impacts on their communities, traditional lifestyles and ways of life rather than personal choice.

[41] The defendant has attended court as required during the period of this proceeding. He cooperated with Probation Services for the PSR. He testified that he has not driven during this period. He pled guilty at an early opportunity.

Aggravating Factors

[42] The record of the Defendant is an aggravating factor.

[43] The defendant is a suspended driver. Not only has he acquired a record of 21 convictions of driving while suspended, but his record shows numerous other offences including speeding (x9), driving with no insurance (x2), a collision (for which there is a restitution order), failing to stop for police, failing to remain at the scene of an accident (under the CCC), disobeying traffic lights, permit use of plate not authorized, improper left turn and driving with no licence. The defendant is the driver that the legislation seeks to control and eliminate from the road.

[44] The record and the failure to pay the fines levied as punishment, demonstrate a complete lack of respect for the laws which govern driving in Ontario.

[45] The PSR speaks to an attitude of rebellion against authority and rationalizations for his actions. It suggests that he does not take these charges seriously and made a conscious decision in the past not to comply with fines or restrictions because he felt unfairly treated by the police. While a stubborn attitude may have been a survival skill in the defendant's early life, maintaining this immature incorrigibility is incongruous with the responsible man he tries to present today.

[46] The Defendant is experienced in dealing with both criminal and provincial charges, and in dealing with government agencies. He reported to the probation officer that he intentionally cut himself with a chainsaw in order to obtain an award from Workers Compensation of about $75,000. Mr. Karau testified as to his limited income of $1800 per month, but other information he has provided suggests that he operates his own skidder, works "under the table", owns two tourist cabins and has earned as much as up to $10,000 per month.

Sentence

[47] The primary goal of sentencing for a public welfare offence is deterrence in accordance with R. v. Cotton Felts Ltd., [1982] O.J. No. 178. The Defendant and members of the public considering violation of s.53 (1) of the Highway Traffic Act must be deterred from doing so.

[48] It was argued on behalf of Mr. Karau that incarceration and fines have not acted as deterrents. The available penalties in the Highway Traffic Act and the Provincial Offences Act are all the tools that the court has to persuade an offender not to re-offend, when he cannot persuade himself.

[49] The court must construct a sentence which meets the goals of deterrence, denunciation and rehabilitation and applies the principles of proportionality, totality and parity.

The sentencing provisions of the Highway Traffic Act provide for incarceration as well as a statutory fine for subsequent offences.

Mr. Karau previously received two sentences of 30 days incarceration each. I am not convinced that there is any reason to divert from the principle of increased penalties for continued violations. The penalty must be greater than 30 days and can be to the maximum of 6 months. I am sentencing Mr. Karau to 60 days in custody for this offence in the hope that such measured increase in custody will act as a specific deterrent.

[50] The minimum fine for a subsequent offence in the range of $2000 to $5,000 is set out in s.53 (1)(b) of the Highway Traffic Act. While the income reported by the Defendant is modest, it is contradicted by the other assertions of assets and income potential heard by the court. I do not find that the Defendant has shown that exceptional circumstances under s.59(2) exist in his case which would justify imposition of less than the minimum fine. Recognizing that fines act as denunciation and deterrence, I impose the minimum fine of $2,000 plus costs and surcharge.

[51] Mr. Karau testified that he has not driven since this charge was laid. To assist him to continue with his rehabilitation, and for the protection of the public, the court orders that Mr. Karau be placed on 12 months of probation following his release from custody. The probation will include the statutory provisions and the following terms:

a) Mr. Karau is not to be in the driver's seat of any vehicle;

b) Mr. Karau will report to the police service of any community (O.P.P., Lac Seul Police Service, Dryden Police Service) upon arrival and notify them of his prohibition from driving and this probation order, and the name of his driver and licence plate and description of the vehicle he is travelling in. The exception is that the report to the Ignace detachment of the OPP need only be done once.

c) Mr. Karau will report to a probation officer within 14 days following his release from custody and thereafter as required.

[52] The Defendant may speak to the issue of time to pay the fine.

Released: January 6, 2015

Signed: "Justice of the Peace D.J. MacKinnon"