Information and Parties

Information No.: 10957/14

Ontario Court of Justice

Her Majesty the Queen - and – R.Z.

Before: The Honourable Justice G. Wakefield

At: The Courthouse, 150 Bond St. E., Oshawa, Ontario

Date: Wednesday, June 1, 2016

Publication Ban

Pursuant to the Order of Wakefield J. – June 1, 2016

These reasons, if printed, electronically reproduced or audio copied, shall have the personal identifiers of the offender removed and replaced with his initials. The Crown material attached to these reasons has been amended to replace the offender's name with initials.

Appearances

K. Saliwonchyk – Counsel for the Crown

R.Z. – In Person

Ruling on Crown Application

WAKEFIELD J. (Orally)

R.Z. entered a plea of guilty to over 80 on his trial date of December 15, 2015 as a self-represented defendant. The Crown elected to proceed summarily and further elected not to file any Notice of Increased Penalty.

However, on sentencing, the Crown alleged the defendant had a prior cognate record, a record containing three separate prior convictions for drinking and driving and a possession for the purpose of trafficking. All but the earliest conviction had been previously pardoned.

While the records have not been proven pursuant to s. 667 of the Criminal Code, I have been provided with a Ministry of Transportation record of convictions which reflects three prior drinking and driving offences from 1982, 1989 and 1996, together with a letter from the RCMP confirming authorization by the Minister of Public Safety and Emergency Preparedness releasing, presumably for the purposes of this hearing only, a copy of the defendant's record suspension printout in which are a 1989 over 80, a 1990 possession for the purpose of trafficking and a 1996 impaired, together with the National Parole Board confirmatory letter of a pardon being granted for the same three offences in the record suspension printout. Neither document mentions the 1982 conviction for over 80 reflected in the Ministry of Transportation Record, assuming that matter is a legitimate conviction. The Crown has quite generously taken the position that for the purposes of this application, I should treat the 1982 conviction as an administrative oversight on the part of the National Parole Board and that the defendant's pardon includes that earlier conviction as well.

The issue before me is whether the then-pardoned, now record suspended convictions, with the appropriate Ministry's permission to disclose, can be used on sentencing or whether the effect of the pardon is to exclude the prior convictions as a sentencing consideration. While the Crown is only seeking a modest increase over the minimum sentence for this defendant, their application is to obtain a ruling as to the use of such records in future sentencings of other like offenders.

The Criminal Records Act Framework

The applicable sections of the Criminal Records Act are set out in the attached Crown submissions. Of specific application here is s. 2.3 which reads as follows:

Effect of Record Suspension

2.3 A record suspension

(a) is evidence of the fact that

(i) the Board, after making inquiries, was satisfied that the applicant was of good conduct, and

(ii) the conviction in respect of which the record suspension is ordered should no longer reflect adversely on the applicant's character; and

(b) unless the record suspension is subsequently revoked or ceases to have effect, requires that the judicial record of the conviction be kept separate and apart from other criminal records and removes any disqualification or obligation to which the applicant is, by reason of the conviction, subject under any Act of Parliament — other than section 109, 110, 161, 259, 490.012, 490.019 or 490.02901 of the Criminal Code, subsection 147.1(1) or section 227.01 or 227.06 of the National Defence Act or section 36.1 of the International Transfer of Offenders Act.

As well, s. 4.1 of the same Act sets out that:

Eligibility for Record Suspension

4.1(1) The Board may order that an applicant's record in respect of an offence be suspended if the Board is satisfied that

(a) the applicant, during the applicable period referred to in subsection 4(1), has been of good conduct and has not been convicted of an offence under an Act of Parliament;

Finally, s. 7 of the same Act:

Revocation of Record Suspension

7 A record suspension may be revoked by the Board

(a) if the person to whom it relates is subsequently convicted of an offence referred to in paragraph 4(1)(b), other than an offence referred to in subparagraph 7.2(a)(ii);

(b) on evidence establishing to the satisfaction of the Board that the person to whom it relates is no longer of good conduct; or

(c) on evidence establishing to the satisfaction of the Board that the person to whom it relates knowingly made a false or deceptive statement in relation to the application for the record suspension, or knowingly concealed some material particular in relation to that application.

Additionally, in 7.2:

Cessation of Effect of Record Suspension

7.2 A record suspension ceases to have effect if

(a) the person to whom it relates is subsequently convicted of

(i) an offence referred to in paragraph 4(1)(a), or

(ii) any other offence under the Criminal Code, except subsection 255(1), or under the Controlled Drugs and Substances Act, the Firearms Act, Part III or IV of the Food and Drugs Act or the Narcotic Control Act, chapter N-1 of the Revised Statutes of Canada, 1985, that is punishable either on conviction on indictment or on summary conviction; or

(b) the Board is convinced by new information that the person was not eligible for the record suspension when it was ordered.

Analysis of the Statutory Framework

Unlike any other offence in the Criminal Code, a post-pardon or post record suspension summarily elected conviction under s. 255(1) will not automatically revoke or cause the cessation of the record suspension as it is explicitly excluded pursuant to s. 7.2(a)(ii). If I understand Criminal Records Act s. 7(a) correctly, a subsequent Criminal Code s. 255(1) conviction would not be an offence which permits opening an application to the Parole Board to revoke the record suspension, given the same exclusionary wording, and any such application to the Board would need to be grounded on a s. 7(b) with evidence of the person "is no longer of good character".

The assistant Crown, Mr. Malleson, confirms that there is not any case law directly on point since 1977. He also recognizes that the defendant is self-represented and, as such, has made submissions in support of the defendant's position that this prior pardoned offences are not admissible on sentencing. I direct that any transcript of these reasons include, as an appendix, a copy of Mr. Malleson's written submissions. I also note that Mr. Malleson has devoted substantial time, and no doubt personal time, given the limited Crown resources in this region, in preparation of these materials.

Evolution of the Criminal Records Act

The language used in the Criminal Records Act has evolved since the 1977 Ontario Court of Appeal case of R. v. Spring. Pardons have become record suspensions and the actual convictions, which at one time were "vacated", transitioned into a direction that the "judicial record of the conviction be kept separate and apart from other criminal records". The version of the Act in effect at the time of granting the defendant's pardon was amended yet again in 2014 when the word "pardon" was replaced by the phrase "record suspension". The issue of what impact, if any, the 2014 statutory amendment and change in wording of what was being granted might have on this application was not argued, including such as whether the subsequent amendments were retrospective or retroactive.

In the Spring case, the court, without citing any specific language in the act, states in para 5 that:

The appellant had previously been pardoned, and the question arose as to whether or not he should be treated as a first offender. We treat him as such because we think the statute gives us this direction in these circumstances.

Has the subsequent changes in the wording of the Act, prior to this defendant's pardon being issued, resulted in a different statutory direction?

By referencing the word "statute" as opposed to any particular word, I understand that court to be referring to the intent of the statute as a whole or to use the wording of s. 5 of that Act, that upon a pardon being granted, the prior record "should no longer reflect adversely on the applicant's character". This wording has survived each of the Act's several amendments, whether in s. 5 or now s. 2.3.

Meaning of "Vacate" vs. "Kept Separate and Apart"

The subsection (b) wording of either s. 5 or s. 2.3, in my view, is more consistent wording and sets out the effect of a revocation or additionally, after 2006, "revoke or ceases to have effect". The earlier wording of a pardon vacating the conviction unless revoked might be considered an oxymoron given the Black's Law Dictionary, 5th edition meaning of:

to annul; to set aside, to cancel or rescind. To render an act void; as to vacate an entry of record, or a judgement. As applied to a judgement or a decree it is not synonymous with 'suspend' which means to stay enforcement of judgment or decree.

However, a common power through the various wording changes in the Act has been the ability to revoke the pardon, which is more than to "un-annul". In my view, "to be kept separate and part from other criminal records" is wording more consistent with the residual power of Parliament to revoke outright or enable a regime in which the benefit of a pardon "ceases to have effect", as opposed to inferring a greater degree of permanence to a pardon by the use of the word "vacate".

The Oxford English Dictionary (2d ed. 1989) Vol. XIX at p. 385 defines "vacate" as "to make void in law, to deprive of legal authority, validity, force, efficacy or value to render inoperative or to annul or cancel"; "which does not necessarily involve retroactive effects" (referred to in Re Therrien).

Indeed, the Criminal Records Act in effect at the time of R. v. Spring, supra, set out that the privilege of a pardon and the "vacated" record of conviction could be revoked, meaning that the vacated record was no inviolably permanent as it was subject to revocation and had not simply disappeared.

I appreciate an argument could be made that the use of the phrase "kept separate and apart" could infer a more accessible record than one vacated, but that would ignore the context of the section which now includes exceptions to the disqualification removals for such privileges as possessing firearms, as well as ignoring the underlying policy direction to remove the adverse reflection on the offender's character.

Supreme Court Guidance in Therrien

It would also ignore the conclusion of the Supreme Court of Canada in Re: Therrien that there would be no need for the various provisions to revoke or reveal the pardoned offences if those "convictions were deemed never to have existed" (Therrien, para 120) and infer the further conclusion that the various amendments to the wording in both official languages "embody the meaning that Parliament has always intended the Act to have" (Therrien, para 119) equally expands to include the pre-2000 version of the Act.

If the meaning Parliament has always intended includes the wording in effect at the time of the Spring decision, then I agree with the conclusions of Justice Wein in R. v. Gyles that pardons granted under previous Criminal Records Act wording should not be given greater weight. Leaving aside the limited use in cross-examination of a prior record acknowledged by the witness before trespassing into propensity reasoning, I view this decision as being of limited value to the issue before me, especially given Justice Wein's observations as to how rarely counsel would be aware of a witness' prior pardoned record. In the case at bar, the Crown would always be aware of any prior drinking and driving record, which is recorded in either provincial or municipal record printouts if requested by the Crown. Counsel are often aware of a prior record by stint of research into social media or just common knowledge within the community.

Federal vs. Provincial Application

Of course, whether "vacated" or "kept separate and apart", the restrictions on the use of a prior record are limited to federal matters and not provincial or municipal matters. (R. v. Therrien, para. 116). The Parole Board letter to the defendant confirming the granting of the pardon also states that the pardon only applies federally. That limitation is reflected in the Ontario Highway Traffic Act, s. 1(6), setting out that a pardoned federal record is still admissible against a defendant on sentencing pursuant to that provincial legislation.

In Re Therrien, 2001 SCC 35, the Supreme Court reviewed the obligation of a judicial candidate to disclose a prior pardoned record. Commencing at paragraphs 113 and following, the Court set out the 'Meaning and Effect of a Pardon' and a brief contextual history of the types of pardon. For my purposes, the Criminal Records Act sets out the procedure for administrative pardons and the court, in Therrien, concluded that a pardon does not retroactively wipe out the conviction but instead minimizes the future consequences of that record. As previously noted, the court, in reviewing the changes in wording, concluded that those changes "embody the meaning that Parliament has always intended the Act to have" (para 119), which I take to mean that the use of the word "vacate" in the previous versions of the Act does not mean that the effect of an administrative pardon was any stronger in previous decades.

The Court's Conclusion on Admissibility

The Crown submits that policy considerations favour admission of the pardoned records and that the Criminal Records Act lacks any language preventing a court from considering pardoned convictions on a subsequent sentencing. I must disagree.

Ultimately, prior convictions are aggravating factors on sentencing partly due to those convictions being a commentary on the character of the offender. Often a sentencing justice will comment on how the offender's history is the best predictor of that offender's future. The unpardoned prior convictions are the clearest commentary of the type of person the offender is or, in other words, the type of character the offender possesses. However, the Criminal Records Act clearly sets out that once the offender's character has been assessed by the Board and the prior offences pardoned by the Board, the pardoned convictions "should no longer reflect adversely on the applicant's character".

In my view, this is a clear direction from Parliament to sentencing justices to disabuse oneself of any knowledge of pardoned offences not revoked or by procedure resulting in cessation of effect of pardon. This would be my understanding of the rationale in R. v. Paterson, cited in Gyles, where that appellate court refused cross-examination on a pardoned record which would otherwise permit attacking the character of a witness despite the Criminal Records Act explicitly stating that the subject charges are no longer to reflect adversely on the witness' character.

Ministerial Consent to Disclose

An additional issue is the Ministerial consent to disclose the pardoned offences to this court, though the consent form is silent as to whether the disclosure is being permitted for sentencing purposes or for the Crown application for a ruling as to the admissibility of the pardoned record on sentencing. If the former, the record is silent as to whether any opportunity was provided to the defendant for submissions to the Minister, nor do I have any submissions as to what standing the defendant might have, if any. Given the delays in completion of this sentence, I did not intend to delay matters further by embarking on additional proceedings by providing the defendant with an opportunity for a review of the Minister's order. My ruling in this application would, in any event, make such a proceeding moot.

I infer the Ministerial consent was for the purposes of the application only as opposed to exerting any decision making process which would predetermine the Crown application. While the Crown application asserts the Ministerial consent was for sentencing, I note the covering letter from the RCMP advises that the record disclosure "be restricted for use only in connection with the pending charges and that its existence be made only to those directly involved in the investigation and court proceedings". The actual consent form itself sets out a Ministerial finding that "disclosure is desirable in the interests of the administration of justice", which is much broader than any stated reason pertaining to sentencing, and I also infer the Ministerial release of records leaves to my discretion what use is to be made of the records and specifically whether admission of pardoned records is desirable in the interests of justice, which would arise from the wording of the Criminal Records Act.

Policy Considerations

The Crown asserts that the clear policy of the Criminal Records Act is the rehabilitation of offenders. I lack any Hansard excerpts and approach the legislation policy interests from the four corners of the Act itself. I would certainly agree that a pardon, or now record suspension, is the recognition of an offender's successful rehabilitation. Where the Crown and I part company is his assertion that the exclusion of s. 255 convictions within the Criminal Records Act is a justifiable policy consideration as it only means to protect "low end" drunk driving offences in order to prevent adverse and disproportionate impact on rehabilitation. Apart from the possible influence from an outmoded societal acceptance of drinking and driving, I am bereft of any understanding why Parliament would choose to protect those drunk drivers lucky enough to miss killing or maiming innocent victims over any other criminal offence in the Code. Indeed, the Crown's suggestion that exposing the defendant's prior pardoned conviction for possession for the purpose of trafficking would garner greater societal challenges, such as employment or travel, which would depend very much on the substance involved. As for travel, the record before me is silent as to whether pardoned offences are sealed from other countries such as the United States given the post 9/11 broadening of record sharing between our two countries.

The reality of the s. 255 exclusion in the Criminal Records Act is that Parliament has enhanced the protection of the pardon from a drunk driving charge prosecuted on summary conviction. That is the policy conclusion I draw from the clear wording of the Act. The Crown's "in terrorem" assertion that excluding this record from the sentencing consideration would "incentivize" the Crown to apply to the National Parole Board for pardon revocation on all future similar cases does not address my concern that all other offences in the Criminal Code, including the shoplifting of a chocolate bar or a mischief or other similar offence lack a protection which Parliament has reserved for s. 255 offences. Should that mean in the future, whether this or similar defendants, the choice to drive drunk results in the exposure of other cognate and non-cognate prior offences is a simple consequence of choosing to drink and drive. The conviction on any hybrid offence in which the Crown elected by way of indictment automatically suspends the pardon: R. v. Gamble and R. v. Kanagarajah.

I certainly agree with the Crown's submission of unfairness that a re-offending pardoned offender whose cognate record is not revoked would receive a lesser penalty, probably the minimum, and escape jail than someone who has a prior cognate record of drinking driving offences who would face mandatory incarceration. The Crown suggests that this would be a totally absurd result. It is not in my purview to comment on Parliament's balancing of competing societal interests. I do note that such a result is not unprecedented. Under the Juvenile Delinquents Act, a youth might accumulate dozens of offences each year until turning 16, and then immediately be treated as a first offender, receiving an equivalent sentence as any other adult who, up to that point, had led an unblemished life. A similar example is referenced in Therrien where the court points out that under the Young Offenders Act, s. 36(1), after the applicable periods of time, the dispositions and terms imposed on young offenders are deemed never to have existed (para 121).

I do agree with the Crown's submission regarding the impact of pardoned offences under the Highway Traffic Act. The Criminal Records Act clearly sets out its mandate is for federal matters only and does not prevent provincial and municipal record keepers from utilizing the pardoned offences. That restriction is the reason why the Ministry of Transportation record is able to retain the prior drinking/driving offences of R.Z. in their provincial records.

Highway Traffic Act Jurisdiction

In sentencing R.Z., I have the jurisdiction to increase his licence suspension as opposed to a Criminal Code driving prohibition, as does the Ministry of Transportation in their mandate to review the defendant's privilege of driving. The Highway Traffic Act, s. 41(4) empowers me to increase the length of the suspension and s. 1(6) directs that pardoned and non-pardoned convictions are treated the same and certainly my jurisdiction as a Provincial Offences Court is set out in the Courts of Justice Act permitting my utilization of the Highway Traffic Act principles.

Closing Remarks on Crown Election

In closing, I would be remiss in not commenting on an issue which has completely flummoxed me in completing these reasons. A post-pardon indictable conviction automatically results in losing the benefit of that pardon. Choosing the mode of election is solely with the purview of the Crown office. Given the undisputed carnage created by drinking drivers, the most efficient community response to a defendant who has previously been entrusted with the privilege of a pardon, who is then charged with a drinking/driving offence, would be an indictable election to ensure upon any eventual conviction that the offender's entire prior court record is made available to the sentencing justice, as well as deprive that offender of the pardon. The Crown will be on notice of the likelihood of a prior pardon by reviewing the Ministry of Transportation record and comparing it to the CPIC printout.

Alternatively, Parliament might consider removing the exception in s. 7.2(a)(ii) of the Criminal Records Act exempting s. 255(1) convictions from cessation of effect. I am again completely flummoxed in finding any policy justification in protecting drunk drivers who have chosen to put the community at risk by drinking and driving, should be protected from the consequences of their actions, especially should that prior record include cognate offences which would mandate mandatory incarceration.

Sentencing

WAKEFIELD J. (Orally)

Today I have this defendant before me to be sentenced as the law is today. As such, R.Z., I would ask you to stand up at this point.

With respect to the sole criminal charge before me of over 80 and being treated as a first offender who has taken responsibility for his actions, thereby demonstrating remorse by a contextually early guilty plea, I sentence you to the minimum fine of $1000, to which is added the victim surcharge of $300.

If the fine is not paid, there is an estimated time in default of 15 days' incarceration.

R.Z.: I'm sorry, say that again?

THE COURT: 15 days' incarceration if you don't pay the fine is the anticipated time in jail. There is a process involved which has to be followed should that occur but what I am leading up to - this is why I asked you earlier about your income. I am going to grant you one year in which to pay the fine. If you are not able to pay it within that one year, speak to duty counsel about the process by which you apply for an extension of time to pay the fine. That comes to me. I look to see how fastidiously you are whittling down the fine and if I see that you are taking responsibility and making regular payments, then I will certainly look at granting you additional time, but I want to see you make the effort first.

Secondly, I hope you did not drive here today?

R.Z.: Say what?

THE COURT: You did not drive here today?

R.Z.: I did not.

THE COURT: "Did not", good. Have you got your driver's licence back?

R.Z.: Yes, I do.

THE COURT: Did you bring that with you today?

R.Z.: Yes, I did.

THE COURT: Would you pass that to Mr. Clerk, please? Is the address on the driver's licence your current address?

R.Z.: It is, Your Honour.

THE COURT: As such, pursuant to the Criminal Code, you are now prohibited from operating a motor vehicle on any street, road, highway or other place for a period of 12 months, commencing on today's date.

You have to understand, sir, that if you are found driving, more to the point, convicted of breaching this order, the Crown by an indictable election would open up the possibility of five years in a penitentiary. So it is essential that you don't drive again until you are legitimately entitled to do so.

However, I do have concurrent jurisdiction under the Highway Traffic Act and, within that jurisdiction, have the capacity to review the pardoned drinking and driving offences set out in the Ministry of Transportation record, which more than justifies an increased suspension as "being desirable for the protection of the public using the highways" (s. 41(4) of the Highway Traffic Act). As such, there will be a licence suspension of a concurrent - so a licence suspension of two years duration concurrent to the Criminal Code prohibition; however, subject to inclusion in the Interlock Program. I understand the Highway Traffic Act, s. 41(4.1) permits the Interlock privileges to the licence suspension as well as the driving prohibition and that understanding is the basis of my additional suspension.

I should also acknowledge in this judgment that the delay in sentencing is partly due to the Crown application to the Ministry and the subsequent preparation of material and illness delays caused by myself before releasing this judgment.

I am declining to impose the additional sentencing component submitted by the Crown of a probationary period for counselling. The public will be protected for the next two years and the defendant now realizes the consequences to him should he re-offend, thereby permitting the Crown to elect by way of indictment. It is very much in the defendant's best interests to independently follow up with counselling.

Publication and Privacy Protections

The one outstanding issue is the consequence of revealing the offender's prior pardons, as permitted by the Ministerial consent, in open court on the record. The Ministerial documents, I understand, are required to be returned to the Ministry. However, to permit publication of the offender's name, together with the publication of the prior pardons, would defeat the core intent of the Criminal Records Act. To put the press on notice, and I acknowledge that should be, in the ordinary course, the next step, would also defeat the core intent of the Act.

I note that the Canadian Judicial Counsel protocol on personal information, at paragraph 19 states that:

However, even in cases where no publication ban is in place, it may still be appropriate for a judge when drafting reasons to omit certain personal information from a judgment in the interest of protecting the privacy of the litigants or other participants in the proceedings. The protocol establishes some basic types of cases where individual identities or factual information needs to be protected and suggests what types of information should be removed. There are four objectives which must be taken into account when determining what information should be included or omitted from reasons for judgment:

1. ensuring full compliance with the law;

which I believe to be in full compliance with the Criminal Records Act.

2. fostering an open and accountable judicial system;

This, again, would be served by maintaining the privacy of the offender.

3. protecting the privacy of justice system participants where appropriate; and

4. maintaining the readability of reasons for judgment.

That is the Judges' Technology Advisory Committee, Use of Personal Information in Judgments and Recommended Protocol, approved by the Canadian Judicial Counsel in March 2005.

As such, I hereby order that these Reasons, if printed, electronically reproduced or audio copy, have the personal identifiers of the offender removed and replaced with his initials. The Crown material attached to these reasons will be similarly amended to replace the offender's name with initials.

The Crown material will be sealed to be opened only by a court of competent jurisdiction.

Obviously, the conviction at bar is part of the public record and the offender's name can be set out in full with respect to this conviction only.

That is my ruling and sentencing in this matter. There will be documents for you to sign before you leave the building. As I said, I have given you time to pay on the fine and you will check in to how you extend the time, should you need that, but you have to justify it in that application.

R.Z.: Yes, Your Honour.

THE COURT: Anything further from the Crown with respect to this matter?

MR. SALIWONCHYK: No, thanks.

THE COURT: Any questions, sir?

Acknowledgment

Mr. Saliwonchyk, while I have put it into the judgment, it would be remiss of me not to thank Mr. Malleson for submissions that covered both the defence aspect and the Crown aspect in the best traditions.

Certificate of Transcript

Evidence Act, subsection 5(2)

I, Maxine Newell, certify that this document is a true and accurate transcript of the recordings of Maxine Newell in R. v. R.Z. in the Ontario Court of Justice held at 150 Bond St. E., Oshawa, Ontario, taken from Recording number 2811-106-20160601-085124-10-WAKEFIG, which has been certified in Form 1.

Date: 20 June, 2016

Maxine Newell, C.C.R.

Transcript ordered: June 1, 2016

Transcript completed: June 20, 2016

Transcript Released: July 14, 2016