Ontario Court of Justice

Date: 2016-02-09

Court File No.: Toronto 4811 998 14-15005374-00; 4811 999 14-15010181-00

Between:

Her Majesty the Queen

— AND —

Matthew David Coleman

Before: Justice R. Blouin

Submissions Heard on: January 19, 2016

Reasons for Sentence Released on: February 9, 2016

Counsel:

• Ms. Yeshe Laine – Counsel for the Crown
• Mr. J. Randall Barrs – Counsel for the Defendant Matthew David Coleman

BLOUIN J.:

[1] On October 27, 2015, I found the defendant guilty on one count of Drive Over 80. He was acquitted on the Impaired Driving count. I concluded that he drove his truck into a friend's driveway, and then shortly thereafter backed his truck out of that driveway and parked on the road. It is clear that he removed his truck from the driveway because his friend's son had damaged the side view mirror. Mr. Coleman was upset and phoned the police regarding the damage. When police arrived on scene, reasonable grounds were obtained to make a demand that the defendant provide breath samples. He did so at the police station, registering 140 and 130 mg. After hearing submissions as to sentence on January 19, 2016, I reserved judgement to review sentencing submissions and related exhibits.

Crown Position

[2] The defendant's criminal record includes three drinking-driving convictions (1992, 2005, 2007). His most recent conviction resulted in a 90 day sentence. A sentence of nine months incarceration was requested along with a five year driving prohibition. The Crown did not give notice of higher penalty pursuant to s. 727 of the Criminal Code.

Defence Position

[3] The defendant has made significant gains combatting alcoholism including attending rehabilitation programs immediately after this offence, and again in 2015. Defence submits that Mr. Coleman today, is a radically different person than the alcoholic that committed this offence, three previous drinking and driving offences, and the two domestic offences. He is self-employed, working full-time with strong community support to assist him in monitoring sobriety. Accordingly, a non-custodial sentence was urged.

Aggravating Factors

Criminal Record

[4] The defendant has a criminal record which includes three prior drinking-driving related offences. The crown neglected to serve notice seeking a higher penalty pursuant to s. 727 of the Criminal Code, so the statutory minimum sentences are not applicable.

Prior Convictions:

• 1991-04-22 Oshawa Court

  • Careless Use of Firearm s. 86(2) CCC – $200 I-D 8 Days

• 1992-11-16 Toronto Court

  • Driving While Ability Impaired s. 253(a) CCC – $300 & Probation for 3 months

• 2002-06-18 Toronto Court

  • (1) Fail to Comply with Undertaking s. 145(3) CCC – 4 Months Conditional Sentence Order & 14 days pre-sentence custody & 2 years' Probation
  • (2) Uttering Threats s. 264.1(1)(a) CCC – 1 Day Conditional Sentence Order & Probation 2 years concurrent
  • (3) Attempt Obstruct Justice s. 139 CCC – 2 months Conditional Sentence Order consecutive & Discretionary Prohibition

• 2005-05-03 Toronto Court

  • Public Mischief s. 140(1)(c) CCC – $450

• 2005-11-23 Toronto Court

  • Driving While Ability Impaired s. 253(a) CCC – $1300 & Driving Prohibition for 12 months

• 2007-07-09 Toronto Court

  • Driving While More Than 80 mgs of Alcohol in Blood s. 253(b) CCC & Driving Prohibition for 3 Years – 62 days & (14 days pre-sentence custody) & 2 years' Probation

• 2010-03-18 Toronto Court

  • Uttering Threats & Discretionary – 45 days Conditional Sentence Order & (5 days pre-sentence custody) Probation 15 months. Prohibition Order s. 110 CCC for 5 years.

• 2011-02-11 Toronto Court

  • Assault s. 266 CCC – 45 days custody & 12 months Probation

[5] Mr. Coleman also has a number of POA convictions regarding contraventions of the Highway Traffic Act. Some are:

• 1993-11-30 Careless Driving
• 2001-12-24 Speeding 140 km – 100 km zone, following too closely
• 2005-01-06 Careless Driving
• 2015-02-06 Drive While Suspended (offence date 2014-03-22)
• 2014-02-27 Drive No Licence (offence date 2013-07-18)

[6] Ministry records characterized the defendant's response to community supervision as negative, and ultimately, uncooperative, little insight and abrasive, and "unsuitable for future community supervision". On the two most recent criminal record entries (both regarding domestic violence convictions) his response to programs in the community was egregious.

[7] While I could not conclude the defendant perjured himself, (that would require another court to come to that conclusion), I concluded he was not truthful with this court. On one point, he admitted as much.

Mitigating Factors

[8] The defendant sought immediate assistance for his alcoholism. A letter from the William Osler Health Centre (Exhibit 2) confirms that the defendant was a patient in their Withdrawal Management Centre from May 11, 2014 to August 11, 2014. He also entered the Renascent residential treatment program (Exhibit 3) for three weeks commencing March 25, 2015. He completed that program and was transferred to their "follow-up". A letter was produced from his AA sponsor, Stan Anderson, outlining the significant progress he has seen in the defendant (Exhibit 1). Included in that Exhibit was a hair analysis done recently (December 21, 2015) by a doctor, which tested negative for drugs or alcohol.

[9] The defendant has a lengthy and well established work record. He owns his own business where two employees are dependent upon his work for their livelihood.

[10] The defendant has strong community supports which was evidenced by family and colleagues that were present in court to support him. His father, daughter and his girlfriend are significant motivators for the defendant to continue his sobriety, which has been established during the past year. Mr. Coleman is clearly a different person in the absence of alcohol.

Sentence

[11] As indicated above, the crown did not service notice of a higher penalty. If they had, the minimum sentence of 120 days would apply. (It does for any subsequent offence after the second drinking-driving offence.) In my view, absent any significant mitigating factors, the appropriate range of sentence is 4-6 months. This is the defendant's fourth drinking-driving conviction wherein the most recent of these was almost nine years ago. However, in my view, there is a compelling mitigating factor – the defendant's immediate comprehensive and successful (to this point) rehabilitation efforts. The defendant, as evidenced by the PSR and other exhibits, is a completely different person today than he was in April of 2014. He is now a productive person with strong community support.

[12] In my view, there is no doubt a period of custody is necessary to deter and denounce recidivists who continue to drink and drive, and thereby endanger the public. Mr. Coleman received a 90 day sentence for his third such conviction in 2007. It is only because of his substantial reformation that I conclude the same sentence to be the correct one in this instance. I am satisfied that he serve that sentence intermittently given his stable employment history, and a present engagement in a successful business enterprise that employs others.

[13] Mr. Coleman will also be placed on probation for two years with terms as recommended in the PSR.

[14] Given the recidivism, he will be prohibited from operating a motor vehicle for a period of four years.

Released: February 9, 2016

Signed: "Justice Blouin"