Court Information

Court File No.: Central East Region: Oshawa Court 15-01029

Date: 2017-01-20

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— AND —

Lovan Wheatley

Before the Court

Justice: Peter C. West

Oral Submissions Heard: September 27, 2016 and November 16, 2016

Reasons for Sentence Released: January 20, 2017

Counsel

For the Crown: D. Slessor, T. Boodoosingh

For the Defendant: R. Valentine

Introduction

[1] On September 27, 2016, Mr. Wheatley entered pleas of guilty to impaired driving, fail to stop for police and drive disqualified arising on November 17, 2015. The Crown elected to proceed by summary conviction on each of these three charges. The matter had been adjourned previously to allow Mr. Valentine to obtain a legal opinion from an immigration lawyer respecting the collateral immigration consequences to Mr. Wheatley based on the proposed sentence. On September 27, 2016, Mr. Valentine provided the letter of opinion from Ms. Susan J. Woolnar, a criminal and immigration lawyer practicing since 1987, who has provided written opinions on immigration consequences to courts in Ontario. The matter was further adjourned to obtain a presentence report.

[2] When the matter returned on November 16, 2016, Mr. Slessor advised he was taking a slightly different position respecting the sentence as it related to the imposition of consecutive sentences for the three charges Mr. Wheatley was to be sentenced on.

[3] The previous position, discussed at a judicial pre-trial, involved the imposition of three separate sentences, to be served consecutively, totalling 12 to 15 months. As a result of a recent endorsement in the Ontario Court of Appeal the Crown's position was the sentence imposed for the impaired driving charge could not be less than Mr. Wheatley's previous sentence, in 2012, of 8 months in jail, and, in fact should be greater.

[4] The defence argued there could be three separate sentences, which would be served consecutively but each individual sentence should be informed by the serious and harsh immigration consequences pursuant to ss. 36(1), 36(3) and 64(2) of the Immigration and Refugee Protection Act (hereafter referred to as IRPA).

[5] Mr. Wheatley's sentencing was adjourned for me to consider the submissions of counsel and receive counsel's final submissions on today's date and render a sentence.

Factual Background

[6] On November 17, 2015, an O.P.P. officer, using a radar device, registered Mr. Wheatley's speed on the 401 highway by Rougemount Drive, Pickering, to be 142 km/hr in a 100 km/hr zone. The officer activated his emergency lights and siren to pull over Mr. Wheatley's car. The officer had pulled beside Mr. Wheatley's car to motion for him to pull over. Mr. Wheatley did not pull over but increased his speed continuing on the 401 highway until he exited at Brock Road in Pickering. Mr. Wheatley initially turned southbound, slowed his vehicle suddenly such that the officer's car collided with the rear of Mr. Wheatley's car. Mr. Wheatley then did a U-turn and began driving northbound on Brock Road to Kingston Road. He drove eastbound on Kingston Road reaching speeds of 100 km in a 60 km/hr zone. He drove into the Best Buy parking lot, driving around this store and finally getting back onto Kingston Road going westbound. At Westney Road he turned north.

[7] Mr. Wheatley ran the red lights at Sullivan Drive and Rossland Road. He turned eastbound onto Taunton Road, turning southbound onto Middlecote Drive. Other Durham Regional Police vehicles had joined the chase and were able to box Mr. Wheatley's car to force him to stop. Officers exited their police vehicles and one officer smashed Mr. Wheatley's driver's window to remove the keys as they believed he was going to attempt to continue evading the police. A police officer detected an odour of alcohol and Mr. Wheatley was arrested. He was provided his right to counsel, cautioned and read a breath demand. After arriving at the police station he provided two breath samples with readings of 146 mg of alcohol in 100 ml of blood and 147 mg of alcohol in 100 ml of blood. Mr. Wheatley was convicted of impaired driving on October 12, 2012, when he received a 4 year driving prohibition and consequently, was operating his car while prohibited.

Offender's Background

[8] Mr. Wheatley was born on May 19, 1961 and is currently 55 years of age. He was previously married to his high school sweetheart with whom he has three adult children. He married his current wife, Paulette, in 1997, she has a 22 year old son from a previous relationship and they have an 18 year old daughter, who is in university. Mr. Wheatley's mother is still alive, living in a nursing home suffering from Alzheimer's. Mr. Wheatley's sister, Maureen Wellington, advised the probation officer that Mr. Wheatley visits his mother on a regular basis.

[9] Mr. Wheatley was born in Jamaica in 1961 and moved to Canada when he was 12 years old. Mr. Wheatley is a permanent resident in Canada and is still a citizen of Jamaica. In addition to his mother, he has a sister and younger half-brother who live in Canada, as well as his step-father, who suffered a brain injury in 1996 and lives with Mr. Wheatley's half-sister.

[10] Mr. Wheatley was employed for 14 years with Siltech Corporation as a chemical operator but was let go as a result of the current charges before the court. His supervisor confirmed his employment with the probation officer describing Mr. Wheatley as a valued employee but due to his history of alcohol abuse Mr. Wheatley had to be let go from his employment because of his position working with chemicals.

[11] Since being let go from Siltech Corporation in May 2016, Mr. Wheatley has worked in a sales position with his brother-in-law's heating and air conditioning company.

[12] Mr. Wheatley admits to having an addiction to alcohol and attempted to control it by abstaining during the week and binge drinking on the weekends. His problem with alcohol has been a long standing problem. As a result of these charges Mr. Wheatley advised the probation officer he had completely abstained from alcohol since November 2015. His wife confirms this but indicates he needs "additional help" in his recovery. Mr. Wheatley attended the Pinewood Treatment Centre since December 17, 2015 where he was involved in group therapy and subsequently, he has been seeing a substance abuse counsellor, Andrea Harris. The probation officer spoke to Ms. Harris who advised Mr. Wheatley completed the Pathways group program in February 2016 and has been attending individual counselling sessions every three or four weeks since then. Ms. Harris indicates her opinion of Mr. Wheatley is that he is very motivated to change in the counselling process.

[13] I also received two letters from Lakeridge Health dated February 16, 2016 and March 8, 2016 from Ms. Melanie Harper and Ms. Michelle Atkinson, both Addiction Counsellors with the Pinewood Centre. These letters confirm Mr. Wheatley's initial involvement with Pinewood Centre.

[14] Mr. Wheatley expressed remorse for his actions and indicated to the probation officer he is grateful no one was hurt because of his driving. Mr. Wheatley is described as "a real family person and very kind." His friend, Ron Cunningham, advised the probation officer he has known Mr. Wheatley through his involvement with Jehovah's Witnesses and indicated Mr. Wheatley appeared "very sincere and very determined to make changes" in his life following the charges.

[15] Mr. Wheatley was on parole in 2013 from his previous sentence and was noted he was fully compliant and suitable for future community supervision.

[16] Mr. Wheatley's criminal record clearly reflects his problems with alcohol addiction.

Criminal Record

Date	Offence	Sentence
1994-09-23	Impaired Driving; Refuse Sample	$300 fine on each charge, 1 year probation + 1 year prohibition
1994-09-28	Over 80 mgs	$500 fine, impaired driving 15 days + 1 year prohibition
1994-09-30	Impaired Driving	$500 fine, impaired driving 30 days + 1 year prohibition
1998-10-21	Impaired Driving Cause Bodily Harm	12 months jail + 3 years probation
1999-02-19	Paroled	—
2012-03-05	Possession Schedule 1 Substance	$150 fine
2012-10-12	Impaired Driving	8 months jail + 4 years prohibition

Principles of Sentencing

[17] Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct;

(b) Deter the offender, and others, from committing such an offence;

(c) Separate the offender from society, where necessary;

(d) Assist in the rehabilitation of the offender;

(e) Provide reparation for harm done to "victims", or the community; and

(f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the "victims" and the community.

[18] According to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[19] In R. v. Nasogaluak, 2010 SCC 6, at para. 42, LeBel J., for the Court, held the principle of proportionality:

…requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused (R. v. M. (C.A.), at para. 81; Re B.C. Motor Vehicle Act, at pp. 533-34, per Wilson J., concurring). Understood in this latter sense, sentencing is a form of judicial and social censure (J.V. Roberts and D.P. Cole, "Introduction to Sentencing and Parole", in Roberts and Cole, eds., Making Sense of Sentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

[20] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. This section also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

Collateral Consequences

[21] In R. v. Pham, 2013 SCC 15, the Supreme Court of Canada held that a sentencing judge can take collateral, or indirect, immigration consequences into account in fashioning a fit and proportionate sentence. At para. 11, Wagner J., for a unanimous court, found that the principles of individualization and parity, as well as "the sentencing objective of assisting in rehabilitating offenders," make the collateral consequences of a sentence relevant. "When two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offender, the most suitable one may be the one that better contributes to the offender's rehabilitation." Wagner J. added at para. 12 that "the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence."

[22] Any sentence must, however, be fit having regard to the crime and the offender:

The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament's will. (para. 15)

[23] The sentencing judge should therefore first determine whether the sentence that avoids the collateral consequences is even a possibility.

[A] sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. (para. 14)

See also R. v. B.R.C., [2010] O.J. No. 3571 (C.A.); R. v. Nassri, 2015 ONCA 316; R. v. Zhou, [2016] O.J. No. 2573 (S.C.J., Pomerance J.).

[24] In 2013 the Immigration and Refugee Protection Act (hereafter, IRPA) was amended. Section 36(1) of the IRPA states:

A permanent resident or foreign national is inadmissible on grounds of serious criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

[25] A permanent resident is inadmissible and subject to a removal or deportation order on grounds of serious criminality where an individual sentence imposed exceeds six months imprisonment. Previously, the IRPA provided a permanent resident was subject to removal or deportation, without appeal, where the individual sentence exceeded two years or the maximum sentence was 10 years or more.

[26] In Mr. Wheatley's case none of the offences carry a maximum sentence of 10 years or more. However, if Mr. Wheatley receives a custodial sentence of more than six months upon conviction for any one offence, the consequences to him under s. 64(2) of the IRPA is to deny him any right of appeal respecting a removal or deportation order made pursuant to s. 45 of the IRPA. (See Opinion Letter from Ms. Susan Woolner, Immigration Lawyer, Exhibit 3.)

Mitigating and Aggravating Circumstances

[27] Mr. Wheatley entered a plea of guilty which reflects his remorse and his acceptance of responsibility for his actions, which is mitigating. The probation officer indicated Mr. Wheatley expressed remorse for his conduct.

[28] According to the presentence report Mr. Wheatley, as a result of his arrest in November 2015, made the decision once again to abstain completely from the consumption of alcohol. As indicated above, the probation officer confirmed with Mr. Wheatley's substance abuse counsellor, Andrea Harris, of the Pinewood Centre, that he is very motivated to be successful in his decision to remain sober and abstinent. In my view a lengthy period of probation would be of great assistance to Mr. Wheatley in pursuing counselling and treatment to understand the underlying causes of his alcoholism. Further, Mr. Wheatley has a very good track record respecting his cooperation with probation and parole. His wife, Paulette, expressed to the probation officer her opinion that her husband would benefit from further treatment in his recovery from alcohol abuse.

[29] Mr. Wheatley lost his employment of 14 years with Siltech Corporation because of these charges, which reflected his relapse in his consumption of alcohol. It is important that Mr. Wheatley is employed fulltime with his brother-in-law's company in a sales position. It is also clear he has the support of his family in assisting him in his recovery.

[30] Mr. Wheatley's prior criminal record is an aggravating circumstance although there are two gaps in his record, which indicate successful attempts by Mr. Wheatley in addressing his alcohol addiction. The first gap in his criminal record is close to 14 years and the second gap is just over 3 years. It is a further aggravating circumstance however, that whenever Mr. Wheatley has difficulties maintaining his sobriety he also operates a motor vehicle under the influence of alcohol.

[31] A further aggravating circumstance is the driving behaviour after the police first attempted to stop his vehicle for speeding on the 401 Highway and in my view this is particularly egregious. He caused a minor collision with the OPP officer's police vehicle when he stopped abruptly to make a U-turn on Brock Road. He drove at speeds approaching 100 km in a 60 km/hr zone. The areas he drove these speeds are built up areas with both commercial and residential buildings. He drove through two red lights on Westney Road. The driving behaviour was in the early morning hours of November 17, 2015 and I was not advised by the Crown as to how much traffic was present. Suffice it to say, Mr. Wheatley's driving put anyone on the roads he was travelling on in great danger.

[32] The Crown submitted a sentence of 12 to 15 months in jail to be followed by three years of probation with conditions to address Mr. Wheatley's alcoholism and a 10 year driving prohibition was the appropriate sentence. The defence submitted a global sentence 12 months in jail was the appropriate sentence; however, in light of R. v. Pham, supra, I should deal with each charge separately.

[33] The Crown position changed as a result of a recent endorsement by the Ontario Court of Appeal in R. v. Allan Mohammed, 2016 ONCA 678. The Crown, in his submissions, recognized the principle of totality relating to the three charges Mr. Wheatley is to be sentenced on. However, it is the Crown's position I cannot structure the sentences on the three charges to circumvent the immigration collateral consequences. In that case the Court of Appeal rejected a defence submission to impose seven sentences of six months each, which would add up to the global sentence imposed by the sentencing judge of 42 months, because of the negative immigration consequences. The endorsement indicates this "would be an artificial way of avoiding Parliament's intent with respect to serious crimes committed by persons who immigrated to Canada," (see para. 3). The Crown also provided me with Moldaver J.'s (as he then was) decision in R. v. Badhwar, 2011 ONCA 266, which indicates a similar viewpoint.

[34] Consequently, it was the Crown's position on the date Mr. Wheatley entered his guilty pleas that the sentence imposed respecting the impaired driving conviction should not be less than 8 months imprisonment which was the last sentence he received for impaired driving in 2012. In fact, the Crown submitted an appropriate sentence for the impaired driving was a sentence of 9 months imprisonment taking into account the principle of totality if I was to impose consecutive sentences on each of the charges.

[35] I fully recognize and follow the principles under which immigration collateral consequences are to be considered by a sentencing court, as set out in R. v. Pham, in imposing an appropriate sentence taking into account the sentence for each charge must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Sentence Imposed

[36] It is my view that separate sentences should be imposed for the impaired driving, the fail to stop for police and the drive while disqualified to which Mr. Wheatley pleaded guilty. Although each of these offences occurred on the same day they reflect very different conduct by Mr. Wheatley and the sentences imposed should reflect sentences to be served consecutively.

[37] I agree with the Crown as to the appropriate sentence to be imposed with respect to the impaired driving charge, having regard to Mr. Wheatley's prior criminal record. It is my view a custodial sentence must be imposed to reflect the sentencing principles of deterrence and denunciation, which are paramount having regard to Mr. Wheatley's criminal record for similar offences. The appropriate sentence therefore is one of 9 months incarceration.

[38] As indicated above, Mr. Wheatley's conduct in failing to stop for the police when the OPP officer activated his emergency equipment and his attempt to evade arrest by driving in a manner dangerous to the public: causing a police vehicle to collide with the rear of his vehicle, driving 100 km/hr in a 60 km/hr zone, running two red lights in a mixed commercial/residential area and causing several police vehicles to take up the chase until his vehicle was finally boxed in to prevent him from escaping, was particularly aggravating. The charge of fail to stop for police also reflects conduct by Mr. Wheatley that should to be punished separately from his conduct of operating a motor vehicle while his ability was impaired by alcohol. In my view the imposition of a consecutive sentence for this offence is similar to those cases where a separate consecutive sentence is imposed for fail to stop at the scene of an accident in addition to the sentence imposed for impaired driving or dangerous driving. The appropriate sentence for this offence, which reflects the principles of deterrence and denunciation, is a further consecutive sentence of four (4) months incarceration.

[39] Finally, I am also of the view there should be a consecutive custodial sentence for the charge of drive disqualified. This is a breach of a court order. Mr. Wheatley was subject to a four year driving prohibition, which still had close to a year remaining, assuming Mr. Wheatley had complied with the remedial measures provided in the Ontario Highway Traffic Act to regain his driver's license. Mr. Wheatley does not have any convictions for breach of court orders on his criminal record. In my view, the appropriate sentence for this offence is a consecutive sentence of two (2) months incarceration.

[40] However, Mr. Wheatley has been on a restrictive bail since his release on November 17, 2015. He has been subject to a surety recognizance bail, which includes a house arrest term that does not permit him to leave his residence except for work, medical emergency or in the presence of his surety. In my view this restrictive bail condition amounts to the equivalent of a conditional sentence pursuant to s. 742.1 of the Criminal Code, which is imposed after an individual is convicted.

[41] In R. v. Downes, Rosenberg, J.A. held that "time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance." (See para. 33)

Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditional sentence under s. 742.1 of the Criminal Code. (See para. 29)

Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. In the end, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge. That factor must be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a given case. (See para. 36)

[42] Mr. Wheatley has been on very restrictive bail conditions for 14 months, which is a relevant mitigating circumstance and in my view warrants some consideration in assessing the appropriate sentence respecting the impaired driving charge. There is no rigid formula for determining what credit is appropriately given to reflect stringent bail conditions. In R. v. Downes, supra, Rosenberg J.A. assessed credit of five months for an accused who was subject to house arrest for 18 months. In my view the appropriate credit for the fourteen months of house arrest is three months. Consequently, I would reduce the sentence for impaired driving to one of six (6) months.

[43] I am applying the three months credit to the sentence imposed on the impaired driving charge because it is the most serious offence to which Mr. Wheatley pleaded guilty. Further, I am cognizant of the collateral immigration consequences respecting a sentence greater than six months under the provisions of the IRPA and in particular, ss. 36(1), 45, and 64(2), which mandate Mr. Wheatley would be removed or deported, without any right of appeal, to Jamaica, where he has not lived for 43 years. He came to Canada as a 12 year old child, married his "high school sweetheart" with whom he has three adult children, from whom he is now divorced. He married his current wife, Paulette, in 1997 and has a step son, aged 22 and a daughter, aged 18, who is in university. All of his family ties exist in Canada and removal from Canada would create in my view dire consequences to both Mr. Wheatley and to his family.

[44] Consequently, the custodial sentences imposed are as follows:

(a) Impaired driving: 6 months

(b) Fail to stop for police: 4 months consecutive

(c) Drive disqualified: 2 months consecutive

[45] In addition there will be a 10 year driving prohibition.

[46] Probation for three years with conditions.

Released: January 20, 2017

Signed: Justice Peter C. West