Court Information

Ontario Court of Justice

Date: April 25, 2017

Court File No.: City of Dryden 160140

Parties

Between:

Her Majesty the Queen

— AND —

Hao Mao

Before the Court

Justice of the Peace: D.J. MacKinnon

Heard on: December 20, 2016, February 28, 2017, and April 4, 2017

Reasons for Judgment released: April 25, 2017

Counsel

For the Crown: K. Senior (student at law)

For the Defendant: R. Noel, agent for James Little Legal Services

JUSTICE OF THE PEACE D.J. MACKINNON:

The Charge

[1] The defendant was charged with stunt driving contrary to s. 172(1) of the Highway Traffic Act (HTA). A plea of guilty was entered to the charge on his behalf. Mr. Mao has never appeared personally in this court.

The Facts

[2] On July 31, 2016 Mr. Hao Mao was driving a silver Mercedes vehicle westbound on Highway 17 in Mutrie Township, District of Kenora. Officer Pykkonen was on radar patrol and was using a radar unit that he was qualified to use and that had been tested and was working properly.

[3] The officer deployed the radar unit and was able to identify the speed of the defendant's vehicle at 212 kph in a posted 90 kph zone. Upon seeing the police vehicle, the defendant braked heavily and his speed was locked at 162 kph. Upon being stopped the defendant produced a driver's licence and other identification from the Republic of China. His passenger was the owner of the vehicle and was unable to produce an insurance card, but the vehicle was insured. These facts were admitted by the defendant through his representative and a finding of guilt was made.

The Joint Submission

[4] The Crown and the defence made a joint submission to the court of a $3,000 fine and a 30 day licence suspension. The court was not advised as to any benefit obtained by the Crown as a result of settlement by joint submission.

[5] The defence indicated that the defendant was not in the country but was in China and was unlikely to return to Canada. No other information was provided in regard to Mr. Mao.

[6] The Crown argued in favour of the joint submission indicating that this was a first offence and that the defendant had no record in Ontario, but agreed that there is no availability of any record in China. The Crown stated that the court could not justify custody in these circumstances, which was a "one off" situation. There is no evidence to support this contention. The Crown at each appearance of this matter has been a law student.

[7] The court noted that there was an address in North York, Ontario for the defendant on his ticket. It was later confirmed as the address of his son.

[8] I indicated that I was disinclined to accept the joint submission for a number of reasons:

a) The speed represented a serious threat to public safety on this two-lane highway which winds and turns around lakes and rock cuts in this part of Ontario;

b) There was no evidence that a fine in this range would be a specific deterrent to the defendant;

c) There was no evidence that a fine in this range would be a general deterrent given that the defendant was driving 122 kilometres in excess of the speed limit;

d) The recommended sentence may bring the administration of justice into disrepute.

[9] The matter was adjourned to allow further submissions in support of the joint position on sentence.

[10] On the return of this matter the defence representative indicated that he was unable to obtain any further information from the lawyer for Mr. Mao or the defendant directly.

[11] The Crown reiterated the same arguments previously made, but added that the circumstances of the speeding were not so egregious as to warrant more than a fine. My decision was delayed to allow further information to be provided to the court by the Crown. The court was advised that the motor vehicle of the defendant was impounded for seven days and that the defendant had to find alternate transportation.

[12] The Supreme Court in R. v. Anthony-Cook, 2016 SCC 43 in paragraph 54 sets out the duty of both counsel to provide information to the court:

Counsel should, of course, provide the court with a full account of the circumstances of the offender, the offence, and the joint submission without waiting for a specific request from the trial judge. As trial judges are obliged to depart only rarely from joint submissions, there is a "corollary obligation upon counsel" to ensure that they "amply justify their position on the facts of the case as presented in open court" (Martin Committee Report, at p. 329). Sentencing — including sentencing based on a joint submission — cannot be done in the dark. The Crown and the defence must "provide the trial judge not only with the proposed sentence, but with a full description of the facts relevant to the offender and the offence", in order to give the judge "a proper basis upon which to determine whether [the joint submission] should be accepted" (DeSousa, at para. 15; see also Sinclair, at para. 14).

[13] Despite requests on each occasion for further information to place the joint submission in the context of the defendant, no further information was provided.

The Offence

[14] The definition of a "stunt" is set out in Ontario Regulation 455/07 and includes:

s. 3(7) Driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit.

[15] The Highway Traffic Act sets out the offence of stunt driving at s. 172(1):

172(1) Racing, stunts, etc., prohibited – No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager.

(2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not less than $2,000 and not more than $10,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her driver's licence may be suspended,

(a) on a first conviction under this section, for not more than two years; or

(b) on a subsequent conviction under this section, for not more than 10 years.

[16] As there is no record, it is agreed that this is a first conviction for the defendant.

Departing from a Joint Submission

[17] The higher courts have consistently articulated that judges and justices should support the resolution of court cases by accepting joint submissions and exhibiting restraint. There is a very high threshold for departing from a joint submission.

[18] The test to be applied in determining if a joint submission should be rejected has been settled to be the public interest test. In Anthony-Cook, Justice Moldaver stated:

Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. But, what does this threshold mean? Two decisions from the Newfoundland and Labrador Court of Appeal are helpful in this regard.

In Druken [R. v. Druken, 2006 NLCA 67] at para. 29, the court held that a joint submission will bring the administration of justice into disrepute or be contrary to the public interest if, despite the public interest considerations that support imposing it, it is so "markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a breakdown in the proper functioning of the criminal justice system." And, as stated by the same court in R. v. O.(B.J.), 2010 NLCA 19 at para. 56, when assessing a joint submission, trial judges should "avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts."

Analysis

[19] Is the joint submission markedly out of line with the expectations of reasonable persons aware of the circumstances?

[20] Penalties for stunt driving are higher than for speeding. Doherty J.A. said in the case of Her Majesty the Queen v. Raham, 2010 ONCA 206:

The stunt driving provision provides for the potential of incarceration, the speeding provision does not. This distinction is constitutionally significant…The legislature has chosen, through s. 172, to up the penal stakes for speeding at 50 kph or more over the speed limit by including the risk of incarceration…The real difference between being charged with speeding and being charged with stunt driving by going 50 kph or more over the speed limit lies in the other sanctions that flow from being charged with or convicted of the latter…

[21] Aggravating factors would, in the mind of a reasonable citizen, move the penalties from the minimums to the middle and then the maximums of the scale. Mitigating factors would keep the penalties at the lower end of the range.

[22] The minimum fine of $2000 represents the level for first time offenders, driving close to 140 kph in a 90 kph zone (50 kph over), who also had their vehicle impounded for seven days and had an administrative licence suspension. This is the starting point for the defendant as he meets these criteria and more.

[23] The court recognizes as a mitigating factor that the defendant retained counsel and entered an early plea.

[24] There was no personal information provided about the defendant other than that he is a foreign national and has a son, neither of which are of assistance. Not only does this deficiency in information not act to keep the penalty closer to the minimum, but it does not provide a context in which the recommended penalty can be viewed in regard to its deterrent effect.

[25] The greatest aggravating factor in this case is the level of speed that the defendant travelled over the speed limit; in this case he travelled 212 kph which is 122 kph over the speed limit. The defendant was driving nearly 2.5 times the unlawful rate of 50 kph over the speed limit.

[26] Given the fact that the road is a two lane highway travelled by commercial and passenger vehicles, the road is not smooth and that it turns and rises around lakes and rock cuts, the actions of the defendant were a serious threat to other travellers.

[27] Members of the public would expect that the fine and licence suspension in this case would be on the higher end of the ranges available. The legislators who represent the public have determined that a first time offender may have a fine of $10,000. The joint submission keeps both the fine and the suspension in the minimum range.

[28] The parties urge acceptance of the joint submission on the basis that no accident actually occurred. The Court of Appeal spoke to this argument in the case of R. v. Nusrat, 2009 ONCA 31, a stunt driving case resulting in death. Epstein J.A. referred with approval to the case of R. v. McVeigh which states that, "…The public should not have to wait until members of the public are killed before the courts' repudiation of the conduct that led to the killing is made clear…". The court added, "Like every drunk driver, every street racer is a potential killer. The respondent turned this potential into a reality."

[29] So too Mr. Mao's actions could have had serious consequences and the speed alone is deserving of repudiation.

[30] Is the joint submission markedly out of line with the expectations of reasonable members of the public? The fine is only $1000 more than the minimum and the impounding of the vehicle and 7 day licence suspension are also penalties for those driving at 50 kph over the speed limit. The driving is the highest that the court or the defendant's representative have seen in any charges. Why would the minimums be sufficient? The public would expect that the rate of speed moves the fine level closer to the maximum of $10,000.

[31] The joint submission has not been demonstrated to provide general or specific deterrence for this driving, or to repudiate such disregard for the safety of others on the road. A member of the public would question why the top end of the range is not engaged to satisfy these sentencing objectives. If not in this case, when? Although the public interest test is a high standard, I am satisfied that the public would not support this resolution of this charge and that the joint submission would demonstrate a failure of the justice system to enforce this provision of the Highway Traffic Act by utilizing its range of sentencing options in serious cases such as this. I reject the joint submission as it would bring the administration of justice into disrepute.

Sentence

[32] I impose a fine in the higher range available in the amount of $7000. Contrary to the submissions of the Crown, the driving is egregious and the safety of the public on these roads requires that Mr. Mao be removed from them as long as possible to ensure public safety. The maximum two year driving suspension is imposed. Absent other aggravating factors, incarceration is not a consideration in this case.

[33] The defendant has been represented throughout this matter. It is not a case where I would allow the withdrawal of his plea.

[34] The defendant will be granted twelve months to pay the fine.

Released: April 25, 2017

Signed: "Justice of the Peace MacKinnon"