Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Anil Persaud
Before: Justice M. Speyer
Heard on: October 22 and November 6, 2018
Reasons for Judgment released: December 6, 2018
Counsel:
- Matthew Shumka, for the Crown
- John Erickson, for the accused Anil Persaud
M. SPEYER J.:
Facts
[1] On October 22, 2018, Anil Persaud pled guilty to a number of offences that occurred on two separate occasions.
[2] The first set of offences are:
- Impaired operation of a motor vehicle,
- Driving while disqualified and
- Dangerous operation of a motor vehicle.
[3] These offences occurred on November 27, 2017 at approximately 3:30 in the afternoon on Highway 401 in Toronto. Mr. Persaud was stopped by concerned citizens who had observed him driving in an erratic and dangerous manner on the highway. One of the witnesses observed him drinking from a bottle of liquor while driving. They managed to block his car to prevent him from leaving. When a police officer arrived, she saw that Mr. Persaud was trying to drive away. He was obviously impaired by alcohol and she arrested him for impaired driving.
[4] Three samples of Mr. Persaud's breath were taken between 5:07 and 6:21 p.m. that day. The lowest reading revealed a blood alcohol concentration of 340 mg of alcohol in 100 ml of blood. While at the police station, Mr. Persaud provided an incorrect name and date of birth. His identity was confirmed through fingerprinting. At the time, Mr. Persaud was subject to a lifetime driving prohibition issued on July 10, 2015, on a conviction for care or control of a motor vehicle while impaired. He was released on a recognizance of bail on November 28, 2017 with a condition to not be in the driver seat or front passenger seat of a motor vehicle.
[5] The second set of offences occurred on September 15, 2018. They are:
- Impaired operation of a motor vehicle
- Driving while disqualified
- Obstruct police
[6] On this date, at approximately 2:45 in the afternoon, Mr. Persaud was again driving a vehicle on Highway 401 when he was involved in a minor collision with another motor vehicle. A witness to the collision was concerned that Mr. Persaud was impaired. He saw Mr. Persaud try to pay money to the other motorist, who eventually left the scene of the collision. The witness then saw Mr. Persaud leave the scene on foot and walk south on Keele Street. When stopped by a police officer, Mr. Persaud admitted being in a motor vehicle collision. The officer observed symptoms of impairment and arrested Mr. Persaud for impaired driving. Breath tests at 5:00 and 5:23 p.m. that day showed that he had a blood alcohol concentration of 210 and 220 mg of alcohol in 100 ml of blood respectively. While at the police station, Mr. Persaud again provided an incorrect name and date of birth. His identity was confirmed through a photograph taken as a result of the November 27, 2017 occurrence.
[7] Mr. Persaud has been in custody since his arrest on September 15, 2018.
[8] Mr. Persaud has a criminal record for similar offences. In 1995, he received a $400 fine, a 6 month driving prohibition and one year of probation for failing to stop at the scene of an accident. In 2003, he was convicted on three separate occasions of impaired driving. He received fines on each of these convictions, the highest being $1,500, a two year driving prohibition as well as probation for one year. There is a gap in his record until 2015 when he was convicted of care or control of a motor vehicle while impaired and driving while disqualified. He received a 60-day intermittent sentence, probation for two years, and a lifetime driving prohibition. In 2016, he was found guilty of failing to comply with recognizance and given a conditional discharge with 12 months of probation.
Position of the Parties
[9] The Crown has elected to proceed summarily on both sets of charges. The maximum sentence available on each of the impaired driving offences is 18 months' incarceration. The Crown has also filed a notice of increased penalty and therefore the minimum sentence I must impose on each impaired driving charge is 120 days in jail. The Crown's position is that a global sentence of two years less pretrial custody is appropriate in these circumstances.
[10] Defence counsel advocates for a sentence of 12 months less pretrial custody.
[11] For the reasons stated herein, I am in agreement with the Crown that a global sentence of two years, less pretrial custody is required in the circumstance of this case.
Particulars of the Defendant
[12] Mr. Persaud is a 45 year old Canadian citizen. He is from Guyana, having arrived in Canada at age 14. He is a college graduate and has been employed steadily as a tool and die maker. Although he is separated from his wife, he maintains a very good relationship with her and his children, aged 19 and 15 years old. He is described by his ex-wife as a very hard worker and a good provider. She and the children rely on him for financial support. In addition to this, Mr. Persaud supports his aging mother, who is widowed. His mother has been described as illiterate with a low IQ. She depends heavily on her son for financial, physical and moral support. I have received two letters in support of Mr. Persaud, one from his brother and one from his ex-wife, confirming the family's reliance on Mr. Persaud and that a lengthy period of custody will have serious consequences for them. The family pleads for leniency.
[13] Mr. Persaud has been afflicted with alcohol addiction for a long time. He has attended treatment and counselling programs to address this problem. In December of 2014 he attended Bellwood Health Services for addiction counselling. From April to August of 2016, he attended the Pinewood Scarborough Community Withdrawal Management Service. He returned to that program from December 18, 2017 to January 5, 2018.
Analysis
[14] In determining the appropriate sentence in this case, I am mindful of the objectives of sentencing as codified in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.
[15] It is well-settled law that the primary objectives of sentencing in drinking and driving cases are public denunciation and general deterrence.
[16] In R. v. Biancofiore, [1997] O.J. No. 3865, at para 23 and 24, Justice Rosenberg confirmed that general deterrence and public denunciation are overriding objectives that apply to cases of drinking and driving. Citing that court's decision in R. v. McVeigh, [1985] O.J. No. 207, Justice Rosenberg affirmed the principle that general deterrence is required for these types of offences because they are often committed by otherwise law abiding citizens whose behaviour can be influenced by the prospect of incarceration.
[17] The sentence should also reflect the community's condemnation of the offender's conduct. As noted by Justice Rosenberg in Biancofiore, sentences in serious drinking and driving cases should serve to underscore the criminality of the offender's conduct and not simply treat it as an unfortunate error in judgment. In some circumstances, incarceration may be the only effective way to send the message to the accused and others that drinking and driving is a crime and will be punished as such.
[18] Mr. Persaud has been treated leniently in the past for similar offences. The longest sentence he has received is 60 days served intermittently in 2015. Clearly that sentence did not deter Mr. Persaud from repeating these crimes in 2017 and 2018. Moreover, in committing these offences while on a lifetime driving prohibition and, in the second instance, in contravention of the terms of his bail, Mr. Persaud demonstrated a complete indifference to the criminal nature of drinking and driving offences. In my view, a significantly longer period of incarceration is now required to condemn Mr. Persaud's behaviour and to bring home to him and other like-minded persons that drinking and driving offences will not be tolerated.
[19] Section 718.1 sets out the principle of proportionality in sentencing. It provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In R. v. M.(C.A.), [1996] 1 S.C.R. 500, Chief Justice Lamer of the Supreme Court of Canada explained this concept requires an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender.
[20] There can be no issue that drinking and driving is a serious crime. This has been underscored by virtually every appellate decision. In 1994 the Supreme Court of Canada in R. v. Bernshaw, again highlighted the problem of drinking and driving:
Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.
[21] It is fortunate that no one was hurt in the two occurrences before me. This does not diminish the seriousness of Mr. Persaud's crimes. Both incidents occurred on Highway 401 amidst rush hour traffic. Highway 401 is one of the busiest highways in North America. In both instances, Mr. Persaud was highly intoxicated with high blood alcohol readings. In the November 2017 incident, his driving was so dangerous that other motorists were moved to take action to stop and block his car until the police arrived. In these circumstances it is apt to remember the words of Justice MacKinnon in R. v. McVeigh, supra at p. 6 wherein he held:
In my view the sentences for the so-called lesser offences in this field should be increased. The variations in the penalties imposed for drinking and driving are great and increasing sentences for offences at the "lower end" would emphasize that it is the conduct of the accused, not just the consequences, that is the criminality punished. If such an approach acts as a general deterrent then the possibilities of serious and tragic results from such driving are reduced. No one takes to the road after drinking with the thought that someone may be killed as a result of his drinking. The sentences should be such as to make it very much less attractive for the drinker to get behind the wheel of a car after drinking. 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. It is trite to say that every drinking driver is a potential killer.
[22] Accordingly, it is not only the consequences of drinking and driving that are punished, but the intentional risk taking of the offender of driving a motor vehicle on a busy highway while impaired. In this case, the moral culpability of Mr. Persaud is high, particularly having regard to his manner of driving, his high level of intoxication and the time and locations of these offences.
[23] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances relating to the offence or the offender. In this case, there are a number of mitigating factors which I have taken into account.
Mitigating Factors:
First and foremost, is Mr. Persaud's guilty plea. Mr. Persaud has publically admitted his responsibility and expressed his remorse. In doing so, he also spared the state the expense of two trials.
Mr. Persaud has in the past taken steps to address his alcoholism and is prepared to do so again upon his release from custody. I recognize that alcohol addiction is a life-long illness, and there are periods of relapse. In this case, there is a gap in Mr. Persaud's record from 2003 to 2015, indicating that he is capable of abstaining from alcohol, or at least refrain from drinking and driving. There is hope that he can do so in the future.
Mr. Persaud has a good work history and pro-social supports in the community. His family continues to be supportive of him. This is a good indicator that he can be successfully rehabilitated and thereby reduce future risk to the community. While the goal of rehabilitation is attenuated by the need to deter and denounce these offences, it must still be considered by me.
[24] On the other hand there are a number of aggravating factors that I cannot overlook.
Aggravating Factors:
As already noted, the time, place and manner of driving on both occasions put the public at considerable risk of harm.
On November 27, 2017 Mr. Persaud was seen weaving in and out of lanes and changing speed abruptly. His driving was so bad that other motorists were prompted to not just call the police, but to intervene in stopping and blocking Mr. Persaud's vehicle. He attempted to drive away thereby continuing to put others in jeopardy.
On both occasions, Mr. Persaud had a very high blood alcohol level, which is a statutorily aggravating factor. His level of intoxication on both occasions was evident to the police and to civilians. On November 27, 2017 he was observed drinking from a bottle of alcohol while he was driving.
On both occasions, he attempted to evade the consequences of his actions. On November 27, 2017 he attempted to drive away. On September 15, 2018, he walked away from the scene of a collision. On both occasions he gave a false name to the police requiring the investigating officers to take additional investigative steps to confirm his identity.
Finally, on both occasions, Mr. Persaud displayed a lack of respect for court orders by driving while prohibited and while on bail. Driving prohibitions are an integral aspect of sentencing in these types of offences. It defeats the purpose of the sentence if the offender repeatedly drives in the face of a driving prohibition. The sentence for these offences must be sufficient to send home the message to the accused and the public that failure to adhere to the prohibition will result in loss of liberty.
[25] The cases presented to me by counsel are helpful in setting out a range of sentences; however, I must consider the particular circumstances of the individual offender and the offences he has committed. As stated, I agree with the Crown's submissions that a global sentence of 24 months is appropriate, considering the totality of the sentence.
[26] Counsel for the accused urged me to consider a global sentence of one year. He points to the mitigating factors in this case, the step principle, and the fact that Mr. Persaud's family relies heavily on him for emotional and financial support. A lengthy period of incarceration will have a disproportional impact on him and his family. Any period of incarceration will be difficult for Mr. Persaud's family, and, in particular, his mother. However, given the seriousness of the offences, the risk to public safety, and the principles of deterrence and denunciation, a sentence of 12 months is simply inadequate.
Sentence
[27] The sentence will be as follows:
[28] November 27, 2017:
Impaired operation of a motor vehicle: 12 months' jail less pretrial custody of 89 days enhanced to 134 days, leaving a balance to be served of 231 days; plus a lifetime driving prohibition; and a DNA order as a secondary designated offence;
Driving while disqualified: 4 months' jail concurrent;
Dangerous driving: 4 months' jail concurrent;
[29] September 15, 2018:
Impaired operation of a motor vehicle: 12 months' incarceration consecutive to the November 27, 2017 impaired driving conviction, plus a lifetime driving prohibition; followed by a three year period of probation;
Driving while disqualified: six months' jail concurrent;
Obstruct police officer: two months' jail concurrent;
[30] Terms of probation, in addition to the mandatory terms:
Not to occupy the front seat of a motor vehicle, either the driver's side or passenger side.
Attend counselling for alcohol abuse and the Ministry of Transportation Missing You program.
Released: December 6, 2018
Signed: "Justice M. Speyer"