ONTARIO COURT OF JUSTICE

CITATION: R. v. Boles, 2019 ONCJ 122

DATE: 2019 03 04

COURT FILE No.: Guelph 2666/18

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DANIEL ELIAS BOLES

Before Justice M.K. Wendl

Heard on March 4, 2019

Reasons for Sentence released on March 4, 2019

Ms. Janine Hodgins........................................................................... counsel for the Crown

Mr. Matthew Stanley............................... counsel for the defendant Daniel Elias Boles

WENDL J.:

[1] Mr. Boles pled guilty on January 22, 2019 to the charge of “over 80” and driving while disqualified. Mr. Boles has at least two lifetime driving prohibitions that stem from 12 prior drinking and driving offences. His first charge for a drinking and driving offence dates back to June 15, 1977 and his last prior drinking and driving related offence was in 2003. Mr. Boles has a 15-year gap in his record. The position on sentence is essentially a joint one: it is a large range, between 12 months and 2 years less a day. Mr. Boles received 15 months on his last prior impaired in 2003, and he received 60 days consecutive to that 15 months for his last prior drive disqualified.

Background

[2] Mr. Boles is 59 years old. In support of him, the court was provided a letter from his employer. His employer indicates that Mr. Boles has worked for him for 27 years. He indicates that he is a good worker and, in fact, and he is one of the few people across Canada who can build “world-class running tracks”.

[3] Significantly, his employer, who writes in the letter that he knows him well, advises that Mr. Boles “has a huge problem with drinking and has had for most of the time he has worked for me”.

[4] A pre-sentence report was prepared. It indicates that Boles had solid support from his parents growing up. He has three children of his own and the pre-sentence report indicates positive relationships with them.

[5] Mr. Boles in his pre-sentence report indicates that when he is not working he is often consuming alcohol. In fact, he admits to consuming alcohol on a frequent to daily basis and drinks excessively in a binge fashion. The only counselling taken by Mr. Boles occurred in 1995 while incarcerated. His son, Peter Boles, indicates that he has not been receptive to the suggestions of counselling.

[6] While Mr. Boles accepts responsibility for the act he attempted some justification for his behaviour, indicating a friend was out of gas and it was late at night with light traffic.

Gap principle

[7] Nadel J. in Fitts summarized the leading Court of Appeal cases on the gap principle

42 Mr. Fitt's prior criminal record ends on October 21, 1992, 17 years to the day from the commission of his current crimes. I am mindful of the direction from the Ontario Court of Appeal that it would be an error to fail to apply the "gap" principle by placing undue emphasis on Mr. Fitt's prior criminal record given its age and the extended gap between his last conviction and these most recent offences. That gap demonstrates Mr. Fitt's prospects for rehabilitation despite the serious crimes that he has committed. (see R. v. Carroll, 2010 ONCA 378, [2010] O.J. No. 2154 (C.A.) at [2] and R. v. Nembhard, 2010 ONCA 420, [2010] O.J. No. 2420 (C.A.)) [^1]

[8] However, in Patriquin the Court of Appeal found no error when the sentencing judge gave little weight to the gap principle were the accused had an extensive record for drinking and driving offences and there was evidence of continued excessive drinking and evidence of driving with open liquor in the car.

4 The trial judge was well aware of the "gap" principle and its underlying rationale. The gap between related convictions in this case was considerable, but there was evidence, which the trial judge accepted, that, during the conviction free period, the appellant continued to consume excessive amounts of alcohol on a regular basis. In addition, there was evidence that the appellant was observed driving, or at least in charge of a motor vehicle, with open alcohol in the vehicle during the "gap" period.

5 By his own admission, the appellant had drunk six beers in an hour before getting into his uninsured truck and driving away. It was open to the trial judge to accord less weight to the "gap" principle in these circumstances and we see no error in her having done so[^2].

[9] Similarly the British Columbia Court of Appeal held in Moreau that the gap principle did not apply because the offender had never stopped drinking and had never dealt with the root problem of his drinking.

11 Given that the applicant's abuse of alcohol has been ongoing over 30 years, I question the extent to which the "gap" principle can have any real application when considering the periods of time that elapsed between his convictions for alcohol related driving offences……12 The periods of time between his convictions are not necessarily indicative of any real prospect of rehabilitating his abuse of alcohol that has led to his recorded convictions for drinking and driving[^3].

[10] As with Moreau and Patriquin Mr. Boles has not stopped drinking. However, I have no evidence to support the proposition that he drove over the last 15 years. I am not prepared to make a finding that Mr. Boles was just not caught. That being said, I agree with the British Columbia Court of Appeal insofar as Mr. Boles has not addressed the root problem of his drinking and driving offences.

[11] In Wolfe, Toth J., in the context of a recurrent drinking and driving offender, did give credit for a 6-year gap in the offender’s record. However, Justice Toth found that Mr. Wolfe had gone to serious lengths to attempt to rehabilitate himself during that six year period. That is the opposite of this case. There is no evidence in front of me that Mr. Boles attempted to curb his drinking. In fact, the evidence points to his continued heavy drinking[^4].

[12] In Demchuck[^5], the court of appeal credited the accused with a 6-year gap in his record, despite 14 prior convictions for drinking and driving offences. The court held out some promise that he could overcome his alcoholism given the exceptional support he had in place. Even though Mr. Boles has extensive support, it is clear to me from his pre-sentence report and the letter from his work that he does not hold out such promise.

[13] In Prentice,[^6] the accused had an extensive drinking and driving record between 1976 and 1991. There was a 14-year gap between his last conviction and the case in front of the court. Mr. Prentice completed a residential treatment program in 1991 and stayed sober until the death of his wife in July 2004 – her death being as a result of a motor vehicle striking her while cycling. The impaired incident in front of the De Philipis J, occurred on the one year anniversary of her death. The court credited Mr. Prentice with the gap in his record considering he remained sober from 1991 to the passing of his wife.

[14] In my view, after having reviewed the authorities, the gap principle has little weight in the context of this case. Mr. Boles appears to be an unrepentant drinker. His drinking has continued unabated over the last 15 years, and he attempted to minimize the significance of his actions in the pre-sentence report. As a result, given his record and his continued drinking, he still poses a risk to the public.

[15] Courts will only give significant weight to the gap principle in the context of repeated drinking and driving offences where the offender has attempted some form of rehabilitation and at the very least experienced some period of sobriety not forced by jail. The gap principle presupposes rehabilitation or at least efforts to rehabilitate. None has occurred, or was even attempted here. As a result, specific deterrence must be the dominant sentencing principle in this case. Specific deterrence is the dominant principle because there is no hope or very little hope of Mr. Boles sobering up. The message to him must be clear: he can never enter the driver’s seat of a motor vehicle again.

Conclusion

[16] As mentioned above specific deterrence is the main sentencing principle in this case. General deterrence and denunciation follow closely behind[^7]. For the reasons mentioned above I accord little weight to the gap principle. Mr. Boles is sentenced to 21 months of incarceration on the charge of “over 80” less his pre-sentence custody. I will add that but for the guilty plea and the fact that he turned himself into custody voluntarily, between plea and sentence, the court would have considered the maximum range as suggested by the Crown.

[17] In relation to the charge of driving while disqualified, Mr. Boles will be sentenced to 12 months concurrent. This reflects the severity of driving with two lifetime prohibitions. This court imposes a concurrent sentence so as to adhere to the principle of totality. On both charges he will receive another life time driving prohibition.

Released: March 4, 2019

Signed: Justice M.K. Wendl

[^1]: R. v. Fitt, 2011 ONCJ 223 [^2]: R. v. Patriquin, 2012 ONCA 67 [^3]: R. v. Moreau, 2007 BCCA 239 [^4]: R. v. Wolfe, 2015 SKPC 161 at para 22-23 [^5]: R. v. Demchuk, 2003 CanLII 15723 (ON CA), [2003] O.J. No. 4215 (ONCA) [^6]: R. v. Prentice, 2007 ONCJ 88 [^7]: R. v. Sivanadi, 2017 ONSC 5740 at para 19-21