Court Information

Ontario Court of Justice

Date: 2019-01-10

Court File No.: Guelph 3735/17

Parties

Between:

Her Majesty the Queen

— And —

Warren Effting

Before the Court

Justice: M. K. Wendl

Heard on: January 2 & 10, 2019

Reasons for Sentence released on: January 10, 2019

Counsel

Marilyn Dolby — counsel for the Crown

David Doney — counsel for the defendant Effting

Decision

WENDL J.:

Gardiner Hearing

[1] Mr. Effting was charged with "impaired" and "over 80". On the day of his trial, January 2nd, 2019 he pled guilty to the charge of impaired driving. However, Mr. Effting wanted to plead guilty to a set of facts radically different from those alleged by the Crown. As a result, we entered into a Gardiner Hearing. The Crown bears the onus of proving aggravating factors on a Gardiner Hearing beyond a reasonable doubt.

[2] The Crown alleged that on October 1, 2017, Mr. Effting attended to his former partner's residence to return his 16-month old daughter. Ms. Brown, his former partner and mother of the 16-month old daughter, believed that he was impaired and she called the police. Mr. Effting, on the other hand, states that he was not impaired when he dropped off his daughter. He states that after returning home from dropping off his daughter, he went into his residence and drank 13 ounces of vodka with Coke in about a five-minute span. Mr. Effting says he drank when he got home because he was upset as a result of the fight he had with Ms. Brown's new boyfriend when he dropped off his daughter.

[3] Since the standard of proof at a Gardiner Hearing is beyond reasonable doubt and Mr. Effting testified on his own behalf, the rule in W.(D.) applies.

[4] After the hearing, I rejected Mr. Effting's testimony in its totality on the first and second branches of the W.(D.) test. Since the matter had been set for trial, a toxicologist was present from the Centre of Forensic Sciences. Essentially, the toxicologist stated that based on Mr. Effting's purported consumption of 13 ounces of vodka after returning home his blood alcohol level could not have been what it was, 248 milligrams of alcohol in 100 milliliters of blood. Basically, the numbers did not add up; his account of drinking did not match up with his blood alcohol level. In addition to that, I found Mr. Effting's testimony suspect in another regard. He states that upon arrival at home he went into the house, chugged half a bottle of vodka and returned to his car to find his wallet and smokes. However, the arresting officer found him sitting in the driver's seat of his vehicle. If he was only at his car to get his wallet and smokes, why was he sitting in the driver's seat?

[5] Based on the evidence I did accept, the testimony of Ms. Brown and that of the toxicologist, I found that the Crown had proved that Mr. Effting was impaired when he was driving his vehicle with his 16 month old daughter to drop her off at Ms. Brown's residence.

[6] Ms. Brown was a credible witness. She had been Mr. Effting's partner, she knew his habits and his tells. She could tell that he was intoxicated. She indicated she smelled vodka covered with mints on his breath, that he was more aggressive than usual and, significantly, she noticed that there was an open bottle of water with vodka and orange juice inside of it in the center console of the car. She tasted it to confirm the alcohol.

[7] The evidence of the toxicologist speaks for itself and was unchallenged on cross-examination.

Sentencing Positions

[8] The defence position on sentence is 45 to 60 days. The Crown position is 45 to 75 days.

Background of the Accused

Mr. Effting is 33 years old, he has Hepatitis C from drug use and he is on methadone. He has a prior conviction for impaired driving from 2015. His story of addiction is unfortunately becoming a more common one. He developed a drug addiction from being prescribed opiates after surgery. He is not working and has positive support from his parents. Alcohol is an ongoing issue for him.

Analysis

[9] Since Mr. Effting has a prior record and the Crown has filed a notice of increased penalty, the minimum sentence this court must impose is 30 days of incarceration. It serves as an inflationary floor. It is reserved for the "best offender". The Court of Appeal of Quebec recently summarized the relevant proposition and case law.

41 Mandatory minimum sentences not only raise the floor for sentences for a given offence, they also have an inflationary effect on those sentences.

42 In R. v. Morrisey, Arbour J. explained the tendency in the following terms:

75 ... Therefore, in my view, the mandatory minimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to the so-called "best" offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances. The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions.

76 The proper approach to the determination of the constitutional validity of mandatory minimum sentences, under the guidance of the jurisprudence of this Court, is, in my view, to give effect to this inflationary scheme, except when the statutory impossibility of going below the minimum is offensive to s.12 of the Charter where the mandatory minimum requires the imposition of a sentence that would be not merely unfit, which is constitutionally permissible, but rather one that is grossly disproportionate to what the appropriate punishment should be. The search for the appropriate punishment is not an abstract exercise. It is very much guided by the types of sentences that have been imposed in the past on similarly situated offenders, and because of that, it changes over time, and may come to reflect the inflationary consequences of the proper application of mandatory minimum sentences for particular types of offences. In this respect, I would disagree with Quinn J., who in the firearms manslaughter case of R. v. Scozzafava, [1997] O.J. No. 5804 (QL)(Gen. Div.), at para. 33 observed that the existence of the four-year minimum should not result in a proportional general increase beyond the range of sentences found in pre-1996 cases.

43 In R. v. B.C.M., the British Columbia Court of Appeal made the same observation:

[31] While the views of Arbour J. are not precedentially authoritative, the sentencing judge was entitled to adopt them as a logical and appropriate statement of the interaction between minimum sentences and the traditional sentencing principles, notably proportionality, which requires that similar offenders receive similar sentences. A minimum sentence does not oust that fundamental principle. The search for a fit sentence is still guided by similar sentences imposed in the past on similarly situated offenders. Nevertheless, a mandatory minimum sentence introduces a higher starting point and therefore a narrower range within which that principle will operate. The notion of a fit sentence must be adjusted accordingly if the principle of proportionality is to remain operative.

[32] For example, in this case, the introduction of the mandatory minimum sentence of one year for making child pornography significantly shrinks the range of sentencing options. It excludes consideration of a suspended sentence and probation under s. 731, or a conditional sentence under s. 742.1 of the Code. The only remaining sentencing options are terms of imprisonment between the statutory minimum of one year and the statutory maximum of ten years. Thus, the least culpable offender in the least serious circumstances, who might have received a more lenient sentence prior to Bill C-2, will now be sentenced to one year in prison. It would be inconsistent with proportionality if worse offenders in more serious circumstances, who might have received a one year sentence prior to Bill C-2, continue to be sentenced to one year under the new regime. The principle that similar offenders should receive similar sentences requires acknowledgement that a minimum sentence has a proportionate inflationary effect on the balance of the sentencing range.

[10] I agree with the logic of both the Court of Appeal for Quebec and British Columbia. In my view, the mandatory minimum of 30 days is reserved for the least culpable offender. Mr. Effting is not that.

[11] The mitigating factors in this case are the guilty plea, his supportive family and his difficult background. However, on the facts of this case I am only prepared to give minimal weight to his plea of guilt. Although, a guilty plea is traditionally seen as a sign of remorse, Mr. Effting wanted to plead guilty to a radically different set of facts than those alleged by the Crown. This shows that he does not accept responsibility for the crucial aggravating factor in this case: driving impaired with a 16-month old child in the car. Mr. Effting was trying to minimize his behavior since he only wanted to plead guilty to having care and control of his vehicle while he was parked.

[12] Aggravating is the blood-alcohol reading of 248 milligrams of alcohol in 100 millilitres of blood. This is three times the legal limit. There is also the fact that he had alcohol in his vehicle, his prior related record and, most significantly, that he was driving impaired with the 16-month old child in his vehicle.

[13] The protection of children is one of the primary goals of law in Canada. As the Supreme Court stated in Sharpe, albeit in a different context, "The importance of the protection of children is recognized in both Canadian criminal and civil law. The protection of children from harm is a universally accepted goal."

[14] It is also the view of this court that deterrence and denunciation are the primary sentencing goals on the facts of this case. As de Sa J. stated in Sivanadi:

19 As recognized by the Supreme Court in R. v. Alex, 2017 SCC 37 at para. 1, drunk drivers cause tremendous suffering in Canadian society and place a substantial burden on the criminal justice system. As Justice Cory commented in R. v. Bershaw, at para. 16, "every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction". Unfortunately these comments by Justice Cory are as relevant today as they were two decades ago. The devastating consequences imposed on families and the community at large by drunk driving are very real indeed. See R. v. Muzzo, 2016 ONSC 2068. Denunciation and general deterrence are clearly the overriding sentencing principles in impaired driving cases.

20 It is indeed fortunate that no one here was killed or injured. However, the seriousness of the Appellant's choice to drive while severely impaired must not be trivialized by the fact that there were no injuries. General deterrence remains the primary concern. As Justice Doherty explained in Ramage:

In imposing sentence, the trial judge identified general deterrence as the predominant concern. In doing so, he correctly applied this court's judgment in R. v. McVeigh (1985), 22 C.C.C. (3d) 145 (Ont. C.A.). In that judgment, now almost 25 years old, this court made it clear that drinking and driving related offences were serious crimes and must be treated as such by the courts. In the memorable words of MacKinnon A.C.J.O. at p. 150, "every drinking driver is a potential killer" [emphasis added].

[15] In Sivanadi, the accused was sentenced to a period of 30 days incarceration and was given a two-year driving prohibition. Mr. Sivanadi's breath results were 190 milligrams of alcohol in 100 milliliters of blood. When he was stopped for impaired driving his wife and his two young children aged four and two were in the backseat. Mr. Sivanadi was otherwise a productive member of society working consistently since his arrival to Canada in 2004. He was the sole earner for his family and he had no criminal or driving record.

[16] In Patel, Rose J. imposed a 45 day sentence upon a first time offender. His blood alcohol level was between 330 milligrams and 375 milligrams of alcohol in 100 milliliters of blood. He was driving his elderly parents in his vehicle when impaired.

[17] In sentencing Mr. Effting, I am reminded of the words of Fuerst J. in Muzzo, "as this case so tragically illustrates, the message that every drinking driver is a potential killer of innocent members of the community continues to go unheeded."

[18] In particular, that message goes unheeded by Mr. Effting since he has a prior conviction for this offence. In comparing similar cases, high blood alcohol with a vulnerable passenger in the vehicle, 30-45 days would be the starting point absent the prior related record for Mr. Effting.

[19] In balancing all the factors I find that the appropriate sentence for Mr. Effting is 75 days, 12 months of probation and a 3 year driving prohibition. This takes into account his difficult background, supportive family, the limited weight I accord for the guilty plea in light of the Gardiner Hearing, the high readings, open liquor in the vehicle, the fact the mandatory minimum in this case should only be reserved for the "best" offender and the egregiousness of driving impaired with a 16-month old child.

Released: January 10, 2019

Signed: Justice M. K. Wendl

Footnotes

[1] R. v. Régnier, [2018] Q.J. No. 1459

[2] R. v. Sharpe, 2001 SCC 2, [2001] S.C.J. No. 3

[3] R. v. Sivanadi, 2017 ONSC 5740, [2017] O.J. No. 5210

[4] R. v. Patel, 2017 ONCJ 728, [2017] O.J. No. 5757

[5] R. v. Muzzo, 2016 ONSC 2068, [2016] O.J. No. 1506

[6] It is interesting to note that Section 320.22(c) of the newly enacted Bill C46 makes driving a conveyance with a passenger under the age of 16 years old a statutorily aggravating factor.