ONTARIO COURT OF JUSTICE

CITATION: R. v. Dmytrotsa, 2019 ONCJ 550

DATE: 2019 04 03

COURT FILE No.: Central East - Newmarket 4911-998-19-00075-00; 4960-999-19-90000011

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

RUSLAN DMYTROTSA

Before Justice P.N. Bourque

Reasons for Sentence released on April 3, 2019

B. McCallion......................................................................................... counsel for the Crown

M. Simrod.................................................. counsel for the defendant Ruslan Dmytrotsa

BOURQUE J.:

[1] I am dealing with the matter of Mr. Ruslan Dmytrotsa who attends before me today and has entered pleas of guilty to three Criminal Code offences and one offence under the Compulsory Automobile Insurance Act. Specifically, all of these offences arrive out of the events of January 3rd, 2019.

[2] The Criminal Code offences are impaired driving, drive a motor vehicle while prohibited, and obstruct police. The Compulsory Automobile Insurance Act offence, again from the same date, was failure to surrender an insurance card.

[3] I note that the gentleman has pled guilty to the charges. The guilty pleas are in an early occasion. I therefore give him full credit for pleading guilty and I take it as a sign of remorse in all the circumstances.

[4] I take into account the circumstances of these particular offences. Specifically, on January 3rd, 2019, the defendant was driving a motor vehicle with no plates. He was driving erratically. The Police believed that he was attempting to avoid them. When the vehicle had been stopped, and he did stop, he gave an incorrect name and date of birth. When the officer queried him further he left the scene and he ran a certain distance, but the police apprehended him about 100 metres away from the scene. At the time he was showing signs of impairment and indeed there were empty beer cans on the back seat of his vehicle.

[5] He was disqualified from driving because of a conviction in 2017 for impaired driving. I will deal with his criminal record below.

[6] This gentleman is 33 years of age. He has separated from his spouse. He has a daughter for which I am told he is paying support. He works in the house construction industry, mainly as a drywaller and a painter. I am informed by his counsel, that the events of that day, has led to the final estrangement between himself and his spouse.

[7] He was arrested on the day of this offence, January 3rd, 2019, and has been in continuous custody since that time. He has been in custody for 90 days. Giving him credit at a 1.5 to 1 basis, that would give him a credit of 135 days in custody.

[8] The Crown submits that he should be given a further period of custody of 15 days. The defence submits that he not be given any further time of custody. I therefore do not take this as a joint submission.

[9] First of all, dealing separately with the offence under the Compulsory Automobile Insurance Act, counsel for the defendant has indicated that it should be a monetary fine. I agree. I will fine him the sum of $1000.00 and I give him 12 months within which to pay the fine and the surcharge which I cannot waive.

[10] With regard to his criminal record, I am informed that on May 29th, 2015, he was convicted for impaired driving and give a $1000.00 fine, which was the minimum. A little over two years later, July 17th, 2017, he was convicted again of impaired driving and was given what was then the mandatory minimum, which was 15 days in jail. I am assuming that for the offence from May 29th, 2015, he was also given a one year driving prohibition because on July 17th, 2017, he was given a three year driving prohibition.

[11] I will now deal with the three Criminal Code convictions now.

[12] As I look at the new provisions, the drinking and driving provisions, I take note of s. 320.19(1)(a), which says anyone who is convicted of an offence under subsection 320.14(1) or 320.15(1), is liable in our case under subsection (a)(iii), to a minimum term of imprisonment for a term of 120 days.

[13] The Crown did not specifically prove the notice, so I am not restricted to the mandatory minimum.

[14] Section 320.22 of the new legislation states that a court imposing a sentence for an offence under any of sections 320.13 to 320.18 shall consider, in addition to any other aggravating circumstances, that the offender was not permitted under the Federal or Provincial Act to operate the conveyance. I also note that under s. 320.24(2)(c) the mandatory period of prohibition of a license is not less than three years.

[15] I am mindful of the words of the Chief Justice of Ontario, in a case called R. v. McVeigh, which was decided and reported 1985 CanLII 115 (ON CA). It was a decision written by Chief Justice MacKinnon. It was a sentencing decision of a person who had killed someone in the course of driving while impaired.

[16] I note that case, not because of the facts in this matter are similar, but because of the comments of the Chief Justice in dealing with other lesser offences. And he states:

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.

Members of the public when they exercise their lawful right to use the highways of this province should not live in the fear that they may meet with a driver whose faculties are impaired by alcohol.

[17] In the instant case I believe that the sentencing should be as follows:

(i) Before I would impose a reduction taking into account the totality principle if I would have thought that an appropriate sentence for someone with a third impaired charge would be 150 days, that a drive disqualified in these circumstances would be 60 days and an obstruct police, a further 60 days.

(ii) I am prepared to consider the totality principle and therefore for these matters I would not go above the statutory minimum for the impaired, which would be 120 days. I would give 30 days for the drive disqualified and 30 days for the obstruct police, for a total of 180 days.

(iii) I will deduct the period of pre-trial custody which is 90 days, with the enhanced credit raise it to 135 days. Therefore, net going forward, from today’s date it will be 45 days in custody.

(iv) I will prohibit him from operating a motor vehicle for a period of five years from today’s date. It will be consecutive to any and all other prohibitions.

(v) With regard to the impaired driving count, I will also place him on probation for a period of 12 months. It will include the standard statutory terms, the most important of which is that he keep the peace and be of good behavior. He will report to probation immediately and after that at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision. He will cooperate with his probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to a probation officer on request. This person will attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer, complete them to the satisfaction of the probation officer, for alcohol abuse and he shall sign any release of information forms as will enable the probation officer to monitor his attendance and completion of any assessments, counselling or rehabilitative programs as directed. And you shall provide proof of this attendance and completion of any assessments, counselling, or rehabilitative programs as directed.

Released: April 3, 2019

Signed: Justice P.N. Bourque