Court Information

Ontario Court of Justice

Date: 2019-09-23

Court File No.: Kitchener 4411-998-19-4611-00

Parties

Between:

Her Majesty the Queen

— and —

Michael Gray

Before the Court

Justice: M. K. Wendl

Heard on: September 4 and 6, 2019

Reasons for Judgment released on: September 23, 2019

Counsel

Ms. S. Wollaston — counsel for the Crown

The defendant Michael Gray — on his own behalf

Judgment

WENDL J.:

Facts and Guilty Plea

[1] Michael Anthony Gray pled guilty to operating a conveyance while impaired by a drug contrary to section 320.14(1)(a) of the Criminal Code.

[2] He has an unrelated criminal record. He also has an extensive Highway Traffic Act record (driving record), including offences for driving while under suspension and careless driving.

[3] Even though this is Mr. Gray's first conviction for impaired driving, the Crown submits that the appropriate sentence is a conditional sentence of imprisonment to be served in the community. The Crown bases their position on Mr. Gray's substantial driving record.

Use of Driving Record in a Criminal Sentencing

[4] A criminal record is always relevant in a criminal sentencing hearing. As the Court of Appeal stated in Taylor:

a criminal record, depending on its nature, may be an "aggravating" factor in the sentencing context in the sense that it renders a stiffer sentence "fit" in the circumstances because it rebuts good character and because of what it tells the trial judge and society about the need for specific deterrence, the chances of successful rehabilitation, and the likelihood of recidivism.

[5] The question then becomes, does a driving record speak to the same issues?

[6] In Lacasse, an impaired causing death sentence appeal, the Supreme Court notes that the trial judge was correct to rely on the driving record.

As to the fact that the respondent did not have a criminal record, Judge Couture was right to point out that his driving record was not clean. He had been convicted three times for speeding. This showed that he was irresponsible when behind the wheel, and his convictions under the Highway Safety Code were all the more relevant given that speeding had played a part in the accident in this case. The respondent repeatedly and frequently drove irresponsibly.

[7] In Muzzo, Fuerst J. found Mr. Muzzo's driving record for speeding to be an aggravating factor on sentence. On the facts of that case, as with Lacasse, speeding was a factor and Mr. Muzzo had numerous speeding infractions. Fuerst J. notes "His previous convictions for speeding should have deterred him from driving above the speed limit on September 27. They did not".

[8] In Forrestal, the accused pled guilty to dangerous driving, impaired operation of a motor vehicle, and vehicular flight from the police. The trial Judge relied on the accused's driving record as a factor on sentence. The accused had 40 convictions under the Highway Traffic Act and the Compulsory Automobile Insurance Act, including several speeding convictions, and entries for driving without a license and driving without insurance. Douglas J., in imposing sentence, stated that "the provincial driving record establishes that the appellant has 'consistently' broken the law respecting the operation of a vehicle on public roads." The accused appealed the sentence.

[9] One of the grounds of appeal was that the sentencing judge placed inappropriate reliance on the driving record. In relation to that issue Hill J., the Summary Conviction Appeal judge, simply notes "a sentencing court may properly have regard to an appellant's past provincial driving record when sentencing for criminal driving-related offences."

[10] In Altiman, a case of impaired causing death and bodily harm, where two people died, and two people were seriously injured, the Court of Appeal varied the accused's sentence from 10 years to 7 years. The main basis for altering sentence was the lack of criminal or driving record.

[11] Having reviewed the relevant case law, it is my view that a driving record is relevant in a criminal sentence hearing when:

(1) the sentencing is for a driving offence; and

(2) the driving record evidences a pattern of behavior that demonstrates a disregard for the rules of the road and/or risky driving behavior.

[12] In these narrow circumstances, the driving record speaks to the need for specific deterrence and the likelihood of recidivism. It also potentially rebuts the notion of good driving character.

Application

[13] This is Mr. Gray's first impaired conviction. However, since April 2018, Mr. Gray has accumulated 16 infractions contrary to Highway Traffic Act, including careless driving, multiple driving while suspended, following too close and novice driver with alcohol in blood.

[14] Mr. Gray's license was suspended at the time of this offence, which is clearly an aggravating factor. Simply put, he should not have even been operating a motor vehicle.

[15] I accept the Crown's submission that a fine would not be appropriate in the circumstances since fines have not deterred Mr. Gray in the past. He has been convicted twice for driving while under suspension due to unpaid fines.

[16] Mr. Gray's driving record clearly demonstrates a disregard for the rules of the road and risky driving behavior. However, Mr. Gray is the primary provider for his family, he works 60 hours a week, and needs to look after his children while his partner is at work. He is also seeking counselling for drug issues.

[17] I agree that the principles of denunciation and deterrence can be achieved through a Conditional Sentence in this case.

Sentence

[18] I impose a two-month conditional sentence. In addition to that, I impose an elevated driving prohibition. The term will be for two years.

Released: September 23, 2019

Signed: Justice M. K. Wendl