Court File and Parties

Ontario Court of Justice

Date: March 3, 2020

Court File No.: Brampton 18-6909

Between:

Her Majesty the Queen

— and —

Kyle Patrick Wadien

Before: Justice M.M. Rahman

Sentencing Hearing: January 13, 2020

Reasons for Judgment Released: March 3, 2020

Counsel:

• Ikdeep Singh, for the Crown
• Carolyn Slattery-Cojocaru, for Kyle Patrick Wadien

Reasons for Judgment

RAHMAN J.:

1. Overview

[1] On October 31, 2019, I found the offender, Kyle Wadien, guilty of five counts each of impaired driving causing bodily harm, and causing an accident while driving with excess blood alcohol resulting in bodily harm, and one count each of impaired driving and driving with excess blood alcohol. The Crown asks that Mr. Wadien be sentenced on the five counts of impaired driving causing bodily harm and that the remaining counts be conditionally stayed.

[2] On July 22, 2018, Mr. Wadien was driving over 150 km/h on the eastbound QEW between Hurontario Street and Cawthra Road when he struck the car containing the five victims. Mr. Wadien later provided breath samples at the hospital, which, along with toxicological evidence, revealed that he had been driving with excess blood alcohol. He acknowledged to a police officer who interviewed him that he felt drunk while driving. All of the victims in the car Mr. Wadien hit suffered bodily harm.

[3] The Crown asks the court to impose a three-year penitentiary sentence, along with a five-year driving prohibition, a DNA order, and a restitution order to compensate three of the victims. The Crown stresses the need for deterrence and denunciation, the paramount principles in sentencing impaired drivers. The Crown also highlights the need for a stiff sentence because of the seriousness of some of the victims' injuries.

[4] The defence acknowledges that a jail sentence is appropriate but asks that the court impose a 90-day intermittent sentence followed by a period of probation. The defence acknowledges that such a sentence is at the very low end of the range, but says that such a sentence is appropriate in the circumstances. The defence takes no issue with the driving prohibition suggested by the Crown, but does oppose the DNA order. The defence also says that the restitution order, if issued, should be less than what the Crown is asking for.

[5] I will first briefly review the facts of the offences.

2. Facts of the Offences

[6] Mr. Wadien was driving his Chrysler Sebring on the eastbound QEW on July 22, 2018. He was drunk. When he attempted to change lanes to pass a Toyota 4Runner, he hit the back of it. The collision launched the Toyota into the guardrail on the north side of the highway. Mr. Wadien was travelling at speeds between 157 km/h and 159 km/h in the five seconds before the collision. He did not apply the brakes at all in those five seconds before the collision. The five occupants of the Toyota all suffered bodily harm. Two of the occupants were trapped in the Toyota after the collision and had to be extracted by the fire department. Mr. Wadien's car flipped over and slid on its right side before coming to rest on its roof.

[7] Mr. Wadien was taken to hospital after the collision. That is where the police administered the Intoxilyzer which resulted in readings of 105 and 97. According to the Crown's toxicologist his BAC at the time of driving was between 100 and 155. Police also took a statement from Mr. Wadien after the collision. He said that he felt drunk before he got into his car and while driving. He also said that he had been drinking at his mother's home before getting into his car. Before he got into his car, his sister warned him not to drive. In his statement to police, he said, regretfully, that he did not listen to her "because I'm an idiot."

[8] The five victims suffered injuries that varied in their seriousness. Rohit Toolaram and Bibi Mohabir were the most seriously injured. Mr. Toolaram had lacerations to his head, and other parts of his body. He required staples to close a head wound. He also suffered a de-gloving injury and fracture to his right hand. In addition, he had soft tissue injuries to many areas of his body. Mr. Toolaram required 24-hour care after being discharged from the hospital because he required help with basic self-care needs such as eating, dressing and bathing. Due to the injuries to his hands, he cannot perform any activities that require grip strength or heavy lifting. Mr. Toolaram also experienced several post-concussive symptoms such as daily headaches, sensitivity to bright light and loud noises. He has difficulty focussing and concentrating on tasks for a prolonged period of time. Mr. Toolaram also required occupational therapy to assist him with using his hand and also dealing with the symptoms of his concussion. Mr. Toolaram also reported having panic attacks, and feeling anxiety and depression because he remains dependent on others to assist him with his basic needs.

[9] Ms Mohabir's injuries were also significant and life-altering. Like Mr. Toolaram, she also had lacerations to her head, and required staples to close the wound. She also had a fractured right arm and underwent surgery which required a steel plate and 5 screws to be inserted into her arm. She has a large scar on her forearm from a laceration that required a skin graft. Ms Mohabir reports struggling with concentration and memory loss. She continues to go through physical and occupational therapy. She is unable to work and has been placed on long-term disability, meaning she is only earning 70% of her previous gross income. Ms Mohabir has a personal support worker to assist her with routine daily tasks such as house cleaning, cooking, and grocery shopping. Tragically, Ms Mohabir's father died in Guyana the same day as the collision and she was unable to attend his funeral and be with her family because she was in hospital recovering.

[10] Ms Mohabir's husband, Vickram Mohabir, suffered injuries to his head, knee and left hand. The wound to his knee required stitches to close and still causes him pain. The injury to his hand has affected his ability to grip things. The head injury has caused him problems with his short-term memory and concentration. He also reports feeling depressed quite often. Mr. Mohabir had to take seven weeks off work after the incident, and has seen a reduction in his income because he had to reduce his hours of work and no longer works overtime. He also attends physical and rehabilitation therapy.

[11] Hemrat Mohabir suffered a closed head injury, a dislocated shoulder and a fractured ankle and thumb. After the accident, he had to live with his brother for a period of time because he had difficulty walking and using his right arm. He has been undergoing rehabilitative therapy and requires the help of a personal support worker to help him with housekeeping tasks.

[12] Adbool Razack, Ms Mohabir's brother, was the least seriously injured of the five victims. He required stitches to close an injury to his hand. He also continues to have pain in his back and chest. He was able to attend his father's funeral in Guyana, but says he had to deal with the emotional trauma of the collision during that difficult time.

[13] It is clear that this offence has impacted the lives of all five victims significantly.

3. Circumstances of the Offender

[14] Mr. Wadien is 32 years old and is a single father of a six-year-old son. This is his second encounter with the criminal justice system. He has one entry on his criminal record for two offences: mischief and theft under $5000. He received a suspended sentence and 15 months' probation. Mr. Wadien has struggled with mental health issues since high school. He has been diagnosed with social anxiety, depression, and schizophrenia (though he, himself, questioned whether the latter diagnosis was correct). He told the author of the pre-sentence report that substance abuse during his teen years may have masked his mental health problems. Mr. Wadien does not work and has been receiving benefits from ODSP since he was about 20 or 21 years old.

[15] Mr. Wadien has a close relationship with his parents, particularly his mother, who was in court during the sentencing hearing. Mr. Wadien is a single father and has sole custody of his son. He recently moved from Mississauga to Muskoka to live with his father, hoping to provide a better environment in which to raise his son. Mr. Wadien's main concern about being sentenced is the effect it will have on his son. Mr. Wadien is concerned that if he is sent to jail, his absence will have a significant effect on his son, who has suffered from severe anxiety in the past when Mr. Wadien's custody of him was in issue.

[16] Mr. Wadien revealed in the pre-sentence report that he has had a substance abuse problem for some time. He used alcohol and drugs to deal with his anxiety and other symptoms. His substance use escalated from alcohol and cannabis in high school to using cough syrup and cocaine by his early twenties. Mr. Wadien has been in residential treatment twice. He was in a 21-day program in Toronto a few years ago, and a 28-day program in Belleville in 2011 or 2012. Following the most recent program, he managed to stay clean and sober for a couple of years. He has not used any drugs other than alcohol since that program. Mr. Wadien completely abstained from alcohol for about 10 months after the accident, and only drank in moderation during the recent holiday season. He attended Alcoholic Anonymous meetings in Mississauga after the offence but has been unable to go to any meetings since relocating to Muskoka. Mr. Wadien expressed a desire to stop drinking completely in the future.

[17] Mr. Wadien expressed remorse for this offence both to the PSR's author and during his allocution in court. Although he did not testify at his trial, I also heard his statement to police given shortly after the collision. I have no doubt that Mr. Wadien is extremely remorseful for what he has done.

4. Parties' Positions

4.1. Crown's Position

[18] Crown counsel, Mr. Singh, argues that the appropriate sentence is three years in the penitentiary and a five-year driving prohibition. Mr. Singh points to the upward trend in Ontario's sentencing case law. He says that the gravity of the offence here is significant, given the injuries suffered by all five victims, in particular Mr. Toolaram and Ms Mohabir. He also observed that, although the court did not find that Mr. Wadien's driving constituted dangerous driving, Mr. Wadien's excessive speed in this case is highly aggravating. He also notes that Mr. Wadien drove despite being warned by his sister that he should not drive.

4.2. Defence Position

[19] Mr. Wadien's lawyer, Ms Slattery-Cojocaru, argues that a 90-day sentence, to be served intermittently on weekends, is appropriate. While acknowledging that the sentence is at the low end of the range, she says that a longer sentence would be very difficult for her client for two reasons. First, it would have an adverse effect on his son, who would suffer very serious separation anxiety. Such separation would be lessened if Mr. Wadien was only away from his son on weekends. Second, Ms Slattery-Cojocaru also cites her client's social anxiety, which makes a prison setting a difficult place for him to be, even for a shorter period of time. She observes that no sentence can undo the damage that Mr. Wadien has done, but that a lengthy jail sentence will impact his rehabilitation prospects and his relationship with his son. Ms Slattery-Cojocaru also observed that this offence is the one that offenders used to receive conditional sentences for, before Parliament made them statutorily unavailable. For that reason, she says that a 90-day sentence can fulfill the objectives of deterrence and denunciation. Further, Ms Slattery-Cojocaru says that a probationary term after any jail sentence will ensure that Mr. Wadien is supervised in the community after he serves his sentence and that probation will also assist in his rehabilitation.

5. Sentencing in Drinking and Driving Cases

[20] The primary sentencing objectives in drinking and driving cases are general deterrence and denunciation. Over 30 years ago, this province's highest court emphasized the need for deterrence in such cases, even where they do not result in death. The basis for the court's concern was the recognition that "every drinking driver is a potential killer."

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. [emphasis added]

[21] The reason that denunciation and deterrence take on a prominent role in impaired driving causing bodily harm or death cases is that many of the offenders in such cases are ordinarily law abiding. As the Supreme Court noted in R. v. Lacasse, deterrence and denunciation "are particularly relevant to offences that might be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences."

[22] Impaired driving causing bodily harm will normally result in a jail sentence. As described above, the parties are quite far apart in what they say is the appropriate sentence. Ms Slattery-Cojocaru relies on several cases in which courts imposed 90 day intermittent sentences for this offence. I note that all of these cases pre-date the recent upward trend in sentences for impaired driving causing bodily harm cases. I also note that the injuries suffered by the victims in these cases are either less serious than those suffered by the victims in this case, or the cases lack any meaningful information about the victims' injuries to determine whether they are comparable.

[23] I find that a more appropriate sentencing range is set out in R. v. Bulland, R. v. Gill and R. v. Stewart. All of these cases contain sentencing charts summarizing sentencing cases involving this offence. What these cases reveal is that the sentences generally fall within the mid-reformatory to low-penitentiary range. These three cases also provide a useful benchmark by which to measure the appropriate sentence in this case.

[24] In Bulland, the offender was sentenced to three years and three months imprisonment for one count of impaired driving causing bodily harm. The victim in that case suffered more serious injuries than any of the victims in this case. He suffered severe brain damage, lost the use of the entire left side of his body, and was completely bed-ridden after the collision. In sentencing Mr. Bulland, Faieta J. exceeded the Crown's sentencing recommendation of two years less a day, citing the gravity of the offence, and Mr. Bulland's prior conviction for careless driving.

[25] In Gill, Quigley J. sentenced the offender to the equivalent of four years and three months imprisonment. Mr. Gill pleaded guilty to three charges, including impaired driving, dangerous driving causing bodily harm, and breaching his probation. The two victims in that case suffered extensive injuries. The more seriously injured victim had a broken neck and back, fractured ribs and a collapsed lung. She had significant scarring to her body and was left paralyzed for several months. In sentencing the offender, Quigley J. observed the upward trend in sentences for this offence after 2010. Quigley J. emphasized the need for strong deterrent sentences because "it is plain that the public is not getting the message" and that sentences for this offence "must reflect the public's total despair and outrage over the continuing proliferation of drinking and driving offences in this country."

[26] In Stewart, my colleague Doody J. imposed a three-year sentence for an offender who pleaded guilty to one count impaired driving causing bodily harm, one count of failing to stop at an accident scene, and one count of breaching his bail. One of Mr. Stewart's victims suffered a severed spinal cord and became a paraplegic who lost all feeling below his chest. A second victim had to have his spleen removed. Mr. Stewart had a prior conviction for impaired driving and breaching his bail. In his sentencing reasons, Doody J. reviewed cases that post-dated the Court of Appeal's 2010 decision in R. v. Ramage. Doody J. noted that that case marked a significant increase in the sentencing range for these types of offence.

[27] I recognize that all of the foregoing cases are in some ways more serious than Mr. Wadien's case. The injuries were either more serious or there were other aggravating factors at play. The cases are useful, though, because they demonstrate the upward trend in sentencing drunk drivers after both the Court of Appeal's decision in Ramage in 2010, and Fuerst J.'s decision in R. v. Muzzo. More importantly, what they reflect is the increased frustration that the message about drunk driving is still not getting through to many people.

[28] Despite the strong language used by almost every trial and appeal court in the country (including the Supreme Court of Canada), the problem of drinking and driving persists. It is especially apparent in suburban jurisdictions, like this one, where a larger proportion of the population drives. Drinking and driving cases make up a large volume of this court's work in Peel Region. The problem persists despite the fact that decades of public education campaigns have made it socially unacceptable to drink and drive and have made it clear that it is not just a traffic offence but a crime. What is even more surprising is that the problem persists after high profile cases such as Muzzo, where three children and their grandfather were killed by a wealthy, privileged offender. That is likely why the Muzzo case has been described as a turning point marking an increase in sentences for this offence.

6. Analysis

[29] Mr. Wadien has some significant mitigating factors in his favour. Though he did not plead guilty, I find that his sincere remorse for this incident is mitigating. He is also fortunate to have a supportive family and has taken steps to deal with his substance abuse issues both before and since the collision. This bodes well for his prospects of rehabilitation.

[30] There are also significant aggravating factors in this case. Mr. Wadien was driving far in excess of the speed limit in the moments leading up to the collision. Although I found him not guilty of dangerous driving, the speed that he was driving is still an aggravating factor. He also got into his car even after being warned by his sister that he should not drive. Both of these factors increase his degree of blameworthiness. Moreover, the gravity of the offence here is significant. This case highlights the devastating impact that drinking and driving can have. Mr. Wadien harmed five victims, some of whom have suffered serious and lasting consequences. They now have difficulty with simple tasks that many of us take for granted. Their lives have been forever changed by Mr. Wadien's decision to get into his car that morning.

[31] In my view, the 90-day intermittent sentence suggested by the defence would be manifestly unfit given the gravity of the offence and the need to give effect to denunciation and general deterrence. It is also far outside the more recent range of sentences imposed in similar cases. In saying this I am mindful that sentencing ranges are neither averages, nor strait jackets. Achieving parity in sentencing among offenders convicted of the same offences cannot turn the individualized act of sentencing an offender into a simple mathematical calculation. However, the gravity of this offence places the sentence well above the 90-day sentence requested by the defence. Five people were injured in this case. Mr. Wadien altered lives permanently. A 90-day sentence would be disproportionate to his degree of responsibility and the gravity of the offence. It would also be woefully inadequate at fulfilling the paramount objectives of denunciation and deterrence.

[32] I have also considered the impact on Mr. Wadien's son. I cannot ignore the fact that Mr. Wadien's son will suffer from not having his father in his life for a period of time if he is imprisoned. Understandably, that is Mr. Wadien's biggest concern. However, the impact on Mr. Wadien's son cannot be a controlling factor in determining the sentence I impose. Mr. Wadien is asking that I impose a sentence that is at the very lowest end of the range for this offence, assuming it is even in the range at all. I acknowledge being personally troubled and concerned about the impact that imprisonment will have on Mr. Wadien's son. That is always a concern in cases where a parent is sent to jail. No judge likes imposing a sentence where there is a significant impact on a child, who becomes another innocent victim of the offender's crimes. But a court cannot impose a sentence that is disproportionate to the gravity of the offence and the offender's degree of blameworthiness because an offender's child or children will be adversely affected.

[33] I also reject Ms Slattery-Cojocaru's submission that, because no sentence can undo the damage that Mr. Wadien has done, the court should not compound these tragic circumstances by visiting a stiff sentence on Mr. Wadien that will impact his relationship with his son. It is not helpful to say that nothing will change the victims' injuries but a sentence of imprisonment will cause further damage to an innocent victim. Such a submission misses the point of sentencing. No sentence can ever undo the harm caused to victims of any crime. Further, I am required to consider the offender and his circumstances when deciding what sentence to impose. Mr. Wadien's rehabilitation and the impact on his son are part of my analysis. But a sentence must still be proportionate and fulfill the sentencing objectives of deterrence and denunciation. A 90-day intermittent sentence cannot do that here.

[34] Having found that a 90-day sentence is not appropriate, I will now consider what sentence is appropriate. I find that the Crown's suggested sentence of three years is too high. A sentence of three years or more is appropriate in cases where the victims suffer more serious injuries, or there are more serious aggravating features than there are here. A three-year sentence would also not give effect to the significant mitigating factors here. I must take into account Mr. Wadien's prospect of rehabilitation.

[35] In my view, considering the range of sentence for this crime, and Mr. Wadien's personal circumstances, the appropriate sentence is one of two years. The gravity of this offence, Mr. Wadien's significant blameworthiness, the need to denounce this crime, and the need to deter others from committing it warrant a penitentiary sentence. Mr. Wadien knowingly went onto a public highway, while he was drunk, after being warned by his sister not to drive. He then irreversibly changed the lives of five innocent strangers who were doing nothing but trying to drive home. That conduct must be denounced in the strongest terms, and the sentence should be significant enough to deter others from committing this crime. In my view, a lengthy reformatory sentence would not achieve that objective. On the other hand, a two-year sentence also takes into account Mr. Wadien's genuine remorse, and his positive rehabilitative prospects.

7. Restitution

[36] As mentioned, the Crown seeks restitution on behalf of three of the victims. Mr. Razack seeks recovery of $3,079 CDN for items lost during the accident and $2,931 USD for the cost of flights back to Toronto to get therapy for his injuries. Ms Mohabir asks to recover the cost of flights to have her mother come to help her with meal preparation during her recovery from her injuries. Finally, Rohit Toolaram seeks to recover medical expenses of $61,295.13 which he incurred because he is not a Canadian resident.

[37] Ms Slattery-Cojocaru is not opposed to the court making a restitution order. However, she asks the court to take into account Mr. Wadien's financial situation and the fact that the victims in this case have ongoing civil proceedings here.

[38] In R. v. Devgan, the Court of Appeal set out the following list of non-exhaustive factors that a court must consider in exercising its discretion to impose a restitution order:

1. An order for compensation should be made with restraint and caution.

2. The concept of compensation is essential to the sentencing process:

   • (i) it emphasizes the sanction imposed upon the offender;
   • (ii) it makes the accused responsible for making restitution to the victim;
   • (iii) it prevents the accused from profiting from crime; and
   • (iv) it provides a convenient, rapid and inexpensive means of recovery for the victim.

3. A sentencing judge should consider:

   • (i) the purpose of the aggrieved person in invoking s. 725(1);
   • (ii) whether civil proceedings have been initiated and are being pursued; and
   • (iii) the means of the offender.

4. A compensation order should not be used as a substitute for civil proceedings. Parliament did not intend that compensation orders would displace the civil remedies necessary to ensure full compensation to victims.

5. A compensation order is not the appropriate mechanism to unravel involved commercial transactions.

6. A compensation order should not be granted when it would require the criminal court to interpret written documents to determine the amount of money sought through the order. The loss should be capable of ready calculation.

7. A compensation order should not be granted if the effect of provincial legislation would have to be considered in order to determine what order should be made.

8. Any serious contest on legal or factual issues should signal a denial of recourse to an order.

9. Double recovery can be prevented by the jurisdiction of the civil courts to require proper accounting of all sums recovered.

10. A compensation order may be appropriate where a related civil judgment has been rendered unenforceable as a result of bankruptcy.

[39] I agree that given Mr. Wadien's financial situation and the ongoing civil proceedings, the full amount of restitution that the Crown is seeking would be excessive.

[40] Dealing first with Mr. Toolaram's expenses, it is unclear to me how much of the large bill he will be responsible for himself. I note that he has made two payments towards the bill of $692 each. I also note that he has initiated civil proceedings, and his lawyer filled out his victim impact statement on his behalf. The victim impact statement does not list the hospital expenses as part of the economic impact that he has suffered. I would order restitution in the amount of $1,384 reflecting the payments that Mr. Toolaram has made towards his bills.

[41] As for Mr. Razack's losses, I would order that he be compensated for two of the items that he lost in the accident, specifically his watch and ring. Again, because of Mr. Wadien's limited means, I am not ordering that he be compensated for the loss of his iPhone, which cost $2000. I order that Mr. Razack receive compensation of $1,059.83. I am also not ordering that he be compensated for his travel back to Toronto for therapy for his injuries, without hearing evidence about why that therapy was not available where Mr. Razack lives.

[42] Finally, for Ms Mohabir, I would not order full compensation for her mother's travel to Toronto, particularly in light of Mr. Wadien's financial circumstances. I will order compensation for the travel that was closest to the time of the injury in the amount of $1661 USD or $2209 CDN (based on the exchange rate on the date of purchase).

8. Conclusion

[43] Mr. Wadien is sentenced to 2 years in the penitentiary on the five counts of impaired driving causing bodily harm to be served concurrently. After he finishes serving his jail sentence, he will be on probation for 18 months with the following conditions:

(1) He must report in person to a probation officer within 2 working days of his release from custody, and after that at all times and places directed by his probation officer, or anyone authorized by his probation officer to assist in his supervision.

(2) He must attend any counselling, assessment, or rehabilitative programs directed by his probation officer and complete them to the satisfaction of his probation officer specifically for alcohol and substance abuse.

(3) He also must sign any release of information forms that allow his probation officer to monitor his attendance at any such programs and he must provide proof of his completion of any of these programs to his probation officer.

[44] Mr. Wadien is prohibited from driving for 5 years.

[45] Mr. Wadien is also required to provide a bodily sample for inclusion in the national DNA databank.

[46] The remaining counts are conditionally stayed.

[47] I also make a restitution order in the amount of $1,384 in favour of Mr. Toolaram; $1,059.83 in favour of Mr. Razack; and $2,209 CDN for Ms Mohabir.

Released: March 3, 2020

Justice M.M. Rahman

Footnotes

[1] I delivered reasons for judgment orally on March 2, 2020, omitting headings, footnotes and quotations. I explained that the parties would receive full written reasons, subject to editing for grammar. This written version takes precedence over the oral reasons in the event of any discrepancy between the two.

[2] R. v. McVeigh (1985), 11 O.A.C. 345

[3] R. v. Lacasse 2015 SCC 64 at para. 73.

[4] R. v. Biernat, 2009 ONCJ 273, [2009] O.J. No. 2483 (C.J.); R. v. Drozdowski, [2014] O.J. No. 2554 (C.J.); R. v. Irvine, [1990] O.J. No 1566 (C.A.); R. v. Rooplal, [2009] O.J. No. 5493 (C.J.). Only R. v. Stefinashen, 2010 O.J. No. 6293 (C.J.) involved a victim with more serious injuries than the victims in the instant case. I note that Stefinashen pre-dates the Court of Appeal's decision in R. v. Ramage, infra.

[5] R. v. Best, [2012] O.J. No. 2747 (C.A.); R. v. Brisson, [1995] O.J. No. 4649 (C.J.); R. v. Froman, [1999] O.J. No. 378 (C.J.); R. v. Goudreault, [2004] O.J. No. 4307 (C.A.); R. v. Rousseau, [1990] O.J. No. 523 (Dist. Ct.).

[6] R. v. Bulland, 2019 ONSC 4220.

[7] R. v. Gill, 2017 ONSC 723.

[8] R. v. Stewart, 2018 ONCJ 678.

[9] R. v. Ramage, 2010 ONCA 488.

[10] Stewart, supra, at para. 26.

[11] R. v. Muzzo, 2016 ONSC 2068. See R. v. Selvakumar, 2016 ONCJ 462 at paras. 27-31 for a discussion about the upward trend in the case law, including the effect of the decisions in Ramage, Muzzo, and Lacasse.

[12] It is difficult to know whether the problem of drinking and driving is getting better or worse. Statistics about the number of drinking and driving charges only provide part of the picture. Drinking and driving is often detected by proactive policing (such as RIDE spot checks) and therefore the number of charges will depend on how many resources are deployed in a given jurisdiction to deal with drinking drivers. Regardless, whether the problem is increasing, decreasing, or staying the same, it still happens more often than it should and our court dockets remain loaded with such cases.

[13] Bulland, supra, at para. 54; Gill, supra, at para. 41; Selvakumar, supra, at para. 29.

[14] R. v. Devgan (1999), 44 O.R. (3d) 161 (C.A.).