ONTARIO COURT OF JUSTICE

DATE: 2021-01-07 COURT FILE No.: Sault Ste. Marie 18-3153

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

KRISTA-LEE BRUZAS

Before: Justice J.P. Condon

Heard on: January 27, 2020, March 12, 2020, September 25, 2020, November 16, 2020 and December 23, 2020

Reasons for Judgment released on: January 7, 2021.

Counsel: Leonard Kim, counsel for the Crown Anthony Orazietti, counsel for the accused Krista-Lee Bruzas

CONDON J.:

Part One: Introduction

[1] Krista-Lee Ann Mae Bruzas has been charged as follows:

(1) On or about the 5 day of November, 2018 at Echo River Road of Garden River First Nation in the said region, having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, did have the care or control of a motor vehicle contrary to Section 253(1)(b) of the Criminal Code of Canada.

[2] On January 27, 2020, Ms. Bruzas pled guilty to the charge and, after the court received a brief summary of the events, she was found guilty. That summary included information that the accused provided two samples of her breath that produced blood alcohol concentration readings, each of which was 390 milligrams of alcohol in one hundred millilitres of blood. More will be said about the facts later in these reasons.

[3] The accused has brought an application under the Canadian Charter of Rights and Freedoms [the Charter] that includes the following:

CONCISE STATEMENT OF THE SUBJECT OF APPLICATION

The Applicant challenges the constitutionality of s. 255(1) of the Criminal Code of Canada (hereinafter CCC) and particularly the mandatory minimum sentence outlined within that section as it precludes a conditional discharge under section 730 CCC. Section 255(1) CCC violates the Applicant’s s.12 and s.15 rights under the Canadian Charter of Rights and Freedoms.

The Applicant also challenges the constitutionality of s. 255(5) CCC as it discriminates against First Nations in Ontario and violates the Applicant’s s.12 and s.15 Charter rights.

GROUNDS TO BE ARGUED IN SUPPORT OF THE APPLICATION

The Applicant relies on s.12 and s.15 of the Canadian Charter of Rights and Freedoms in challenging the constitutionality of s. 255(1) CCC and s. 255(5) CCC.

[4] The application contains Schedule “A”, which includes:

11. In light of the personal circumstances of the Applicant, along with her lack of any criminal antecedents and her employability as a nurse should the court register a conviction, the herein Application challenges the constitutionality of s.255(1) CCC, and particularly the mandatory minimum sentence under that section as it precludes a conditional discharge pursuant to s.730 CCC. It is the Applicant’s position that s.255(1) CCC violates the Applicant’s s.12 and s.15 rights under the Charter.

12. The Applicant also challenges the constitutionality of s.255(5) as it discriminates against First Nations in Ontario and violates the Applicant’s s.12 and s.15 rights under the Charter.

13. The basis for challenging the constitutionality of the aforementioned sections is that the Applicant, Ms. Bruzas, presents as a fairly youthful offender with no criminal record and hopes to one day return to her career as a registered nurse. At the time of this offence the Applicant was going through a particularly difficult time in her life, all of which have been fleshed out in the Gladue Letter and the Pre-Sentence Report.

14. The mandatory minimum sentence as outlined in s. 255(1) CCC provides a conditional discharge under s.730 CCC and violates the Applicant’s rights under sections 12 and 15 of the Charter. By forcing the court to register a conviction, rather than considering granting the Applicant a discharge under s.730 of the Code, s.255(1) violates s.12 of the Charter by mandating a punishment that is “grossly disproportionate” to the sentence which would otherwise be appropriate for the Applicant or for the reasonable hypothetical offender.

15. The Applicant claims that s.255(5) CCC discriminates against First Nations in Ontario because other First Nations located in provinces other than Ontario are eligible for conditional discharges pursuant to s.255(5) CCC. By allowing for provincial governments to determine whether conditional discharges will be available to one First Nation versus another, the effect of s.255(5) CCC is to discriminate against those First Nations who reside in provinces which have decided against opting in to the application of s.255(5) of the Code. This is a violation of the Applicant’s s.12 and s.15 Charter rights.

Part Two – Summary of the Facts

[5] On November 5, 2018, police responded to a traffic complaint regarding a vehicle on Echo River Road, Garden River First Nation. At 4:25 p.m., Constable Huckson of the Anishinabek Police Service responded to the complaint. He attended at Echo River Road, where he found a motor vehicle, with Yukon plates, parked on the side of the road. The vehicle was registered to the accused. The officer observed a female, later determined to be the accused, slumped over in the driver’s seat with her seatbelt still on. The vehicle was turned off. The officer knocked on the door numerous times and did not get a response. The door was unlocked, so the officer opened the door and attempted to awaken the accused. After numerous attempts, the accused was finally able to sit up in the vehicle. She was very incoherent for a few minutes. She was asked for her driver’s licence, ownership and insurance papers. She responded by handing to the officer a partially consumed 60-ounce bottle of Captain Morgan Spiced Amber Rum. That bottle was seized. The officer asked the accused again for her driver’s licence, ownership and insurance and, after a few minutes, she was able to locate a Yukon driver’s licence. That licence was in her name, which was the same name as the registered owner the vehicle. The driver was very slow to respond and slurred some of her words. She had red, bloodshot eyes and an odour of an alcoholic beverage was coming from her breath. The officer asked her if she had any alcohol to drink and she replied, “Yesterday”. At 4:55 p.m., the demand was read for the approved screening device. She registered a fail and was arrested. An intoxilyzer demand was made and she was given her rights to counsel and cautioned. In the opinion of the officer, she was very questioning of the actions of the officer and she started to cry. She asked the officer to take her home. She and the vehicle were searched. The officer located her purse, wallet and cell phone. He also located the vehicle fob key, which was in the centre console. The vehicle was then locked, and a call was made for a tow truck. While on route to the police detachment, the accused told the officer that she was going to commit suicide that day. She did not disclose a plan as to how she intended to do that. Nor did she disclose when or where she intended to do so. She informed the officer that she was a nurse and she had been on stress leave since January 2018.

[6] At 5:34 p.m., the officer and Ms. Bruzas arrived at the detachment. When she was told that she would be searched, she was uncooperative, and a second officer joined to assist in the search. She questioned most of what was being said to her. Duty counsel was called, and Ms. Bruzas was given privacy in order to speak with the lawyer. Following the telephone call, breath samples were obtained from the accused, each of which resulted in readings of 390 milligrams of alcohol in 100 millilitres of blood.

[7] Thereafter, the accused was taken to the Sault Area Hospital because of both the comments about suicide and the amount of alcohol in her person.

Part Three – The Applicant

[8] Ms. Bruzas is a status First Nations person and a member of the Garden River First Nation.

[9] Both a pre-sentence report and a Gladue letter are part of the documents that are before the court.

[10] There are also a number of other documents pertaining to the applicant that have been filed with the court and have been considered including:

(a) Discharge and After Care Plan from the Oaks Centre – Camillus Centre at Elliott Lake, dated February 26, 2020.

(b) A letter, dated October 6, 2020, from Meagan Collver of the John Howard Society, at Sault Ste. Marie, confirming the applicant’s participation in various workshops in June through September 2020 including:

i) Communicating Assertively Workshop; ii) Problem-Solving/Decision Making workshop; iii) Managing Stress Workshop; iv) Building Trust Workshop; v) Anger Workshop; vi) Risk Taking Workshop.

(c) A letter dated February 21, 2019, from Rhonda Angeconeb of the Garden River Wellness Centre confirming the applicant’s attendance at the RAAM clinic in Sault Ste. Marie.

(d) A letter dated August 29, 2019, confirming the applicant’s attendances in 2018 in November and in 2019 in January, May and June at the RAAM [Rapid Access to Addictions Medications] Clinic of the Sault Area Hospital.

(e) A letter dated August 29, 2019, confirming the applicant’s attendances in March through to August 2019 at the Addictions Treatment Clinic [ATC] of the Sault Area Hospital.

(f) A letter dated October 16, 2020, confirming the applicant’s attendances at the ATC in March through to August 2020 and the RAAM Clinic in May through to August 2020.

(g) A letter, dated October 16, 2020, from the Royal Ottawa Mental Health Center confirming that the applicant was admitted to the Assessment and Stabilization Unit on October 6, 2020, with a discharge on October 23, 2020, her participation in the Substance Use and Concurrent Disorders Unit, with Planned Ongoing Involvement with the RAAM Clinic at Sault Ste. Marie.

(h) A letter, dated November 11, 2020, from the Royal Ottawa Mental Health Center setting out the applicant’s participation in the Virtual Concurrent Disorders Unit Program

[11] These letters and reports set out the applicant’s ongoing efforts to deal with her history of alcohol abuse and other issues in her life. The letters and reports demonstrated a motivation and commitment on the part of the applicant to address these issues in a positive manner.

[12] The pre-sentence report and Gladue letter contain a detailed insight into Ms. Bruzas’ life and the path that has brought her before the court. I will attempt to summarize some of the information in these two documents. If there is a detail not contained in the summary that should not be taken as an indication that the entirety of each of the documents has not been reviewed and considered.

[13] The father of the applicant is a First Nations person who is very involved in his indigenous culture. The mother of the is not an aboriginal person. The applicant’s parents separated before the applicant was three years old. She lived primarily with her mother in Echo Bay and visited her father on weekends in Garden River.

[14] As a child, Ms. Bruzas witnessed her mother being emotionally and physically abused by various boyfriends.

[15] When she was seven years old, she was sexually assaulted by a cousin. She did not disclose this abuse until she was 25 years old and continued to struggle with its impact upon her.

[16] At age nine, she had a cousin commit suicide. This resulted in her aunt coming to live in her home, which created an emotional strain therein.

[17] When the applicant was 17 years old a classmate from school, with whom the applicant was close, was killed in an accident on the highway just in front of the school. The incident caused her to take off the balance of the school semester.

[18] At age 19, while the applicant was working at a gas bar, she was robbed at gunpoint. While she was not physically harmed, the incident had an enduring psychological effect upon her.

[19] After high school, Ms. Bruzas obtained a degree in Nursing and moved to Sioux Lookout where she worked for two years as a registered nurse. During this time, she met a man who obtained employment in British Columbia. She then moved to his location and obtained employment at the British Columbia Women’s Hospital before moving to work at the Inuvik Regional Hospital. The latter move was concurrent with the end of her relationship with this man. She was employed as a Select Medical Travel Nurse which took her to various parts of northern Canada.

[20] Ms. Bruzas began consuming alcohol when she was 14 years old, primarily in social settings. When she began her employment in Inuvik, she observed a number of traumatic medical incidents and found herself having difficulty sleeping. She turned to consuming alcohol and it reached the point where she was intoxicated almost every day. In 2015 she was diagnosed as suffering from depression as a result of workplace trauma. She acknowledged her consumption of alcohol as a coping mechanism.

[21] In 2016, Ms. Bruzas obtained employment at the Whitehorse General Hospital. While there, she began a relationship with another man.

[22] In 2018, the applicant went on stress leave from her employment after experiencing suicidal ideation along with her daily consumption of hard liquor. While on stress leave, she and her male companion opened a coffee shop in Whitehorse. As her drinking continued, she entered a six-week residential treatment program in Whitehorse, Yukon but stayed for only four weeks.

[23] In August 2018, the applicant then returned to Sault Ste. Marie and lived with her mother. The relationship between the two of them was strained and did not help the applicant’s mental health state. By October, she had seen a psychiatrist who informed her that she had Borderline Personality Disorder and anxiety, for which medication was prescribed. The applicant continued to drink on a regular basis. While wanting to stop, she attempted to hide her situation from her family.

[24] On November 5, 2018, the events that bring the applicant before the court occurred. As noted earlier, Ms. Bruzas was feeling suicidal at the time and eventually taken to the hospital by police.

[25] Both the pre-sentence report and the Gladue letter set out the applicant’s efforts at rehabilitation since the charge. More will be said about that later in these reasons.

Part Four – The Law

[26] The applicant has been found guilty under s. 253(1)(b) of the Criminal Code, which was the governing law at the time of the incident on November 5, 2018.

[27] The applicant seeks a discharge under s. 255(5) of the Criminal Code, as it existed then, which reads as follows:

Conditional discharge

(5) Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under section 253, after hearing medical or other evidence, if it considers that the person is in need of curative treatment in relation to his consumption of alcohol or drugs and that it would not be contrary to the public interest, by order direct that the person be discharged under section 730 on the conditions prescribed in a probation order, including a condition respecting the person’s attendance for curative treatment in relation to that consumption of alcohol or drugs.

[28] Section 102(3) of the Criminal Law Amendment Act, 1974-75-76 provided that the preceding version of this subsection would only come into force if any province or territory, upon a date fixed in a proclamation, declared this provision to be in force therein. Section 209(2) of the Criminal Law Amendment Act, R.S. 1985, c.27 contained the same proclamation provisions in relation to subsections 254(2) and 255(5) of the Criminal Code. Neither that preceding version nor Section 255(5) was ever proclaimed into effect in Ontario, leaving the applicant subject to the mandatory minimum penalty as prescribed in the Criminal Code.

[29] In addition, section 255(5) was repealed, effective December 17, 2018 from the Criminal Code, thereby making such discharges unavailable to offenders. Its successor section, being section 320.23 provides for the delay of sentencing to allow an offender to attend a treatment program approved by the province in which the offender resides. However, the possibility of a discharge is addressed in subsection 2, which reads as follows:

Exception to minimum punishment

(2) If the offender successfully completes the treatment program, the court is not required to impose the minimum punishment under section 320.19 or to make a prohibition order under section 320.24, but it shall not direct a discharge under section 730.

[30] Section 255(1) of the Criminal Code sets out the relevant penalty provisions, as follows:

Punishment

255 (1) Everyone who commits an offence under subsection 253(1), paragraph 253(3)(a) or (c) or section 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable,

(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,

(i) for a first offence, to a fine of not less than $1,000, (ii) for a second offence, to imprisonment for not less than 30 days, and (iii) for each subsequent offence, to imprisonment for not less than 120 days;

(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and

(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months.

[31] Section 225.1 of the Criminal Code, as it existed prior to its repeal on December 17, 2018, which is also relevant to the case at hand, states:

Aggravating circumstances for sentencing purposes

255.1 Without limiting the generality of section 718.2, where a court imposes a sentence for an offence committed under this Act by means of a motor vehicle, vessel or aircraft or of railway equipment, evidence that the concentration of alcohol in the blood of the offender at the time when the offence was committed exceeded one hundred and sixty milligrams of alcohol in one hundred millilitres of blood shall be deemed to be aggravating circumstances relating to the offence that the court shall consider under paragraph 718.2(a).

[32] Nevertheless, the applicant seeks a conditional discharge under the provisions of Section 730 of the Criminal Code which states:

Conditional and absolute discharge

730 (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

[33] While this subsection contains the words “other than an offence for which a minimum punishment is prescribed by law”, the applicant submits that she should have the benefit of a ‘curative discharge’ and that the failure of Ontario to have proclaimed this provision constitutes a violation of the applicant’s rights under Sections 12 and 15 of the Charter. Furthermore, in the provinces of Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia and Prince Edward Island and the territories of the Yukon, the Northwest Territories and Nunavut, First Nations persons are eligible to receive such discharges whereas First Nations persons in Ontario are not, thereby discriminating against First Nations persons in the provinces, particularly Ontario, in which this proclamation has not occurred.

[34] As set out above, the applicant challenges the constitutionality of subsection 255(5) of the Criminal Code and implicitly argues that it cannot be saved by section 1 of the Charter.

Part Five – Procedural Approach to the Analysis of the Positions Advanced

[35] Counsel and this court participated in a number of trial management conferences to establish an agreed procedure for the consideration of the positions to be advanced. During the trial management conference on September 25, 2020, counsel agreed to adopt the procedure outlined by Justice G. Donald in Regina v. Katherine Bressette [unreported – February 27, 2020 at St. Thomas, Ontario].

[36] In that case, Justice Donald outlined the proceeding to be followed, which was agreed to by counsel, as follows:

THE COURT: I’ll tell you this. There’s some attraction to the Crown’s process because what – I mean certainly on a regular sentencing hearing, and this one will be one at some point in time, you’ll [Counsel for the accused] be able to make fulsome submissions, present me with whatever evidence you’d like, in terms of my – in terms of providing me with an evidentiary record, from your position, give you the sentence that you’re shooting for. I would be open, and I need to hear from Mr. Michaud [Crown counsel] on this, but for you knowing that down the road you may be – or you’ve told me that you’re looking to bring a section 12 argument, I hear submissions on the appropriateness of a conditional discharge right then and there. So I don’t think that you’d be bound in terms of your sentencing submissions to tell me why it is that it’s a $1000 fine that you’re looking for. I mean that’s sort of intellectually disingenuous anyways. I mean tell me that you’re looking for a discharge, tell me why this is and I could embark on a threshold question right then and there to make the determination. And if ultimately I conclude that there’s something that I’d like to do, but I’m prevented from doing so, then we hear part two. And I don’t see any prejudice at all to any argument that Ms. Bressette may wish to make in doing it that way. Without having reviewed the document at all, I do find that there would be not only a judicial economy, but an economy for everyone, frankly, in the province who – because then we don’t need, you know, we don’t need to set aside any further time for me to deal with the constitutional question. Do you see it differently?

MS. STUCKEY: I think I just needed those fears to be alleviated, that we could bring arguments regarding the conditional discharge…

THE COURT: Please do.

MS. STUCKEY:… And that we wouldn’t be bound into what the regular sentencing submissions are. So that alleviates my concern in this case and, as I said, I certainly see where my friend is coming from with the economy of the system and saving time and effort. I just want to make sure we weren’t cutting off potential submissions.

THE COURT: Not at all. Do you see it differently, Mr. Michaud?

MR. MICHAUD: No.

THE COURT: Okay.

MR. MICHAUD: I see it exactly as Your Honour stated it, absolutely.

THE COURT: Okay. Well, let’s do it that way. So let’s set a date to hear submissions on the appropriateness of a discharge. I’ll hear sentencing submissions from both sides. Mr. Michaud will tell me what it is he wishes from the Crown perspective to have me impose. Ms. Stuckey, you’ll do the same for Ms. Bressette, and I will come to conclusion that I think, at this stage, as to the appropriateness in all the circumstances and the availability of a discharge on the law in total. And then if I conclude that a discharge is something that I wish to do or, frankly anything lower than $1000 is something that I wish to do, and will move on to the second step of the process and see whether or not it’s available under the rubric of a section 12 argument. Make sense?

MS. STUCKEY: Yes, it does.

THE COURT: Okay. Does that make sense to you, Mr. Michaud?

MR. MICHAUD: Absolutely.

THE COURT: Okay.

[ Transcript of February 27, 2020 – Page 10, line 19 to Page 12, Line 27 ]

[37] In the course of discussing and agreeing upon this procedure, reference was made to the decision from the Ontario Court of Appeal in R. v. R.K., 2005 ONCA 21092, [2005] O.J. No. 2434, in which Justice D.H. Doherty wrote on behalf of the Court:

59 It has been repeatedly held that courts should not decide issues of law, particularly constitutional issues, that are not necessary to the resolution of the matter before the court: Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97 at paras. 5-11. As outlined earlier, the trial judge made it clear that regardless of whether s. 85(4) was constitutional or not, he would have imposed exactly the same sentence - a suspended sentence followed by probation. As the disposition the trial judge deemed appropriate was unaffected by the constitutionality of s. 85(4), it was wrong for the trial judge to decide the constitutionality of the section. By introducing the constitutional issue, the trial judge added to the complexity, cost and length of the trial proceedings and provoked an entirely meritorious appeal by the Crown. Had the trial judge not addressed the constitutional issue and simply determined, as he was required to do, a fit sentence, R.K. could have been sentenced a month earlier. Presumably, had the trial judge sentenced him a month earlier, he would still have imposed a sentence of time served given the trial judge's strong views of the conditions of R.K.'s pre-trial incarceration. R.K. spent an extra month in the terrible conditions at the Don Jail because the trial judge raised and pursued a constitutional issue that had no effect on the sentence he ultimately would have imposed.

[38] That reasoning has been adopted by this court, along with the procedural approach agreed to by counsel for the Crown and for Ms. Bruzas.

Part Six – The Appropriate Sentence

Positions of the Parties

[39] The submissions of Crown counsel are summarized as follows:

(a) Section 255.1 codifies a requirement for courts to consider, in the sentencing process, evidence that an offender had a blood alcohol concentration (BAC) that is twice or more than the legal limit with the words “evidence that the concentration of alcohol in the blood of the offender at the time when the offence was committed exceeded one hundred and sixty milligrams of alcohol in one hundred millilitres of blood shall be deemed to be aggravating circumstances…”. The use of the word “shall” indicates that it is obligatory for courts to consider this factor. Furthermore, given that such BAC readings are aggravating, the consequence of such must be a penalty that exceeds the mandatory minimum prescribed.

(b) Toxicologists have regularly opined that a person with a BAC of 50 milligrams of alcohol in 100 millilitres of blood experiences some level of impairment. The decision of Wilson v. British Columbia (Superintendent of Motor Vehicles), [2015] 3 S.C.R. 300 was cited in support of this assertion. When that information is applied to the case at hand, it must be noted that the applicant’s BAC was almost eight times the level at which some degree of impairment occurs.

(c) The timing and circumstance of the offence should be a concern to the court. These events occurred on a Monday afternoon and on Echo River Road in the Garden River First Nation and that is close to Highway 17B, which is a major thoroughfare in this area and which would likely have had increased vehicle or traffic at that time of a weekday.

(d) In the decision of R. v. Smits, 2012 ONCA 524, [2012] O.J. No 3629 (ONCA), the Ontario Court of Appeal identified three forms of risk to be considered even when a vehicle is not in motion, as was the case in hand. Those risks are identified as follows:

52 While Wren makes it clear that proof of a risk of danger is a necessary ingredient to establish the actus reus of care or control, the more difficult question is what kind of risk of danger is sufficient for the Crown to establish care or control.

53 Courts have answered this question by recognizing that danger can come in many forms. It would appear that three risks of danger have been identified in the cases where an intoxicated individual uses a motor vehicle for a non-driving purpose:

(i) The risk that the vehicle will unintentionally be set in motion: see R. v. Ford, [1982] 1 S.C.R. 231; (ii) The risk that through negligence a stationary or inoperable vehicle may endanger the individual or others: see R. v. Vansickle, [1990] O.J. No. 3235 (C.A.), aff'g [1988] O.J. No. 2935 (Dist. Ct.); (iii) The risk that the individual who has decided not to drive will change his or her mind and drive while still impaired: see R. v. Pelletier (2000), 6 M.V.R. (4th) 152 (C.A.).

(e) In R. v. Smits, supra, the accused was found passed out in the rear of the minivan, which was parked on the side of the road. While the key was in the vehicle ignition, it was not running. When awakened by police, the accused was disoriented and showed various indicia of impairment. He provided samples of his breath and the lower of the BAC readings was 138 milligrams. At the conclusion of the trial, the accused was sentenced to four months of jail in addition to pre-trial custody, followed by two years of probation along with a three-year driving prohibition. In reviewing the decision of the summary conviction appeal court, the Court of Appeal restored the conviction and the sentence originally imposed. Just as in the Smits case, there was a risk that the applicant, who was in an impaired state, could have inadvertently put her vehicle in motion, thereby creating an unintentional but potentially significant risk in that location at that time. Based on this decision, the Crown argued that a custodial sentence would be the starting point in the consideration of what sentence should be imposed upon Ms. Bruzas.

(f) Denunciation and deterrence are the primary sentencing principles involved in this case and most, if not all, cases of drinking and driving. This overview of the law in relation to sentencing in this area has been repeated by multiple courts on multiple occasions, including relatively recently in R. v. Sivanadi, 2017 ONSC 5740, [2017] O.J. No. 5210 (ONSC) wherein Justice C. de Sa wrote:

19 As recognized by the Supreme Court in R. v. Alex, [2017] 1 S.C.R. 965 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, [1995] 2 S.C.R. 199, 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), 1985 ONCA 115, 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].

Reiteration of the paramountcy of the sentencing principles of denunciation and deterrence also occurred in the reasons of Justice M. Fuerst in R. v. Muzzo, 2016 ONSC 2068, [2016] O.J. No. 1506 (ONSC), which was a case involving four fatalities.

(g) There are both similarities and distinctions in the facts in the case at hand and in R. v. Patel, 2017 ONCJ 728, [2017] O.J. No. 5757 (ONCJ). In that case, based on calculations by a toxicologist, the accused had BAC readings in a range between 330 and 375 milligrams. The accused passed out at the wheel of a moving vehicle, which was brought to a stop in the roadway. His elderly parents, who were passengers in the vehicle, were unable to wake him. He was eventually awakened by EMS attendants. When taken to the police station for breath samples, the accused displayed significant difficulty in walking. While there is some similarity in the extreme BAC readings, there are other distinguishing factors from the case at hand, including the operation of the vehicle with the accused’s elderly parents in it. Mr. Patel was sentenced to serve 45 days jail, followed by two years of probation along with a two-year driving prohibition. Extremely high BAC readings were a prominent factor in the imposition of custody.

(h) The sentencing principle of deterrence and the Ontario Court of Appeal decision in R. v. McVeigh, 1985 ONCA 115, [1985], O.J. No. 207 (ONCA) were cited in R. v. Wang, [2019] O.J. No 706 (ONCJ). This case involved driving on Highway 401 at approximately 5:30 a.m., a collision with an unoccupied maintenance vehicle and BAC readings in the range of 175 to 220 milligrams. Justice F.D. Crewe wrote:

Analysis.

33 I have reviewed and considered the authorities provided by both counsel, including the well-known case of R. v. McVeigh which is filed at Tab 2 of the Crown's materials, and there are a couple of paragraphs which I propose to read into the record.

34 At page 6 of McVeigh the Court of Appeal for Ontario states as follows: "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."

(i) In R. v. Effting, 2019 ONCJ 14, [2019] O.J. No 159 (ONCJ), the accused drove his 16-month-old daughter to the child’s mother’s residence. It was determined that the accused had a BAC of 248 at the time of the driving. In addition to the high BAC reading, the accused had a drinking and driving conviction two years earlier. The sentence imposed was 75 days jail, followed by 12 months of probation along with a three-year driving prohibition.

(j) Also cited as a reiteration of the sentencing principle of deterrence was the decision of Justice S.F. Dunphy in R. v. Gomes, 2020 ONSC 1013 in which the court said:

19 Impaired driving causing bodily harm is the type of offence where offenders often present as solid "pillar-of-the-community" type men and women with otherwise impeccable characters and without any criminal record. When our courts speak of the need for deterrence, it is a particular type of conduct and not the consequences of the conduct that is the primary focus. An accident that has occurred cannot be undone. Nobody -- sober or impaired -- gets behind the wheel intending to inflict grievous bodily harm upon someone else. Impaired drivers often delude themselves into thinking that they pose no risk to anyone when they take to the road. Law enforcement cannot hope to catch more than a tiny fraction of the drivers who choose to take that risk (or who convince themselves that there is no risk) by driving while impaired. The role of exemplary sentences is to alter the mindset of the person who is about to get behind the wheel while impaired. Such sentences are designed to result in more people saying "it's not worth the risk of being caught" if the objective risk of harming their fellow citizens is insufficient to deter their behaviour.

(k) There are both aggravating and mitigating factors in Ms. Bruzas’ situation. The most aggravating factors are her extremely high BAC readings, the presence of alcohol within reach in the vehicle and the risk that she could put the vehicle in motion in that location and at that time of the day. It is mitigating that, as set out in the pre-sentence report, this conduct and the charge arising from it have been life-altering in many positive ways, including both her treatment regarding alcohol abuse and her re-connection with her First Nations heritage. Ms. Bruzas has earned considerable credit for the numerous actions she has taken towards her rehabilitation. As for the potential impact upon employment for Ms. Bruzas, there is no evidence before the court that a conviction will prevent her from regaining employment in nursing. Considering all of these personal factors and the applicable principles of sentencing, the appropriate penalty would be a fine of $2000 plus two years of probation along with a 15-month driving probation.

[40] The positions advanced on behalf of the applicant are summarized as follows:

(a) The synopsis of the incident provided to the court indicates that the officer who first dealt with Ms. Bruzas at the roadside made a demand for a breath sample for the approved screen device (ASD). The officer’s decision to use the ASD indicates that there was little to indicate the physical impairment of Ms. Bruzas. This lack of physical indicia and the applicant’s tolerance of alcohol shows how ill she was in relation to her misuse of alcohol at the time of the incident. The high BAC readings where the only aggravating factor during the incident. There was no bad driving set out in the evidence and no physical harm came to anyone as a result of these events. The degree of the illness from which Ms. Bruzas was suffering should cause the sentencing to focus upon the sentencing principle of rehabilitation, which is a factor recognized by Parliament.

(b) Ms. Bruzas entered a plea of guilt, which should be taken as a sign of remorse. The contents of both the pre-sentence report and the Gladue letter are confirmatory of that remorse.

(c) The Gladue letter sets out the ‘Gladue factors’ that are formulating factors in Ms. Bruzas’ past and are elements to be considered in the sentencing. She is a member of the Garden River First Nation. Her grandfather attended residential school in Spanish, Ontario. That residential school is notorious for its appalling abuses of First Nations children. As the Gladue letter and the Truth and Reconciliation Commission report have set out, these abuses have had intergenerational impacts upon First Nations persons and their families. Ms. Bruzas’ status as a First Nations person is a factor that the court is obliged to consider in its sentencing decision.

(d) Ms. Bruzas has a positive relationship with her father, who is an elder with the Garden River First Nation. She is becoming more engaged with her culture and with that support, it bodes well for the likelihood that she will be able to sustain her rehabilitation.

(e) Ms. Bruzas’ troubles with alcohol arise out of more than self-indulgence in the substance. She experienced significant traumas in her life. One of those was sexual abuse at an early age, which is also not uncommon in First Nations families who have connections with residential schools. She also experienced deaths of people close to her and a robbery at gunpoint. Each of these events individually had an impact upon Ms. Bruzas. Their cumulative effect cannot be ignored.

(f) Ms. Bruzas has a positive employment record. She has been a contributing member to society, working as a nurse in various locations, and she seeks to continue her contributions once this matter is behind her. It is her health and not any lack of desire on her part to work that has interrupted her employment. A criminal conviction will inevitably complicate her potential return to her nursing career.

(g) The pre-sentence report, the Gladue letter and the multiple exhibits filed set out Ms. Bruzas’ willingness and commitment to pursue and embrace rehabilitation. She has completed residential treatment and engaged in multiple forms of counselling with various organizations. In the intervening two years since the incident, there is no evidence that Ms. Bruzas has returned to the misuse of alcohol. Her dedication to her rehabilitation should result in something other than a conviction and, in other provinces, would likely result in a discharge.

(h) In R. v. Luke, 2019 ONCJ 514, 440 C.R.R. (2d) 35 (ONCJ) Justice P. Burstein granted the accused a conditional discharge to the indigenous woman who pled guilty to an impaired driving charge. In reaching that conclusion, Justice Burstein wrote:

[68] Recognizing that the offence of impaired driving must always be considered a serious offence which necessitates a sentence which respects denunciation and deterrence, I am satisfied that Ms. Luke’s personal circumstances – a young Aboriginal female first offender – cry out for a sentence which emphasizes rehabilitation and restorative justice. Given my decision that the mandatory minimum sentence in s. 255(1) is inconsistent with s. 12 of the Charter, there is no bar to consideration of a discharge pursuant to s. 730 of the Code. I am satisfied that registering a conviction and imposing a criminal record for an alcohol-related offence on this young Aboriginal female first offender would be grossly disproportionate to the just and appropriate sanction. In all the circumstances, it would not be contrary to the public interest to grant Ms. Luke a conditional discharge. The public interest in deterrence and denunciation will largely be met by the one-year driving prohibition which I will also impose on Ms. Luke. By making the discharge subject to Ms. Luke successfully completing two years of strict probation, there will be yet another deterrent and denunciatory aspect to her sentence. At the same time, though, if Ms. Luke does follow through with her rehabilitative efforts, she will earn the discharge and thereby not have to contend with the added prejudice associated with a criminal record as she makes her way out into the world.

This same reasoning should be adopted in the sentencing of Ms. Bruzas.

(i) Two other elements to consider in assessing the appropriate sentence for Ms. Bruzas are (i) the moral blameworthiness of her actions and (b) the principle of proportionality. Each of these elements was raised in the R. v. Luke, supra, decision as follows:

[32] In deciding whether Ms. Luke should be granted a conditional discharge for her impaired driving offence (if it were an available sanction), I begin with a reminder that all sentencing determinations “must respect the fundamental principle of proportionality”. The principle of proportionality “requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence”. In other words, the question of whether granting Ms. Luke a discharge would be “contrary to the public interest” must be answered having regard to Ms. Luke’s moral blameworthiness and to the gravity of her offence.

(j) The only element of moral blameworthiness for Ms. Bruzas was her extreme level of BAC. Otherwise, she was in a parked car that was not running, and her actions did not put any other user of that roadway at risk. After the incident, not only did she plead guilty but also, she has done everything possible to address her substance abuse issue. If these events had occurred in most other provinces, the sentence proportionate to the events and her efforts at rehabilitation would be a curative discharge.

(k) A conditional discharge is clearly in Ms. Bruzas’ best interests. It would allow her not to acquire a criminal conviction, which otherwise could impede potential employment for her. Given her diligent pursuit of rehabilitation and the absence of any reoccurrence of similar behaviour in the intervening two years, it is not contrary to the public interest to grant her a discharge.

(l) In addition, First Nations persons in most other provinces and all territories of Canada have available to them the opportunity to obtain a discharge related to curative treatment. Ms. Bruzas has pursued curative treatment and laid the foundation for ongoing treatment and counselling that would be beneficial to Ms. Bruzas and, in turn, to society in general. Ms. Bruzas is being denied the benefits of a discharge only because of the province in which these events occurred.

(m) Given all of these factors, the appropriate sentence to be imposed is a conditional discharge with 12 months of probation, in which the primary condition would be a requirement that Ms. Bruzas continued to participate in counselling directed at rehabilitation in relation to her misuse of alcohol.

[41] Ms. Bruzas chose to address the court and she said:

(a) She remembered only some of the events from November 5, 2018. (b) She did consume alcohol that day but was not driving her vehicle. She believes that to be the case because she would not put people at risk. (c) She had some concern about the accuracy of the BAC readings and noted that no blood sample had been taken from her for the purpose of determining BAC by that method. This comment was not taken by this court as an attempt by Ms. Bruzas to resile from the plea of guilt. Instead, I took it as an introspective hesitancy to acknowledge the level to which her misuse of alcohol had progressed. (d) On November 5, 2018, she was tired and depressed preceding the events that led to the charge. (e) In the intervening time since the charge, Ms. Bruzas could have regained her driver’s licence, but she has chosen not to do so as she continues to address her personal rehabilitation.

The Sentencing Analysis

[42] There are multiple mitigating and aggravating factors to be considered in this case along with the various principles of sentencing.

[43] The mitigating factors favourable to Ms. Bruzas to be considered include the following:

(a) Ms. Bruzas has endured several traumatic events in her life, none of which were brought about by her actions. The death of a close friend and deaths of young children during her nursing career have taken a toll upon her. (b) At age seven she suffered sexual abuse by a family member and carried that secret for almost two decades before being able to address it. (c) The impact of residential schools on not only the First Nations children who attended those schools and generations of families thereafter has been widely acknowledged and cannot be underestimated, including in the life of the applicant. The overrepresentation of First Nations people within the criminal justice system is also well-documented and acknowledged by the highest courts in Canada. (d) Regarding the events of November 5, 2018, there is an absence of aggravating factors, as set out in cases cited by the Crown, such as the driving of the vehicle, a collision or the presence of any innocent passenger, either extremely young or elderly. Ms. Bruzas’ vehicle was parked on the shoulder of a secondary road in the Garden River First Nation. (e) Ms. Bruzas has pursued, with diligence, determination and success, rehabilitation in relation to her problems with alcohol. She has also displayed an ongoing commitment to her rehabilitation. (f) Ms. Bruzas has also adopted a reinvigorated approach to her First Nations culture in pursuit of her personal healing and rehabilitation. She is well-connected in that her father is an elder in the Garden River First Nation who has assisted many others in their understanding of and reconnection with their First Nations heritage. Ms. Bruzas and her father have a strong positive relationship which indicates that this path of healing will most likely have a favourable outcome for Ms. Bruzas and, in turn, for society in general. (g) Ms. Bruzas has been a contributing member of society as a nurse and she intends to continue to pursue that career once all this is behind her.

[44] There are various aggravating factors to be considered as well, including:

(a) This event involved a blood alcohol concentration that was almost five times the legal limit of 80 milligrams of alcohol in 100 millilitres of blood. Any BAC that is twice the legal limit or more is, by statute, an aggravating factor. (b) While the investigating officer chose to make a demand for a breath sample for ASD analysis, there were glaring indicia of impairment. Ms. Bruzas was slumped over in the driver seat and could not be awakened despite numerous attempts by the officer to do so. When asked to provide her driver’s licence and other documents, she responded by presenting a partially consumed bottle of rum. She was slow to respond, and her speech was somewhat slurred. (c) When asked by the officer about her last consumption of alcohol, Ms. Bruzas replied, “Yesterday”. If that was an accurate statement, then it is even more troubling that she had a BAC at a level that was almost five times the legal limit at some time after 4:25 p.m. without having consumed alcohol that day. If the statement was not accurate and Ms. Bruzas was drinking that day, as she told the court at the sentencing hearing, then this suggests that she operated the vehicle on November 5, 2018 while having an extremely high BAC. This latter scenario encompasses actions that put others at considerable risk. One way or the other, given Ms. Bruzas’ condition there were risks to others that must be taken into consideration. It is noted that Ms. Bruzas’ level of impairment was such that, when asked to produce her driver’s licence, she presented to the officer the partially consumed bottle of rum. Given that level of impairment and comprehension combined with her distressed mental state, there was risk that (i) the vehicle could have been unintentionally put in motion, since the vehicle fob, by which the vehicle was started, was close at hand or (ii) Ms. Bruzas could have changed her mind and chosen to drive the vehicle or both. In either case, it must be noted that Ms. Bruzas had a significantly impaired comprehension of her surroundings and the risk associated with that cannot be understated. (d) The location and time of the incident are also concerning. Ms. Bruzas was not in her vehicle in a location removed from all other vehicular traffic at a subdued time of the day. Instead, she was on the side of Echo River Road on Monday afternoon when local residents would normally be travelling at the end of their workday.

[45] As noted in the case law submitted, courts at all levels, particularly the Ontario Court of Appeal and the Supreme Court of Canada have commented repeatedly on the suffering, injury, death and destruction caused to Canadian society by impaired drivers. Courts have repeatedly stated that denunciation and general deterrence are the paramount sentencing principles in drinking and driving cases.

[46] Denunciation and deterrence must be the primary sentencing principles applicable to the applicant’s situation. The BAC of the applicant was almost five times the legal limit. In addition, the applicant had more alcohol readily available in the vehicle. The vehicle was on the shoulder of a secondary road at a time of the day when other vehicular traffic was likely to be present. It is unclear when the vehicle came to be in this location. However, the rendition of the facts agreed to by the applicant informed the court that Ms. Bruzas’ vehicle came to the attention of the police as a result of a traffic complaint. The possibility that the applicant, in a highly intoxicated physical state and a highly distressed mental state, could have either inadvertently put the vehicle in motion or changed her mind and put the vehicle in motion created a significant risk to not only herself but any other potential users of Echo River Road or that general area on that date. The risk of property damage, personal injury or even worse cannot be ignored. It is necessary for this court to repeat and reinforce the message said by numerous courts before that drinking and driving is unacceptable behaviour in Canadian society and that such behaviour will be denounced and deterred by the consequences imposed. Furthermore, heightened forms of this criminal behaviour will result in increased consequences.

[47] The principle of proportionality has also been referenced as applicable to the case at hand. The text Sentencing, Ninth Edition, by Clayton Ruby and others contains the following:

§2.1 The proportionality principle, which has long been recognized as a key concept in Canadian sentencing, requires that “[w]hatever other ends a sentence may hope to achieve, it must first and foremost fit the specific crime and the specific offender. In Priest, the Court of Appeal for Ontario said:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to a particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[R. v. Priest, 1996 ONCA 1381, [1996] O.J. No. 3369, 110 C.C.C. (3d) 289, at pp. 297-98, per Rosenberg J.A. (Ont. C.A.)]

[48] The case law submitted by counsel (as set out in Appendix A of these reasons) does not include a decision from any court level in any Canadian jurisdiction in which BAC readings as high as those produced by the applicant resulted in a curative treatment discharge. Many of the cases involved accused persons with significantly elevated BAC readings, but lower than those of the applicant, resulted in custodial sentences. In making that observation, it must also be noted that most, if not all, of those cases contained other aggravating factors that are not present in the case at hand.

[49] While denunciation and deterrence have been identified as the primary sentencing principles, this statement of law does not exclude the sentencing principle of rehabilitation. Ms. Bruzas has engaged in rehabilitation diligently and successfully with multiple professional organizations, counsellors and services. It is extremely rare to see an accused person so committed to rehabilitation as the applicant has been and continues to be. Full credit must be given to Ms. Bruzas for the dedication and accomplishment with she has embraced rehabilitation.

[50] In addition, Ms. Bruzas has also chosen to renew and enhance her relationship with her First Nations heritage as part of her holistic healing. In pursuing this path, she is to be encouraged, supported and lauded. There are ‘Gladue factors’ in her background that are not of her doing and shed light on the personal challenges she has experienced and understanding on how alcohol became such an unfortunate component of her life. The impact of these Gladue factors must be taken into consideration as part of the understanding of Ms. Bruzas’ behaviour and as part of the sentencing in response to that behaviour.

[51] The applicant has asserted that a conviction for this offence will effectively terminate any prospect of the resumption of her nursing career. As noted earlier in these reasons, no evidence to substantiate that assertion was provided to the court. That issue was addressed by Justice M. Henschel in R. v. Sabattis, 2020 ONCJ 242 as follows:

137 Moreover, while I accept that a criminal record will have collateral consequences to Ms. Sabbatis, the extent of the impact of a criminal record on the applicant is unclear. A criminal record is not an absolute bar to an individual obtaining professional certification and licensing. During submissions there was significant emphasis placed on the impact that a criminal record would have on Ms. Sabattis's aspiration to become a nurse. There was insufficient evidence placed before me to properly assess the potential impact of a conviction on Ms. Sabattis's future employment prospects, including her aspiration to become a nurse. There is no evidence before me to support the contention that a conviction would prohibit the applicant from entry into a university or college nursing program. Nor is there any evidence before me that a conviction would prohibit an individual who otherwise meets the professional requirements from achieving registration with the Ontario College of Nurses. Impaired driving and "over 80" are not "prescribed offences" that automatically lead to a finding of misconduct and suspension or revocation of professional status under s. 51 of Schedule 2 of the Health Professions Procedural Code of the Registered Health Professions Act. Nurses convicted of impaired driving or "over 80" may be allowed to retain their professional membership with the College following a discipline hearing. Many individuals convicted of impaired driving or "over 80" are able to continue in their professional careers.

76 See for example College of Nurses of Ontario v. Codinha, 2008 ONCNO 89790.

[52] As noted by Justice Henschel, this court acknowledges that a criminal record may well create an impediment to employment in nursing for the applicant. That would be in addition to the personal challenges that the applicant has addressed energetically in the two years since this incident. However, a criminal record does not create a statutory or regulatory barrier that prevents the applicant from resuming a career in nursing.

[53] Is a conditional discharge with curative treatment provisions in a probation order “in the best interests of the accused and not contrary to the public interest”? These are the criteria set out in subsection 730(1) of the Criminal Code. In considering the first criterion, it is generally difficult to envision a scenario in which a discharge would not be in the best interests of the accused person. In the case at hand, Ms. Bruzas has pursued a course of treatment and rehabilitation for her mental health and alcohol issues to a level rarely seen in the criminal justice system. Furthermore, there is a personal history that provides this court with an understanding of how traumatic events beyond Ms. Bruzas’ personal control or blameworthiness contributed to the development of her emotional and psychological state thereby contributing to the circumstances that brought her before this court. Considering those factors and particularly, but not only, the Gladue factors, a conditional discharge is in the best interests of the applicant.

[54] Is it contrary to the public interest? This court finds that it is contrary to the public interest. Courts at all levels in Canada have repeatedly identified the suffering, destruction, injuries, deaths and trails of psychological harm upon survivors caused by drinking and driving in Canada. The fundamental sentencing principles applicable to these offences are denunciation and deterrence, both specific and general. In emphasizing these sentencing principles, this does not ignore the value of rehabilitation as a preventive strategy in relation to recidivism. In the case at hand, even when all of the mitigating factors and personal characteristics of the applicant are considered, the risks caused by the applicant and her decision to be in care or control of a motor vehicle with a blood alcohol concentration almost five times the legal limit cannot be ignored. To grant a discharge in the face of these extreme BAC readings would undermine statements by numerous courts, including the Ontario Court of Appeal and the Supreme Court of Canada, that extreme behaviours in relation to drinking and driving must and will result in meaningful consequences. It is noted that, regardless of the province or territory, no case was presented to this court in which a discharge was granted for an accused with such extreme blood alcohol concentration readings. To grant a discharge in this case would send the wrong message to anyone contemplating, even remotely, similar behaviour and would be contrary to the public interest. A discharge in this case would inevitably be cited by the accused persons with lesser blood alcohol concentration readings as a basis for the pursuit of a disposition less than the mandatory minimum sentence. That also would be contrary to the public interest.

The Sentence

[55] As set out above, Crown counsel has submitted that the appropriate penalty would be a fine of $2000, an amount comparable to the mandatory minimum penalty under the current section 320.19(3)(b) of the Criminal Code for an offence involving a BAC equal to or exceeding 160 milligrams of alcohol in 100 millilitres of blood, along with two years of probation and a 15-month driving prohibition. It was further submitted that a custodial sentence, which generally would be the appropriate position, is not called for in light of all the personal mitigating circumstances of the applicant including her extensive pursuit of rehabilitation. The applicant has submitted that 12 months probation and a driving prohibition order would be an appropriate sentence. In each case, the probation would focus on Ms. Bruzas’ ongoing rehabilitation.

[56] I agree with both parties in that this is not a case for a custodial disposition. Despite the aggravating factors, there are numerous mitigating factors. Ms. Bruzas has engaged in a course of treatment and rehabilitation, with vigour and commitment, in a manner that is rarely seen in the criminal justice system. While the BAC level and personal history warranted a significant response, Ms. Bruzas’ engagement in and embracing of such treatment is unique and justifies an individualized response that acknowledges her positive rehabilitative actions.

[57] A monetary penalty, beyond the mandatory minimum, is appropriate and warranted given the statutorily aggravating factor of a BAC well beyond twice the legal limit. I find that a fine of $2000 acknowledges the aggravating factors, the multiple mitigating factors at the time of and since the offence, and the principles of sentencing, including denunciation, deterrence and proportionality.

[58] In addition, Ms. Bruzas shall be placed on probation for one year. While there is an argument to be made that the accused’s issues, particularly as they relate to the abuse of alcohol, are deep-seated and require a lengthy period of probation support rehabilitation, Ms. Bruzas has demonstrated such a self-motivated commitment to counselling and treatment that this court is left with no doubt that if necessary, she would continue to pursue this course of rehabilitation without the support or compulsion of a probation order, if necessary.

[59] The probation order shall contain the following terms in addition to the mandatory terms imposed by the Criminal Code:

(1) You shall report to a probation officer within three working days and after that at all times and places as directed by the probation officer or any person authorized by the probation officer to assist in your supervision. (a) You shall cooperate with your 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 your probation officer on request. (b) Your reporting requirement ends when you have satisfied your probation officer that you have completed all your required counselling.

(2) You shall notify your probation officer of any change of your address not less than three days before that change of address.

(3) You shall not occupy the driver’s seat of a motor vehicle or other motorized conveyance.

(4) You shall attend and actively participate in all assessments, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for (i) alcohol abuse, (ii) stress management, or (iii) psychiatric or psychological issues. (a) You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling programs as directed. (b) You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

[60] In addition, a driving prohibition is imposed for a period of 12 months. While a longer prohibition period has been contemplated, the evidence indicates that Ms. Bruzas has chosen not to have her driver’s licence reinstated pending the outcome of this proceeding. Thus, there has been a self-imposed driving prohibition that has the effect of reducing the driving prohibition that would otherwise be imposed under the circumstances. It is also noted that in the intervening two years since the outset of this charge, there is no indication that Ms. Bruzas has unlawfully or improperly operated a motor vehicle. In addition, the minimum prohibition will facilitate Ms. Bruzas regaining her licence at the earliest date possible and the reacquisition of a driver’s licence should serve to reduce one of the potential challenges for Ms. Bruzas finding employment in her nursing career.

Part Four – Conclusion

[61] For the reasons set out above, the sentence given to Ms. Bruzas is as follows:

(a) A fine of $2000. The time for payment of that fine needs to be addressed by counsel. (b) In addition, probation for 12 months with the conditions of the probation order as set out above. (c) A driving prohibition order for 12 months.

Released on January 7, 2021.

Justice J.P. Condon Ontario Court of Justice

APPENDIX A

Defence Casebook:

1. R. v. Nur, [2015] 1 S.C.R. 773
2. R. v. Smith, [1987] 1 S.C.R. 1045
3. R. v. Gladue, [1999] 1 S.C.R. 688
4. R. v. Ipeelee, [2012] 1 S.C.R. 433
5. R. v. Luke, 2019 ONCJ 514
6. R. v. Barton, [2019] 2 S.C.R. 575
7. R. v. Boudreault, [2018] 3 S.C.R. 599
8. R. v. Pham, [2013] 1 S.C.R. 739
9. R. v. Lloyd, [2016] 1 S.C.R. 130
10. Chu v. Canada, 2017 BCSC 630

Crown Casebook and Cases Cited

1. R. v. Smits, 2012 ONCA 524
2. R. v. Sivanadi, 2017 ONSC 5740
3. R. v. Patel, 2017 ONCJ 728
4. R. v. Wang, [2019] O.J. No. 706 (ONCJ)
5. R. v. Effting, 2019 ONCJ 14
6. R. v. Gomes, 2020 ONSC 1013
7. R. v. Sabattis, 2020 ONCJ 242
8. Wilson v. British Columbia (Superintendent of Motor Vehicles), [2015] 3 S.C.R. 300
9. R. v. Alton, [1989] O.J. No. 2418 (O.N.S.C.-C.A.)