Ontario Court of Justice

Date: 2021-08-16 Court File No.: Central East - Newmarket 4911-998-19-06504

Between:

HER MAJESTY THE QUEEN

• AND -

LAI-YEE TAM

Before: Justice P.N. Bourque

Heard: June 28-29, July 14, 2021

Reasons for Sentence

Released on: October 28, 2021

Counsel: B. Juriansz, counsel for the Crown J. Erickson, counsel for the Defendant

BOURQUE J.:

Background

[1] After a trial lasting two days, I found the defendant guilty of the offence under s. 320.14(1)(b) of operating a conveyance with 160 milligrams of alcohol in 100 millilitres of her blood. The facts of the matter are set out in my judgment of August 16, 2021. In summary, the defendant was driving her motor vehicle home from a relative’s house and rear ended a vehicle in front of her which was making a left turn. The two vehicles were significantly damaged. She had her 12-year-old daughter in the car with her. No injuries were reported.

Criminal Record

[2] The defendant has no criminal record. The Crown has pointed out a previous stop by the police in 2016 with an ASD result of a “warn”. I give little weight to this. It is not a criminal record. It does not in my opinion result in a greater degree of “moral blameworthiness” of this defendant. It does indicate that this person has an alcohol problem.

Position of The Parties

[3] The Crown seeks a sentence which would include custody, which can be served in the community, for a period of 120 days, with an 18 month licence suspension, and probation for 18 months.

[4] The defendant seeks a sentence of a 1 year driving prohibition and a conditional sentence of imprisonment of 30 days, to be followed by probation.

Personal Circumstances of the Defendant

[5] A pre-sentence report was obtained for this defendant. She is 45 years old and is a Canadian Citizen, being born in Hong Kong. She has two children, 14 and 16 years of age. She is the youngest of 6 children. Before this event, she had recently separated from her husband, although they seem to be on good terms, he seems to have an oversize role in her life.

[6] She has not worked outside the home for many years and is trying to return to the workforce. She has a high school education.

[7] With regard to her alcohol consumption, there are contradictory statements from her and other members of her family. She does admit to drinking regularly for the past 5 years and stated that alcohol helps her with her depression and helps her to sleep. Counsel indicated that she has taken positive steps to stop drinking since the day of this offence.

[8] She has accepted responsibility for this offence (as set out in the pre-sentence report) and is relieved that no one was injured.

The Law

[9] The Crown cites many recent decisions of the trial and appellate courts which have greatly increased (over the past 10 years) the period of custody when an impaired driver kills or maims. The Crown begins with the cited decision in R. v. McVeigh, [1985] O.J. No. 207 (C.A.), which implores trial courts to treat the offence of impaired driving (where there is no death) in a more serious manner. “Sentences should be such as to make it very much less attractive for the drinker to get behind the wheel of a car”.

[10] The Crown referred to the case of R v. Ramage 2010 ONCA 488. The Crown also cites R. v. Muzzo, 2016 ONSC 2068, [2016 O.J. No. 1506, and states that in some respects, this defendant has a greater moral responsibility than the defendant Muzzo.

[11] The Crown also points to decisions of the Ontario Court where either, the fact of an accident, a very high BAC (“blood-alcohol concentration) reading, a previous record, or the presence of very young or elderly persons in the car, would lead a court to consider and impose a prison sentence, even for a first offence.

[12] The factors cited by the Crown in this case are the presence of the child in the defendant’s car, and the causing of an accident. The decision of Justice Rose in R. v. Patel 2017 ONCJ 728, illustrates that in a jurisdiction such as York Region, where case counts increase year upon year, that the message is not being heard by those who would drink and drive a car. Justice Rose felt that the most significant aggravating factor in the Patel case was the gross signs of impairment and a BAC reading of 330 milligrams of alcohol in 100 millilitres of blood. He imposed a jail sentence.

[13] The defence argues that while there are some factors in this case that would result in an increased penalty (the accident and child in the car), it does not reach the level that a jail sentence should be imposed. The defence does admit that a custodial sentence can be imposed but it should be for 30 days, and it should be served in the community. He points out the fact that the defendant has no previous record (this is the situation in most of impaired driving cases) and showed no signs of “gross impairment” (other than the poor reflexes and reaction which causes the accident). The readings were twice the legal limit.

Sentence

[14] I agree with the Crown that this case elevates the penalty well above the mandatory minimum. I accept that R. v. McVeigh is a “call to action” to take the whole sentencing process more seriously in drinking and driving cases.

[15] I believe that a short sentence of custody which can be served in the community followed by probation, and a longer period of licence suspension can achieve the sentencing goals.

Conclusion

[16] There will be a conditional sentence of imprisonment of 30 days. There will also be a driving prohibition of 18 months and an order for probation for 18 months with terms including alcohol counselling.

Released: October 28, 2021 Signed: “Justice P.N. Bourque”