DATE: 2023·01·12 Information #: 20-1000109-00

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

SANUJAN THANABALASINGAM

Before Justice David Porter

Reasons for Sentence dated January 12, 2023

Counsel: O. Ahmad, for the Crown E. White, for the Accused

Porter, J.:

OVERVIEW

[1] Mr. Sanujan Thanabalasingam (the defendant) was found guilty after trial of two offences committed on May 15, 2020: an offence under section 320.14(1)(b) of the Criminal Code that, within two hours after ceasing to operate a conveyance, he had a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol in 100 mL of blood, (hereinafter referred to as the “80 or over offence”) and secondly, that he operated a conveyance on that date while prohibited from doing so contrary to s. 320.18(1)(a) of the Criminal Code. A notice of application for increased penalty was filed at the conclusion of the trial, after the findings of guilt were made, seeking a greater punishment in relation to the 80 or over offence by reason of his prior conviction for 80 or over on November 5, 2019. On that date, he received a $1000 fine and a twelve-month driving prohibition.

[2] In relation to the offences before the court, the defendant was found to have driven the motor vehicle at issue on May 15, 2020, at a time when he was prohibited from operating a motor vehicle, pursuant to the one year prohibition in relation to his previous conviction for 80 or over.

[3] Accordingly, as a result of his prior conviction for 80 or over on November 5, 2019, pursuant to section 320.19(1)(b) the minimum sentence applicable to his conviction under section 320.14(1)(b) is “imprisonment for a term of 30 days”.

[4] While for the purpose of this sentencing it is not a prior conviction, it is of concern to the court that on July 7, 2022 the defendant was convicted for driving while disqualified on February 22, 2021 for which he received a three-month conditional sentence order.

[5] The Crown’s position on sentence, in light of what it characterizes as the multitude of aggravating factors, is 60 days straight custody, 12 months of probation and a 30-month driving prohibition. The probation conditions requested by the Crown include attending for assessment/counselling as directed by probation including inpatient treatment for alcoholism and substance abuse, completion of the Back on Track program and attendance for counselling in any other area identified by probation, a requirement that the defendant sign releases and provide to his probation officer proof of compliance with, and completion of, all programs, and that the defendant not operate or have care and control of any conveyance, and not occupy the driver’s seat of any conveyance.

[6] The defence submission was for an intermittent sentence of 45 days, structured to permit the sentence to be served on dates available to the defendant, in light of his work schedule which is variable, and frequently requires attendance for work on weekends.

Circumstance of the Offences

[7] In my oral decision dated June 24, 2022, I found that the defendant was operating his sister’s motor vehicle along with his friends, Ruban Thulash, Emily Au, Samantha Payne and Lisa Duong, on May 15, 2020. He drove the car along Highway 401, and when exiting at Weston Road the car swerved to the left and hit a pole. Emily Au, who testified at the trial, testified that she had some back pain the next day following the accident. There was significant damage to the car as a result of the accident. The defendant, who testified at trial and denied driving the car, testified that the accident completely ruined his sister’s car.

[8] The defendant subsequently provided breath samples to a qualified technician which showed that he had a blood alcohol concentration of 110 at 1:25 a.m. and 1:49 a.m. on May 16, 2020. As a result, I found him guilty of the offence of 80 or over and driving while prohibited on May 15, 2020.

Pre-Sentence Report

[9] The court received a pre-sentence report dated November 3, 2022. While the information obtained in the pre-sentence report came from the defendant’s mother, sister and girlfriend, and the defendant himself, it provided a generally favourable report concerning the defendant’s background and circumstances. The author of the report stated in his concluding assessment:

“Before the court is a 22-year-old subject with one prior impaired driving related conviction on record from 2019. He recently completed a three month long conditional sentence order on October 19, 2022 and his response to community supervision was positive. The subject is currently residing with his parents, siblings, brother-in-law and nephew, and he reported no issues at home or in terms of his familial relationships, which was corroborated by familial sources. The subject has been employed as a maître d’ at Pinnacle since 2017 and he reported being highly satisfied with his job. The subject reported no current or historical substance abuse issues, describing his current alcohol and marijuana use as sporadic, controlled and casual, and no sources expressed any concerns over his substance use. At this time, it appears that the subject would be suitable for community supervision should it be required or an option.”

[10] It was notable that, having testified under oath in the trial that he was not the driver of the car, the defendant has resiled from that position, given under oath in the trial, now claiming full responsibility for what happened acknowledging that he did not think at the time how it would affect his life or the consequences of his actions and acknowledging to the author of the pre-sentence report that “it’s bad that it happened, but in a way it’s good because it’s a learning experience.” At the conclusion of the sentencing hearing, the defendant apologized to the court for his actions in committing these offences.

[11] The defendant has not pursued any treatment for the excessive consumption of alcohol, claiming that he does not suffer from any substance abuse issues. The issue is addressed in the pre-sentence report as follows:

“The subject reported no current or historical substance abuse issues. He advised he uses alcohol and marijuana in a controlled, social and sporadic manner, which was corroborated by his sister, Sageba, who reported no concerns over the subject’s substance use. Furthermore, neither the subject’s mother nor his girlfriend expressed any concerns in this area, with the latter describing him as a “social drinker” who is in control of his alcohol use”.

[12] It is clear from the pre-sentence report that the defendant has strong family connections. He lives with his parents, his siblings and his brother-in-law and nephew. His family members described a stable and peaceful home life in which the defendant is of great assistance in working to support his family. His father was unable to work after an accident in 2012.

[13] The defendant works as a maître d’ for Pinnacle, working from 1 p.m. to midnight when events are running at the BMO Field or the ScotiaBank Arena. He has had this employment since 2017.

[14] With respect to his recent conditional sentence order, the author of the pre-sentence report notes: “while his CS term was short and included no task-oriented conditions save for reporting, the subject responded well to community supervision. He incurred no further charges and presented as polite and cooperative during his interactions with probation services.”

The Circumstances of the Offence: Aggravating and Mitigating Circumstances

[15] The Crown submits that the circumstances of this offence are highly aggravating. Firstly, the defendant had a prior conviction for 80 or over on November 5, 2019, only five months prior to this offence. The defendant was prohibited from driving when he crashed his car on May 15, 2020, only five months after his previous conviction. The circumstances of the driving are aggravating as he crashed the car, full of five young people, into a pole after driving on a highway. Not only was he prohibited from driving as a result of the previous conviction, he was a G2 young driver who, at that time, was required pursuant to section 44.11 and 44.12 of the Highway Traffic Act, to have a blood alcohol concentration of zero while driving a motor vehicle on a highway. One of his passengers, Emily Au, experienced back pain as a result of the accident, and the defendant’s sister’s car was badly damaged as a result of the crash.

[16] The willingness of the defendant to not only drive on a highway with alcohol in his system, contrary to the conditions of his license, but to drive while prohibited, shortly after having been convicted of a previous drinking and driving Criminal Code offence, with a blood alcohol content (“BAC”) later found to be over 80, raises serious issues of specific deterrence, along with denunciation and general deterrence which must be given prominence in any sentence for drinking and driving offences: R. v. Muzzo, 2016 ONSC 2068, per Fuerst J. at para. 58.

[17] It is also of concern that the defendant has taken no steps to address his history of excessive alcohol consumption, followed by a decision to operate a motor vehicle, and takes the position that his consumption of alcohol is under control, a suggestion inconsistent with his criminal record for an alcohol-related driving offence.

[18] A significant mitigating circumstance is the defendant’s youthful age, at 22, and his claim that he has matured and learned a lesson from this experience. As defence counsel noted in his submission, referring to s. 320.22 of the Criminal Code, the only statutory aggravating factor is that the defendant drove while prohibited.

[19] It is to the defendant’s credit that he remains fully employed, and resides in a supportive family environment, in which he is of assistance to his family, and his parents, as a result of his stable employment. Notwithstanding his acceptance of responsibility for the offences for which he was convicted at trial in the interview with the pre-sentence report author, there was no mitigating circumstance of a plea of guilty in this case.

Analysis

[20] Both defence counsel and Crown counsel agree that, as a result of the mandatory minimum sentence of 30 days imprisonment for the second 80 and over offence, a period of incarceration is required in this case. The defence seeks an intermittent sentence of 45 days, and the Crown seeks 60 days of straight jail, arguing that an intermittent sentence does not satisfy the applicable principles of sentencing in this case.

[21] Section 732 of the Criminal Code establishes when a sentence of imprisonment may be served on an intermittent basis:

“(1) Where the court imposes a sentence of imprisonment of 90 days or less on an offender convicted of an offence, whether in default of payment of a fine or otherwise, the court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order

(a) that the sentence be served intermittently at such times as are specified in the order; and

(b) that the offender comply with the conditions prescribed in a probation order when not in confinement during the period that the sentence is being served and, if the court so orders, on release from prison after completing the intermittent sentence.”

[22] To address the current practice at the Toronto South Detention Centre when a person is sentenced to an intermittent sentence, the Crown called Ms. Connie Wylie to testify at the sentencing hearing. Ms. Wiley is a senior program advisor with the Ministry of the Solicitor General responsible for overseeing the implementation of the Temporary Absence Program (“TAP”) at the Toronto South Detention Centre. Ms. Wiley confirmed that, at the current time, an offender sentenced to an intermittent sentence may apply to the Superintendent of the institution for a recurring temporary absence plan pass which, if granted, permits the offender to serve the days stipulated for incarceration in the intermittent sentence at home with an ankle bracelet and GPS monitoring by Recovery Science Corporation to ensure compliance with the terms of the temporary absence program. There is no automatic granting of enrolment in a temporary absence program for persons sentenced to an intermittent sentence at this time.

[23] Ms. Wiley confirmed that, while she did not have the precise numbers, it was her understanding that a significant percentage of the applicants were granted admission to the temporary absence program by the Superintendent. She noted that it is up to the Superintendent, based on the information provided, whether a particular applicant is required to serve his intermittent sentence by periodic attendances in custody, or by electronic monitoring with an obligation to remain in the offender’s residence at the times stipulated for his incarceration in the intermittent sentence order. She testified that if an offender sentenced to an intermittent sentence did not apply for the TAP program, or applied but was rejected, the offender would serve the periods of custody ordered in the intermittent sentence in actual custody at the Toronto South Detention Centre, in accordance with the warrant of committal.

[24] Ms. Wiley indicated that the current temporary absence program available for those sentenced to an intermittent sentence is a rehabilitative program in which the offender must complete different rehabilitative assignments based on the nature of the offender’s offence. These rehabilitative assignments are outlined in 14 booklets. The Temporary Absence Coordinator chooses which booklets must be completed by the offender during the temporary absence program. An ankle bracelet must be worn throughout the period of the intermittent sentence, and the electronic monitoring is activated during the warrant of committal hours, at which time the offender must remain in his or her residence, and be subject to electronic monitoring by Recovery Science Corporation.

[25] Ms. Wiley indicated that the rehabilitation available to an offender is likely more substantial, when the intermittent sentence is served under the temporary absence program, than it is when the intermittent sentence is served by attending the custodial facility on weekends, as there is less rehabilitative programming available at the institution on weekends than there is during the week.

[26] Based on the evidence of Ms. Wiley, I am satisfied that the “appropriate accommodation” required by section 732 of the Criminal Code before an intermittent sentence can be ordered, is available in the current circumstances at the Toronto South Detention Centre. This custodial facility has persons serving intermittent sentences by attendance at the jail, and actual incarceration at the jail, for the days stipulated in the warrant of committal.

[27] The Crown refers to the practice at the Toronto South Detention Centre of granting temporary absence passes to persons serving an intermittent sentence, and argues that an intermittent sentence is not appropriate in this case as the common practice of granting a person sentenced to an intermittent sentence admission to a TAP, effectively makes the sentence a conditional sentence (which is otherwise unavailable in law), rather than a sentence of actual incarceration. The Crown further submits that the defendant is a recidivist driving offender, and that an intermittent sentence is inappropriate given the aggravating circumstances in this case summarized above.

[28] The Crown relies upon the decision of Justice Campbell in R. v. Moldovan and Nancoo, 2017 ONCJ 625. In that decision Justice Campbell found that the practice of granting persons serving intermittent sentences temporary absence pursuant to the intermittent community work program of the Ministry of Community Safety and Correctional Services meant that the requirement in section 732(1) that there be “appropriate accommodation” to ensure compliance with the sentence could not be met. As a result an intermittent sentence could not be ordered where it likely would be served as part of a temporary absence program. Justice Campbell states in R. v. Moldovan and Nancoo at para. 47:

“It appears clear to me that the purpose of inserting the words “… and the availability of appropriate accommodation to ensure compliance with the sentence…” was to instruct courts not to order intermittent sentences in circumstances where the sentence could not be properly carried out. The added provision serves as a condition precedent. Before an intermittent sentence can be imposed, there must be available appropriate accommodations to ensure that the sentence can be complied with. In other words, there must be a prison available that is prepared to confine the person to custody on an intermittent basis. If I were to order an intermittent sentence for Mr. Nancoo and Ms. Moldovan, not only would there be nothing intermittent about their sentences, beyond a brief check in or telephone call to report, neither offender will serve any time following their sentence actually in custody.”

[29] In my view, the concern of a lack of appropriate accommodation does not arise on the facts of this case as the Toronto South Detention Centre clearly requires some offenders sentenced to intermittent sentences to serve the custodial portion of the sentence in actual incarceration.

[30] In my view, the decision of correctional officials to accept a person into a temporary absence program does not reflect, or result in, a lack of appropriate accommodation at the Toronto South Detention Centre, but is rather a policy-based rehabilitative decision, based on the circumstances of the individual offender, to assist in the rehabilitation of the offender by permitting the offender to serve a custodial sentence in the community.

[31] In my opinion, the Court of Appeal in R. v. Passera 2019 ONCA 527 has provided clear guidance to lower courts that it is inappropriate, as part of sentencing, to consider the impact of such rehabilitative programs administered by custodial officials in determining the appropriate sentence in a case.

[32] The Court stated at paras. 23-24:

“I agree that when a sentence involves a term of imprisonment, the sentencing process can be viewed as encompassing both the term imposed by the sentencing judge, and the statutory provisions under which the sentence will be administered by correctional authorities after it is imposed. Together they describe and define the punishment imposed. However, although part of a single process, the determination and imposition of a fit sentence and the administration of that sentence after it is imposed are two distinct functions, performed by different entities, governed by different statutory regimes, and designed to serve different purposes: R. v. Zinck, [2003] 1 S.C.R. 41, 2003 SCC 6, at para. 19. I do not agree with the appellant’s characterization of parole eligibility questions as a component of the determination of a fit sentence.

Sentencing judges are charged with imposing a fit sentence for the offence, and the offender, having regard to concerns which include rehabilitation, deterrence and denunciation. Correctional authorities take the sentence and are responsible for administering that sentence. Sentence administration includes determining when and on what terms persons who are serving prison sentences should be permitted to serve some part of that sentence outside of the prison on conditions deemed appropriate by the correctional authorities. That assessment engages different considerations from those that influence the determination of an appropriate sentence. Decisions pertaining to conditional release are, by their very nature, predicated to a considerable degree on events that postdate the imposition of sentence.”

[33] As the Court stated at paragraph 26:

“Subject to specific statutory exceptions (e.g. ss. 743.6 and 745.5), sentencing judges are not asked to determine parole eligibility when fixing an appropriate sentence. Questions relating to if, when, or how an offender might be released on some form of conditional release prior to the completion of the sentence are not for the sentencing judge to determine: see Zinck, at paras 18-20 …..”

[34] The Ministry of Correctional Services Act, R.S.O 1990, c. M 22, establishes the statutory basis upon which correctional officials may permit an inmate in a provincial correctional facility to be temporarily absent from the correctional institution “for medical or humanitarian reasons or to assist the inmate in his or her rehabilitation”: s. 27.

[35] In my opinion, the existence of the temporary absence program authorized by the Ministry of Correctional Services Act, does not mean that there is a lack of appropriate accommodation as required by section 732 of the Criminal Code for the imposition of an intermittent sentence. I respectfully agree with Justice Brock Jones when he stated in R. v. Burrill 2022 ONCJ 274 at para. 49-50:

“The TAP implemented by the Ministry of the Solicitor General with respect to intermittent sentences does not, in my view, alter the sentence imposed by the sentencing judge. It merely affects how it is administered. It also does not result in a lack of “appropriate accommodation” as required by Criminal Code section 732 for the imposition of an intermittent sentence. Pursuant to section 39 of Ontario Regulation 778, an inmate granted a TAP may be re-incarcerated should he breach or even attempt to breach any conditions placed on him as part of a TAP.

If intermittent sentences were deemed to be effectively unavailable as a result of this policy decision by the Ministry of the Solicitor General, it would deny courts the ability to impose an otherwise appropriate sentencing disposition authorized by Parliament in the Criminal Code …”

[36] Accordingly, I conclude that if an intermittent sentence is appropriate in the circumstances of this case, it is available in law and the existence of a temporary absence program for which the defendant may apply does not negate the presence of “appropriate accommodation” at the Toronto South Detention Centre. It was clear from Ms. Wylie’s evidence that, if an offender applies for TAP, and it is not granted, the institution will require that the offender serve the custodial portion of the intermittent sentence in custody at the Toronto South Detention Centre.

The Principle of Restraint

[37] The principle of restraint in imposing sentence is an important principle with particular application to youthful offenders.

[38] In R. v. Priest, Rosenberg J.A. stated for the Court of Appeal at pp.11-12:

“Even if a custodial sentence was appropriate in this case, it is a well established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence…..

Martin, J.A. adopted the following statement of principle from R. v. Curran (1973), 57 Cr. App. R. 945, per MacKenna J. at pp. 947 - 48:

“As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity of the offence, and imposed as the sentence was, for reasons of general deterrence, that is as a warning to others. The length of the first sentence is more reasonably determined by considerations of individual deterrence; and what sentence is needed to teach this particular offender a lesson which he has not learned from the lighter sentences which he has previously received.”

[39] As recently summarized by the Court of Appeal in R. v. Francis 2022 ONCA 729 at paragraph 80:

“Where an offender is young and has never served a period of incarceration, the shortest sentence possible ought to be imposed: Borde, at para. 36; Desir, at para.31; Disher, at para. 59.”

[40] Furthermore, the principle of restraint in sentencing is reflected in sections 718.2 (d) and (e) of the Criminal Code which state:

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victims or to the community should be considered for all offenders….”

[41] The Criminal Code provides that the fundamental principle in sentencing is proportionality.

[42] Section 718.1 states:

“A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”

[43] In R. v. Ipeelee, 2012 SCC 13, the Supreme Court of Canada defined the principle of proportionality as follows at para. 37:

“The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing – the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 533:

It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.”

[44] For all offenders, and particularly for youthful offenders, a proportionate sentence must give appropriate weight to the principle of rehabilitation. As noted by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, at para. 4:

“One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.”

Conclusion

[45] In my opinion, the proportionate sentence in this case reflecting the gravity of the offences, and the degree of responsibility of the offender, giving appropriate consideration to denunciation, general and specific deterrence, protection of the public, and the rehabilitation of the offender, is a sentence of 60 days incarceration. The sentence on the 80 or over offence will be the minimum sentence of 30 days incarceration, and the sentence on the offence of operating a conveyance while prohibited will be a consecutive sentence of incarceration of 30 days.

[46] However, to give effect to the principle of restraint, and to maximize the rehabilitation of the offender, I will order that the 60-day sentence be served intermittently, on a schedule designed to permit Mr. Thanabalasingam to work, both to facilitate his rehabilitation and to ensure his continued ability to provide support for his parents, including his disabled father. In my opinion, the 60-day intermittent sentence will also provide substantial significant deterrence to Mr. Thanabalasingam, which is required in the circumstances of this case having regard to the aggravating circumstances submitted by the Crown. I note the evidence of Ms. Wylie that the Toronto South Detention Centre can accommodate an intermittent sentence with different weekday custodial requirements in the warrant of committal, designed to assist in the rehabilitation of the offender by permitting the offender to continue his employment.

[47] For the duration of the 60-day intermittent sentence, and for a period of 12 months after its completion, Mr. Thanabalasingam shall be on probation.

[48] To give effect to the principles of specific deterrence, and to reflect and provide reparation for harm done to the community, and to promote a sense of responsibility in Mr. Thanabalasingam, he will be required to perform 120 hours of community service, at a rate of no less than 10 hours per month, to be completed during his 12 month period of probation commencing after the completion of the intermittent sentence.

[49] In addition, in the 12 month period of probation after he completes his intermittent sentence, he will be required to take such counselling for alcohol abuse as may be directed by his probation officer, attend and complete the Back on Track program, or equivalent program selected by his probation officer, and he shall sign releases to permit his probation officer to monitor his attendance at, and completion of, all counselling and rehabilitative programmes.

[50] He shall be prohibited from occupying the driver’s seat of any conveyance, and is prohibited from operating any conveyance, throughout his entire probationary period.

[51] The sentence on the s.320.14 offence (80 and over) and the drive while prohibited offence (s. 320.18) shall each include a concurrent order prohibiting Mr. Thanabalasingam from operating any type of conveyance for a period of 30 months pursuant to ss. 320.24(2)(b) and 320.24(5)(c) of the Criminal Code.

Dated: January 12, 2023

Justice D. Porter