ONTARIO COURT OF JUSTICE
DATE: 2025 05 12
COURT FILE No.: Windsor 23-81102917
BETWEEN:
HIS MAJESTY THE KING
— AND —
TYLER PICCIN
Before Justice S. G. Pratt
Heard on 17 January and 31 March 2025
Reasons for Judgment released on 12 May 2025
Zach Battiston ...................................................................................... Counsel for the Crown
Alyssa Jervis ................................................................................ Counsel for the Defendant
Pratt J.:
[1] On 17 January 2025, the Offender Tyler Piccin pleaded guilty to impaired operation of a conveyance. I ordered the preparation of a pre-sentence report (PSR) and received sentencing submissions on 31 March.
[2] Counsel for the Offender has brought an application seeking to have s. 320.19(1)(a)(i) declared unconstitutional and of no force or effect in the present case. It is argued that the minimum penalty of a $1,000 fine is grossly disproportionate as it makes the Offender ineligible for a discharge.
[3] It was agreed between the parties, and accepted by the Court, that I would hear submissions and consider an appropriate sentence. Only if I found a discharge to be appropriate would we then move on to arguing the Charter application. This approach follows the process used by my brother Justice Donald in the case of R. v. Bressette, 2020 ONCA 767, [2020] O.J. No. 5287 (C.J.). At paragraphs 2 and 3 of that decision, His Honour laid out the suggested path:
2 By way of agreement, counsel propose that I first determine the appropriate sentence for Ms. Bressette and then having done so, should the appropriate sentence fall below the floor set by the statutory framework made out in the Criminal Code, I would move on to hear and consider the Charter application that could provide me with a conduit through which I could impose such a sentence.
3 For the sake of clarity in deciding the issue at hand, I am open to the possibility of granting a conditional discharge as sought by the Defence. I understand that the Crown is opposed to the imposition of a discharge. They suggested that a fine, one above the minimum, be appropriate in light of Ms. Bressette's personal circumstances as a whole.
[4] This procedure was adopted in R. v. Bruzas, 2021 O.J. No. 60 (C.J.), and follows the reasoning set out in R. v. R.K., [2005] O.J. No. 2434 (C.A.) where Justice Doherty affirmed that “courts should not decide issues of law, particularly constitutional issues, that are not necessary to the resolution of the matter before the court”.
[5] In the present case, I am open to consider the notion of granting a discharge. I recognize that sentence has been imposed by other courts in appropriate circumstances. For the purpose of this first stage of the sentencing, I include a discharge in the realm of potential penalties.
Facts
[6] On 28 June 2023, at approximately 2:14 pm, Windsor Police were dispatched to the 3400 block of McKay Boulevard. They were advised of a potential impaired driver, standing outside his vehicle and urinating on the ground. When they arrived at 2:16 pm, they found a black Ford Escape with a person sitting in the driver’s seat. The door was open, the person had one foot outside the vehicle, and a hand on the steering wheel. I was not told if the engine was running.
[7] Out of caution, the police parked their cruiser in front of the Escape. Officers tried to speak with the male, later identified as the Offender, but to no avail. The Offender was struggling to speak and had an odour of alcohol on his breath. He ignored police demands and tried to fully enter the Escape. His eyes were glazed and he did not appear to have control over his body. Police were concerned he would try to leave the scene and so had to take physical control of him. They formed an opinion that his ability to operate a conveyance was impaired by alcohol and placed him under arrest. He was taken from the scene to police headquarters.
[8] In the breath testing room, the Offender told the intoxilyzer technician, “you know I will blow over”. Indeed, he did. The first sample registered 447mg of alcohol per 100mL of blood. There was no second sample. That is not because the Offender refused to provide it, but because police immediately called an ambulance to bring him to hospital given the reading.
[9] The 3400 block of McKay Boulevard is a residential area. It is about a block away from St. Gabriel grade school, though I note that school had let out for the summer by the 28th. Still, a residential area within easy walking distance of a school would certainly be home to families and to children just off on summer vacation.
The Pre-Sentence Report
[10] The PSR in this case was completed by probation officer Michael Williams. It is largely positive. The Offender comes from a close, supportive family. He is a high school graduate who currently operates his own business. While he has been diagnosed with certain mental health challenges, he is addressing them. He has plans for the future.
[11] The one stumbling block in his life has been his substance abuse. He began drinking alcohol at the age of 12. He has used cocaine, ecstasy, psilocybin, opiates, and LSD. While he says he no longer consumes these drugs, he does still use cannabis marijuana on a daily basis.
[12] His alcoholism is what has brought him before the Court. At his worst, he was consuming 60 ounces of vodka per day. The PSR states that he has been sober since October 2023 and that he completed an inpatient rehabilitation program at Westover Treatment Centre in December 2023. He is interested in returning to Westover to engage in their recovery and relapse prevention program in the future.
[13] Regarding his mental health, the Offender is taking medication for depression, bipolar disorder, and ADHD. He has also been prescribed medication for anxiety but does not take it owing to its side effects. He has been suicidal in the past but said those thoughts have been absent ever since he completed rehabilitation.
[14] To Mr. Williams, the Offender was polite and co-operative. He expressed remorse for his actions and acknowledged the risk he posed to public safety. He is willing to accept whatever sentence the Court imposes, and will undertake further counselling if required.
[15] Overall, I find the PSR to be positive. While it discloses a level of alcohol addiction seldom seen in these courts, it also discloses the steps the Offender has taken to get that addiction under control. If he continues his hard work, his future is bright.
Aggravating and Mitigating Factors
[16] The aggravating factors in this case are clear. Foremost is the staggering breath reading. I have worked in the criminal courts, as a lawyer and then as a judge, for 25 years. The Offender’s reading is the highest I’ve ever seen. The police should be commended for foregoing the second sample and putting the Offender’s health ahead of their investigation.
[17] As I noted above, the reading obtained was 447mg/100mL. According to the website of the Cleveland Clinic, this is a potentially fatal level of intoxication that puts the individual “at risk of coma and death from respiratory arrest” (see: https://my.clevelandclinic.org/health/diseases/16640-alcohol-poisoning).
[18] The minimum punishment for offences under s. 320.14(1) is a $1,000 fine. Parliament has instituted increased minimum fines for high blood alcohol readings when a person is convicted under s. 320.14(1)(b). The minimum increases to $1,500 at readings of 120mg/100mL, and to $2,000 where readings are 160mg/100mL or over. While those minimums do not apply to the offence before me, they are nonetheless instructive and point to Parliament’s clear desire to punish higher levels of intoxication more severely.
[19] Crown counsel observed that the legislation provides for a $500 increase for every additional 40mg. For the Offender’s reading of 447, that would extrapolate to a fine of $5,500. This would be more than the maximum punishment available when the Crown proceeds summarily. This underscores the exceptionality of the Offender’s blood alcohol concentration.
[20] Further aggravating the situation is the location where the Offender was found. While there is certainly no safe roadway for someone in his condition, the fact that he was in a residential area on a Wednesday afternoon in the summer increases the risk he posed to the public. So too does the fact that he tried to fully enter his vehicle when approached by police and had to be physically grounded to prevent him from doing so. He was a clear, ongoing, and deadly danger to the public when he was arrested.
[21] As clear as the aggravating factors are, so too are the mitigating features.
[22] The Offender has pleaded guilty. While it is not an early plea, I was advised that he was in mental health court for an extended time and that his counsel tried valiantly to reach an alternative resolution with the Crown. This process included several Crown pre-trials and at least one judicial pre-trial. It is obvious that from the start, the Offender intended to resolve this charge. I do not hold the passage of time from arrest to guilty plea against him. His plea is a genuine sign of remorse.
[23] He also has a very supportive family. This is mitigating in that it increases his chances of success in the future. His risk of re-offending is lower, thanks to his family’s unwavering support. There is no question that addiction takes a toll far beyond the addict themselves. The Offender’s family has endured his years of alcohol and substance abuse. I suspect it is largely because they have stood by him that he is sober today. They are to be congratulated. I hope the Offender understands the blessing his family is to him.
[24] The most salient mitigating factor is the rehabilitation the Offender has undertaken since his arrest. He has gone from consuming 60 ounces of alcohol every day to 533 days of sobriety as of sentencing submissions, which I believe now stands at 575 days. That is truly remarkable. It is a testament to what the Offender is capable of. He should be proud. The Court congratulates him and wishes him continued success in his recovery.
[25] I would also note that since completing the program at Westover, the Offender has referred three other people to their services. Paying it forward in this way shows the Offender understands the nature of the problem addiction poses, and wants to help others get through it. That’s outstanding.
Analysis
[26] As set out above, the minimum penalty for impaired operation is a $1,000 fine. There is also a mandatory one-year driving prohibition, but that order is not disputed.
[27] In addressing driving offences, Parliament set out the following at s. 320.12:
320.12 It is recognized and declared that
(a) operating a conveyance is a privilege that is subject to certain limits in the interests of public safety that include licensing, the observance of rules and sobriety;
(b) the protection of society is well served by deterring persons from operating conveyances dangerously or while their ability to operate them is impaired by alcohol or a drug, because that conduct poses a threat to the life, health and safety of Canadians;
[28] The carnage that continues on our highways, despite decades of public education, shows how intractable a problem impaired driving is. All Parliament can do is increase penalties in the hope that stiffer sentences will discourage impaired drivers. Courts have taken up this approach and imposed significant penitentiary sentences, sometimes in the double digits, when impaired driving results in death or bodily harm.
[29] In all cases, denunciation and deterrence must be the guiding sentencing principles. Rehabilitation cannot be ignored, but it must be subordinate to the protection of society.
[30] The Bruzas decision, supra, is strikingly similar to the present case, and is helpful.
[31] Ms. Bruzas was found by police passed out behind the wheel of her vehicle in Sault Ste Marie. She was clearly impaired by alcohol. She was arrested and provided two samples of her breath, both resulting in readings of 390mg/100mL. She pleaded guilty to “over 80” contrary to the former s. 253(1)(b).
[32] Following her arrest, she undertook significant rehabilitative efforts. A volume of letters and certificates were filed on her behalf at sentencing, documenting her participation in counselling and treatment in Sault Ste Marie and Ottawa. The pre-sentence report outlined a very, very difficult upbringing. Ms. Bruzas was indigenous and had been both witness to and victim of abuse and violence while growing up. Despite these challenges, she obtained a nursing degree and worked in British Columbia and the Northwest Territories. She was working in the Yukon at the time of her arrest, but was on stress leave.
[33] In the result, Justice Condon denied Ms. Bruzas a conditional discharge and instead imposed a $2,000 fine.
Would a conditional discharge be an appropriate sentence?
[34] Section 730 sets out the requirements for imposing a discharge rather than entering a conviction on a finding of guilt. The test is three-fold and well known:
- Is the underlying offence punishable by a minimum sentence, or by a maximum sentence of 14 years or life imprisonment?
- Is a discharge in the offender’s best interest?
- Is a discharge contrary to the public interest?
[35] All these requirements must be met before a Court can elect to impose a discharge. That being said, as the focus of the constitutional question is the validity of the first test as it relates to a charge of impaired operation, I will set that requirement to the side and consider only the remaining two at this point.
[36] There can be little question that a discharge would be in the Offender’s best interest. Being spared a criminal conviction would be a significant boon to the Offender going forward. Potential employment and his ability to travel would be largely unhindered. If he was ever asked if he’d been convicted of a criminal offence, he could truthfully say no. I find a discharge would be in his best interest.
[37] The more difficult question is whether a discharge would be contrary to the public interest.
[38] One of the main planks supporting the Offender’s claim that a discharge would not be contrary to the public interest is the amount of rehabilitation he’s undertaken. The public interest, it is argued, is in the Offender getting healthy more than it is in convicting him. Conveniently, Parliament has already considered rehabilitation and its potential effect on sentencing in s. 320.23. That section reads as follows:
320.23 (1) The court may, with the consent of the prosecutor and the offender, and after considering the interests of justice, delay sentencing of an offender who has been found guilty of an offence under subsection 320.14(1) or 320.15(1) to allow the offender to attend a treatment program approved by the province in which the offender resides. If the court delays sentencing, it shall make an order prohibiting the offender from operating, before sentencing, the type of conveyance in question, in which case subsections 320.24(6) to (9) apply.
(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. (emphasis added)
[39] In cases where an offender completes a treatment program approved by the province, courts can grant relief from the minimum punishment and from the mandatory driving prohibition. Even in those cases, however, a discharge is specifically excluded from consideration.
[40] Returning to the Bruzas decision, supra, Justice Condon considered the public interest in granting a discharge at paragraph 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.
[41] This position is in line with the Court of Appeal for Ontario in the case of [R. v. Sanchez-Pino (1973), 11 C.C.C. (3d) 53 (Ont. C.A.) at paragraph 17], and the Superior Court of Justice in [R. v. Williams, 2024 O.J. No. 4530 (S.C.J.) at paragraphs 55 and 56].
[42] By no means should I be taken as minimizing the Offender’s rehabilitative efforts. At the time of the offence, he was in the grips of a powerful addiction. The work he has done since has broken that grip. As I said, he should be proud of how far he’s come. By leaving alcohol behind he has almost certainly added years to his life and made that life far, far better.
[43] My task here, however, is to consider not only the Offender’s circumstances, but the facts of the case. I have a person who was operating a motor vehicle with over five-and-a-half times the legal limit of alcohol in his blood. When police questioned him, he made it seem he wanted to drive away. He was in a residential area on a weekday afternoon in the summer. Police only became involved when a citizen saw the Offender urinating outside his vehicle. He was a grave danger to all users of the roads that day. His conduct must be denounced and deterred clearly and unequivocally.
[44] In my view, a discharge based on these facts would be contrary to the public interest. It would not hold the Offender sufficiently accountable and would not deter like-minded persons from drinking and driving. As Justice Condon said, it would likely inspire those with lower readings to pursue less than the minimum punishment. If a discharge were to be granted on these facts, the minimum punishment would be stripped of any real impact. This would contradict the clear will of Parliament and be inconsistent with the fundamental purpose and principles of sentencing.
Result
[45] I find that a conditional discharge would not be an appropriate sentence in this case. As a result, there is no need to move to the second stage of the process and decide the Charter application.
[46] The Offender will be sentenced to a $2,000 fine. I will hear from counsel as to how much time he would need to pay that amount, and I will also hear from both counsel on the issue of the victim surcharge.
[47] In addition, the Offender will be prohibited from operating a motor vehicle on any road, street, highway, or other public place for a period of one year.
[48] He will also be placed on probation for 12 months. In addition to the statutory conditions, the terms will be:
- Report in person to a probation officer within two working days of today’s date and after that, at all times and places as directed by the probation officer or anyone authorized to assist the probation officer in your supervision.
- You are to 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.
- Attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer, for, including but not limited to, alcohol abuse and psychological or psychiatric issues.
- You are not to operate or have the care or control of any motor vehicle.
[49] I recognize that a conviction will be more difficult for the Offender to bear going forward. It is required in these circumstances. I wish the Offender and his family all the best in the future.
Released: 12 May 2025
Signed: Justice S. G. Pratt