ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11 2490

DATE: 20130319

BETWEEN:

Her Majesty The Queen

Appellant/Crown

– and –

Dhanraj Bharratt

Respondent

Amy Barkin, for the Appellant/Crown

Peter Lam, for the Respondent

HEARD: February 22, 2013

RULING ON SUMMARY CONVICTION APPEAL

GILMORE J.:

Overview

[1] This is a Crown appeal against the sentence imposed upon the Respondent by Chisvin J. of the Ontario Court of Justice on November 23, 2011, for the offence of Operating a Motor Vehicle “Over 80”. The sentencing judge imposed a suspended sentence and probation for a period of twelve (12) months.

[2] The Crown did not file a notice of increased penalty and as such the sentencing judge did not impose the mandatory minimum sentence for a second offence. However, the trial judge also did not impose the mandatory minimum sentence for a first offence.

[3] The Crown argues that the sentence was an illegal one in that it did not recognize the mandatory minimum sentence for such offences, or alternatively that the sentence was demonstrably unfit in that it failed to advert to the principles of general and specific deterrence. The Crown submits that a fit sentence is one of fifteen (15) days imprisonment plus probation for a period of eighteen (18) months. Alternatively, the Crown submits that if the court is not inclined to impose imprisonment given that the Respondent has served his entire sentence, that a fine of $2,000.00 would be appropriate.

[4] The defence argues that the sentence was appropriate as the sentencing judge took into account the Respondent’s alcohol counselling, imposed a two (2) year driving prohibition on September 19, 2011, and that all of the circumstances were properly considered by the Court. Given that the Crown failed to file any Notice of a Previous Conviction, the sentence cannot be considered illegal, and Justice Chisvin properly took into account the appropriate sentencing considerations.

Background Facts

[5] The Respondent was stopped by police on March 6, 2011 by way of a Highway Traffic Act stop to verify that he was licensed. No erratic driving was observed. The Respondent was requested to and underwent a roadside screening device demand and registered a fail. He was taken back to the police station and provided samples of his breath, which registered readings of 207mg of alcohol in 100ml of blood.

[6] The Respondent has a criminal record for the same offense from 2009. He also received a conditional discharge from an assault conviction in 2008.

[7] The sentencing hearing took place on two dates. On the first date of September 19, 2011, the Crown and the court were concerned about the rehabilitation of the accused, given his high blood alcohol readings. Justice Chisvin addressed the issue by providing the accused with an opportunity to obtain alcohol counselling before sentencing him. He also imposed a two year driving prohibition on September 19, 2011.

[8] The sentencing hearing continued on November 23, 2011. On that date, the Respondent provided proof of counselling by way of a letter dated November 17, 2011, from Samuel Waldner M.Ed. Mr. Waldner indicated that the Respondent had met with him on September 23, 2011 and that he had been actively involved and expressed an “openness and motivation to learn more about alcohol abuse issues”. He had attended seven sessions of the ten session program by November 17, 2011. Mr. Waldner suggested in his correspondence that the Respondent’s prognosis was positive, as he had taken the situation seriously. The Respondent spent a total of $2,000.00 for private counselling in relation to alcohol issues.

[9] It is conceded that the Crown did not file a notice of increased penalty, notwithstanding the Respondent’s previous related record. The Crown’s position on sentencing was a fifteen day jail sentence, eighteen months of probation and a two year driving prohibition. The defence position was that a fine of $2,000.00 would substitute for a jail sentence, or in the alternative, that the jail sentence be an intermittent one.

[10] At the sentencing hearing, it was also submitted that the Respondent was 31 years old and works as a general labourer for the York West Plumbing Supply Inc. company, where he has worked since July 2006. He works 44 hours per week and earns $30,000.00 per year. He supports his five year old daughter, whom he sees on weekends. On the 2009 “Over 80” conviction the Respondent received a $1,300.00 fine, a one year driving prohibition and one year of probation.

[11] After imposing a suspended sentence with probation for a period of 12 months, Justice Chisvin raised with the Crown the application of a minimum sentence. The court took the position that because the Crown had failed to file a notice of increased penalty that no minimum sentence applied.

Position of the Crown

[12] The Crown reminded the court that the Criminal Code provides for mandatory minimum sentences for drinking and driving offences. Specifically section 255(1) of the Criminal Code sets out as follows:

Everyone who commits an offence under section 253 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 a summary conviction, to the following minimum punishment, namely,

(i) for a first offence, to a fine of not less than $1,000.00; (ii) for a second offence, to imprisonment for not less than thirty (30) days; and

(iii) for each subsequence to imprisonment for not less than one-hundred and twenty (120) days.

(b) for the offences prosecuted by indictment, to imprisonment for a term not exceeding five (5) years; and

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

[13] As the Crown did not file a notice of increased penalty, the minimum sentence of thirty (30) days for second offence did not apply. However, the Crown argued that although the section 727(1) notice was not filed, the sentencing judge had an obligation to determine a fit and just sentence within the statutory range established by Parliament and with regard to sentencing guidance from the appellant courts. The Crown submits that the sentencing judge was obliged to consider the recent criminal record for the same offence.

[14] The Crown referred to the case of R. v. Mohla; R. v. Singh 2012 ONSC 30, [2012] O.J. No. 388 (S.C.J.). In that case, Justice Hill reviewed the effect of section 727(1) as the Crown in that case had also not given notice of an intention to seek an increased penalty. At paragraph 129, Justice Hill said the following,

In the instance of a recidivist drinking/driving offender, with no notice proven, a sentencing judge may take into account a prior related conviction and pay impose a custodial sentence though not bound by the section 255(1) mandatory minimum period of incarceration…the court has complete discretion to determining fit and just sentence within the statutory range established by parliament and with regard to the sentencing guidance from the appellant courts.

[15] The Crown also reminded the court that the sentencing provisions for drinking and driving offences in the Code are intended to safeguard the health and lives of citizens against the dangers presented by drivers who drink. The Crown referred to the case of R.v. Ramage [2010] ONCA 488 at 74 and 75, citing R. v. McVeigh 1985 115 (ON CA), [1985] 22 C.C.C.(3d) 145 (Ont. C.A.), in which the court referred to every drinking driver as a “potential killer”. In that case, the court emphasized the importance of general deterrence in all drinking and driving cases, notwithstanding the fact that many persons charged with drinking and driving offences are otherwise good citizens who have never been involved with the criminal law.

[16] In summary, the Crown submits that the sentencing judge erred in law by imposing a sentence that was both illegal (as it failed to recognize the mandatory minimums) and demonstrably unfit by failing to recognize the importance of general deterrence in drinking and driving offences.

Position of the Defence

[17] The defence argued that the trial judge did not err in imposing a suspended sentence and one year of probation, because the judge considered all relevant factors including the circumstances surrounding the offence, the criminal record of the accused and the background of the accused. Further, it was the Crown who emphasized to the court the important role of rehabilitation and counselling in sentencing submissions. The sentencing judge also considered the importance of rehabilitation and counselling suggested by the Crown and asked the accused to obtain proper counselling and return to court. The sentencing judge was specific that he wanted proof of counselling and that it should be proper counselling. The Respondent followed the court’s advice and obtained individual private counselling for his alcohol issues.

[18] The defence submits that it would be improper to incarcerate the Respondent at this point, as he has already served his entire sentence. The defence relied on a case of R. v. Norwacki [2006] O.J. No. 1728, ONCA, where the Ontario Court of Appeal did not re-incarcerate an accused who had served 12 months of a 20 month conditional sentence, even where noting that a penitentiary sentence was warranted.

[19] The defence submits that the sentence imposed was appropriate and fit and the court considered all aspects of sentencing, including deterrence, denunciation and rehabilitation.

[20] Finally, the defence pointed out that the Respondent paid $2,000.00 for personal counselling, which appears to have greatly benefitted him. As such, there is no reason to impose a fine in addition to the counselling costs.

Analysis and Ruling

[21] I will allow the Crown appeal on the basis that the sentence was both demonstrably unfit and illegal.

[22] On the issue of illegality I find this sentence results in an offender who has a previous conviction being in a better position than a first time offender. I find that the sentence must therefore be a fine of not less than $1,000.00 as the result cannot leave Mr. Bharratt better off than he was following his previous conviction.

[23] However, the consideration for this court on an appeal does not end there. I am also not satisfied that the principles of general and specific deterrence were properly taken into account by the sentencing court and for the following reasons:

(a) The case law supports that consideration of prior similar convictions may be made even in the absence of the notice of increased penalty. For example, in R. v. Kumar 1993 1445 (BC CA), [1993] B.C.J. No 2266 at 97 to 99, the court specified the effect of the Crown not serving a notice of increased penalty as follows; “…the fact that the Crown has not notified the accused that a greater punishment will be sought, does not mean that the sentencing judge must sentence the person who has been convicted as if that person had no prior convictions for drinking – driving offences. Those offences can properly be taken into account and the sentencing judge can impose a greater sentence than would have been imposed if the offender had no previous convictions for drinking – driving offences, even if the notice is not served. The consequence of the fact that no notice has been given is only that the sentencing judge cannot go outside the range of sentences permitted for a first offender.” As well, in R. v. Norris [1988] N.W.T.J. 195 at 21 “… therefore if the Crown gives no notice in a prosecution for impaired driving after conviction…a previous conviction for impaired driving is relevant, in the same way that a previous conviction for public drunkenness or vandalism while impaired or dangerous driving while sober would be – indeed, just as a previous unblemished record would be relevant.” Therefore, while there was nothing illegal about the sentence imposed by the sentencing judge, it did not take into account relevant factors such as the Respondent’s prior related criminal record. In my view, such considerations are required in relation to the principles of general and specific deterrence.

(b) The principle of rehabilitation was given significant weight by the court in determining its sentence without due regard to the other principles of sentencing. While the Respondent’s counselling and his personal progress with respect to his alcohol issues was laudable, it should not have been the overriding factor to influence sentencing.

(c) While aware that the accused had a blood alcohol reading of 207mg of alcohol in 100ml of blood, the court did not sufficiently advert to this aggravating factor. A blood alcohol level of more than twice the limit cannot be effectively ignored, given the pronunciations of the Ontario Court of Appeal in R. v. Ramage and R. v. McVeigh with respect to the scourge of drinking and driving and its potentially devastating results on both innocent drivers and pedestrians and on the accused person him or herself.

[24] I agree with the defence that imposing a period of incarceration after the Respondent has served his entire sentence would not be in keeping with the Court of Appeal’s views on similar sets of facts. However, a clear message must be sent by this court with respect to both general and specific deterrence.

[25] Given all of the above and in light of the blood alcohol level of the accused, his past related record, the previous fine imposed, his personal circumstances and rehabilitation efforts, I would allow the Crown appeal and substitute a sentence of a fine in the amount of $2,000.00.

Justice C.A. Gilmore

Released: March 19, 2013