R. v. Neumann, 2013 ONSC 1918

COURT FILE NO.: CR129/11

DATE: 2013-05-29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

KATHE NEUMANN

Respondent

COUNSEL:

Arish Khoorshed, for the Crown

Charles Spettigue, for Ms Neumann

HEARD: March 27, 2013

REASONS FOR DECSION ON SUMMARY CONVICTION APPEAL

HOURIGAN J.

Introduction

[1] This is an appeal from a sentence imposed by the Honourable Justice Baldwin of the Ontario Court of Justice on August 4, 2011.

[2] The respondent pleaded guilty to the impaired operation of a motor vehicle and operation of a motor vehicle having a blood alcohol concentration over 80.

[3] The Crown sought to file a Notice of Application for Increased Penalty because the respondent had a previous conviction for impaired driving. The sentencing judge refused to accept the notice. The Crown appeals the sentence imposed.

[4] For the reasons that follow, I am allowing the appeal and imposing a sentence of 30 days’ custody. I am making an order that the fine paid by the respondent be repaid by the Crown within 30 days.

Facts

[5] The circumstances of the offences were outlined in the facts read in at the plea.

[6] On June 21, 2009 at 5:30 p.m. the respondent was observed by a witness operating a vehicle on the QEW near Grimsby.

[7] According to the witness, the respondent wandered out of her lane approximately twenty times, while speeding up and then braking her vehicle. The respondent almost struck the vehicle ahead of her on a number of occasions. The witness believed upon observation of the respondent that she was “out of it”.

[8] The OPP were contacted and Constable Davies eventually pulled in behind the respondent’s vehicle and activated her emergency lights and siren to conduct a traffic stop. The respondent’s vehicle did not stop and the constable made several attempts to stop the vehicle by use of lights, sirens, air horn and hand gestures. On three occasions the officer pulled to the left of the vehicle and at one point made eye contact with the driver while gesturing to pull the vehicle over.

[9] After the officer pursued the vehicle for approximately 8.5 kilometers, the respondent stopped her vehicle. Constable Davies approached the vehicle and asked Ms Neumann to exit. When asked by the officer whether she had consumed any alcohol the respondent answered “Two litres of wine”.

[10] Constable Davies formed the opinion that the respondent’s ability to operate a vehicle was impaired by the consumption of alcohol and arrested her for that offence.

[11] The respondent provided two breath samples. The first sample yielded a reading of 340 milligrams of alcohol and the second yielded a reading of 327 milligrams of alcohol.

[12] The defence accepted these facts as substantially correct with the exception of the reference to two litres of wine, as the respondent disputed the volume of alcohol consumed but not the fact that her ability to operate a vehicle was impaired by the consumption of alcohol.

[13] The respondent had been previously convicted of impaired driving on March 27, 2000.

[14] There is no issue that the respondent was served with, inter alia, a Notice of Application for Increased Penalty.

Sentenced Imposed

[15] At the sentencing hearing, the defence brought a Charter application alleging a breach of the accused’s section 7 rights and seeking an order prohibiting the Crown from filing the Notice of Intention to Seek an Increased Penalty.

[16] Justice Baldwin found that she was bound by the decision of Justice Kiteley in R v. Gill, 2011 ONSC 1145 and in particular:

In this sentencing hearing, I agree with Justice Kiteley that I can review the reasonableness of the Crown’s attempt to file the Notice of Increased Penalty.

[17] On her own volition Justice Baldwin gathered transcripts from other guilty pleas in impaired driving cases in Halton Region. The purported purpose of gathering these transcripts was to determine if the Crown office’s position on the filing of such notices was consistent:

One of the other things that I have considered and given counsel an opportunity to address if they wished, was the principle of treating similarly situated offenders in a similar manner. The transcripts that I provided to counsel, to make comment on if they wished, were all pleas that I took from Halton Crowns subsequent to the plea that I took with respect to Ms. Neumann.

[18] Justice Baldwin concluded that the Crown office’s position was not consistent:

Treating similarly situated offenders for similar offences is part of a sentencing judge’s job as mandated by Section 718 of the Criminal Code. I do not see how in sentencing Mark Keeling, Colin Grant and Brian Burgeon that I failed to do justice to the offender or apply any of the sentencing principles applicable in the Criminal Code. (Just as I fail to see how sending Ms. Neumann to jail for 30 days would achieve those same objectives.)

[19] Justice Baldwin declined to permit the filing of the Notice of Application for Increased Penalty and imposed a sentence of an $1,800 fine and two years’ probation. A two year driving prohibition was also imposed. That fine has been paid.

Decision of the Ontario Court of Appeal in R v. Gill

[20] Subsequent to the decision of Justice Baldwin in this case, the Ontario Court of Appeal released its reasons in R v. Gill, 2012 ONCA 607 wherein the court overturned the decision of Justice Kiteley.

[21] The Court of Appeal found that the decision to prove a notice is not akin to a decision to commence, continue or cease a prosecution and therefore concluded that it is not an exercise of core prosecutorial powers (see paragraphs 55 and 56).

[22] The court went on to explain the import of this conclusion:

[57] The distinction between prosecutorial decisions that engage the core prosecutorial discretion and other prosecutorial decisions is important because the former are reviewable only for abuse of process. Thus, if an accused challenges a prosecutorial exercise of discretion under s. 7 of the Charter, and that decision is said to go to the core prosecutorial power, it can offend the principles of fundamental justice only if it constitutes an abuse of process. Put in a more positive way, prosecutorial independence, itself a principle of fundamental justice, forecloses judicial review of core decisions under s. 7 for anything other than abuse of process.

[58] My conclusion that the Crown’s decision to prove the notice is not an exercise of a core element of prosecutorial discretion means that the principles of fundamental justice do not limit the review of the prosecutor’s discretion to allegations of an abuse of process. The question then becomes what is the appropriate scope of review under s. 7 for prosecutorial decisions that do not reflect the exercise of that core prosecutorial discretion. To answer that question, one must identify the applicable principles of fundamental justice.

[59] The principles of fundamental justice refer to those legal principles that are basic to, and vital to, our notion of criminal justice: Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, at paras. 141-146; Mohla, at para. 175. The applicable principles of fundamental justice will depend on the context. A prosecutor’s decision to prove the notice will run contrary to these principles of fundamental justice and, therefore, violate an accused’s s. 7 rights if it:

• undermines the integrity of the administration of justice;

• operates in a manner that renders the sentencing proceedings fundamentally unfair;

• is arbitrary; or

• results in a limit on the accused’s liberty that is grossly disproportionate to the state interest in proving the notice.

[23] Of particular importance to the case at bar was the court’s analysis of the principle of arbitrariness:

[64] Arbitrariness, a well recognized principle of fundamental justice, also applies to the exercise of prosecutorial discretion: see PHS Community Services Society, at paras. 126-132. A decision will be arbitrary and contrary to the principles of fundamental justice if the decision bears no relationship to the objective of the relevant legislation: Canada (A.G.) v. Bedford, 2012 ONCA 186, 2012 ONCA 186, 109 O.R. (3d) 1, at paras. 143-147. The relevant law for present purposes is s. 255 of the Criminal Code, which provides for minimum jail terms for second and subsequent drinking and driving offences.

[65] The objective of the sentencing regime established under s. 255 is obvious. The mandatory minimum jail terms for second and subsequent drinking and driving offences speak to Parliament’s resolve to reflect the community’s denunciation of conduct that is both inherently dangerous and one of Canada’s most pressing social problems. The statutory regime further demonstrates Parliament’s determination to deter the repetition of that conduct by the promise of certain incarceration.

[66] Service of the notice by the prosecutor, a precondition to a triggering of the mandatory minimum jail term, is consistent with and bears a direct relationship to the achievement of the legislative objective underlying s. 255. Without the notice, Parliament’s promise of incarceration for repeat offenders cannot be kept. Arguably it is where the prosecutor decides not to prove the notice that the exercise of prosecutorial discretion conflicts with the legislative objective of s. 255. However, the arbitrariness of that decision is constitutionally irrelevant as s. 7 is not engaged when the prosecutor chooses not to prove the notice.

[67] I think the policy enunciated by the Attorney General in the Memorandum is also relevant to the arbitrariness inquiry under s. 7. A decision by an individual prosecutor that bears no relationship to the objectives underlying the policy in the Memorandum would, in my view, be arbitrary and contrary to the principles of fundamental justice. The policy clearly calls for an exercise of discretion based on the mitigating and aggravating factors of the specific case. The policy also draws a distinction between prior offences that occurred more than five years before the latest offence and those that occurred within five years of the latest offence. Thus, for example, if a prosecutor took the position that the notice must be proved in all cases, or that the passage of more than five years since the last conviction was irrelevant, the prosecutor’s decision to prove the notice would bear no relationship to the objectives of the policy and would be arbitrary and contrary to the principles of fundamental justice.

[68] The arbitrariness inquiry based on the Attorney General’s policy does not, however, contemplate a review, on any standard, of the merits of the prosecutor’s decision. A decision to prove the notice predicated on both a recognition of the discretion, and an assessment of the mitigating and aggravating factors is consistent with the objectives of the Attorney General, regardless of how the discretion is exercised.

[69] On this record, it cannot be said that the prosecutor’s decision to prove the notice bore no relationship to the objectives of the policy set out in the Memorandum. The prosecutor was clearly alert to the policy and the significance of the time gap between the prior convictions and the conviction for which the respondent was being sentenced. The prosecutor also appreciated that the number of prior convictions, a clearly aggravating factor, was relevant to the exercise of his discretion.

[70] It is important to bear in mind that it was not for the prosecutor to prove that he did not act arbitrarily. It was incumbent on the respondent to establish a breach of s. 7 by demonstrating arbitrariness in the sense that the prosecutor’s decision bore no relationship to the objectives of the policy. The record offers no support for that assertion.

Positions of the Parties

[24] The Crown submits that the sentencing judge erred in law in concluding that the review of a prosecutor’s exercise of discretion to prove a notice engages a reasonableness analysis.

[25] The Crown further submits that the sentencing judge erred in principle in her unilateral decision to engage in a fact finding exercise by gathering transcripts of other guilty pleas in Halton and in relying upon that information.

[26] The respondent submits that the decision to file the notice must be reviewed pursuant to both the abuse of process doctrine and section 7of the Charter and that the Crown did not apply the appropriate criteria, did not conduct an investigation and did not receive input from his peers or supervisors.

[27] The respondent further submits that the decision in this case undermines the integrity of the administration of justice and is arbitrary. Specifically, the Crown’s failure to reassess the notice in issue in light of mandated criteria in a new Crown Policy Manual was arbitrary and amounted to bad faith. As a result, it is said to have violated principles of fundamental justice.

Analysis

[28] Turning first to the standard of appellate review on sentence, Chief Justice Lamer summarized the circumstances when a court of appeal should vary a sentence in R v. M. (C.A.) (1996) 1996 CanLII 230 (SCC), 105 C.C.C. (3d) 327, (S.C.C.) at paragraph 90:

Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

[29] I have concluded that the sentence imposed by Justice Baldwin was based upon errors in principle and is demonstrably unfit.

[30] Justice Baldwin did not have the benefit of the Court of Appeal’s decision in Gill. As a consequence she relied upon the decision of Justice Kiteley in Gill for the proposition that it was open to her to consider the reasonableness of the decision of the Crown to seek to file the notice. In so doing she erred in principle. As the Court of Appeal has made clear, a trial judge may review a prosecutor’s exercise of discretion to determine if the decision to prove a notice offends a principle of fundamental justice and violates section 7 of the Charter or is an abuse of process. That analysis does not engage a review of the reasonableness of the prosecutor’s decision.

[31] The Crown submits that Justice Baldwin also erred in principle in her unilateral decision to engage in a fact finding exercise by gathering transcripts of other guilty pleas in Halton and in relying upon that information.

[32] The limits to the role of the sentencing judge were considered by the Court of Appeal in R v. Hamilton 2004 CanLII 5549 (ON CA), [2004] O. J. No 3252 (C.A.) :

[63] The Crown’s argument does not however rest entirely on the reasonable apprehension of bias claim. Crown counsel contends that the trial judge, in overstepping his role, fundamentally altered the nature of the proceedings. Counsel contends that the trial judge turned the proceedings from one designed to determine a fit sentence for individual offenders, to one designed to enquire into a variety of societal problems which, the trial judge, through his experience, had come to associate with the sentencing of black women who courier drugs into Canada from Jamaica. Crown counsel contends that this fundamental alteration of the essential purpose of the proceeding in and of itself invalidates the result.

[64] I would not accept the Crown’s bias argument, however, I think there is merit to the second component of the Crown’s submission. The nature of the proceedings was fundamentally changed and this change contributed to the errors in principle reflected in the sentences imposed.

[65] Having read and reread the transcripts, I must conclude that the trial judge does appear to have assumed the combined role of advocate, witness, and judge. No doubt, the trial judge’s extensive experience in sentencing cocaine couriers had left him with genuine and legitimate concerns about the effectiveness and fairness of sentencing practices as applied to single poor black women who couriered cocaine into Canada for relatively little gain. The trial judge unilaterally decided to use these proceedings to raise, explore, and address various issues which he believed negatively impacted on the effectiveness and fairness of current sentencing practices as they related to some cocaine importers. Through his personal experience and personal research, the trial judge became the prime source of information in respect of those issues. The trial judge also became the driving force pursuing those issues during the proceedings.

[66] No one suggests that a trial judge is obliged to remain passive during the sentencing phase of the criminal process. Trial judges can, and sometimes must, assume an active role in the course of a sentencing proceeding. Section 723(3) of the Criminal Code provides that a court may, on its own motion, require the production of evidence that “would assist in the determination of the appropriate sentence.” Quite apart from that statutory power, the case law has long recognized that where a trial judge is required by law to consider a factor in determining the appropriate sentence and counsel has not provided the information necessary to properly consider that factor, the court can, on its own initiative, make the necessary inquiries and obtain the necessary evidence: R . v. Wells 2000 SCC 10, (2000), 141 C.C.C. (3d) 368 at 390-91 (S.C.C.); R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 at paras. 84-85.

[67] Recognition that a trial judge can go beyond the issues and evidence produced by the parties on sentencing where necessary to ensure the imposition of a fit sentence does not mean that the trial judge’s power is without limits or that it will be routinely exercised. In considering both the limits of the power and the limits of the exercise of the power, it is wise to bear in mind that the criminal process, including the sentencing phase, is basically adversarial. Usually, the parties are the active participants in the process and the judge serves as a neutral, passive arbiter. Generally speaking, it is left to the parties to choose the issues, stake out their positions, and decide what evidence to present in support of those positions. The trial judge’s role is to listen, clarify where necessary, and ultimately evaluate the merits of the competing cases presented by the parties.

[68] The trial judge’s role as the arbiter of the respective merits of competing positions developed and put before the trial judge by the parties best ensures judicial impartiality and the appearance of judicial impartiality. Human nature is such that it is always easier to objectively assess the merits of someone else’s argument. The relatively passive role assigned to the trial judge also recognizes that judges, by virtue of their very neutrality, are not in a position to make informed decisions as to which issues should be raised, or the evidence that should be led. Judicial intrusion into counsel’s role can cause unwarranted delay and bring unnecessary prolixity to the proceedings.

[69] Judges must be very careful before introducing issues into the sentencing proceeding. Where an issue may or may not be germane to the determination of the appropriate sentence, the trial judge should not inject that issue into the proceedings without first determining from counsel their positions as to the relevance of that issue. If counsel takes the position that the issue is relevant, then it should be left to counsel to produce whatever evidence or material he or she deems appropriate, although the trial judge may certainly make counsel aware of materials known to the trial judge which are germane to the issue. If counsel takes the position that the issue raised by the trial judge is not relevant on sentencing, it will be a rare case where the trial judge will pursue that issue.

[33] This is not a situation akin to where a sentencing judge is not satisfied that she has sufficient evidence and directs that witnesses be called to bridge that evidentiary gap. Such conduct is perfectly permissible (see R v. Gladue 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 at paras. 84-85 and R v. Wells (2000), 2000 SCC 10, 141 C.C.C. (3d) 368 at 390-91 (S.C.C.)). In my view, Justice Baldwin also went beyond the accepted practice of conducting legal research and engaged in evidence gathering; evidence that only supported one view. That conduct is impermissible, as the sentencing judge took on the role of advocate and/or witness.

[34] Moreover, the research produced is itself unreliable and misleading. It ignored a myriad of other factors that may have been present but not necessarily reflected in the record. For example, it is unknown whether there were Charter or other issues that lessened the prospects of conviction and resulted in the Crown taking a more lenient position on the guilty plea.

[35] It also ignores the possibility of other cases where the Crown sought to prove the notice in similar circumstances. At the sentencing hearing the Crown was placed in the impossible position of having to respond to selected cases that were gathered by the sentencing judge on the faulty premise that they were reflective of the practice of the Crown’s office.

[36] I conclude that Justice Baldwin erred in principle in gathering evidence and relying upon it in reaching her conclusion.

[37] Having determined that the sentencing judge erred in concluding that she could consider the reasonableness of the decision of the Crown to seek to file the notice and in gathering and relying upon evidence that she obtained, the analysis shifts to a consideration of whether the Crown’s decision to prove the notice runs contrary to the principles of fundamental justice and, therefore, violates the respondent’s section 7 rights and/or is an abuse of process. For the following reasons, I conclude that Ms. Neumann’s section 7 rights were not violated and that there was no abuse of process.

[38] First, given that no section 12 application was bought in this case there can be no finding of a grossly disproportionate limit on the respondent’s liberty interests (see Gill at paragraphs 71 and 72).

[39] Second, there has been no suggestion of improper motives or conduct by the Crown. Consequently, there can be no finding that the decision undermines the integrity of the justice system.

[40] Third, there is no specific procedural unfairness alleged and I find no such unfairness.

[41] The crux of the argument advanced by the respondent is that decision of the Crown to prove the notice was arbitrary. In particular, she submits that it was arbitrary because the decision was not reassessed in light of the new Crown Practice Memorandum.

[42] There is no merit to this argument. The policy in effect at the time of the respondent’s arrest pursuant to the Crown Practice Memorandum dated July 2, 2008 provided as follows:

3. Aggravating Factors in Impaired Driving and other Road Safety Offences

In cases involving impaired driving and other road safety offences, there are certain factual matters that can constitute aggravating factors. Before making significant decisions in these cases, Crown counsel should consider the following factors:

• Death, serious injuries and/or substantial property damage;

• A motor vehicle collision;

• Driving conduct that poses a high risk to other motorists, pedestrians and/or police, such as excessive speed, racing or flight from police;

• Whether the offence involves breach of a court order and frustrates the administration of justice, such as driving while prohibited;

• Whether the offence interferes with the enforcement of drinking and driving laws, such as failing to remain at the scene of the accident, flight from police or refusing to provide breath samples;

• The presence of vulnerable people, such as children (either in a motor vehicle or on foot);

• Any prior record for similar offences and/or fail to comply offences;

• Whether the accused’s provincial driving record indicates a history of unsafe driving and/or driving while suspended;

• High levels of blood alcohol concentration (s. 255.1 of the Criminal Code deems a reading over 160 milligrams to be an aggravating factor on sentence);

• Effect of past convictions and sentences upon the accused, including whether or not he or she has participated in treatment programs for alcoholism and/or drug addiction;

• Whether there is other evidence of chronic alcoholism.

[43] The revised Crown Practice Memorandum dated May 14, 2010 was adapted from the July 2, 2008 memorandum and the language is virtually identical:

APPENDIX A – Aggravating Circumstances in impaired Driving and other Road Safety Offences (excerpted from PM [2008] No. 4 – Impaired Driving and other Road Safety Offences)

In cases involving impaired driving and other road safety offences, there are certain factual matters that, if present, may constitute aggravating circumstances. Before making significant decisions 5 in these cases, Crown counsel should take such circumstances into account. These include:

• Whether the offence involves death, serious injuries and/or substantial property damage;

• Whether there was a motor vehicle collision;

• The presence of driving conduct that poses a high risk to other motorists, pedestrians and/or police; e.g. excessive speed, racing and flight from police;

• Whether the offence involves breach of a court order and frustrates the administration of justice, e.g. drive while prohibited;

• Whether the offence interferes with the enforcement of drinking and driving laws, e.g. fail to remain at the scene of the accident, flight from police and refuse to provide breath samples;

• The presence of vulnerable people, such as children (either in a motor vehicle or on foot);

• Whether the accused has a record for similar offences and/or fail to comply offences, and the seriousness, circumstances, number and proximity of prior related offences;

• Whether the accused’s provincial driving record indicates a history of unsafe driving and/or driving while suspended;

• Whether the offence involves a very high level of blood alcohol concentration, which may indicate a serious alcohol problem (s. 255.1 of the Criminal Code deems a reading over 160 milligrams to be an aggravating factor on sentence);

• The effect of past offences and sentences upon the accused, including whether or not he/she has participated in treatment programs for alcoholism and/or drug addiction;

• Whether there is other evidence of chronic alcoholism.

5. Significant decisions include the assessment of reasonable prospect of conviction and public interest, decisions regarding appropriate charges, bail, mode of election, resolution discussions, withdrawal of charges sentencing and decisions about post-conviction sanctions.

[44] Given the fact that there are no substantive differences between the two policies, I reject the notion that it was arbitrary for the Crown not to reconsider the issue of the notice in light of the release of the new memorandum.

[45] The respondent also argues that the decision was arbitrary because the Crown was not aware of the circumstances surrounding the first offence and did not have the respondent’s Highway Traffic Act abstract. I disagree. The Court of Appeal has made clear in Gill that a decision is arbitrary if it bears no relationship to the objective of the relevant legislation. The objective of s. 255 of the Criminal Code is to reflect the community’s denunciation of conduct that is both inherently dangerous and one of Canada’s most pressing social problems, and to deter the repetition of this conduct by the prospect of certain incarceration (see paragraph 65).

[46] In the case at bar, I conclude that it cannot be said that the decision of the prosecutor to prove the notice bore no relationship to the objectives of the legislation and the Crown Policy Memorandum. On the face of the Screening Form the Crown noted the high level of alcohol in the blood and the “horrible driving”. In my view, the fact that respondent had breath readings of more than four times the legal limit and engaged in very poor driving that continued for an extended distance are significant aggravating factors. These are factors listed in the Crown Policy Memorandum and demonstrate that the Crown was alive to the policy and the objectives of the legislation.

[47] I reject the suggestion that the Crown had an obligation to conduct an investigation and receive input from his peers or supervisors. That was done in Nixon but that was a very unusual case where the Crown was resiling from a plea agreement.

[48] The respondent further submits that the Crown had a duty to consider any prejudice that she might suffer. In support of this argument the respondent also relies upon the decision in Nixon. In that case the court held that prejudice to the accused’s interests although relevant is not determinative in considering whether a claim of abuse of process has been established (see paragraph 41).

[49] Accepting for the moment that the Crown may have had a duty to consider any potential prejudice, I note that no specific prejudice has been alleged. It is also not clear how the respondent suffered any prejudice. The accused was provided with a copy of the notice and the decision of the Crown to prove the notice left her in the same position that she was in when she received the notice. This is similar to the situation in Nixon where the Supreme Court found that the accused had suffered no prejudice by reason of the Crown resiling from a plea agreement because she was left in the same position that she was in before the plea agreement was reached.

[50] In Gill the Court of Appeal found that an abuse of process in the context of challenges to the exercise of prosecutorial discretion refers to decisions that undermine the integrity of the criminal justice system or fundamentally upon the fairness of specific proceedings. Such findings will result in an infringement of the liberty interests of the accused and are contrary to the principles of fundamental justice (see paragraphs 60 and 61).

[51] I find that no abuse of process has been established. There is nothing about the prosecutor’s conduct in this case which impacts on the criminal justice system as a whole. There is also nothing alleged to have been done which impairs the fairness of the specific proceeding.

[52] The sentence imposed is, therefore, demonstrably unfit as it fails to impose the mandatory minimum sentence of 30 days’ incarceration.

[53] The Crown does not seek a sentence beyond the mandatory minimum. That position is sensible. In the circumstances of this case, where Ms Neumann is undergoing bi-weekly therapy sessions to deal with her alcohol issues and the underlying problems associated with them, I do not find that a sentence beyond the minimum sentence is appropriate.

[54] Finally, the respondent argues that the court should not impose the mandatory minimum sentence of 30 days’ incarceration because of the passage of time between the date of the appeal and the date of sentence and given that the fine imposed has been paid. Defence counsel notes that in Gill the Court of Appeal did not impose the mandatory minimum sentence of 90 days. However, in that case the Crown conceded on appeal that even if successful, re-incarceration would not be sought. In the case at bar no such concession was made by the Crown. Moreover, the delay between the date of sentence and the date of the appeal was four years in Gill and was only 19 months in the case at bar. I decline to stay the imposition of the jail time and sentence the respondent to 30 days’ incarceration. With respect to the fine, I am ordering that it be repaid by the Crown to the respondent within 30 days.

HOURIGAN J.

Released: May 29, 2013