ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 25/13

DATE: February 7, 2014

B E T W E E N:

Her Majesty The Queen

D. Walker, for the Respondent

Respondent

• and -

Vladimir Vasile

B. Earhart

Appellant

HEARD: February 3, 2014

TEMPLETON, J.

[On appeal from the judgment of Pockele J. dated July 24, 2013]

[1] At the conclusion of a trial, the appellant was convicted of impaired driving. He was sentenced to 14 days in custody in addition to other sanctions.

[2] The appellant appeals the decision with respect to incarceration on the following grounds:

(a) that the sentence was unreasonable and cannot be supported by the evidence; and

(b) that the trial judge erred in finding that the circumstances of offence as well as the appellant required a custodial sentence.

[3] The appellant seeks an order setting aside the custodial disposition and imposing a fine in all of the circumstances.

Summary of the Evidence and Submissions at trial

(a) The Offence

[4] At approximately 2:30 am on January 1, 2013, the police found the appellant alone and behind the wheel of a car that was stuck in the snow in the median on Hwy 401 in the Township of Southwold. The appellant was attempting to extricate the vehicle by spinning the wheels.

[5] During his conversation with the appellant, the officer noted that the appellant’s speech was slurred and his eyes were glassy. The appellant indicated that he was trying to get home to Burlington. He produced his licence and insurance without difficulty but appeared unsteady on his feet as he accompanied the officer to the police cruiser. He slipped while climbing the embankment. The appellant indicated that he thought that he was going from Ancaster to Burlington on the Queen Elizabeth Way.

[6] A roadside breath test was administered at which time the officer detected an odour of alcohol on the appellant’s breath and arrested him for impaired driving. The appellant was taken to the OPP detachment in Elgin County where, at 4:18 am he provided a breath sample that returned a reading of 150 milligrams in 100 millilitres of his blood and a reading of 131 milligrams in 100 millilitres of his blood at 4:45 am.

(b) The Offender

[7] The appellant is 33 years of age and lives in Burlington, Ontario. He is not married. He has been employed by Milestone Foster Homes as a foster parent for three years and currently has a 17-year-old special needs foster child living in his care. He is also employed as an assistant manager at Hallowe’en City, a seasonally operated store. This position allows the appellant to supplement his income without affecting his ability to act as a fulltime foster parent.

[8] The appellant does not have a criminal record but for this conviction for impaired driving and has no record for any contraventions of the Highway Traffic Act.

(c) The Position of the Crown

[9] The Crown sought an increased fine and an increased period of prohibition from driving.

(d) The Position of the Defence

[10] The appellant sought an elevated fine, an elevated period of prohibition and, if necessary, a period of probation.

[11] Prior to sentencing, Mr. Vasile stated the following, “…My intentions were never to get to where I am now and I sincerely apologize for doing everything I have done. I have learned my lesson for everything that happened. This is, again, like my very first experience in the Canadian Court system ….I hope it never happens again and I hope I’m never in this situation again.”

The Judgment

[12] The trial judge firstly defines the circumstances of this offence as one of the more serious acts of impaired driving that can be contemplated under the section. In doing so, he describes the number of users of the highway, the speed of the vehicles using the highway and the extremely high risk of accidents as the factors in his assessment.

[13] He then refers briefly to s. 718 of the CCC in which Parliament has enunciated the purposes and principles of sentencing. From there, the trial judge adverts to two areas of criminal law that he perceives are the subject of intensive media campaigns, those being domestic violence and drinking and driving and states, “by that media blitz it demonstrates what Canadians think about drinking and driving in the context of respect for the law.”

[14] The trial judge moves from his consideration of the significance of the principle of denunciation to the principle of deterrence. He recognizes the appellant’s lack of criminal record and employment history and indicates that he will probably not be back before the Court but in the same sentence refers to a statistic the source and/or reliability of which are not identified that apparently indicates that 60% of the people who come before the Court for drinking and driving offences are repeat offenders.

[15] In the next phase of his reasons for sentence, the trial judge dismissed the cases submitted by counsel for the appellant as cases from the Ontario Court of Justice and the Superior Court and told the appellant that “….it is the Court of Appeal that drives sentencing and any approach to sentencing has to be principled and that is why I am referring to s. 718. None of the cases given to me act as authorities limiting or directing me as to what I can do or cannot do.”

[16] The trial judge acknowledged the “objective of putting people in custody and that “custody has to be used sparingly” and then went on to state the following,

“Remorse, if truly demonstrated, is demonstrated by an early guilty plea. Although it is not in s. 718, established case law would show that an individual who enters an early guilty plea, who saves the administration of justice and the public the expense of a trial should receive a significant credit, up to 20 or 30 percent, from what would be an otherwise appropriate sentence. You do not get that here. Not for a minute do you get a greater sentence because you had a trial but simply that you do not get a significant reduction in an otherwise appropriate sentence.”

[17] The judge then stated that he wanted to talk about sentencing “generally”,

“Now, sir, having regard to these principles I thought I would take some time to just refresh the position across Canada and in Ontario of what is happening in drinking and driving charges. Last night I access Statistics Canada’s latest publication on impaired driving in Canada 2011. They do not have that done for 2012. But, at page 1, they say that impaired driving is the leading cause of criminal death in Canada……..According to the Traffic Injury Research Foundation, impaired drivers with blood alcohol concentrations over 160 milligrams represent close to 70 percent of impaired drivers killed in car accidents. Your blood alcohol readings were a bit below that….Statistics Canada also says that there are generally, across Canada, fewer prison sentences for impaired driving convictions but generally the duration of jail sentences increase. Statistics Canada say that when judges sentence impaired drivers to jail that four out of ten admissions are served intermittently and I have that request today. Statistics Canada say that the most common offence for impaired driving is a payment of a fine. About one in ten receive a prison sentence, the medium average is 33 days. I suggest that reflects the number of people who were sentenced as repeat offenders. However there is no hard and fast rule that says, that is impaired drivers, first time offence in your circumstances must get a fine or must get probation……for the reasons I have indicated and the elements that I have stressed and the fact that I think that it is my duty on behalf of the people of Canada to deter and individual who would dare drive on 401 Highway with your blood alcohol concentration demands a jail sentence. You are not entitled to any reduction in an otherwise appropriate sentence because there is no genuine remorse demonstrated here. The principles of general deterrence and denunciation speak for a jail sentence and the sentence is going to be 14 days in jail.”

[18] In considering whether to allow the appellant to serve this sentence intermittently, the trial judge said the following,

“Now with respect to your request for an intermittent sentence. Your job at Hallowe’en City started on August 26, 2013. You were very foolish to go and seek employment with this sentencing hanging over your head. It is not permanent, fulltime, longstanding employment, which I would consider to be a threshold requirement for you to get and intermittent sentence. With respect to your contract as a foster parent, you are either going to be servicing (sic) the sentence of weekends with an intermittent sentence and you will not be foster parenting; I have been told that you are not available to do the sentence on weekends. Well, you drink and drive and it does not mean you will be getting an easy disposition. There will be no intermittent sentence here.”

Principles Relevant to Appellate Review of Sentences

[19] Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, this court should only intervene if the sentence is demonstrably unfit[^1].

[20] In R. v. Ramage[^2], Doherty J.A. noted that appellate deference to the sentencing judge’s decision makes sense for many reasons, including the advantage he or she has in being able to assess the severity of the crimes in the context of the particular community. In the words of Doherty J.A., the trial judge, is “much better placed to determine the sentence needed to adequately protect the community….” It is clear therefore that a trial judge’s discretion should not be interfered with lightly.

[21] By nature, sentencing is profoundly contextual, a delicate exercise requiring a fine balance of competing, if not antagonistic objectives, principles, and factors. The inherently individualized nature of the sentencing process, as well the significant advantage of the sentencing judge, especially in cases where, as here, sentence is imposed after trial, rather than on a plea of guilty, fully justifies a deference-based standard of review[^3].

[22] This deferential standard disentitles this court to vary a sentence simply because another judge would have imposed a different sentence at first instance[^4]. “Sentences for particular crimes vary, to some degree, across communities and regions in our province. The "just and appropriate" mix of accepted sentencing objectives, principles and factors depends upon and is a function of the needs and current conditions of and in the particular community where the offender committed the offence. All the more reason for appellate deference”[^5].

Principles of Law with respect to Sentencing

(a) The principles of sentencing

[23] The paramount sentencing objectives at work in this case were denunciation and deterrence. Since the appellant was a first offender, the prospect of rehabilitation was also a significant factor to take into consideration. Any sentence must also be proportionate to the gravity of the appellant’s offence, and the degree of his/her responsibility.

[24] Section 718 of the Criminal Code describes the fundamental purpose of sentencing persons convicted of crime. That purpose is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions on offenders. Among the sentencing objectives that underlie the sentencing decision are: denunciation, deterrence, assistance in rehabilitation, reparation for harm done, promotion of offender responsibility and acknowledgement of harm. As Watt, J.A. has noted, the last four sentencing objectives in particular demonstrate the influence of restorative justice components in the sentencing decision[^6].

[25] Parliament has included several other sentencing principles in the CCC and has directed sentencing judges to take these principles into account in determining what sentence to impose.

[26] These principles of sentencing are codified in sections 718.1 and 718.2 of the CCC. The application of these principles to the determination of an appropriate sentence is mandatory.

[27] S. 718.1 requires a sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of parity expressed in s. 718.2(b) requires the sentencing judge to take into consideration that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[28] The actual impact of the sentence on the offender must be considered. The conditions under which the offender will serve his or her sentence and any particular negative effects the sentence may have on an offender are also relevant considerations[^7].

[29] With respect to the issue of parity, in R. v. Roks[^8], Watts J.A. wrote the following,

“The concept of ‘parity’ is not ‘equivalence’; the concept of ‘similar’ does not mean ‘identical’ but crucial to the parity principle expressed in s. 718.2(b) are the cumulative requirements of similar offences, similar offenders and similar circumstances. Similar offenders should receive similar sentences for similar offences committed in similar circumstances. When the similarities begin to fall away, however, so does the principle. Offenders may be at different ages and stages, have different antecedents and realistic prospects for rehabilitation, and greater or lesser involvement in or responsibility for an offence. Some plead guilty and co-operate with authorities. A discount may follow in their cases. Others plead not guilty and have a trial. They don’t get the discount.”

[30] The importance of considering other decisions of the Court in addressing the principle of parity was discussed by Justice Gouge in R. v. C.J.T.[^9]

“It is important to distinguish between two variables in the sentencing process. Every offender is an individual, whose individual circumstances must be considered in pursuit of the objectives identified in section 718 of the Criminal Code. For that reason, one cannot say that two different individuals who commit substantially identical offences should necessarily receive the same sentence. By contrast, every judge comes to the bench with a unique life experience, and approaches sentencing with the baggage of her or his individual cultural and societal values and personal history. To the extent possible, a judge must put such matters aside, because the sentence imposed should not depend on the individual views and values of an individual judge. Rather, a sentence should reflect a consensus of judicial opinion respecting appropriate sentences for similar individuals who commit similar crimes. The importance of this point is emphasized by the specific direction given by section 718.2(b) of the Criminal Code, and by the constitutional right to equality before the law guaranteed by section 15 of the Canadian Charter of Rights & Freedoms.

(b) The role of the trial judge in sentencing proceedings

[31] In the case at bar, the trial judge referred to statistics with respect to the percentage of people who come before the Court for drinking and driving as repeat offenders; the amount of credit typically awarded for an early guilty plea; and statistics from Statistics Canada with respect to impaired driving. Although the issue of his reference to and use of an outside resource was not argued on appeal, given the substantial tie and emphasis placed by the trial judge on the information elicited it is appropriate to address this issue.

[32] In R. v. Hamilton and Mason[^10], the Court of Appeal for Ontario wrote as follows with respect to the reference and use of outside sources by the judge in the sentencing process,

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), 2000 SCC 10, 141 C.C.C. (3d) 368 at 390-91 (S.C.C.); R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688 at paras. 84-85.

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.

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…

A third problem with the trial judge’s conduct of the proceedings is that it created a real risk of inaccurate fact-finding. The trial judge introduced a veritable blizzard of raw statistical information.…None of this material was analysed or tested in any way...

It is difficult to know what to make of the statistical data without the assistance of evidence from a properly qualified witness…

I do not think the meaning of the statistics introduced by the trial judge or the inferences that could be properly drawn from them is self-evident. There were real risks that these statistics could be misunderstood and misused absent proper expert evidence. Instead of being treated with the caution that all statistics deserve, these statistics – probably because they were introduced by the trial judge – took on a strong aura of reliability and were treated as if they were self-explanatory.

Analysis

[33] I conclude that the appeal must be allowed. In my view, the sentencing judge erred as follows:

(i) he failed or refused to consider the principles of sentencing defined in 718.1 and 718.2 (b) of the CCC; and

(ii) he introduced dated statistical data on the basis of his own research without notice to counsel or the benefit of expert evidence with respect to the credibility and reliability of the data or interpretation of same;

(iii) he criticized the appellant for obtaining employment while the appellant had outstanding charges before the Court which efforts are not legally objectionable and do not preclude the option of an intermittent sentence if such a sentence were appropriate in all the circumstances.

(a) The sentencing judge failed to consider the principles of sentencing defined in sections 718.1 and 718.2 (b) of the CCC;

[34] When the trial judge apparently rejected the cases presented to him by counsel for consideration merely on the basis that none of the cases given to him act as authorities limiting or directing him as to what he can or cannot do, he appeared to reject the concept that a sentence should reflect a consensus of judicial opinion respecting appropriate sentences for similar individuals who commit similar crimes.

[35] And although he appeared to dismiss the cases tendered to him by counsel because they were decisions of the Superior Court of Justice and Ontario Court of Justice, the trial judge also failed (a) to identify any decisions from the Court of Appeal that he had considered for the purpose of parity in sentencing in which cases sentences were imposed on similar offenders for similar offences committed in similar circumstances; and (b) to provide reasons with respect to why the cases proffered by counsel were distinguishable or not otherwise worthy of consideration on the basis facts before him.

[36] The appellant argues that the trial judge overemphasized the location of the offence, a 400 series highway.

[37] I do not agree. The risk to human life created by a driver who is impaired is overwhelmingly serious and must be sanctioned. It is common knowledge that the 400 series of highways are usually fully occupied by users of the road at all times of day and night and that the risk of harm to another human being by an impaired driver is exponentially increased on these roads in particular just as it is in residential neighbourhoods in which schools are located.

[38] I do agree, however, that the trial judge appears to have failed to consider the principle of parity set out in sections 718.1 and 718.2 (b) of the CCC by failing to advert to any situations whatsoever in which like sentences were imposed on similar offenders for similar offences committed in similar circumstances

(b) The sentencing judge introduced dated statistical data on the basis of his own research without notice to counsel or the benefit of expert evidence with respect to the credibility and reliability of the data or interpretation of same

[39] As I have indicated, this issue was not argued on appeal but the predominance of reference to statistical data and apparent reliance on this data to draw inferences and conclusions in the decision of the sentencing judge begs observation and consideration in the context of this appeal and the overall consideration of fairness in the administration of justice.

[40] It is important to note firstly, that the evidence of statistical data with respect to impaired driving that was referred to and relied upon by the judge was not elicited by counsel. The judge obtained this information of his own accord on his own initiative. Secondly, the information was not provided to either counsel in advance to allow them to make submissions as to the reliability of the data, the context of the collection and interpretation of the data, the reliability of the formulas used to convert the data into statistical information and the relevance of the data to the facts of the case at bar. Thirdly, I note that the statistics referred to by the trial judge from Statistics Canada were at least two years old and no allowance was afforded by the judge for any change in the statistics by way of improvement or otherwise. As in Hamilton (supra), instead of being treated with the caution that all statistics deserve, these statistics – probably because they were introduced by the sentencing judge – took on a strong aura of reliability and were treated by him as if they were self-explanatory.

[41] In my view, this is a significant error that affects the appearance of fairness in the decision-making process of the sentencing judge.

(c) The sentencing judge criticized the appellant for obtaining employment while the appellant had outstanding charges before the Court.

[42] A fundamental principle of sentencing is rehabilitation of the offender. There is little doubt that employment assists in that rehabilitation. There is also no doubt that in this particular case, society benefits greatly from the services rendered by the appellant who offers support and guidance to other members of society who are in need of a home and help.

[43] In R. v. A.M. El-Sayed[^11], the Ontario Court of Appeal allowed the sentence appeal and made the following comments in respect of this approach by the same trial judge,

“In this case, in our view, the sentencing judge erred in principle in two respects. First, he was critical of the appellant for obtaining employment and starting his own business while he had outstanding charges before the court…The sentencing judge’s reasons confirm that his concerns regarding the appellant’s employment-related activities grounded his decision to deny the appellant’s request for an intermittent sentence…With respect, the sentencing judge’s concerns on this issue were misplaced. There was nothing legally objectionable about the appellant’s efforts to secure and maintain employment prior to sentencing. Certainly these efforts did not preclude an intermittent sentence option, if this were otherwise appropriate in accordance with the factors set out in s. 732 of the Criminal Code. Indeed, as the appellant’s counsel points out, offenders are often encouraged by the courts to seek employment while awaiting the disposition of charges, as an aid to eventual rehabilitation.”

[44] In the case at bar, the sentencing judge also imported an employment threshold into the intermittent sentence option in finding, “It is not permanent, fulltime, longstanding employment which I would consider to be a threshold requirement for you to get an intermittent sentence.” The imposition of such a condition precedent as a threshold requirement to the granting of an intermittent sentence is an error in principle.

Conclusion

[45] The aggravating factors in this case are that he had an excessive amount of alcohol in his blood and was driving on a busy major highway placing other users of the road at high risk of injury or death. The mitigating factors are that the appellant is a first-time offender. He has no prior record. He has regular employment that contributes directly to society. He was alone in the vehicle when driving. He expressed remorse at the time of sentencing. The principles of denunciation and deterrence and the balance of the sentencing principles set out in s. 718, s. 718.1 and s. 718.2 including the principle of parity in light of the case law referred to by counsel, are satisfied with the imposition of a substantial fine, a period of probation with conditions and a prohibition from driving.

[46] For all of these reasons, the appeal is granted, the sentence of the trial judge is set aside and the following sentence is imposed in its place. An order shall issue accordingly:

Vladimir Vasile (a) shall pay a fine of two thousand dollars ($2000) within 6 months; and (b) is prohibited from operating a motor vehicle on any street, road, highway or public place in Canada for one year; and (c) is placed on a period of probation for 12 months which probation order shall include the statutory conditions and the condition that he not consume any alcohol or alcoholic beverage during the period of probation. He is to report to a probation officer within 5 working days of the date of this order. The victim fine surcharge is waived.

Justice L. Templeton

Date: February 7, 2014

[^1]: R. v. C.A.M., 1996 230 (SCC), [1996] 1 S.C.R. 500; R. v. L. M., 2008 SCC 31

[^2]: 2010 ONCA 488

[^3]: R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500

[^4]: R. v. M. (L.), 2008 SCC 31, [2008] 2 S.C.R. 163

[^5]: R. v. Jacko, 2010 ONCA 452

[^6]: Jacko, supra

[^7]: R. v. Nur, 2013 ONCA 677

[^8]: 2011 ONCA 618

[^9]: [2012]B.C.J. No. 2586

[^10]: 2004 5549 (ON CA)

[^11]: 2013 ONCA 754