CITATION: R. v. Mainville, 2015 ONSC 1931
COURT FILE NO.: CR-14-43-AP
DATE: 2015-03-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Ms. J. McGill, for the Crown/Respondent
- and -
DANIEL MAINVILLE
Ms. J. Stewart, for the Appellant
Accused
HEARD: March 10, 2015 at Thunder Bay, Ontario
Mr. Justice J.S. Fregeau
REASONS ON APPEAL
INTRODUCTION
[1] Pursuant to section 813(a)(ii) of the Criminal Code, R.S.C., 1985, c. C-46, (the “Code”), Daniel Mainville (the “Appellant”), appeals against the sentence passed on him by Her Honour Judge D. Baig (the “Learned Trial Judge”) of the Ontario Court of Justice at Thunder Bay, Ontario on April 15, 2014.
[2] The grounds of appeal advanced by the Appellant are:
- That the Learned Trial Judge erred in imposing a sentence that was unduly harsh;
- That the Learned Trial Judge erred in failing to provide adequate reasons for denying the imposition of a conditional sentence;
- That the Learned Trial Judge erred in failing to appropriately weigh and consider the Aboriginal heritage of the Appellant;
- That the Learned Trial Judge erred in overemphasizing the principle of deterrence;
- Section 718.2(e) of the Criminal Code.
BACKGROUND
[3] On November 28, 2012, the Appellant was involved in a single motor vehicle accident. The Appellant was operating his half-ton truck on Mabella Road, off of Highway 11 outside of Thunder Bay when he crossed the centre line and drove his truck into the snowbank on the wrong side of the road.
[4] When police arrived at the scene, the keys were in the ignition, the truck was running and in neutral and there was the smell of burnt rubber inside the truck. The rear tires of the truck were partly buried in the gravel as if there had been attempts to drive the vehicle out after it had impacted the snowbank. The Appellant was unconscious in the driver’s seat. The police located a partially full 750 ml bottle of vodka inside the truck.
[5] The Appellant provided the police with his name. He believed that he was in Fort Frances, Ontario. The Appellant had to be physically supported by the police to avoid falling over. The Appellant’s breath samples registered 191 and 192 mgs of alcohol per 100 ml of blood.
[6] The Appellant’s criminal record includes three prior convictions for drinking and driving offences. Those convictions and the sentences imposed are as follows:
- 1987 – 10 – 27 Driving with Blood Alcohol Level in Excess of .08 60 days and One Year Prohibition;
- 1993 – 01 – 11 Driving with Blood Alcohol Level in Excess of .08 $800 Fine, One Year Probation and One Year Prohibition;
- 2002 – 02 – 25 Drive While Ability Impaired 6 Mos. CSO, One Year Probation and One Year Prohibition.
[7] On April 15, 2014, the Appellant pled guilty to one count of operating a motor vehicle with a blood alcohol content in excess of .08 mgs of alcohol in 100ml of blood contrary to s. 253(1)(b) of the Code. The Learned Trial Judge sentenced the appellant to 45 days incarceration to be served intermittently together with 18 months’ probation. The Learned Trial Judge recommended that the Appellant’s sentence be served in Fort Frances as his home community is immediately to the east of Fort Frances.
[8] The Appellant is an Anishnabek man and was 67 years of age at the time of sentencing. He is a member of the Couchiching First Nation, located immediately east of the Town of Fort Frances, Ontario.
[9] The Appellant is a residential school survivor having attended a residential school on or very near to his home community between the ages of seven and eleven years. The Appellant suffered and/or witnessed physical, psychological and sexual abuse while at residential school.
[10] The Appellant’s parents were also residential school survivors. The Appellant’s upbringing was heavily influenced by his parents’ alcohol abuse. At home, he witnessed domestic violence and was subject to physical punishment.
[11] The Appellant has suffered from alcoholism throughout his life. He relates his addiction to the collective residential school experiences of himself and his parents. The Appellant has also achieved lengthy periods of sobriety throughout his adult life, most recently since April 2013.
[12] Despite the issues and challenges the Appellant has encountered throughout his life, he is a highly respected member of the Couchiching First Nation. He has served 16 terms as a band councillor, serves as a director of a treatment centre and dedicates hundreds of hours annually to important and relevant community organizations. The Appellant enjoys the continued support of his spouse of over 40 years. He is a dedicated and involved father and grandfather.
[13] At the time of sentencing, the Appellant had just completed an intensive nine week out-patient treatment program through the Fort Frances Tribal Area Health Services Inc. He continues to abstain from alcohol and has engaged in recommended aftercare programming.
[14] Three documents filed as exhibits at the Appellant’s sentencing hearing are also contained in the Appeal Book. They are:
- Background and Treatment Plan for Daniel Mainville, dated December 4, 2013;
- Gladue Report for Sentencing;
- Letter from Fort Frances Tribal Area Health Services Inc. dated March 20, 2014, confirming the Appellant’s successful completion of treatment.
[15] These exhibits thoroughly review the Appellant’s personal history, current circumstances and rehabilitation efforts and intentions. In particular, the historical circumstances of the Appellant as an aboriginal offender are comprehensively canvassed.
THE POSITION OF THE APPELLANT
[16] The enumerated grounds of appeal set out in the Notice of Appeal can be conflated into three alleged errors of law which the Appellant submits occurred in the sentencing of the appellant:
- The Learned Trial Judge failed to meaningfully consider the circumstances of the Appellant as an aboriginal offender, as required by section 718.2(e) of the Criminal Code and R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688;
- The Learned Trial Judge failed to explain, in circumstances where the statutory conditions were met, why a conditional sentence of imprisonment was not appropriate, as required by sections 718.2(d) and 742.1 of the Criminal Code and the common law;
- The Learned Trial Judge placed inordinate emphasis on the sentencing principles of denunciation and deterrence and failed to place appropriate emphasis on the principles of rehabilitation and restorative justice.
[17] As a result of these alleged errors, the Appellant submits that the Learned Trial Judge applied wrong principles and imposed a sentence that was clearly unreasonable and manifestly excessive.
[18] The Appellant submits that the “sum total” of the Learned Trial Judge’s consideration and recognition of the Appellant’s aboriginal background is found at page one of the reasons for sentence:
Obviously alcohol has been a problem for him for most of his life. It seems from all of the reports that have been filed that it has been a problem for him and his family, and it certainly has been something that he indulges in to escape whatever devils are in his memory as a result of his upbringing which included attendance at residential school. (Reasons for Sentence Pg. 1, L 21-29)
[19] The Appellant submits that the Learned Trial Judge failed to meaningfully address the extent of trauma suffered by the Appellant as an aboriginal offender or to distinguish his circumstances from those of other non-aboriginal offenders.
[20] The Appellant further submits that the Learned Trial Judge was required to consider the imposition of a conditional sentence in this case because the statutory conditions were met and a conditional sentence was sought at the sentencing hearing.
[21] The Appellant submits that the Learned Trial Judge simply referred to the fact that the Appellant had received a conditional sentence for a 2002 impaired driving conviction. It is submitted that the Learned Trial Judge failed to even consider a conditional sentence for the Appellant or to explain why such a sentence was not appropriate in the circumstances.
[22] The Appellant submits that the extent of the Learned Trial Judge’s analysis of the appropriateness of a conditional sentence is found in the following passages of the Reasons for Sentence:
The courts that have dealt with you in the past have tried various things. (Pg. 2, L 21-22)
As far as I am concerned when you do this sort of thing you go to jail. I do not see any way to avoid it. Not for the fourth time. I do not see any way to avoid it. (Pg. 3, L 25-28)
[23] The Appellant submits that the Learned Trial Judge failed to adequately explain, in rejecting a conditional sentence, why in the particular circumstances of the Appellant, a conditional sentence would endanger the safety of the community and/or be inconsistent with the principles of sentencing set out in sections 718 to 718.2 of the Code.
[24] The Appellant submits that the Learned Trial Judge focussed exclusively on the sentencing principles of general deterrence and denunciation leading her to the conclusion that incarceration was the appropriate sentence.
[25] The Appellant submits that the Learned Trial Judge failed to consider appellate authority which has held that a conditional sentence, with appropriate conditions, can fully address all sentencing principles including general deterrence and denunciation, while at the same time avoiding incarceration. As a result, the Appellant submits that the Learned Trial Judge failed to take into account the mandatory sentencing principles found in sections 718.2(d) and (e) of the Code.
THE POSITION OF THE RESPONDENT
[26] In addressing the particular circumstances of the offence and the offender as before the Learned Trial Judge at the sentencing hearing, the Crown submits that the Appellant was being sentenced for his fourth drinking and driving conviction, had been involved in a single motor vehicle accident and that his blood alcohol readings were an aggravating circumstance relating to the offence that the court was required to take into consideration pursuant to s. 255.1 and s. 718.2(a) of the Code.
[27] The Crown submits that appellate review of the Learned Trial Judge’s Reasons on Sentence must consider the entire context of the sentencing hearing. Specifically, the Crown submits that, consistent with Gladue and Ipeelee, the Crown considered the Appellant’s aboriginal status and particular background at the sentencing hearing.
[28] As a result of this consideration and despite the Appellant’s record, the Crown exercised their discretion and declined to file the Notice of Increased Penalty. The Crown recognized that filing the Notice would require the Learned Trial Judge to impose a mandatory minimum term of imprisonment of 120 days. This mandatory minimum term of imprisonment would eliminate the possibility of an intermittent sentence which the Crown recognized would be detrimental to the Appellant. The Crown suggested a range of sentence of between 60 and 90 days incarceration and did not oppose an intermittent sentence.
[29] The Crown submits that the Learned Trial Judge was obviously aware of how and why the Crown exercised their discretion at the sentencing hearing. It is submitted that this must be taken into consideration on a review of how the Learned Trial Judge thereafter exercised her judgement in sentencing the Appellant.
[30] The Crown submits that the Gladue Report and other background reports were filed at the sentencing hearing and considered by the Learned Trial Judge. The Crown submits that the Learned Trial Judge’s reasons are sufficiently adequate to explain her analysis and to allow meaningful appellate review.
[31] The Crown submits that the reasons indicate that the Learned Trial Judge did consider all relevant sentencing principles including rehabilitation and struck an appropriate balance for this offender. Given the circumstances of the offence and the fact that the Appellant had three prior related convictions, the Crown submits that the Learned Trial Judge found general deterrence and denunciation to be the paramount sentencing principles. The Court noted that a conditional sentence had been imposed on the most recent conviction. That option was therefore rejected by the Learned Trial Judge.
[32] In determining that incarceration was required, the Crown submits that the Learned Trial Judge also addressed rehabilitation by imposing an intermittent sentence of only 45 days and recommending that it be served in Fort Frances. This allowed the Appellant to be in his home community Monday to Friday, enabling him to continue both his rehabilitation and his volunterr work in his home community.
[33] In all of the circumstances, the Crown submits that the Learned Trial Judge applied and correctly balanced all relevant sentencing principles and imposed a sentence that was reasonable and not excessive.
THE STANDARD OF REVIEW
[34] The standard of review on a sentence appeal is well established. In R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, Iacobucci J. stated the following at para. 46:
An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process…A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say that it has found the sentence to be clearly unreasonable.
[35] In Shropshire, Iacobucci J. adopted the approach of the Nova Scotia Court of Appeal in R. v. Pepin (1990), 1990 CanLII 2481 (NS CA), 98 N.S.R. (2d) 238 and R. v. Muise (1994), 1994 NSCA 198, 94 C.C.C. (3d) 119. In Pepin, at p. 251, the N.S.C.A. held that:
…in considering whether a sentence should be altered, the test is not whether we would have imposed a different sentence; we must determine if the sentencing judge applied wrong principles or [if] the sentence is clearly or manifestly excessive.
[36] In Muise it was held at pp. 123-24 that:
The law on sentence appeals is not complex. If a sentence imposed is not clearly excessive or inadequate it is a fit sentence assuming the trial judge applied the correct principles and considered all relevant facts…Sentencing is not an exact science…it is the exercise of judgement taking into consideration relevant legal principles, the circumstances of the offence and the offender.
DISCUSSION
[37] I decline to give effect to any of the grounds of appeal advanced by the Appellant. I dismiss the appeal for the following reasons.
[38] First, in consideration of whether the Learned Trial Judge applied wrong principles or placed undue emphasis on certain principles to the exclusion of others, I find it directly relevant that the Crown, in consideration of the Appellant’s aboriginal status and particular background, exercised their discretion as they did.
[39] The Crown recognized that filing the Notice of Increased Penalty would have resulted in a mandatory minimum period of incarceration of 120 days. The Crown declined to file the Notice, recognizing that such a period of incarceration would be counter-productive to the Appellant’s rehabilitation. Further, the Crown sought a period of incarceration of between 60 and 90 days, allowing the imposition of an intermittent sentence by the court.
[40] At the hearing of this appeal, the Crown confirmed that this was put on the record at the sentencing hearing. Thus the Learned Trial Judge, in beginning her analysis of the appropriate sentence for the Appellant, was aware that certain concessions had already been provided to the Appellant because of his particular circumstances as an Aboriginal offender.
[41] The Learned Trial Judge noted the aggravating facts of the offence and the Appellant’s three prior convictions. The Learned Trial Judge commented on the reports filed at the sentencing hearing, noting that the Appellant’s alcohol addiction was rooted in his residential school experiences.
[42] The Learned Trial Judge went on to express concern about the fact that the Appellant was a repeat offender who had received both probation and a conditional sentence in the past “presumably to address rehabilitation.” The court specifically noted that the Appellant is “involved with many young people who have to know that if they drink and drive they are looking at a jail term.”
[43] The Learned Trial Judge concluded that incarceration was required:
I do not see any way to avoid it. Not for the fourth time. I do not see any way to avoid it.
[44] I am prepared to take judicial notice of the fact that the Learned Trial Judge was presiding over a busy courtroom. Her Reasons for Sentence must be reviewed with this in mind and deference granted. In my opinion, she considered the purpose and objectives of sentencing, the principle of proportionality and the sentencing principles of s. 718.2 of the Code, including s. 718.2 (d) and (e). Specifically in consideration of these latter provisions, the Learned Trial Judge, expressing concern for the Appellant’s ability to continue to “function in (his) community”, granted the Appellant an intermittent sentence and recommended that it be served in Fort Frances.
[45] It is obvious to me that the Learned Trial Judge was of the opinion that less restrictive sanctions, including a conditional sentence, were neither appropriate nor reasonable given all relevant circumstances. I find that the Learned Trial Judge considered all relevant facts and applied correct principles.
[46] Having found that the Learned Trial Judge applied correct principles and considered all relevant facts, I must next consider whether the sentence imposed was clearly excessive.
[47] In determining that the appropriate length of the intermittent sentence for the Appellant was 45 days, the Learned Trial Judge expressly noted as mitigating factors the gap between the most recent prior conviction and the subject offence, the Appellant’s guilty plea and remorse and his efforts at rehabilitation.
[48] Given all mitigating and aggravating circumstances, and in particular the prior record of the accused and his gross impairment at the time of the accident, I reject the submission that a sentence of 45 days to be served intermittently is clearly or manifestly excessive. In my opinion, it is both reasonable and appropriate.
[49] The appeal is dismissed. On April 24, 2014, the Appellant was granted bail pending appeal. I order that the Appellant surrender himself into the custody of the Ontario Provincial Police at Fort Frances, Ontario on Friday April 10, 2015 at or before 7:00 p.m. local time to begin serving the balance of his intermittent sentence.
[50] A copy of these reasons and the resulting order shall be forwarded to the Fort Frances O.P.P.
The Hon. Mr. Justice J.S. Fregeau
Released: March 25, 2015
CITATION: R. v. Mainville, 2015 ONSC 1931
COURT FILE NO.: CR-14-43-AP
DATE: 2015-03-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
Daniel Mainville
REASONS ON APPEAL
Fregeau J.
Released: March 25, 2015
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