Court File and Parties

COURT FILE NO.: 15-0363 (Guelph) DATE: 2016 04 12

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Janine Hodgins, for the Respondent Respondent

- and -

ANDREW KRISTIAN POWER David D’Intino, for the Appellant Appellant

HEARD: January 7, 2016 & March 21, 2016

REASONS FOR JUDGMENT

[On appeal from the judgment of May 13, 2015 by the Honourable Mr. N.S. Douglas]

Fragomeni J.

[1] On May 13, 2015, Justice Norman Douglas gave Mr. Power a suspended sentence and probation for 12 months with the following conditions:

(a) report to and be under the supervision of a probation officer;

(b) be assessed, treated and counselled for any issues identified by the probation officer, which will include substance abuse;

(c) reside at a place approved of by the probation officer and not change that address without the probation officer’s prior consent;

(d) complete 40 hours of community service, to commence within 90 days and to be completed at a rate satisfactory to the community service coordinator; and

(e) keep the peace and be of good behaviour.

[2] Mr. Power was also given a Driving Prohibition for a period of three years.

[3] On March 17, 2015, Justice Douglas found Mr. Power guilty of dangerous driving. He stayed the charge of operating a motor vehicle while impaired by a drug.

[4] This sentence appeal relates only to the three year driving prohibition imposed by Justice Douglas on May 13, 2015.

[5] At the sentencing submissions made on May 13, 2015, the positions put forward by trial counsel were as follows:

Defence:

“So then if you’ve read the pre-sentence report, you know that Mr. Power is a single father, who resides with his own father and is taking care of his infant child; her name – the baby girl, Jessa Faith (ph). You will also note that Mr. Power comes before you, although convicted of dangerous driving by Your Honour, has no criminal record. He does have the entries on his driving record with the Ministry of Transportation, which of course Your Honour could consider to be an aggravating sentence – aggravating factor on sentence. But it is my submission that an appropriate disposition for Mr. Power in this case is a conditional discharge, with a period of 12 months probation. As I say, he is not youthful chronologically, but he is a youthful offender, in the sense that he has no criminal record; he is a single father. While dangerous driving is obviously egregious to public safety, in this situation there was no injury to any person. And it would not be against public interest to award – or sentence Mr. Power to a conditional discharge, with a period of probation in which case he could take, you know, safety courses on driving and counselling, as required. You’ll note that his sister did mention – she believed that he should take counselling, although she was not clear as to what type of counselling that should be. Essentially, I think any person could benefit from it and, as part of his probation, Mr. Power could probably benefit from an order for counselling as directed by a probation officer. He – I could see that Your Honour could also ask Mr. Power to do some community service. I would suggest, given his obligations with the infant child, that it should not exceed 50 hours over the 12-month period. And, in addition to that, I believe that the principles of denunciation and general deterrence would be – would be satisfied by that sentence for this offender. If I’m wrong and Your Honour does not agree that a conditional discharge is a just disposition in this case, then I still believe it should be a non-custodial disposition, and I would ask Your Honour to suspend the passing of sentence and place Mr. Power again on a period of probation, with the same terms, the statutory terms, and the terms that have been suggested. And I note that an order for a prohibition is well within Your Honour’s discretion to make and in a conviction such as this, but I would ask Your Honour not to exercise that discretion based on the fact that Mr. Power does have a young child. A car would make his life easier. The child does have access to a mother and Mr. Power is responsible for transporting the child to the mother for having the visits, and he’s also taking the child to the doctor, or whatever else, activities, other things that have to be done. So, subject to any questions, those are my submissions.”

Crown:

“Your Honour, I wasn’t the trial Crown so I don’t have an entire flavor for the offences before – the offence before the court, but I am of the view that it would be contrary to the public interest to grant the discharge. Certainly there’s a disregard for the public interest in the driving that was exhibited by this fellow on this particular date. He comes before the court. He’s got a driving record. His last conviction I see is in March of 2011; fail to come to a stop at an intersection. That would be another type of offence that I would respectfully submit displays a disregard for the other folks on the road. I’m asking the court – I’m going to leave it up to the court whether a short sharp period of custody is warranted under the circumstances. Certainly I am advocating for a driving prohibition, perhaps for a 12-month period.”

[6] In his Reasons for Sentence Justice Douglas sets out the following considerations, in part:

“The accused’s driving was of a major concern to the police who were involved. One of them said that she was fearful that the accused was going to kill someone, that is, the first officer who was following the accused, pacing him at 120 kilometres in a 60 on a very busy road in our community. She says that he was travelling at a very high rate of speed, passed a vehicle on its left, described his driving as ‘flying’, said he had no regard for other vehicles, no signaling, very quick passing in, passing out. She was very concerned.

I won’t go through it all again, but to say that this driving requires some form of denunciation by the Court, and clearly, in my view, the issue isn’t whether Mr. Power should be given a condition [sic] discharge or not, the issue is whether I should be sending Mr. Power to jail or not. I have given the matter serious thought. I’ve read carefully the pre-sentence report, which I find to be on the positive side. He has no current source of income, according to the pre-sentence report, has struggled with drug addiction in the past, although he doesn’t feel he requires any counselling. It’s my respectful view that he does. But he is a first offender and I have determined that in order to satisfy the principles of sentencing, a suspended sentence and a three-year driving prohibition would meet the ends of justice, and so I do not need to send him to jail, however, in my view, the taking away his licence for a period of three years is a sufficient penalty to satisfy the principles of denunciation, specific deterrence and general deterrence and protection of the public.”

POSITIONS ON APPEAL

Position of the Appellant

[7] The Appellant sets out the following grounds of appeal:

1. the learned sentencing judge failed to provide sufficient reasons for sentence in accordance with the Supreme Court of Canada in R. v. Sheppard, 2002 SCC 26, 2002 1 S.C.R. 869; and
2. the three year driving prohibition was excessive and outside the range of sentence and its imposition violated the principle of proportionality.

Position of the Crown

[8] The Crown makes the following submissions:

1. an appellate court should only intervene to vary a sentence if it is demonstrably unfit and/or a substantial and marked departure from sentences customarily imposed for similar offenders committing similar crimes;
2. the sentencing judge imposed the appropriate sentence and considered the following aggravating factors: (a) the nature of the driving taking into account the speed, location and vehicle manoeuvers; and (b) the appellant’s impairment while driving; and
3. the lengthy driving prohibition was a counter balance to the non-custodial disposition in order to satisfy the principles of sentencing.

ANALYSIS AND CONCLUSION

[9] In R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3 the Supreme Court of Canada set out the following at paras. 35, 37, 43, 52-54:

[35] In summary, the cases confirm:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered ( see Sheppard , at paras. 46 and 50 ; Morrissey , at p. 524).

(2) The basis for the trial judge’s verdict must be “intelligible”, or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge’s process in arriving at the verdict is unnecessary.

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the “live” issues as they emerged during the trial.

This summary is not exhaustive, and courts of appeal might wish to refer themselves to para. 55 of Sheppard for a more comprehensive list of the key principles.

[37] As we have seen, the cases confirm that a trial judge’s reasons should not be viewed on a stand-alone, self-contained basis. The sufficiency of reasons is judged not only by what the trial judge has stated, but by what the trial judge has stated in the context of the record, the issues and the submissions of counsel at trial . The question is whether, viewing the reasons in their entire context, the foundations for the trial judge’s conclusions — the “why” for the verdict — are discernable. If so, the functions of reasons for judgment are met. The parties know the basis for the decision. The public knows what has been decided and why. And the appellate court can judge whether the trial judge took a wrong turn and erred. The authorities are constant on this point.

[43] The answer is provided in Dinardo and Walker — what is required is that the reasons, read in the context of the record and the submissions on the live issues in the case, show that the judge has seized the substance of the matter. Provided this is done, detailed recitations of evidence or the law are not required.

[52] In Sheppard , the Court, per Binnie J. enunciated this “simple underlying rule”: “[I]f, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law [under s. 686 of the Criminal Code] has been committed” (para. 28).

[53] However, the Court in Sheppard also stated: “The appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself” (para. 26). To justify appellate intervention, the Court makes clear, there must be a functional failing in the reasons. More precisely, the reasons, read in the context of the evidentiary record and the live issues on which the trial focussed, must fail to disclose an intelligible basis for the verdict, capable of permitting meaningful appellate review.

[54] An appellate court reviewing reasons for sufficiency should start from a stance of deference toward the trial judge’s perceptions of the facts. As decided in H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25, and stated in Gagnon (at para. 20), “in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected”. It is true that deficient reasons may cloak a palpable and overriding error, requiring appellate intervention. But the appellate court’s point of departure should be a deferential stance based on the propositions that the trial judge is in the best position to determine matters of fact and is presumed to know the basic law.

[10] In R. v. Noel, [2006] O.J. No. 3183, (Ont C.A.), the Court noted the following at para. 4:

[4] Although the Crown requested a global sentence of 44 months imprisonment less five months credit for time served, the sentencing judge was not bound by this position nor was he required to give specific reasons addressing the interests of the administration of justice before departing from it. On the record before us there is nothing to indicate that this was a negotiated plea nor that the appellant was specifically induced to enter pleas of guilty based on the sentencing position taken by the Crown.

[11] In Labatt Brewing Co. v. NHL Enterprises Canada, 2011 ONCA 511, the Court dealt with procedural fairness at paras. 14 and 21 as follows:

14 The applications judge did not raise this issue with the NHL or Molson during their submissions. He did not, therefore, have the benefit of their position on what ultimately became the pivotal conclusion on which his judgment, and rights of the parties, turned.

21 In summary, the NHL and Molson were not given an opportunity to address the ultimate conclusion reached by the application judge…As Cronk J.A. said in Gras at para. 53, “at the end of the day, the issues between the parties are defined by and confined to those pleaded.” That did not happen in this case with the result that NHL and Molson were denied procedural fairness.

[12] In the Alberta Court of Appeal decision in R. v. Keough, 2012 ABCA 14, Labatt was followed and stood for the principle that parties are entitled to reasonable notice if the judge proposes to decide the case in a way not advocated by either party. In Keough the Court stated the following at paras. 20 and 21:

[20] The case law recognizes the importance of a trial judge giving fair warning to counsel when he or she proposes to sentence outside the recommended range: R. v Hood, 2011 ABCA 169 at para. 15 ; R. v Abel, 2011 NWTCA 4 at para. 23 ; R. v Beal, 2011 ABCA 35 at paras. 15 , 18, 502 AR 177, 44 Alta LR (5th) 306. This is a component of a wider principle that the parties are entitled to reasonable notice if the judge proposes to decide the case in a way not advocated by either party: R. v Al‑Fartossy, 2007 ABCA 427 at paras. 22-5 , 83 Alta LR (4th) 214 , 425 AR 336 ; Murphy v Wyatt , [2011] EWCA Civ 408 , [2011] 1 WLR 2129 at paras. 13-19 ; Labatt Brewing Co. v NHL Enterprises Canada, 2011 ONCA 511 at paras. 5 , 14, 106 OR (3d) 677; In Re Lawrence’s Will Trusts , [1972] Ch 418 at p. 436-7 . Nevertheless, the sentencing judge has an obligation to impose a fit sentence, and neither exceeding the recommended range, nor failing to give counsel notice of intention to exceed the range, is, without more, reviewable error. If the sentence imposed is not demonstrably unfit having regard to the principles of sentencing in the Criminal Code, appellate interference is not warranted. Failing to seek the input of counsel may, however, make it more likely that the trial judge may overlook or overemphasize the relevant factors, rely on an irrelevant factor, impose a sentence based on an error in principle, or commit some other reviewable error.

[21] In some cases the failure to warn counsel that the sentencing judge is considering exceeding the recommended range may have no practical effect. It may well be that the relevant points, and the supporting case law, were fully canvassed during argument, and there was little more that could have been said; the trial judge simply disagreed with counsel. That was not, however, the case with this sentencing. The trial judge explained that his departure from the recommended structure of the sentences resulted because the Crown “did not develop a position” justifying concurrent sentences. This is precisely the type of situation in which counsel should have been given an opportunity to make further submissions. The Crown (as will be seen from the next section of these reasons) would have been able to “develop such a position”. Given the submissions being made by the Crown at the sentencing hearing, counsel for the appellant also likely did not emphasize the appropriateness of concurrent sentences. As such, counsel for the appellant may well have had much to say in support of the Crown’s position, if an opportunity had been extended. Similar observations can be made about the trial judge’s perception that the Crown had overlooked the “private use materials” dimension of the charges.

[13] Justice Douglas did not advise the parties that he intended to order the maximum three year driving prohibition. In the case at bar it is difficult to assess what factors Justice Douglas took into account in concluding that the maximum three year driving prohibition was required.

[14] Neither trial counsel provided Justice Douglas with the relevant case law to assist him in reviewing the driving prohibition sentencing range determined in other cases. At this appeal hearing, the appellant filed numerous cases to assist in determining that appropriate range.

[15] At paragraph 41 of his factum the appellant reviews, in summary form, the following cases:

In R. v. Amato 2010 ONCJ 311 the accused was found guilty of dangerous driving and failing to stop for police after trial. The offence involved an incident of street racing in a vehicle modified for that purpose. Citing the accused’s lack of record and evidence that he sold his vehicle, Kendel J sentenced the accused to a 1 year term of probation, a $2,000.00 fine and a 1 year driving prohibition.

In R. v. Jamal-Al-Deen 2011 ABPC 187, the accused plead guilty to assault with a weapon and dangerous driving arising from a series of events involving the chasing down of a complainant and repeatedly smashing his motor vehicle into that of the complainant. The accused received an 18 month conditional sentence and no driving prohibition.

In R. v. Mantzavrakos , 1996 CarswellOnt 2871 , the accused was convicted after trial by judge alone of dangerous driving. On the date of the offence the accused led police on a chase at high speeds through the city while under the influence of alcohol. The accused had a prior conviction for assault and a driving record and received a fine of $1,000.00 and no driving suspension.

In R. v. Pierro , 2007 CarswellOnt 9296 , the accused was convicted after trial of dangerous driving for a racing incident where he caused a motor vehicle collision. Accused had no record, received a fine of $1,000.00, 2 years probation and an 18 month driving prohibition.

In R. v. Purvis , 2009 CarswellOnt 8470 , the sentence against an accused convicted of dangerous driving on a busy highway was upheld on appeal in the Ontario Superior Court of Justice. Accused received 18 months of probation and a 1 year driving prohibition.

In R. v. Glithero [2009] O.J. No. 4901 , the accused was convicted of dangerous driving but acquitted of impaired driving in a bizarre incident involving the accused consuming alcohol and driving quickly in a busy school parking lot. The accused had no prior record and received a fine of $1,000.00 and a 1 year driving prohibition.

In R. v. Horne [2009] O.J. No. 3136 , the accused plead guilty to a number of charges including dangerous driving, failing to stop for police, driving while disqualified and possession of stolen property. The accused had more than 68 prior convictions and was declared by the sentencing judge as “a public menace”. He received a sentence of two years less a day in prison, three years of probation and a three year driving prohibition.

In R. v. Kononis [2010] B.C.J. No. 1321 , the accused was partially successful in appealing his sentence for dangerous driving to the British Columbia Court of Appeal. He was convicted at trial of dangerous driving and possession of stolen property arising out of a high speed chase with police. The accused was sentenced to two months and one day of imprisonment and a further three year driving prohibition. He had a lengthy criminal record and an “unenviable driving record” but in part because this was his first criminal driving offence, the driving suspension was reduced on appeal from three years to eighteen months.

In R. v. Kristoffersen [2014] O.J. No. 1411 , the accused was convicted of impaired driving and dangerous driving. A charge of operating a motor vehicle with a blood alcohol level above .80 was stayed and he was acquitted of assaulting police. The accused received a suspended sentence with three years of probation and no driving prohibition.

Lastly, in R. v McKean [2013] O.J. No. 6039 , the accused plead guilty to one count of impaired driving and one count dangerous driving in relation to driving at a high rate of speed, on the wrong side of Highway 407, nearly causing a head-on collision with several other vehicles. The accused had a BAC of 3 times the legal limit but also had no prior record. The accused was sentenced to 18 month of probation, a $3,500.00 fine and an 18 month driving prohibition.

[16] I acknowledge the Crown’s interpretation of what Justice Douglas said and did, that is, the purpose of the sentence was to offset a non-custodial sentence with a longer driving prohibition. I understand that submission in principle. However, I am not satisfied that Justice Douglas set out why it was that the maximum driving prohibition, three times what the Crown asked for, was necessary. Without explicit reasons on that point it is difficult to assess how he weighed out each of the aggravating and mitigating factors.

STANDARD OF REVIEW

[17] The standard of review for an appeal against sentence requires the appellate court to ask whether the sentencing judge has erred in principle; failed to consider a relevant factor; or overemphasized the appropriate factors. In the absence of such an error, the appellate court can only interfere where a sentence is “demonstrably unfit”, a concept explained by the British Columbia Court of Appeal in R. v. Peepre, 2013 BCCA 115, 3 C.R. (7 th ) 163 :

[T]his court may not interfere with a sentence imposed by a lower court unless the sentence is demonstrably unfit. Whether a sentence is demonstrably unfit is measured by comparing it to sentences imposed on similar offenders sentenced for similar offences. The fitness of the sentence is also tested by examining whether the sentencing judge considered the applicable sentencing principles, in this case particularly general deterrence and denunciation. Finally, as previously noted, a sentence must take into account the individual circumstances of the offender.

[18] There is no doubt that the facts of this case are serious. Justice Douglas made findings of fact that characterized the driving in this case as very troubling. As he set out in his reasons for sentence he notes that “the accused’s driving was of a major concern to the police who were involved.”

[19] In R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64, the Court stated the following at paras. 49, 51 and 53 as it relates to appellate review:

[49] For the same reasons, an appellate court may not intervene simply because it would have weighed the relevant factors differently. In Nasogaluak , LeBel J. referred to R. v. McKnight (1999), 135 C.C.C. (3d) 41 (Ont. C.A.) , at para. 35 , in this regard:

To suggest that a trial judge commits an error in principle because in an appellate court’s opinion the trial judge gave too much weight to one relevant factor or not enough weight to another is to abandon deference altogether. The weighing of relevant factors, the balancing process is what the exercise of discretion is all about. To maintain deference to the trial judge’s exercise of discretion, the weighing or balancing of relevant factors must be assessed against the reasonableness standard of review. Only if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate court interfere with the sentence on the ground the trial judge erred in principle. [para. 46]

[51] Furthermore, the choice of sentencing range or of a category within a range falls within the trial judge’s discretion and cannot in itself constitute a reviewable error. An appellate court may not therefore intervene on the ground that it would have put the sentence in a different range or category. It may intervene only if the sentence the trial judge imposed is demonstrably unfit.

[53] This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, which provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2 ( a ) and ( b ) of the Criminal Code.

[20] The sentencing Judge is not bound by the recommendations of counsel. In R. v. P. (W.G.) , 1990 CarswellMan 182 . The Manitoba Court of Appeal set out the following at paras. 2 and 7:

2. Before Kennedy, J., counsel for the Crown submitted that a sentence of incarceration of one year was a fit sentence. Counsel for the accused argued for a sentence of from three to six months’ incarceration. The trial judge declined to accept the submissions of counsel. He was of the view that there had been permanent damage to the young complainant.

3. In our view, in all of the circumstances, the recommendation of counsel for the Crown of a period of incarceration of one year was a reasonable one. A sentencing judge is never bound by the recommendations of counsel, even when they follow a plea or sentence bargain. In this case, however, the sentencing judge gave no sufficient reason for departing from the recommendation that Crown counsel had put before him.

[21] In R. v. Barton , [2002] O.J. No. 4105 (C.A.) Cronk J.A. noted the following at paras. 12 and 15:

12. Crown counsel at trial argued that the appellant was a recidivist sex offender, with a lengthy criminal record, who showed a complete disregard for court orders and lacked insight into the offences of which he was convicted. She submitted that the appellant should receive a sentence of imprisonment in the range of 6 years, that is, 30 months in addition to credit for time served. The trial judge imposed a sentence of 6 years but gave the appellant credit for 40 months of pre-trial custody. That resulted in a sentence of 32 months, 2 months longer than the sentence proposed by the Crown.

13. This is not a joint submission. The sentencing judge is not bound by the submissions of counsel in determining an appropriate sentence. It is apparent that the judge gave careful consideration to the submissions of both counsel. The fact that he imposed a sentence slightly in excess of the range suggested by Crown counsel reflects no error in principle. I would not give effect to this ground of appeal.

[22] The final case I wish to refer to is R. v. Gabriel, 2015 QCCA 1391. The Court stated and summarized the following cases at paras. 28, 29 and 31:

28. As it will be seen, the petitioners have taken a remark of Prowse, J.A. on which they rely out of context. For ease of reference, the remark in question of Prowse, J.A. is italicized, while that which explains its very different context is underlined:

[21] Here, there was a fundamental difference of opinion between Crown counsel and defence counsel as to whether the sentence to be imposed should be served in prison or in the community. While there was clearly cooperation between counsel, reflected in the nature and extent of materials placed before the court, and while there was undoubtedly a give and take in terms of what positions counsel would take on sentencing, there was no consensus as to a fit sentence. In fact, the Crown placed decisions before the sentencing judge indicating a range of sentence of between 2-5 years, albeit taking the position that a 2-year penitentiary term would be fit.

[22] Further, as noted in Allen and many other decision of this and other appellate courts, there is no requirement that, if a judge disagrees with the range of sentence proposed by one or more counsel, he/she is obliged to advise counsel that he/she is considering imposing a sentence outside that range. While it is undoubtedly preferable for the sentencing judge to afford that opportunity to counsel in appropriate circumstances, failure to do so does not amount to an error of law or principle.

29. In Keough , the accused was convicted of two counts of possession of child pornography, one count of engaging in voyeurism and one count of copying voyeuristic materials (the latter two counts involving adults). In considering Keough’s argument that the sentencing judge erred by failing to give him and the Crown an opportunity to address the trial judge’s concerns when the sentence exceeded the range counsel had recommended, Slatter, J.A. said this on behalf of the majority:

[20] The case law recognizes the importance of a trial judge giving fair warning to counsel when he or she proposes to sentence outside the recommended range: R. v. Hood, 2011 ABCA 169 at para. 15 ; R. v. Abel, 2011 NWTCA 4 at para. 23 ; the parties are entitled to reasonable notice if the judge proposes to decide the case in a way not advocated by either party: R. v. Al-Fartossy, 2007 ABCA 427 at paras. 22-5 , 83 Alta LR (4 th ) 214 , 425 AR 336 ; Murphy v. Wyatt , [2011] EWCA Civ 408 , [2011] 1 W.L.R. 2129 at paras. 13-19 ; Labatt Brewing Co v. NHL Enterprises Canada, 2011 ONCA 511 at para. 5 , 14, 106 OR (3d) 677; In Re Lawrence’s Will Trusts , [1972] Ch. 418 at p. 436-7 . Nevertheless, the sentencing judge has an obligation to imposes a fit sentence, and neither exceeding the recommended range, nor failing to give counsel notice of intention to exceed the range, is, without more, reviewable error. If the sentence imposed is not demonstrably unfit having regard to the principles of sentencing in the Criminal Code, appellate interference is not warranted. Failing to seek the input of counsel may, however, make it more likely that the trial judge may overlook or overemphasize the relevant factors, rely on an irrelevant factor, impose a sentence based on an error in principle, or commit some other reviewable error.

31. In dissent, Paperny, J.A., would not have disturbed the sentence the trial judge imposed, and added this:

[53] This court noted in R. v. Ross, 2005 ABCA 231, that in the absence of a joint submission failure to sentence within a proposed range without alerting counsel beforehand is not in itself a reversible error. Nor should it be. Where both counsel have fully argued the point or points raised by the sentencing hearing, including the nature of, length of and terms of an appropriate sentence, it is then incumbent on the sentencing judge to exercise his or her discretion and impose a fit sentence.

[54] That is not to say that it is not good practice to seek further submissions. It is. Where a sentencing judge has reservations about the sentence range proposed by both counsel, it is always prudent to seek further submissions before imposing sentence. That is the preferred course, but it is not a mandatory one: see R. v. Booh, 2003 MBCA 16; R. v. Koenders, 2007 BCCA 378; R. v. Barton (2002), , 165 O.A.C. 294 at para. 15 . The same concerns simply do not arise where both counsel have independently assessed, and made full submissions on, the appropriate range and sentencing principles.

[23] In the case at bar Justice Douglas does not set out fully his reasons for sentencing the Appellant to the maximum three year driving prohibition. He states the following in his reasons:

“But he is a first offender and I have determined that in order to satisfy the principles of sentencing, a suspended sentence and a three year driving prohibition would meet the ends of justice, and so I do not need to send him to jail.”

[24] It is clear from the reasons that taking away Mr. Power’s licence for three years was a sufficient penalty for Justice Douglas. As I stated earlier, I understand the Crown’s position that Justice Douglas offset his non-custodial sentence with a longer driving prohibition. The difficulty I have, however, in light of the legal principles set out in the jurisprudence is that the Appellant did not have an opportunity to make further submissions on the issue relating to the length of prohibition.

[25] Section 718.1 of the Criminal Code states that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[26] The principle of proportionality would point to the imposition of a maximum penalty in limited circumstances. Parity, totality and restraint are also important principles that are engaged. Section 718.2 (b) of the Criminal Code states that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[27] I am not satisfied that the maximum three year driving prohibition was warranted in all of the circumstances. I accept that Justice Douglas took into account the fact that he was not imposing a custodial sentence so the driving prohibition would be longer. However, without explicit reasons setting out why the maximum was required for a first offender I am satisfied that that portion of the sentence is demonstrably unfit.

[28] I would vary the order to a period of 24 months. I am satisfied that an increase in the period of the driving prohibition over and above the period recommended by the Crown at trial was warranted in all of the circumstances. The nature of the driving was very troubling. However, I am also satisfied that the learned justice erred in over-emphasizing the principle of denunciation. The Appellant had no criminal record. He is a single father. As the learned justice noted in his reasons the Appellant had struggled with drug addiction in the past. The terms of the probation order were put in place to assist him in that regard. These personal circumstances relating to the Appellant’s background were, in my view, not given sufficient weight. Trial counsel for the Appellant was not given an opportunity to provide further input on the issue relating to the period of prohibition.

[29] There is no doubt that in this case the learned justice placed considerable emphasis on denunciation and general deterrence. However, a sentence must also take into account the individual circumstances of the offender.

[30] In R. v. Kusi 2015 ONCA 638 the Court set out the following at para. 3:

As to the standard of appellate review, absent an error in principle, failure to consider a relevant factor, or an over-emphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed if the sentence is demonstrably unfit: R. v. M.(C.A.), [1996] 1 S.C.R. 500 , at para. 90 .

DISPOSITION

[31] The driving prohibition will be varied from three years to two years.

Fragomeni J.

Released: April 12, 2016

COURT FILE NO.: 15-0363 (Guelph) DATE: 2016 04 12 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – ANDREW KRISTIAN POWER Appellant REASONS FOR JUDGMENT [On appeal from the judgment of Douglas J. dated May 13, 2015] Fragomeni J. Released: April 12, 2016