REASONS FOR JUDGMENT

[on appeal from a sentence imposed by Douglas J. on August 12, 2015]

HILL J.

Introduction

[1] The appellant pled guilty to charges of dangerous driving, impaired operation of a motor vehicle, and vehicular flight from the police.

[2] The summary conviction trial court imposed a total sentence of 12 months’ imprisonment:

• dangerous driving – 6 months

• flight from police – 6 months consecutive

• impaired operation – 1 month concurrent

[3] In addition, Douglas J. imposed a 34-month driving prohibition and a 3-year probation order on terms.

[4] In the same sentencing hearing, following upon pleas of guilt, the appellant was sentenced to a $5,000 fine for operating a motor vehicle while his driver’s licence was suspended contrary to s. 53 of the Ontario Highway Traffic Act, and, to a $12,000 fine for driving without insurance contrary to s. 2(1)(a) of the Ontario Compulsory Automobile Insurance Act.

[5] On appeal, in submitting that the 12-month sentence of imprisonment was unfit, the appellant advanced these arguments:

(1) the sentencing judge was biased

(2) in more serious cases before the courts involving death or bodily harm, lower sentences have been imposed

(3) the sentencing judge over-emphasized the risk of consequences which did not in fact occur

(4) the court gave “very little weight” to the Presentence Report and the letters filed on the appellant’s behalf

(5) the service of about 6 months’ imprisonment, prior to release on bail pending appeal, amounts to the appropriate sentence including having regard to the courses taken and completed while in custody.

[6] At the conclusion of oral argument, the appeal was dismissed with these reasons to follow including revision of the sentencing court’s order respecting the driving prohibition.

Background Facts

[7] At about 10:30 p.m. on October 20, 2014, the appellant was operating his motor vehicle in Guelph. It was dark. The roads were wet and there was a light misting rain.

[8] The appellant’s driver’s licence had been suspended and he had no operator’s insurance. He had been consuming alcohol and had a blood/alcohol level in the range of 102 to 106 mg. alcohol/100 ml. blood.

[9] As the appellant approached a RIDE checkstop on Wellington Road 124, he briefly slowed and then accelerated away eastbound at a high rate of speed.

[10] Police cruisers, with sirens and emergency lights activated, pursued the appellant in an effort to stop his vehicle. The pursuit lasted 39 minutes over 108 kilometres through various townships and municipalities.

[11] During the police pursuit, the appellant sped through residential areas including through intersections failing to stop for multiple stop signs. Speeds reached as high as 160 k/hr.

[12] The pursuit only ended when the police deployed a tire deflation device to stop the appellant’s vehicle. Once his vehicle’s motion ceased, the appellant resisted arrest by holding on to parts of his vehicle. The appellant was observed to have obvious signs of impairment.

Appellant’s Background

[13] The appellant is currently aged 51. He is separated from his spouse. Their children are aged 22 and 24 years.

[14] The appellant left school after grade 11. Thereafter, he was gainfully employed. He started his own business in 2012 employing as many as 12 persons.

[15] For many years, the appellant volunteered his time with minor hockey. He currently volunteers at a local church mission in Guelph.

[16] Although the appellant informed the author of the Presentence Report (PSR) that alcohol has never been a concern for him and that he has only consumed alcohol occasionally, he also reports having attended Alcoholics Anonymous meetings in the past as well a group called ‘celebrate recovery’ at a local church.

[17] The PSR author recorded that the appellant expressed that he was “very sorry, ashamed and remorseful” for his actions.

[18] The PSR indicated that after his arrest the appellant suffered from depression. He has also attended private counselling sessions.

[19] The appellant has a prior criminal record:

(1) June 13, 1986 – false pretences } $100 fine on

fail to appear } each charge

(2) April 15, 1991 - public mischief } $600 fine

[20] The appellant was first licenced to drive in July of 1981. Since that time there have been about 40 convictions under the Highway Traffic Act and the Compulsory Automobile Insurance Act. Of relevance to the present case are the following:

(a) speeding i. 2014 65 k/hr in a 50 k/hr zone ii. 2012 70 k/hr in a 60 k/hr zone iii. 2010 79 k/hr in a 50 k/hr zone iv. 2005 76 k/hr in a 50 k/hr zone v. 1991 79 k/hr in a 50 k/hr zone vi. 1986 80 k/hr in a 60 k/hr zone

(b) driving while licence suspended – 11 prior convictions (2014, 2013, 2012 x 4, 2005, 1998, 1991, 1989, 1988)

The Sentencing Hearing

[21] Trial counsel on behalf of the appellant submitted that a global sentence of 90 days to be served on an intermittent basis followed by probation would be a fit sentence for the three criminal offences to which the appellant pleaded guilty. Particular reliance was placed on what was described as a positive PSR, as well as favourable character evidence, and existing employment.

[22] Crown counsel sought a total sentence in the range of 10 to 12 months’ imprisonment and a 3-year driving prohibition.

[23] The trial judge noted that positive features existed respecting the appellant himself (“good things going for him”) making specific reference to his guilty plea, his volunteer work past and present, and his coping with depression and other issues. As to the gravity of the crimes, the trial judge made these observations:

(1) the appellant’s actions involved “maniacal driving”

(2) it is “miraculous that someone was not killed” – “he could have killed some family”

(3) the appellant placed the police in “a no-win” situation – duty-bound to stop the public safety threat posed by the appellant while seeking not to endanger persons by the pursuit itself

(4) the provincial driving record establishes that the appellant has “consistently” broken the law respecting the operation of a vehicle on public roads.

Analysis

[24] Trial judges “have a broad discretion to impose the sentence they consider appropriate within the limits established by law”: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 39.

[25] Appellate review of a trial court’s sentencing disposition is deliberately circumscribed. A trial judge has the advantage of seeing the offender and hearing the parties’ sentencing submissions: Lacasse, at para. 48. “[A]n appellate court may not interfere simply because it would have weighed the relevant factors differently”: Lacasse, at para. 49.

[26] Appellate deference is owed to a sentencing court – intervention is justified where there exists:

(1) an error in principle

(b) failure to consider a relevant factor

but only where such error can be said to have impacted on the sentence imposed and, even absent such error, intervention is warranted where:

(d) the sentence is demonstrably unfit in the sense of “manifestly inadequate” or “representing a substantial and marked departure”.

(Lacasse, at paras. 39, 43-55, 83)

[27] “The predominant sentencing objectives in determining a fit sentence for alcohol-driving offences … are general deterrence and denunciation”: Lacasse, at paras. 73-76; R. v. Clouthier, 2016 ONCA 197, at para. 54. These same objectives inform the proportionality analysis respecting the public safety threats posed by dangerous driving and flight from police.

[28] With respect to the imprisonment imposed and the probation order there is no error in principle, failure to consider a relevant factor, erroneous consideration of aggravating or mitigating factors and the global sentence is not demonstrably unfit.

[29] Turning to some of the specific submissions of the appellant, these conclusions are warranted:

(1) there is an entire absence in the trial record of any bias on the part of the sentencing judge – nor is there any support for the existence of an appearance of bias

(2) no caselaw was submitted to the sentencing court or to this court to suggest that the sentence imposed was not within the range of a fit sentence considering the gravity of the crimes and the antecedents of the appellant

(3) the trial court correctly considered the risk of death or injury to others posed by the appellant’s actions in considering the gravity of the crimes committed

(4) the sentencing court had the PSR and letters filed on sentencing and in its reasons for sentence expressly referred to some of this material

(5) the time to be served before release is a matter for the correctional authorities administering the sentence – release on bail pending appeal does not determine the fitness of the sentence imposed.

[30] Insofar as the appellant’s submission that during his incarceration of about 6 months’ duration prior to being admitted to bail pending appeal, he took various courses and received certificates of completion, this fresh evidence is not admissible this court having identified no error on the part of the trial judge in imposing a total of 12 months’ imprisonment: see R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at paras. 28-31; R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, at paras. 17-22.

[31] While honouring the totality principle, the trial judge was within his discretion to impose consecutive sentences where the crimes for which the appellant was convicted constituted “invasions of different legally protected interests”: Clouthier, at para. 55. The global sentence was fit.

[32] A sentencing court may properly have regard to an appellant’s past provincial driving record when sentencing for criminal driving-related offences: Lacasse, at para. 80; R. v. Nishida, 2015 ONCA 154, at para. 14.

[33] Having regard to the facts of the crime before the court and the appellant’s horrendous provincial driving record, the trial judge was inclined to impose a very lengthy driving prohibition. Being of the view that the maximum Criminal Code prohibition was 3 years, the trial court used this yardstick. While the court was correct that such a term was maximum provided for law in sentencing for a s. 249, 249.1, or 253 offence, it was actually open to the court to impose consecutive driving prohibition orders resulting in a total prohibition exceeding 3 years: see Code, s. 259(2.1).

[34] The trial judge was of the erroneous view that any driving prohibition imposed for the impaired operation offence commenced on the date of sentence - August 12, 2015. The court imposed a 34-month prohibition back-dating the start-up of the order to June 5, 2015, the date of the plea. A s. 259 driving prohibition commences at the conclusion of the end of the period of any imprisonment imposed by the sentencing court: Code, s. 259(2)(a.1); Lacasse, at paras. 106-114. Given the offender’s suspended-driver status at the time of commission of the offences for which he was sentenced, and his driving record, and the fact that his Form 11.1 Undertaking release at the time of arrest did not prohibit driving, the appropriate correction is to order a 3-year driving prohibition to commence at the end of the offender’s imprisonment.

Conclusion

[35] The appeal against sentence is dismissed.

[36] The driving prohibition order of the summary conviction trial court is vacated and in its place, respecting the s. 253(1)(a) conviction, is substituted the following order: “A 3-year driving prohibition pursuant to s. 259(1) of the Criminal Code to commence following release from imprisonment.”

Hill J.

DATE: May 27, 2016

CITATION: R. v. Forestell, 2016 ONSC 3519

COURT FILE: SCA 15-0416

DATE: 2016 05 27

ONTARIO

SUPERIOR COURT OF JUSTICE

(Summary Conviction Appeal Court)

RE: R. v. PATRICK J. FORESTELL

COUNSEL: S. Hamilton, for the Respondent

Patrick Forestell, on his own behalf

REASONS FOR JUDGMENT

[on appeal from sentence imposed by Douglas J. on August 12, 2015]

Hill J.

DATE: May 27, 2016

R. v. Forestell, 2016 ONSC 3519

Case Summary

REASONS FOR JUDGMENT

Introduction

Background Facts

Appellant’s Background

The Sentencing Hearing

Analysis

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 1