Court File and Parties

COURT FILE NO.: 15AP-0-88 DATE: 20160621 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Alex Waisanen

BEFORE: Corrick, J.

COUNSEL: Martin Sabat, for the Crown, Appellant Douglas Lent, for Mr. Waisanen, Respondent

HEARD: June 15, 2016

Endorsement

[1] On November 8, 2012, Mr. Waisanen was charged with operating a motor vehicle while his ability to do so was impaired by alcohol, and operating a motor vehicle with more than 80 mgs. of alcohol in 100 mls. of blood. Following a trial before Moore, J., Mr. Waisanen was acquitted of the over 80 charge. Justice Moore found that Mr. Waisanen was guilty of the impaired driving charge, but he stayed the proceedings pursuant to s. 24(1) of the Charter as a remedy for what he found to be a breach of Mr. Waisanen’s rights protected by ss. 7 and 9 of the Charter. Justice Moore found that the police had arbitrarily detained Mr. Waisanen for ten hours after he had provided his breath samples.

[2] Following a Crown appeal, Justice Campbell upheld the acquittal on the over 80 charge, but allowed the appeal against the stay of proceedings on the impaired driving charge. He entered a conviction on that charge and remitted it back to Justice Moore for the sentencing of Mr. Waisanen in accordance with his reasons.

[3] On October 28, 2015, Justice Moore sentenced Mr. Waisanen to a conditional discharge with probation for twelve months. Justice Moore declined to impose the minimum one-year driving prohibition mandated by s. 259(1)(a) of the Criminal Code. The Crown appeals that sentence.

[4] The facts that gave rise to Mr. Waisanen’s impaired driving conviction are as follows. On November 7, 2012, Mr. Waisanen drove his car onto the centre island of a roundabout at the foot of Cherry Street in Toronto. The car became lodged on the top of some large landscape boulders. Mr. Waisanen tried to extricate his car by spinning the wheels in drive and reverse and by physically attempting to push and lift the car off the rocks. Two civilians witnessed his efforts and independently called the police fearing that Mr. Waisanen was drunk.

[5] When Officer Lee arrived on the scene Mr. Waisanen was in the driver’s seat of the car. The car’s engine was running with the transmission in reverse, and the front wheels were spinning. Mr. Waisanen got out of the car leaving the transmission in reverse. He was unsteady on his feet, his eyes were glassy, he was slow to react and there was a strong odour of alcohol on his breath. Mr. Waisanen was unable to walk properly requiring Officer Lee to take hold of him. There was an empty can of beer in the centre console of his car.

[6] Mr. Waisanen provided two samples of his breath at 12:54 a.m. and 1:19 a.m. They revealed that he had 246 and 249 mgs. of alcohol in 100 mls. of his blood. Officer Lee feared that Mr. Waisanen’s intoxicated condition would prevent him from understanding the conditions of his release. As a result, Mr. Waisanen was ultimately lodged in a holding cell until 12:00 noon the next day when the sergeant in charge of the police station felt that he had sobered up sufficiently to understand the conditions of his release.

[7] At the time of sentencing, Mr. Waisanen was a 28-year-old first offender. He testified that he spent an uncomfortable night in the holding cell. He had only a concrete slab for a bed, and he had nothing to eat between 3:00 a.m. and 12:00 noon. He admitted that he slept half the time. He acknowledged that he was told that he had to remain in custody until he sobered up. He also acknowledged that he did not tell the police officers that he wanted to go home despite the fact that the officers were polite to him and he was able to speak freely to them.

[8] The Crown appeals the sentence on the following grounds:

• a conditional discharge is not an available sentence because impaired driving is punishable by a minimum punishment set out in s. 255(1)(a) of the Criminal Code;
• the sentence is demonstrably unfit; and
• the trial judge erred in failing to impose the driving prohibition mandated by s. 259(1)(a) of the Criminal Code.

[9] The respondent argues that Justice Moore did not err in imposing a conditional discharge after finding that Mr. Waisanen had been arbitrarily detained when the police held him for ten hours after he completed his breath tests solely on the basis of his high blood alcohol readings. Justice Moore found that the police conduct was very serious because it demonstrated a deliberate, continuous and systemic disregard for the appellant’s Charter rights. He concluded that the actions of the police were a blatant exercise of the abuse of police power. The respondent submits that the police misconduct in this case was particularly egregious warranting a sentence reduction below the statutory minimum in accordance with R. v. Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206.

[10] The difficulty with this argument is that Justice Campbell did not agree with Justice Moore’s characterization of the police conduct. On the contrary, Justice Campbell indicated that the evidence did not support the conclusion that there had been a blatant exercise of the abuse of police power. He also found that the police conduct in this case did not reflect a systemic and ongoing problem, but was rather an isolated incident. Justice Campbell held that the police conduct was not something that would shock the conscience of the community or offend its sense of fair play and decency.

[11] The issue of how egregious the breach of the respondent’s rights was has been determined by Justice Campbell. His decision has not been appealed. I am required to consider the fitness of the sentence imposed in light of his findings.

[12] In my view, a conditional discharge and no driving prohibition is not a fit sentence in light of all of the circumstances of the case as found by Justice Campbell. Mr. Waisanen was grossly impaired by alcohol while operating his car on a public roadway. The potential for tragic consequences was real. The sentence imposed must satisfy the paramount sentencing objectives of general and specific deterrence. A conditional discharge does not give effect to those objectives, and is a demonstrably unfit sentence.

[13] In my view, a reduced fine and the mandatory driving prohibition adequately redress the breach of Mr. Waisanen’s Charter rights while at the same time give effect to the sentencing principles of denunciation and deterrence, both general and specific.

[14] Mr. Lent informed the court that Mr. Waisanen’s driver’s licence was suspended by the Ministry of Transportation for one year on October 28, 2015. Had Justice Moore imposed the mandatory one-year driving prohibition on October 28, 2015, the prohibition would have run concurrently with the Ministry’s suspension. I intend to impose a driving prohibition that will expire on October 28, 2016.

[15] The appeal is allowed and the sentence is varied to a fine in the amount of $500. In addition, Mr. Waisanen is prohibited from operating a motor vehicle pursuant to s. 259(1)(a) of the Criminal Code until October 28, 2016. Mr. Waisanen shall have 60 days to pay the fine.

[16] Given my decision on the fitness of the sentence, it is unnecessary to decide the other issues raised by Mr. Sabat.

Corrick, J. Date: June 21, 2016