CITATION: R. v. Buchner, 2016 ONSC 6344
OSHAWA COURT FILE NO.: 13934/15
DATE: 20161013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ANDREW BUCHNER
Appellant
Mitchell Flagg, for the Crown
Stephen Price, for the Appellant
HEARD: October 5, 2016
REASONS FOR RULING
GILMORE J.:
Overview
[1] This is an appeal from the sentence imposed by The Honourable Justice G. Wakefield on July 24, 2015.
[2] The Appellant was charged with impaired operation under section 254(1)(a) and dangerous driving under section 249(1)(a) of the Criminal Code. He pleaded guilty to these offences on July 24, 2015. By way of sentence the Appellant received three years’ probation concurrent on both counts, a fine of $2,500, plus a victim fine surcharge of $375 on each count with 12 months to pay and a driving prohibition of 2.5 years on both counts, consecutive.
[3] The Appellant’s counsel submits that the driving prohibition portion of the sentence was so out of range as to be demonstrably unfit. The Appellant submits that eighteen months to two years total driving prohibition would have met the concerns of the court and the public. A 2.5 year concurrent driving prohibition would be at the top end based on the Appellant’s submissions.
[4] The Appellant also asks that the court either delete the provision on the probation order that prohibits him from sitting in the front seat of a motor vehicle, or require that that term end when his driving prohibition ends.
[5] The Crown does not disagree that the consecutive driving prohibitions were an error. The Crown’s position, however, is that the overall sentence is fit given the facts. The Crown suggests that the 2.5 year driving prohibition be left as is, but that it be made concurrent.
Background
[6] On February 23, 2014, the police responded to a call from concerned citizens who had observed a vehicle being driven erratically. Attempts to stop the vehicle were not successful, but the Appellant was eventually apprehended. He was unsteady on his feet and lost his balance. Breath samples yielded readings of 250 milligrams and 240 milligrams of alcohol in 100 millilitres of blood.
[7] The Appellant is currently 54 years of age. He is married with three children. He has been continuously employed in the family business, Buchner Manufacturing. The Appellant, prior to his arrest, had never had any involvement with the criminal justice system. The Appellant’s materials included a copy of his Pre-Sentence Report dated May 21, 2015. The Pre-Sentence Report is a very positive one and references residential treatment for substance abuse for approximately one month in 2014. He followed up with an aftercare program, which included a support group at Bellwood Health Services Inc. for a total of 20 sessions. He then attended 11 group sessions, as well as family counselling with his wife and children.
[8] The Appellant was described as having been raised in a stable family environment, gainfully employed, and married to his wife for 20 years. He is described by community sources as a devoted family man who is generous and caring, and involved with his children’s activities.
[9] The Appellant accepted full responsibility for his actions and was willing to accept the sanctions imposed by the court. He advised the probation officer that he has not used alcohol since the day of his arrest and plans on not drinking again.
[10] The Appellant’s counsel sought to file a letter from the same probation officer, dated May 18, 2016, by way of update. The Crown did not object to the filing of this fresh evidence. The May 18, 2016 letter indicated that the Appellant has not incurred any further charges since being placed on probation. He continues to live with his family and has been gainfully employed at the family business. He completed his 100 hours of community service at a local wildlife refuge between August 2015 and September 2016. He continued performing community service work as he was in the middle of completing a roof for the bird sanctuary and did not want to abandon the project. By the time he completed the roof he had performed a total of 128 hours of community service work. The founder of the agency was pleased with the Appellant’s dedication and the quality of his work.
[11] With respect to his addiction counselling, the probation officer advised Mr. Buchner completed the three components of the “Back on Track Workshop” program as of May 6, 2016, by attending an assessment on September 17, 2015, a one day workshop on November 6, 2015 and a six month follow-up session on May 6, 2016. He was described as low risk to re-offend and his reporting has been reduced to reporting in person once every two months.
Issues and Analysis
[12] It is clear that the consecutive five year driving prohibition is excessive given the facts and the Appellant’s antecedents. This is not disputed by the Crown. The question for this court to consider is a reduced driving prohibition in the range of 18 months to 2.5 years, given the facts and the considerations in the Criminal Code.
[13] In R. v. McKean, 2013 ONCJ 728, the accused pleaded guilty to one count of dangerous driving and one count of impaired operation. The accused in that case had no previous criminal record. He was found driving in the wrong lane on Highway 407. Fortunately no accidents or personal injury occurred. The accused had readings of 225 and 209 milligrams of alcohol in 100 millilitres of blood. In that case, Mr. McKean received a fine of $3,500 plus the victim fine surcharge, an 18 month driving prohibition and 100 hours of community service.
[14] In R. v. Power, 2016 ONSC 2072, Mr. Power appealed his sentence in relation to a three year driving prohibition imposed after he was found guilty of dangerous driving. The impaired operation charged was stayed. The court held that the maximum three year driving prohibition was not warranted. It was varied to 24 months based on the trial judge overemphasizing the principle of denunciation.
[15] In R. v. Balcha, 2004 396 (ON CA), 184 OAC 256, the Court of Appeal reduced a five year driving prohibition to one year, where Mr. Balcha was found guilty of dangerous driving causing bodily harm and failing to stop at the scene of an accident. The court held that driving prohibitions of five years or longer usually involve horrendous driving and the death of a victim or victims.
[16] Finally, in R. v. Maccarone, [1999] OJ No. 829, the Court of Appeal reduced a ten year driving prohibition to five years. The Court of Appeal determined that the driving prohibition was excessive, considering the three year sentence imposed for the dangerous driving causing death and dangerous driving causing bodily harm.
[17] The standard of review for an appeal against a sentence requires the appellate court to determine whether the sentencing judge has made an error in principle, failed to consider a relevant factor, or overemphasized the appropriate factors. Where such an error does not exist the court may interfere only if the sentence is demonstrably unfit.
[18] This is a serious case. Fortunately no one was harmed, but Mr. Buchner was driving with amounts of alcohol in his system that were three times the legal limit, and driving in a manner that attracted the attention of the public who called the police to assist. While there is no doubt that Mr. Buchner’s driving was an aggravating factor, there are many mitigating factors that must be considered with respect to determining whether the driving prohibition in this case was excessive. Those include:
The fact that Mr. Buchner had no record;
A Pre-Sentence Report that can be described as no less than glowing;
Support from his community and family with respect to his work ethic, family and community involvement;
He has had no subsequent charges and the letter from Probation and Parole dated May 18, 2016 makes it clear, that Mr. Buchner takes his probationary supervision seriously and has completed his community service with a dedication and commitment that is laudable. It is also telling that his reporting has been reduced to once every two months;
The case law is consistent that lengthy driving prohibitions are reserved for the worst cases and worst offenders. Mr. Buchner does not fall into that category.
[19] I find, as in R. v. Power, that denunciation was overemphasized by the sentencing judge. Under the circumstances the prohibition order will be varied to two years; 18 months on the impaired operation and six months on the dangerous driving consecutive, for a total of two years.
Justice C.A. Gilmore
Released: October 13, 2016
CITATION: R. v. Buchner, 2016 ONSC 6344
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
ANDREW BUCHNER
Appellant
REASONS FOR RULING
Madam Justice C.A. Gilmore
Released: October 13, 2016