CITATION: R. v. Mejia, 2016 ONSC 7473

COURT FILE NO.: 15-5204 AP

DATE: 2016/12/02

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

and -

VICTOR FREEBORN MEJIA

Appellant

J. Kujavsky, for the Crown

C. Spettigue Jr., for the Appellant

HEARD: November 25, 2016

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable Justice K. Lenz]

A.J. GOODMAN J.

[1] This is an appeal with respect to the sentence imposed by Lenz J. on February 19, 2009. The appellant appeals specifically against the imposition of the 20-year driving prohibition.

[2] The appellant pleaded guilty to being in care and control of a motor vehicle and having consumed alcohol in such a quantity that the concentration thereof exceeded 80 mg of alcohol in 100 mL of blood, as well as one count of breach of probation, contrary to their respective provisions of the Criminal Code. The appellant was sentenced to six months jail (time served of 178 days with credit afforded at 1.5:1) and a 20 year driving prohibition.

Positions of the Parties:

[3] The appellant submits that the trial judge erred in his sentencing assessment as it pertained to the driving prohibition. The reasons for judgment are brief and the judge failed to apply the principles of sentencing and overemphasized irrelevant matters and failed to consider relevant matters.

[4] The appellant submits that the driving prohibition was demonstrably unfit and the fresh evidence introduced for this appeal ought to reduce its duration.

[5] Crown counsel submits that the trial judge did not commit an error in principle in sentencing, did not ignore any relevant factors and, when considering the appellant nine previous related drinking and driving convictions, did not impose a demonstrably unfit driving prohibition. The Crown submits that to tamper with the sentence imposed would be inconsistent with the deference that is owed to sentencing judges.

Background:

[6] The facts in this case have been laid out in appellant’s counsel’s factum and I have been provided with the transcripts of the proceedings.

[7] The Crown attorney opined that a lifetime driving prohibition was possible and suggested a 20-year period. Appellant’s counsel (not Mr. Spettigue) did not offer any comment on the length of the driving prohibition.

Reasons for sentence:

[8] Justice Lenz laid out his reasons during the course of the sentencing hearing. Principally, Lenz J. stated at p. 11 of the transcripts of proceedings:

His driving privileges are automatically suspended for a period minimum (sic) one year. In his case, it’s bound to be a lifetime suspension. I don’t imagine that Mr. Freeborn-Mejia will ever have a licence to operate a motor vehicle in the province of Ontario ever again. I don’t think a 20 year prohibition is inappropriate in regards to the operation, care and control in excess of allowable limit.

Legal principles:

[9] The scope of appellate review of sentences has been set out by the Supreme Court of Canada in R. v. M.(C.A.) (1996), 1996 230 (SCC), 105 C.C.C. (3d) 327 (S.C.C.). In R. v. Shropshire (1995), 1995 47 (SCC), 102 C.C.C. (3d) 193 (S.C.C.), Iaccobucci J. held that deference is to be accorded to Trial Judges on sentencing matters:

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; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation of that sentence should only be made if the court of appeal is convinced that it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.

[10] In R. v. L.J., 2008 SCC 31, [2008] S.C.J. No. 31 (S.C.C.) Lebel J. confirmed the limited scope of review on appeals against sentence:

Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standard of review to be applied by an appellate court is one based on deference. The sentencing judge has ‘served on the front lines of our criminal justice system’ and possess unique qualifications in terms of experience and the ability to assess the submission of the Crown and the offender. In sum, in the case at bar, the Court of Appeal was required – for practical reason, since the trier of fact was in the best position to determine the appropriate sentence for L.M. – to show deference to the sentence imposed by the trial judge.

[11] The test is not whether I would have imposed a different driving prohibition. Rather, appellate intervention is limited to where the sentence is found to be demonstrably unfit, clearly unreasonable, outside the acceptable range, failure to consider relevant factors or overemphasis of the appropriate factors. An appellate court should only intervene to vary a sentence if it is demonstrably unfit or where it exhibits a substantial and marked departure from sentences customarily imposed for similar offenders who have committed similar offences, or was clearly excessive. An appeal court can also intervene where the trial judge applied the wrong principle(s).

Analysis:

[12] I have been referred to and have considered the cases provided by appellant’s counsel and have heard the submissions of counsel.

[13] Undoubtedly, a sentencing judge must consider all of the circumstances of the offence and the offender in relation to the provisions of s.718 to 718.2 of the Criminal Code. A judge is required to reflect upon the offender’s role in the crime, including his or her antecedents, or in this case, the criminal and driving records.

[14] Appellant’s counsel urges this Court to find that lengthy driving prohibitions exceeding a term of five years are normally imposed for those cases where bodily harm or death arise as a result of the predicate offence. To that end, counsel averred to certain authorities.

[15] With respect, I must disagree with counsel’s assertions. In my opinion, such a principle does not create a ceiling for the imposition of an extended driving prohibition, especially in cases where there are repeated offences for drinking and driving related conduct. Here, according to the criminal record, the appellant had nine prior drinking and driving convictions going back to February 1987. Adding in the driving abstract, there are two additional drinking and driving convictions from May 1975 and October 1981, along with three driving while disqualified offences. His record continues unabated for the past 40 plus years.

[16] In law and applying the principles of sentencing to the offender’s circumstances, there was no barrier to the Crown’s request, and the sentencing judge’s ability to impose such a lengthy prohibition. I note that during submissions before Lenz J., defence counsel did not opine on the appropriate length of the driving prohibition.

[17] Having reviewed the Reasons for Sentence, and while concise, I am not persuaded that the learned judge failed to consider the principles of sentencing. The sentencing judge considered the appellant’s background and weighed all relevant factors in imposing the driving prohibition sought by the Crown attorney. Indeed, with the appellant’s criminal antecedents, there was no over-emphasis of irrelevant factors leading to the ultimate driving prohibition imposed.

[18] In any event, even if I had concluded that the sentencing judge committed overriding and palpable error, I do not find that the prohibition imposed is manifestly unfit in light of the fresh evidence adduced in this appeal.

[19] The Crown attorney did not challenge the introduction of the fresh evidence for this appeal. Thus I need not entertain an assessment of the proffered evidence and whether it meets the Palmer criteria: 1979 8 (SCC), [1980] 1 S.C.R. 759.

[20] In support of the appeal, the appellant provided a certificate of completion along with his November 12, 2016 affidavit.

[21] At para. 10 of his affidavit, the appellant deposed that: “On October 22nd 2014, I completed the 6 session “Skills for Change” program at Alcohol, Drug and Gambling Services. I have not had any alcohol since November 2012”. On its face, the appellant seems to have taken some strides to combat his alcoholism.

[22] Absent from the Appeal Record was the appellant’s criminal record and driving abstract. At my urging, Crown counsel provided the updated information.

[23] Upon review, it was discovered that on March 7, 2014, the appellant was convicted for his 10th (or 12th) impaired driving charge, as well as one count for driving disqualified, related to events that transpired on November 2, 2013. He was sentenced to nine months incarceration (with credit of 4 months provided on a 1.5:1 basis) along with a concurrent driving prohibition and probation.

[24] To put this in the most favourable context, the appellant clearly mislead this Court. I do not accept his affidavit evidence. His assertions related to efforts about his rehabilitation and to dissuade me about any public safety concerns related to his driving are seriously wanting. I agree with Mr. Kujavsky that, but for fortuitous circumstances, no one has been yet to be killed or seriously injured by the appellant’s continual consumption of alcohol to excess and then choosing to drive a motor vehicle.

[25] Given his criminal record to date, it is clear to me that the appellant will continue to drink and drive, or more significantly, get behind the wheel of a motor vehicle in the face of a Canada-wide driving prohibition order. Even without considering the latest 2014 convictions, I have no hesitation in concluding - along the lines alluded to by Lenz J. - that the appellant remains a hazard and real danger to those who travel on the Queen’s highways in this Province.

Leave to Appeal – [s. 815](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html):

[26] Before I leave this decision, I must comment on the leave to appeal application that arose in this case.

[27] Part XXVII of the Criminal Code deals with summary conviction matters. Section 815 of the Code governs the notice of appeal and extension of time

[28] Over five years had passed since the sentence and driving prohibition was imposed. The appellant served some time in custody and was released in late 2009 or early 2010. No appeal was launched until December 11, 2015.

[29] The grounds for the leave application included that the appellant was unaware of any options, he did not have a sufficient command of the English language to learn or discover legal remedies available to him and that, from the outset, had an intention to appeal the driving prohibition.

[30] There are robust considerations for leave to appeal beyond the limitation periods provided by the Code and the rules.

[31] In R. v. Menear (2002), 2002 7570 (ON CA), 162 C.C.C. (3d) 233, leave to appeal refused, [2002] 3 S.C.R. ix; the Ontario Court of Appeal had occasion to provide direction on this very issue at paras. 20 and 21:

There is no absolute rule to be applied in the exercise of the discretion whether or not to grant an extension of time. The court will, however, usually consider the following three factors:

(i) whether the applicant has shown a bona fide intention to appeal within the appeal period;

(ii) whether the applicant has accounted for or explained the delay; and

(iii) whether there is merit to the proposed appeal.

Depending on the case, the court may take into consideration other factors such as whether the consequences of the conviction are out of all proportion to the penalty imposed, whether the Crown will be prejudiced and whether the applicant has taken the benefit of the judgment. In the end, the main consideration is whether the applicant has demonstrated that justice requires that the extension of time be granted.

[32] Mr. Kujavsky submits that the Crown acquiesced to having this matter heard because it was not an appeal in respect of conviction or sentence per se, rather it was only focused on the length of driving prohibition. Frankly, the explanation provided by Crown counsel to justify its consent in this case on the leave to appeal issue is perplexing.

[33] Absent the Crown’s consent, it seems to me that the appellant had not even come close to meeting his onus for leave. He was represented by counsel at the time. He had not explained the lengthy delay. The evidence presented by the appellant did not provide cogent or sufficient details as to his stated intention to appeal within the appeal period, or even after his release from jail.

[34] While I appreciate that the appellant was self-represented at the time, his bald assertions in support of the December 2015 leave application do not demonstrate that a real injustice may have occurred requiring that an extension of time be granted. In my view, the appellant did not even come close to meeting the factors as enunciated by the Court of Appeal in Menear.

[35] Nonetheless, as the application for leave to appeal was granted, I heard the substantive appeal. That said, these comments are specifically offered to forestall any future misunderstanding or misapplication of the relevant Code provisions or rules of court dealing with leave to extend the time to appeal, especially in circumstances where the period for filing has been surpassed by many months or years.

Conclusion:

[36] For the aforementioned reasons, I do not find a palpable or overriding error warranting appellate intervention. The appeal against sentence, specifically the 20-year driving prohibition imposed by Lenz J. is dismissed.

A.J. GOODMAN J.

Released: December 2, 2016

COURT FILE NO. 15-5204 AP

DATE: 2016-12-02

ONTARIO