Court File and Parties
Citation: R. v. Sivanadi, 2017 ONSC 5740 Court File No.: CR-15-6436-AP Date: 2017-10-10
Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Parthipan Sivanadi, Defendant/Appellant
Counsel: Michael Ventola, for the Crown Maleeka Mohamed, for the Defendant/Appellant
Heard: August 18, 2017
Reasons for Judgment
De Sa J.:
Overview
[1] The Appellant is a first-time offender, and was sentenced to a 30-day intermittent sentence for impaired driving. The Appellant takes the position that a jail sentence was excessive having regard to sentences given by other courts to similar offenders in similar circumstances. Given that there were no injuries and no accident resulting from the Appellant’s impaired driving, he argues that a jail sentence is demonstrably unfit. The Appellant also argues that the trial judge failed to give adequate consideration to sanctions other than incarceration before imposing jail.
[2] For the reasons outlined below, the appeal is dismissed.
The Facts
[3] The Appellant was convicted after trial for “impaired operation” contrary to section 253(1)(a) and “dangerous driving” contrary to section 249(1)(a). The material facts underlying the conviction are not in dispute.
[4] On July 1, 2015, the Appellant was operating his motor vehicle travelling westbound on Major Mackenzie Drive. Mr. Younan, who had been travelling behind the Appellant for approximately 10 minutes, witnessed the Appellant continuously straddling lanes, and crossing over the center line into the oncoming lane on at least two occasions. Given the Appellant’s erratic driving, Mr. Younan called the police.
[5] At 11:50 p.m., police located the Appellant’s motor vehicle still travelling down Major Mackenzie Drive. The police observed the Appellant straddling lanes, and when the Appellant approached an intersection, he proceeded through a red light without stopping. The officer activated his emergency lights and pulled over the vehicle.
[6] The officer exited his cruiser and approached the driver’s side door. The Appellant’s wife was in the front passenger seat of the vehicle, and his two young children, aged two and four, were in the back seat. The officer requested that the Appellant exit the vehicle. The Appellant fumbled to open the door. As he exited the vehicle, the car lurched forward for a second as it was still in drive. The Appellant managed to place the car in park before exiting.
[7] As the Appellant exited the vehicle, the officer could smell the odour of alcohol. The Appellant’s eyes were bloodshot and watery and his speech was slurred. He had difficulty forming words at times. The Appellant also had problems staying awake, and could barely sit up in a normal manner when he was placed in the rear seat of the police cruiser.
[8] The Appellant’s blood alcohol concentration at the time was 190 mg of alcohol per 100 ml of blood.
The Sentence
[9] At the time of sentencing, the Appellant was 39 years old. The Appellant is a productive member of society working consistently since his arrival into Canada in 2004. The sole earner in his family, the Appellant had been working as head chef of a catering company for the 2 years prior. The Appellant had no criminal record, and no traffic record was alleged by the Crown.
[10] In his reasons, the trial judge acknowledged that the Appellant was a good candidate for rehabilitation, and not likely to reoffend. He accepted that the Appellant was remorseful. However, the trial judge also noted the serious aggravating features including the Appellant’s blood concentration at 190 mgs, and the fact that the Appellant’s wife and children were with him in the vehicle.
[11] Given the serious aggravating features and the need for general deterrence, the trial judge sentenced the accused to 30 days incarceration to be served intermittently, plus a 2 year driving prohibition, and a 1 year probationary period.
Issue on Appeal
Is the sentence demonstrably unfit?
Was the trial judge required to explicitly consider sentences other than incarceration?
Standard of Review
[12] A trial judge is given considerable deference on appeal with respect to the sentence imposed on an offender. It is not an appeal court’s role to “tinker” with a sentence. “Tinkering” undermines the solemnity of the sentencing process as a fundamental aspect of the trial. The important role played by the trial judge in determining the appropriate sentence has been consistently recognized in the jurisprudence.
[13] Absent an error in principle, a failure to consider a relevant factor, an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 90.
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.
[14] In R. v. Ramage, 2010 ONCA 488, Justice Doherty explained the basis for appellate deference with his usual clarity at paras. 70-72:
Appellate deference to the trial judge’s sentencing decision makes good sense. Sentencing is a fact-specific exercise of judicial discretion. It is anything but an exact science. In the vast majority of cases, there is no single sentence that is clearly preferable to all others. Instead, there is a range of reasonable options from which the trial judge must make his or her selection. That selection is driven by the judge’s evaluation of the sentence that best reflects his or her assessment of the combined effect of the many variables inevitably at play when imposing a sentence. Absent the discipline of deference, sentence appeals would invite the appellate court to repeat the same exercise performed by the trial judge, with no realistic prospect that the appellate court would arrive at a more appropriate sentence. …
A deferential standard of review on sentence appeals also recognizes that a trial judge has an advantage over the appellate court when it comes to balancing the competing interests at play in sentencing. The trial judge gains an appreciation of the relevant events and an insight into the participants in those events - particularly the accused - that cannot be revealed by appellate review of a transcript.
Deference is justified for a third reason. The sentencing judge represents and speaks for the community that has suffered the consequences of the crime. He or she is much better placed to determine the sentence needed to adequately protect the community than is an appellate court sitting at a distant place often years removed from the relevant events. [Emphasis added]
[15] Absent a clear basis for intervention, an appeal court is required to defer.
Is the sentence demonstrably unfit?
[16] The Appellant argues that the imposition of a custodial sentence on a first time offender on these facts is demonstrably unfit.[^1] According to the Appellant, the courts never impose a jail sentence on a first offender unless there is an actual accident or an injury caused by the impaired driving. In effect, the Appellant takes the position that the principle of parity excludes jail as an available disposition on the facts of this case.
[17] As the Supreme Court of Canada explained in R. v. Lacasse, 2015 SCC 64, at para. 57, “sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives.” Ranges should not function as straitjackets on a trial judge’s discretion, but rather as “historical portraits” for the use of sentencing judges, who must still exercise their discretion in each case.
[18] Indeed, if the Appellant’s position were correct, a trial judge could never impose a jail sentence on a first time impaired driver unless he/she was involved in a collision or caused an injury. The problem with a pronouncement of this sort seems evident. It would send the message to potential drunk drivers that impaired driving itself is not a serious offence. This is hardly consistent with the statements made in the jurisprudence, nor is it consistent with society’s clear condemnation of drunk driving. Such a position also ignores the serious consequences that flow from impaired driving, and the importance of general deterrence when dealing with an offence of this nature.
[19] As recognized by the Supreme Court in R. v. Alex, 2017 SCC 27 at para. 1, drunk drivers cause tremendous suffering in Canadian society and place a substantial burden on the criminal justice system. As Justice Cory commented in R. v. Bershaw, at para. 16, “every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction”. Unfortunately these comments by Justice Cory are as relevant today as they were two decades ago. The devastating consequences imposed on families and the community at large by drunk driving are very real indeed. See R. v. Muzzo, 2016 ONSC 2068. Denunciation and general deterrence are clearly the overriding sentencing principles in impaired driving cases.
[20] It is indeed fortunate that no one here was killed or injured. However, the seriousness of the Appellant’s choice to drive while severely impaired must not be trivialized by the fact that there were no injuries. General deterrence remains the primary concern. As Justice Doherty explained in Ramage:
In imposing sentence, the trial judge identified general deterrence as the predominant concern. In doing so, he correctly applied this court’s judgment in R. v. McVeigh (1985), 22 C.C.C.(3d) 145 (Ont. C.A.). In that judgment, now almost 25 years old, this court made it clear that drinking and driving related offences were serious crimes and must be treated as such by the courts. In the memorable words of MacKinnon A.C.J.O. at p. 150, “every drinking driver is a potential killer” [emphasis added].
[21] The Appellant was driving with a blood alcohol concentration that was twice the legal limit with his wife and two children in the car. When he was investigated, his speech was slurred, he was disoriented and he could barely sit up in the police cruiser at the time of his arrest. It is only by a stroke of luck that his wife and children, or another innocent pedestrian, were not killed by his choice to drive while intoxicated. In the circumstances here, a jail sentence was clearly warranted.
[22] The Appellant also argues that the trial judge was required to consider a non-custodial sentence before imposing a jail sentence on the Appellant. According to the Appellant, the principle of restraint requires that a sentencing judge exhaust all other sanctions before concluding that imprisonment is required. See R. v. Priest, [1996] O.J. No. 3369 (C.A.)
[23] In R. v. Proulx, [2000] 1 SCR 61, 2000 SCC 5, the Supreme Court made it clear that “[w]here punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction.”(para. 114). In this case, the trial judge was of the view that a non-custodial sentence or even the 14 day jail sentence proposed by the Crown did not adequately address the need for denunciation or general deterrence. His decision in this regard is a reasonable one and is entitled to deference.
[24] In giving a jail sentence to the Appellant, the trial judge clearly considered the personal circumstances of the offender, his evident remorse, and the offender’s rehabilitative prospects. He even made the sentence intermittent to accommodate the Appellant’s employment. There is no basis to interfere with it.
Fresh Evidence
[25] In this case, the proposed fresh evidence does not materially change the circumstances that were before the trial judge at the time of sentencing. The trial judge found the Appellant remorseful and unlikely to re-offend. He knew the Appellant to be an employed and productive member of the community. Given the circumstances of the offence, however, the trial judge found it necessary to impose a period of incarceration. The proposed fresh evidence would not have changed that.
[26] The application to admit the fresh evidence is dismissed.
Disposition
[27] The appeal is dismissed. The Appellant is hereby ordered to serve the balance of the sentence imposed by the trial judge. For greater clarity as to the custodial portion of the sentence, the Appellant is ordered to turn himself into custody to continue serving his intermittent sentence by the weekend of October 13, 2017.
[28] I thank both counsel for their able submissions.
Justice C.F. de Sa
Released: October 10, 2017
CITATION: R. v. Sivanadi, 2017 ONSC 5740
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
PARTHIPAN SIVANADI
Defendant/Appellant
REASONS FOR JUDGMENT
Justice C.F. de Sa
Released: October 10, 2017
[^1]: A court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes. R. v. M. (C.A.), supra, at para. 92.