COURT FILE NO.: 60/17 DATE: 2018 06 22
ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – MANUEL PEREIRA Appellant
Counsel: David King, for the Respondent Jason Little, for the Appellant
HEARD: June 20, 2018
CONLAN j.
REASONS FOR JUDGMENT
I. Introduction
[1] This is a Summary Conviction Appeal brought by Manuel Pereira (“Pereira”).
The Proceeding in the Ontario Court of Justice
[2] In the Ontario Court of Justice sitting in Milton, on September 12, 2016, Pereira, represented by counsel (not Mr. Little), pleaded guilty to dangerous driving contrary to section 249(1) (a) of the Criminal Code. At the same time, he entered a guilty plea to stunt driving (speeding more than 150 kilometres per hour in a posted 100 zone) contrary to section 172(1) of Ontario’s Highway Traffic Act (“HTA”).
[3] The facts were read-in by the Crown and admitted by the Defence as being correct.
[4] Those facts may be summarized as follows. On October 27, 2014, just after 5:00 a.m., while dark outside, Pereira was operating a pickup truck on the QEW. Its headlights were not on. It was swerving between two lanes of traffic and going about 140 kilometres per hour. It almost struck another vehicle. It cut across multiple lanes of traffic, causing other motorists to brake to avoid a collision. It almost hit a guardrail. It nearly hit another vehicle. It sped up to more than 150 kilometres per hour. The speed limit all along was 100. It again crossed multiple lanes of traffic without signaling. It almost struck an ambulance. It forced another vehicle to swerve to avoid being hit. It continually weaved about. It reached a speed of about 160 kilometres per hour. It was eventually stopped by the police using more than one cruiser.
[5] This was all witnessed by an off-duty police officer.
[6] Pereira’s criminal history was filed as an Exhibit. It runs from 1986 through to 2014. It contains more than forty (40) convictions, including dangerous operation of a motor vehicle causing bodily harm in 1993 (6 months in jail), failing to stop for an accident in 1993 (6 months concurrent), driving while disqualified in 1994 (30 days in jail), dangerous operation of a motor vehicle in 1995 (6 months in jail), and driving while disqualified in 1996 (30 days in jail).
[7] Pereira’s MTO driving record was also filed as an Exhibit. It contains too many convictions to count, including multiple careless driving infractions and numerous speeding offences. The most recent conviction was in 2014.
[8] Pereira was sentenced at Court on April 24, 2017. The Crown asked for six months in custody on the criminal conviction plus one month consecutive on the HTA conviction. The Crown suggested a three-year driving prohibition. The Defence requested a conditional sentence or 90 days in custody, intermittent. The Defence filed proof that Pereira had completed an anger management program with the John Howard Society and had been treated and counselled for anti-violence by his family physician. He had also enrolled in a program to deal with family problems, called “1-2-3 Magic”, specifically designed for parents. The Defence took no position on the length of the driving ban.
[9] At the time of sentencing, Pereira was 45 years old, separated from his wife, with four children between 3 and 9 years of age. He was self-employed running a waterproofing business in the Niagara area.
[10] The Justice imposed a sentence as follows: four (4) in jail on the dangerous driving, plus 15 days in jail consecutive on the stunt driving, a 24-month driving ban, and a $100.00 victim fine surcharge with six months to pay.
The Appeal
[11] Only the sentence is being appealed by Pereira.
[12] In fact, just the 24-month driving ban is being challenged. It is alleged that the Justice failed to give sufficient reasons in support of that Order, and further, it is demonstrably unfit.
[13] It is argued by Pereira’s counsel that the Justice failed to account for certain mitigating factors – the guilty pleas, the lengthy release on bail without any problems, the dated dangerous driving convictions, that the driving record ended in 2014, that Pereira needs his driver’s licence for work and because he lives in a rural area and to exercise access with his children, and that he had attended counselling.
[14] It is submitted by Pereira’s counsel that the length of the driving ban here is out of line with similar offenders in similar circumstances, and several Court decisions are referred to in the Appellant’s Factum.
[15] Pereira asks that this Court intervene and reduce the driving ban from 24 to 12 months.
The Crown’s Response
[16] Not surprisingly, the Crown asks that the Appeal be dismissed. It argues that the sentence imposed was more than fair, perhaps lenient. Without any submissions by the Defence as to the length of the driving ban, the Justice decided upon two years instead of the three years asked for by the Crown.
The Standard of Review and the Basic Legal Principles
[17] Pereira has the burden of proof. He must persuade this Court, on a balance of probabilities, that there is a reason to interfere with what occurred in the Court below.
[18] Under section 687(1) of the Criminal Code, I shall consider the fitness of the sentence imposed in the Court below. I may vary the sentence or dismiss the appeal.
[19] Sentencing is a highly individualized process. Deference ought to generally be shown to the sentencing Court. Except where the sentencing judge makes an error in law or one in principle that impacted the penalty imposed, an appellate court may not vary the sentence unless it is found to be demonstrably unfit. R. v. Lacasse, 2015 SCC 64.
[20] In R. v. Hollyoake, [2012] O.J. No. 4645 (S.C.J.), Justice Durno provided a useful summary of the principles regarding sufficiency of reasons. They are not required to be perfect. They are not expected to meet the example of a jury instruction. They do not have to refer to each and every issue raised by counsel. They do not have to resolve every factual conflict. But they must serve three main functions: (i) tell the interested parties why the decision was made, and permit those parties to know that the judge has heard and considered their arguments and has not based the decision on extraneous matters, (ii) provide public accountability of the decision, and (iii) permit effective and meaningful appellate review (paragraphs 16 and 17).
II. Analysis and Conclusion
[21] For the following reasons, the Appeal is dismissed.
[22] Assuming without deciding that the Justice gave insufficient reasons (which I doubt), and assuming without deciding that the Justice failed to consider mitigating factors (which I disagree with), there is nothing unfit, never mind demonstrably unfit, about the imposition of a two-year driving ban against Pereira.
[23] The driving on the date in question was simply terrible. Pereira is a menace to the roads. He is a chronic recidivist. He has chalked-up so many driving infractions that he had to be treated relatively harshly by the sentencing Justice, notwithstanding the guilty pleas and the other mitigating factors that were in play.
[24] Though dated, he had already received a two-year driving ban in the past. He learned nothing. Frankly, the three years requested by the Crown was entirely reasonable for this offender on these facts.
[25] All of the cases filed by Mr. Little are distinguishable on the basis that none of those offenders was the habitual bad driver that Pereira presented as before the sentencing Justice. In fact, many were first-offenders.
[26] In my view, Pereira got lucky in the Court below. Notwithstanding the guilty pleas, the very significant gap in his criminal record, the fact that Pereira did not get into any trouble between the offence date and the sentencing date, his familial circumstances, and his efforts at rehabilitation including counselling, for this offender (with a terrible driving record) on these facts (simply horrendous driving), a 24-month driving ban was entirely fit.
Consequently, the Appeal is dismissed.
Conlan J.
Released: June 22, 2018