Court File and Parties

COURT FILE NO.: CR-17-35 DATE: 2019/01/18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Duane Gore

Counsel: Matthew Collins, Counsel for the Crown John Wright, Counsel for the Accused

HEARD: November 15, 2018

REASONS on sentencing Leroy, J.

Introduction

[1] Mr. Gore was charged on May 20, 2016 with four counts of operating a motor vehicle while disqualified from doing so contrary to s. 259(4) of the Criminal Code of Canada. Mr. Gore was convicted and sentenced to three fifteen year driving prohibitions on August 22, 2011. The parties agree that the s. 12/ Kienapple restriction applies so that conviction is entered on one count.

[2] Mr. Gore was driving when his vehicle was stopped for a licensing check. The officer acknowledged he suspected Mr. Gore to be the operator. There was nothing unusual about the vehicle or the operation. No erratic driving and Mr. Gore responded immediately to the stop instruction.

[3] Mr. Gore applied for relief under s. 9 of the Charter arguing the detention involved in the vehicle stop was arbitrary and the resulting identification evidence should be excluded under s. 24(2). The evidence relevant to the Charter application and substantive trial was the same so the hearing proceeded as a blended voir dire and trial. I denied the application. Although Mr. Gore did not enter a plea of guilt, he acknowledged through counsel that the evidence ruled admissible achieved the essential elements of the offence.

Sentence Provisions

[4] Driving while disqualified is punishable by imprisonment for up to five years. There are multiple sentencing options. This is a subsequent offence so there is a mandatory minimum driving prohibition of three years in addition to imprisonment.

Positions of counsel

[5] The Crown seeks imprisonment for thirty to thirty-six months and a lifetime driving prohibition.

[6] The defence suggests imprisonment for twelve months.

Sentence principles

[7] Section 718 of the Criminal Code establishes that the fundamental purpose of sentencing is to "contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society" by imposing just sanctions with one or more of the following objectives:

a. denouncing unlawful conduct; b. deterring the offender and others from committing crimes; c. separating offenders from society where necessary; d. assisting in the rehabilitation of the offender; e. providing reparations for harm done to the victim or to the community; f. promoting a sense of responsibility in the offender; and g. acknowledging the harm done to victims and the community.

[8] The fundamental principle of sentencing is proportionality. A sentence must be proportionate and broadly commensurate with the gravity of the offence and the moral blameworthiness of the offender (s. 718.1 CCC). The two perspectives on proportionality should converge in a sentence that both speaks out against the offence and punishes the offender no more than necessary.

[9] This is achieved by considering:

(i) Any relevant aggravating or mitigating circumstances relating to the offence or the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances. Mitigating and aggravating factors are only those that are related to the gravity of the offence or the moral blameworthiness of the offender. The absence of a factor is neutral; (ii) Similar sentences for similar offenders for similar offences in similar circumstances (s. 718.2 (b) CCC). Attempts at parity will never be precise. (iii) All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. The restraint principle requires consideration of all sanctions apart from incarceration. Where incarceration is necessary, the term should be as short as possible, tailored to the individual circumstances of the offender. An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances (s. 718.2(d)).

Circumstances of the Offender

[10] Mr. Gore presents before the Court as largely rehabilitated over the last eight years. A Dr. Jekyll who determined to manage or inhibit the Mr. Hyde persona of his character.

[11] Mr. Gore is fifty years of age and an abstinent alcoholic. He stopped drinking alcohol eight years ago – 2010. Before that however, beginning in 1990, Mr. Gore amassed a pertinent criminal record that included four convictions for driving over .08, six convictions for driving while disqualified, one dangerous driving, one failing to remain, thirteen Highway Traffic Act convictions and fourteen failing to comply with court orders, excluding the driving while disqualified. The last three drive while disqualified offences were committed in May and June 2008. The disposition on August 22, 2011 included offences for obstructing police officer, failing to attend court and impersonation with intent to mislead. His criminal record at the time suggested Mr. Gore had become incorrigible so rehabilitation as an objective of sentencing took a back seat to deterrence, denunciation, separating Mr. Gore from society and enforcing an acknowledgement of the harm or potential harm his behaviour presented to the community. He was sentenced to two years imprisonment and prohibited from driving for fifteen years on each of the three offences for driving while disqualified.

[12] Mr. Gore began using alcohol at age sixteen. By his early twenties, he was a heavy drinker and that continued until age forty-two. His criminal record was alcohol-driven. This is his first offence since achieving sobriety eight years ago. Mr. Gore is gainfully employed and thought well of by his employer.

[13] Mr. Gore acknowledges full responsibility for the offence. He shows remorse. He has plans to marry during summer 2019.

[14] The probation officer who interviewed him for the pre-sentence report concluded Mr. Gore is a suitable candidate for community supervision with the caveat Mr. Gore has a history of reoffending while on community supervision orders. Mitigating that risk factor is that substance abuse should no longer trigger reoffending as it appears to have been under control for the last several years.

Mitigating and Aggravating factors

Aggravating Factors

[15] Mr. Collins cited the following as aggravating factors. Mr. Gore knew he was prohibited from driving. He took the risk and was caught. He flouted the law. Mr. Gore can no longer rely on alcohol to rationalize his misconduct. He has not paid the last fine nor has he completed the remedial education component of the license reinstatement process. Mr. Gore’s driving-related record is aggravating. He knew what he was doing. The decision to drive was deliberate. This is not a blip in the rehabilitation process.

[16] Mr. Wright noted that in the circumstance Mr. Gore is ineligible for reinstatement of his license for many years, the omission to attend the remedial education component of the license reinstatement process is of questionable relevance. It is a neutral factor.

Mitigating factors

[17] Mr. Gore’s outlook and prospects changed. He turned his life around after the series of offences in 2008. He realized that alcohol was ruining his life, family and prospects and did what he had to rehabilitate. This is the first offence of any kind in eight years of sobriety. He has not re-offended since May 2016.

[18] Mr. Gore embraces a pro-social perspective. He is gainfully employed and has family support. This incident is a blip in a determined process of rehabilitation. Good people make bad decisions.

[19] Some of the value of a guilty plea is present. The facts were not contested.

Jurisprudence

[20] The court is required to consider cases involving the same offence with a similar constellation of mitigating and aggravating factors applying to the individual offenders.

[21] In the case of R. v. Bear, 1994 SKCA 60, [1994] S.J. No. 272 (Sask C.A.) Mr. Bear was driving at 1:40 a.m. in an erratic manner, impaired by alcohol and while disqualified. Mr. Bear had a long and continuous criminal record linked to driving while impaired or disqualified. The subject of this appeal was the issue of appropriate sentence for persons previously convicted of driving offences who repeatedly and continuously re-offend by driving while prohibited or impaired where bodily injury has occurred.

[22] The court in Bear had for consideration as part of the amalgam of offences the same offence but the constellation of aggravating factors are markedly different. Mr. Bear did not have insight into the alcohol addiction. His record was continuous without hiatus. Mr. Bear was viewed as close to being a worst offender unamenable to rehabilitation so that public safety was the only relevant sentencing principle. His record demonstrated a lack of respect for the law and a lack of appreciation for the danger he was to himself and other users of the highway. Driving impaired and disqualified are aggravating features each to the other. The Court of Appeal concluded that fit sentence for the drive disqualified would be two years concurrent to a three and one half year sentence for refusing to provide a breath sample.

[23] In R. v. Wolfe, 2008 SKCA 60, [2008] S.J. No. 318, Mr. Wolfe committed the second drive disqualified while waiting for sentence on a prior contested conviction for driving while disqualified. A pedestrian fatality was the result.

[24] Mr. Wolfe was forty-five years of age with nine convictions for driving with blood alcohol over the prescribed limits, four for driving while impaired, two for driving dangerously and numerous driving while disqualified. The pre-sentence report assessed the risk of recidivism as in the high risk category. The major risk factors included the number and nature of prior Criminal Code convictions, residence instability, poor academic and vocational skills, employment instability, problematic family/marital relationships, peers and companions, drug and alcohol use attitude and self-management.

[25] Mr. Wolfe accepted no responsibility. The Court of Appeal imposed an 18 month sentence of imprisonment and three year driving prohibition for the first offence and two years imprisonment together with a three year driving prohibition for the second driving while disqualified before the Court.

[26] In R. v. Raven, 2011 ONSC 2490, [2011] O.J. No. 1993, the offences before the Court from January 2011 were impaired driving, dangerous driving and driving while disqualified. It was the manner of driving including several near misses that attracted intervention. By the time of sentencing, Mr. Raven’s record included ten driving while impaired, five for driving while disqualified, four convictions for failing to comply with Court orders and one for criminal negligence driving related. He was an alcoholic. He was last sentenced to two years in the penitentiary in 2007.

[27] The Court concluded that Mr. Raven fell into the worst offender category. Justice Wright wrote that a case such as this requires a strong message to society that drinking and driving is a serious crime and every drinking driver is a potential killer. The fit sentence was five years in the penitentiary without a breakdown together with another lifetime prohibition from driving. Alcohol is not a factor in the case at bar.

[28] In R. v. Hanna, 2013 ABCA 109, [2013] A.J. No. 317, Mr. Hanna attracted police attention by speeding, then escaping nearly striking the officer with the vehicle. Mr. Hanna ditched the vehicle and fled. He was apprehended after police dog tracking. Mr. Gore drove competently and responded immediately to police direction.

[29] Mr. Hanna was convicted of dangerous driving, driving while disqualified and two breaches of recognizance. He was age 55 with a lengthy record of drug, property, assault and driving offences including eight dangerous driving convictions, twelve convictions for driving while disqualified and two convictions for flight from police. His longest previous sentence for driving offences was two years and the longest driving prohibition was five years.

[30] There were no mitigating reasons for driving on the day in question and the sentencing judge concluded that Mr. Hanna was undeterred by the earlier sentences. On appeal, Mr. Hanna was sentenced to two years for the dangerous driving conviction and three and one-half years for the driving disqualified after considering all factors, including totality.

[31] In R. v. Hunziker, 2016 YKSC 29, [2016] Y.J. No. 62, Hunziker came before the Court after pleading guilty to driving while disqualified with a criminal record comprised of four drinking and driving convictions and eleven driving while disqualified convictions. There was a two year hiatus between convictions for driving while disqualified. He received a concurrent (to impaired driving) sixteen month imprisonment order for the latest drive while disqualified conviction.

[32] The sentencing judge’s analysis is succinctly summarized in paragraphs 22 – 24 as follows:

[22] Mr. Hunziker has displayed an attitude of contempt, with respect to driving prohibitions put in place to protect the community. His actions detract from the confidence the public should have in the judicial system. As he amassed convictions for driving while disqualified and drinking and driving offences, relatively lenient sentences of incarceration were not sufficient to deter his behaviour. Much more substantial jail sentences in 2014 for two driving while disqualified offences also failed to deter him. At that time, the sentencing judge warned him he would likely face higher penalties if he continued to offend. At the time of the present offence, he was not far along in the six‑year driving prohibition. He has presented no evidence to minimize the circumstances of the present offence. [23] The bottom line is despite other alternatives — for example, taking a taxi or calling someone for a ride — he made a conscious decision to drive a company vehicle, yet again ignoring an order of the Court prohibiting him from driving. [24] I find that his moral culpability for this offence is high. Mr. Hunziker has not come to the realization that he has no other choice but to abide by this court order.

[33] Justice Chisholm acknowledged that rehabilitation was not out of the question; however his conduct had to be denounced and he had to be deterred. The appropriate sentence was one of twenty months imprisonment.

[34] In R. v. Thomas, 2018 ONCJ 589, Mr. Thomas’ record comprised four previous drinking and driving offences between 1995 and 2003 and seven previous driving while disqualified or prohibited offences between 1998 and 2013, four of which accrued in 2012 and 2013. His penultimate sentence for driving while disqualified was eight months conditional sentence. He pled to impaired and operating a vehicle while disqualified in 2017. He spent the time between the offence date and sentence July 31, 2018 in a residential treatment program. Mr. Thomas displayed remorse.

[35] Notwithstanding the offender’s record, the Crown proceeded summarily. Justice Bourque noted the doctrine of totality, the steps Mr. Thomas had taken to address his alcoholism, the guilty plea, the statement of remorse and considering the Crown was seeking a total of twelve months and imposed a sentence of twelve months imprisonment for driving with nearly double the permissible amount of alcohol in his system and six months concurrent for the driving while disqualified followed by probation for thirty-six months and a lifetime driving prohibition.

Principles applied

[36] Driving is a privilege, not a right. Our highways are highly regulated for good reason. The issue is more than operational competence. A license to drive and proof of insurance are central to highway traffic regulation.

[37] That Mr. Gore was not under the influence of alcohol, operating well within the parameters of a capable operator, and that he cooperated with the investigating officer serve to distinguish his factual context from those of Bear, Wolfe, Raven, Hanna and Thomas. The aggravating factors that are impaired and dangerous driving or a refusal to provide a breath sample are absent.

[38] There is concern for driving recidivism. I do not view Mr. Gore as risk for repeat impaired or dangerous driving. The issue is what sanction persuades Mr. Gore that risks of driving on our roads while prohibited outweigh the reward from taking the chance.

[39] Respect for the rule of law is undermined both for the offender and the wider society who learn of it when an offender flouts a court order, in this case a long term driving prohibition. Mr. Gore chose of his volition, at a time when his significant other was present able to operate the vehicle to take the chance.

[40] The principle of denunciation is an expression of society’s attitude towards the offence committed. It focuses on the aspect of conduct, not on the personal characteristics of the offender. In R v. M. (C.A.), [1996] 1 S.C.R. 500 at 81, Justice Lamer of the Supreme Court of Canada wrote that, “In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.”

[41] Going back to August 2011 the sentencing court was faced with three driving while disqualified amassed over two months, deception inherent in the impersonation offence, resistance inherent in obstruct the officer offence and the criminal record suggesting Mr. Gore might have been on the same path as Messrs. Bear, Wolfe, Raven, Hanna and Thomas. The sentence reflected the aggravating aspects of Mr. Gore’s circumstances at the time.

[42] Whatever the reason, whether it was the two year penitentiary sentence or realization of family and other relationships lost the eight year hiatus is evidence of a serious attempt at rehabilitation.

[43] The circumstances of the offender in 2011 were materially different than his circumstances today. The hiatus has neutralizing effect on the criminal record. He demonstrated respect for the rule of law. He has stable residence, viable vocational skills, stable employment, family and relationship stability and he seems to have established self-management of alcohol use.

[44] The offence of driving while disqualified generally attracts sentencing consequences on a stepped basis. Ergo the crown submission for a period of imprisonment in excess of two years and a lifetime driving prohibition.

[45] However, the circumstances today demand a step back. The improved circumstances of the offender, the dearth of aggravating factors so often part and parcel of this offence moves the proportionality needle.

[46] I agree with counsel consensus that a conditional sentence will not achieve the required denunciation and individual deterrence. Mr. Gore notwithstanding the hiatus and changed circumstances has to recognize that the risk/reward is not worth it. I am unconvinced Mr. Gore understands the interests involved and a sentence in the community will not deter him from re-offending. I am not convinced that the community would respect the denunciatory value of a community sentence for this offence and offender.

[47] Mr. Gore is accordingly sentenced to imprisonment for a period of twelve months.

[48] There will be a mandatory three year driving prohibition. Mr. Gore is already ineligible for reinstatement until 2026. Barring the advent of fully autonomous vehicles the insurance industry will constrain his driving eligibility at the time. I am hopeful this is Mr. Gore’s last sojourn as vehicle operator while disqualified. A lifetime driving prohibition would defeat opportunity for rehabilitation and commitment to the drive prohibition.

The Honourable Mr. Justice Rick Leroy Released: January 18, 2019