COURT FILE NO.: SCA 9387/18
DATE: 2019-09-24
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
N. Dietrich, for the Appellant
- and -
MILAN BUDALIC
B. Smart, for the Respondent
HEARD: March 22 and June 11, 2019
The Honourable Justice Catrina D. Braid
REASONS ON APPEAL
On appeal from the written decision of April 12, 2018 by Justice C.A. Parry of the Ontario Court of Justice, 2018 ONCJ 245; and sentencing by Justice Parry on May 8, 2018.
I. OVERVIEW
[1] Should the court treat a 1985 conviction for impaired driving as a previous conviction referred to in s. 255(4) of the Criminal Code, thereby triggering an increased mandatory minimum sentence? That is the issue on this sentencing appeal.
[2] In 2018, Milan Budalic was convicted of four drinking and driving offences. He was previously convicted of impaired driving in 1985 and 2008. If an accused is convicted of a third or subsequent offence of drinking and driving, s. 255(1)(a)(iii) of the Criminal Code that was in force at the time of sentencing prescribed a mandatory minimum sentence of 120 days’ imprisonment.
[3] The sentencing judge declined to declare Mr. Budalic’s 1985 conviction as a previous conviction within the meaning of s. 255(4). He sentenced Mr. Budalic to time served (the equivalent of 42 days), three years’ probation and a three year driving prohibition.
[4] The Crown appeals the sentence, and argues that that the sentencing judge erred in law in his application of s. 255(4) of the Criminal Code. The Crown also argues that the sentence is inadequate.
[5] In these reasons, I shall address the following questions:
A. Did the sentencing judge err in law in his application of s. 255(4) of the Criminal Code?
B. Is the sentence inadequate?
[6] For the reasons set out below, I allow the appeal.
II. CHARGES AND CRIMINAL RECORD
[7] On August 4, 2017, Mr. Budalic pleaded guilty to the following charges:
i. Theft Under $5000 (offence date February 14, 2016);
ii. Operation of a Motor Vehicle while his Blood Alcohol Content was Over 80 mg of Alcohol in 100 ml of blood (“Over 80”) (offence date April 9, 2016);
iii. Impaired Operation of a Motor Vehicle (offence date May 28, 2016);
iv. Refuse to Provide Breath Sample (offence date May 28, 2016);
v. Fail to Comply with Recognizance by consuming alcohol (offence date June 26, 2016); and
vi. Impaired Operation of a Motor Vehicle (offence date July 18, 2016).
[8] The Crown filed a Notice of Application for Increased Penalty prior to sentencing. In seeking the increased penalty, the Crown relied on Mr. Budalic’s prior criminal record, which includes the following convictions:
i. Driving While Ability Impaired (offence date October 28, 1985). He received a sentence of 30 days in jail and probation for two years; and
ii. Driving While Ability Impaired (offence date June 10, 2008). He received an $800 fine and a one-year driving prohibition.
III. KEY LEGISLATIVE PROVISIONS
[9] In order to understand the issues that arose at sentencing, it is important to consider some key legislative provisions:
i. Criminal Code, s. 255
[10] Section 255(1) of the Criminal Code (in force at the time of the offences and sentencing) directs that the court shall impose a minimum sentence of 30 days’ imprisonment for a second offence and a minimum sentence of 120 days’ imprisonment for each subsequent offence.
[11] Section 255(4) states that a person who is convicted of impaired, over 80, or fail/refuse to comply with a breath demand is deemed to be convicted for a second or subsequent offence if they have previously been convicted of:
(a) an offence committed under those provisions; or
(c) an offence under section 250, 251, 252, 253, 259 or 260 or subsection 258(4) of this Act as this Act read immediately before the coming into force of this subsection.
ii. Interpretation Act, s. 44
[12] Section 44 of the Interpretation Act, R.S.C. 1985, c. I-21 states that, where an enactment is repealed and another enactment is substituted therefor:
(f) except to the extent that the provisions of the new enactment are not in substance the same as those of the former enactment, the new enactment shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the former enactment. [Emphasis Added.]
IV. REASONS OF THE SENTENCING JUDGE
[13] At sentencing, the parties agreed that Mr. Budalic was convicted of impaired driving in 1985, as that offence read in s. 234 of the Criminal Code, R.S.C.1970, c. C-34. The sentencing judge provided a helpful chart showing a summary of the legislative history, which I have reproduced as Appendix A to these reasons. He noted that s. 234 was subsequently amended by the Criminal Law Amendment Act, 1985, c. 19.
[14] The sentencing judge held that the legislative amendment to s. 234 involved more than a mere change in the section number of the offence of impaired driving and included substantive amendments to the penalties for impaired driving. He found that it would be inappropriate to read the current s. 255(4)(c) as somehow implicitly referring to the former s. 234, which he held to be an offence provision that had been substantially amended three years prior to the coming into force of s. 255(4)(c).
[15] The sentencing judge concluded that the 1985 conviction for impaired driving did not constitute a previous conviction within the meaning of s. 255(4) of the Criminal Code. He therefore considered the driving offences as second offences, within the meaning of s. 255(1)(a)(ii) of the Criminal Code, the mandatory minimum period of imprisonment for which is 30 days.
[16] The sentencing judge imposed a sentence of one day deemed served, the equivalent of 42 days of presentence custody, three years’ probation and a three-year driving prohibition. This sentence was imposed on all four of the drinking and driving charges, concurrent on all counts.
V. LEGISLATIVE HISTORY OF IMPAIRED DRIVING
[17] In order to determine whether the 1985 conviction is a previous conviction under s. 255(4) of the Criminal Code, it is necessary to examine of the changes to the Criminal Code impaired driving offences at the time of Mr. Budalic’s 1985 conviction until his sentencing in 2018. I have set out the wording of the impaired driving offences below:
a) Impaired Driving Offence in the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) in October 1985
[18] Mr. Budalic was convicted of impaired driving on October 28, 1985, when the Criminal Code, R.S.C. 1970, c. C-34, as amended by 1974-75-76, c. 93, s. 14(1) was in effect. At the time of Mr. Budalic’s 1985 conviction, s.234 was the impaired driving offence and s.236 was the over 80 offence. The impaired driving offence read:
s. 234(1) Every one who, while his ability to drive a motor vehicle is impaired by alcohol or a drug, drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, is guilty of an indictable offence or an offence punishable on summary conviction and is liable
(a) for a first offence, to a fine of not more than two thousand dollars and not less than fifty dollars or to imprisonment for six months or to both;
(b) for a second offence, to imprisonment for not more than one year and not less than fourteen days; and
(c) for each subsequent offence, to imprisonment for not more than two years and not less than three months.
b) Impaired Driving Offence in the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) between December 4, 1985 and December 11, 1988
[19] The Criminal Law Amendment Act, 1985, came into force on December 4, 1985. The Act repealed ss. 233 to 240.3 of the Criminal Code and substituted those provisions with ss. 233 to 243.1. The impaired driving and over 80 offences read:
- Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or has the care or control of a motor vehicle, vessel or aircraft whether it is in motion or not,
(a) while his ability to operate the vehicle, vessel or aircraft is impaired by alcohol or drug; or
(b) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
239(1) Every one who commits an offence under section 237 or 238 is guilty of an indictable offence or an offence punishable on summary conviction and is liable,
(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
(i) for a first offence, to a fine of not less than three hundred dollars,
(ii) for a second offence, to imprisonment for not less than fourteen days, and
(iii) for each subsequent offence, to imprisonment for not less than ninety days;
(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and
(c) where the offence is punishable on summary conviction, to imprisonment for a term not exceeding six months.
c) Impaired Driving Offence in the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) as it read on December 12, 1988 and at the time of sentencing
[20] Chapter C-46 of the Revised Statutes of Canada, 1985 was proclaimed in force on December 12, 1988. In the revised Criminal Code, the offence of impaired driving appeared in s. 250(1), while the offence of driving over 80 appeared in s. 253(1). The impaired driving offence read:
250(1) Every one who, while his ability to drive a motor vehicle is impaired by alcohol or a drug, drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, is guilty of an indictable offence or an offence punishable on summary conviction and is liable
(a) for a first offence, to a fine of not more than two thousand dollars and not less than fifty dollars or to imprisonment for not more than six months or to both fine and imprisonment;
(b) for a second offence, to imprisonment for not more than one year and not less than fourteen days; and
(c) for each subsequent offence, to imprisonment for not more than two years and not less than three months.
[21] On the day that these revisions came into force (December 12, 1988), they were further revised by the Criminal Law Amendment Act, 1985, c. 27, which also came into force on December 12, 1988 as part of the Revised Statutes of Canada (First Supplement). The Criminal Law Amendment Act, 1985, c. 27, in the First Supplement, amended the Criminal Code provisions, repealed the Revised Statutes of Canada provisions relating to motor vehicles (including section 250 that is set out above), and replaced them with the following pertinent provisions. These are the sections that were in force at the time of the offences and at sentencing in the matter before the court:
- Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or has the care or control of a motor vehicle, vessel or aircraft, whether it is in motion or not,
(a) while his ability to operate the vehicle, vessel or aircraft is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
255 (1) Every one who commits an offence under section 253 or 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable,
(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
(i) for a first offence, to a fine of not less than three hundred dollars;
(ii) for a second offence, to imprisonment for not less than fourteen days; and
(iii) for each subsequent offence, to imprisonment for not less than ninety days.
(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and
(c) where the offence is punishable on summary conviction, to imprisonment for a term not exceeding six months.
[22] As ultimately enacted, s. 255(4)(c) of the Criminal Code, RSC 1985, c. C-46, as amended by RSC 1985, c. 27 (First Supp.) referred to the offence provisions that appeared in the Revised Statutes of Canada, 1985 Act. The legislative drafting technique of incorporating previous section numbers in s. 255(4)(c) of the Criminal Code created confusion and uncertainty because the section numbers in s. 255(4)(c) are not consistent with section numbers found in the Criminal Code as it read on December 11, 1988, the day before the coming into force of s. 255(4)(c).
d) Revised Statutes of Canada, 1985
[23] To facilitate the coming into force of the Revised Statutes and the Supplements, the government passed the Revised Statutes of Canada, 1985 Act, R.S.C. 1985, c. 40 (3rd Supp.). Sections 4 and 5 of that Act speak to the effect of the revision and repeal of the Acts that are being substituted by the Revised Statutes:
The Revised Statutes shall not be held to operate as new law, but shall be construed and have effect as a consolidation of the law as contained in the Acts and portions of Acts repealed by section 3 and for which the Revised Statutes are substituted.
Where a reference is made in any Act, regulation or other instrument, document or text to any Act or portion thereof repealed by section 3, or to any expression used therein, the reference shall, after the Revised Statutes take effect, be deemed as regards any subsequent transaction, matter or thing to be a reference to the enactment in the Revised Statutes having the same effect as the repealed Act or portion thereof, or to the corresponding expression used therein.
VI. ANALYSIS
A. Did the sentencing judge err in law in his application of [s. 255(4)](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)?
[24] In determining that the 1985 conviction should not be treated as a previous conviction under s. 255(4), the sentencing judge relied on three primary lines of reasoning, which I shall examine below:
1. Whether the [Interpretation Act](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-i-21/latest/rsc-1985-c-i-21.html) applies
[25] At the time of the 1985 conviction, impaired driving was set out in s. 234 and over 80 was set out in s. 236 of the Criminal Code. The sentencing judge found that these sections were two enactments, and that the offences of impaired driving and over 80 were later contained in s.253(a) and (b) of the Criminal Code, which he held to be a single enactment. He held that the s.234 and s.236 were not “an enactment” in the singular, as required by s. 44 of the Interpretation Act. He held that the Interpretation Act does not apply, because the Act explicitly refers to an enactment (in the singular) that is in substance the same as its current single replacement. For reasons set out below, I reject the sentencing judge’s analysis on this issue.
[26] The sentencing judge did not make reference to the definition of the word “enactment”, which is found in s.2 of the Interpretation Act. The word “enactment” is defined as “an act or regulation or any portion of an act or regulation.” The act at issue is the Criminal Law Amendment Act, 1975, c. 93 that set out the offence of impaired driving in s. 234, and that was replaced by a new act. The impaired driving provisions are simply a “portion” of the act, as described in s.2. The reference to “any portion” of an act in the s.2 definition does not require that the section numbers be singular. Therefore, the Interpretation Act applies.
[27] Within the meaning of s. 44(f) of the Interpretation Act, the impaired driving offence in the Criminal Law Amendment Act, 1985, c.19 was a new enactment replacing the former enactment, namely the impaired driving offence in Criminal Law Amendment Act, 1975, c. 93. The Criminal Law Amendment Act, 1985, c.19 was then replaced by a new enactment, namely the impaired driving offence in the Criminal Law Amendment Act, 1985, c.27.
2. Whether the enactments were different in substance
[28] I shall therefore move to an examination of whether the provisions of the new enactment are in substance the same as those of the former enactment.
[29] The sentencing judge held that the penalties for contraventions of sections 234 and 236 of the former statute were substantively different than the penalties available following the proclamation of the Criminal Law Amendment Act, 1985, c. 19. He held that the amendments would not fall within the definition set out by the Interpretation Act, which requires the new enactment to be in substance the same as the former enactment. The newer Criminal Code provisions substantially increased the minimum penalty for first offenders; provided for mandatory driving prohibition for those who committed an impaired/over 80 offence; and removed the ability of the court to impose a discharge. For the reasons that are set out below, I do not agree with the sentencing judge’s analysis on this point.
[30] The provisions of the drinking and driving regime did not change; it was only the section numbers and punishment that changed. In terms of the section numbers, the offence of impaired driving under s.234 was later set out in s.237(a), s. 250 and then s.253(a). The change in the section numbers or subsection numbers was not a substantive change.
[31] The Interpretation Act s. 44(f) addresses changes that are substantive, whereas ss. 44(d) and (e) address changes to punishment provisions. Parliament clearly intended to draw a distinction between changes that are substantive and changes to punishment. A change in punishment is therefore not a substantive change to the provisions of an enactment within the meaning of the Interpretation Act.
[32] On this issue, I agree with and adopt the reasoning of Justice Pomerance in R. v. Gibson, 2010 ONSC 6374, [2010] O.J. No. 5173. Although the court in that case was dealing with a third-party records application, the analysis is relevant to the case at bar. The court reviewed the relevant legislative history and applied s. 44 of the Interpretation Act. Her Honour held that, even though the punishment for sexual assault has changed, the essential elements of the offence have not. In the same way, the essential elements of the offence of impaired driving have not changed since Mr. Budalic was convicted of that offence in 1985.
[33] Pursuant to the Interpretation Act s.44(f), the newer versions of the Criminal Code “shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the former enactment.” Effectively, the old impaired driving offence is consolidated with the new impaired driving offence because the sections are not substantively different. Section 234 of the Criminal Code (as it existed in 1985) would therefore fall within s. 255(4)(a) as an offence committed under s. 253 of the Criminal Code (as it existed at the time of sentencing).
3. The sentencing judge’s discussion of legislative changes made by amendment prior to the Revised Statutes being enacted
[34] The sentencing judge held that the initial legislative changes were made by an amendment in the form of the Criminal Law Amendment Act, 1985, c. 19, and not by revision of the statutes in accordance with the provisions of the Revised Statutes of Canada Act, 1985. He held that the analysis in R. v. Eaton (1990) 11006 (BC SC), 58 C.C.C. (3d) 217 did not apply because the legislation had been substantively changed before the Revised Statutes was enacted.
[35] The sentencing judge held that the amendment to s. 234 was not affected by the federal government's statutory revision scheme to create the Revised Statutes of Canada, 1985. He held that the first legislative amendment to s. 234 (in December of 1985) involved more than a mere change in the section number of the offence of impaired driving and included substantive amendments to the penalties for impaired driving. In addition, he found that it would be inappropriate to read s. 255(4)(c) as somehow implicitly referring to an offence provision that had been substantively amended some three years prior to the coming into force of s. 255(4)(c).
[36] For the reasons set out above, I do not agree that the legislation changed in substance with the passage of the Criminal Law Amendment Act, 1985, c.19 and the Interpretation Act, s. 44(f) is applicable. Therefore, the new enactment of the Criminal Law Amendment Act, 1985, c.19, did not operate as new law, but effectively consolidated the law in the former Criminal Code. That Act was then consolidated by the Revised Statutes of Canada.
[37] The section numbers that are specifically enumerated in s. 255(4)(c) refer to drinking and driving offences as they stood in the Revised Statutes of Canada, 1985 Act, c. C-46. Notably, s. 4 of the Revised Statutes of Canada, 1985 Act states that they shall not be held to operate as new law, but shall be construed and have effect as a consolidation of the law contained in the Acts and portions of the acts repealed by and for which the Revised Statutes are substituted: see R. v. Gibson.
[38] Section 255(4)(c) refers to a person convicted under a section of the Criminal Code as it was renumbered and captured by reason of the Revised Statutes. Therefore, s. 234 of the Criminal Code (as it existed in 1985) would fall within s. 255(4)(c) as an offence committed under s. 250.
Conclusions Regarding the Application of s. 255(4) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)
[39] The decision by the sentencing judge essentially followed the position, set out in two decisions from Justice Atwood of the Nova Scotia Provincial Court, that Parliament intended to create a “sunset clause” for convictions predating the in-force date of the 1985 revision of the Criminal Code. With respect, this interpretation of the legislation is without merit.
[40] Pursuant to s. 12 of the Interpretation Act, every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
[41] It would run contrary to the objects of the Criminal Law Amendment Act, 1985, to effectively grant a clean slate to those with a record of impaired and over 80 convictions prior to December 4, 1985. Common sense would dictate that a law, intended to portray Parliament’s views about the seriousness of drunk driving, would not also act as an effective expungement of prior drinking and driving convictions.
[42] The preamble to the impaired driving legislation makes it clear that the provisions were intended to promote public safety. By listing historical offences in s. 255(4)(c), Parliament signalled its intention that the scheme apply to past offences under prior legislation. There is no rational basis on which to distinguish or exclude historical offences from others listed in the section.
[43] I do not believe that Parliament had any intention to limit the application of s. 255(4) to offences that occurred after 1988. If that was Parliament’s intention, there would have been no need to include s. 239 in the Criminal Law Amendment Act, 1985, c.19 (in force December 4, 1985), which states convictions under s.234 (impaired driving in the Act as it existed in October of 1985) shall be treated as previous convictions for purposes of the increased penalty. Section 255(4)(c) of the Criminal Code, in force at the time of sentencing, contains the exact same language as s.239 in the previous Act, except that the section numbers have changed. I find that this is clear evidence of Parliament’s intention to include offences committed under the legislation that was in force in 1985.
[44] Section 255(4)(a) is applicable. Mr. Budalic’s conviction for impaired driving in 1985 was, by virtue of the Interpretation Act provisions, an offence committed under s. 253 of the Criminal Code, and for which he is liable for the greater penalty under s. 255(1)(a)(iii) of the Criminal Code. In addition, s.255(4)(c) is applicable because the 1985 conviction was an offence committed under s.250 as set out in the Revised Statutes of Canada, which was a consolidation of the prior legislation.
[45] In conclusion, I find that the sentencing judge erred in law in his application of s. 255(4) of the Criminal Code. The 1985 conviction for driving while ability impaired constitutes a previous conviction within the meaning of s. 255(4)(a) and (c). This was Mr. Budalic’s third conviction and the mandatory minimum sentence of 120 days’ imprisonment applies.
B. Is the sentence demonstrably unfit?
[46] The sentences imposed on the charges of impaired driving (2 counts), over 80 and fail to comply with breath demand were below the mandatory minimum and were therefore demonstrably unfit. The mandatory minimum penalty of 120 days is the sentencing floor on each of the four charges.
[47] At the time of sentencing and on appeal, the Crown sought a sentence of six months in custody less time served, probation and a five-year driving prohibition.
[48] At the sentencing hearing, defence counsel asked for time served of 28 days presentence custody, which is the equivalent of 42 days, plus probation and a driving prohibition. On appeal, defence counsel maintains the position that the sentence imposed was appropriate. However, if he is unsuccessful on the mandatory minimum argument, counsel seek the minimum sentence of 120 days’ imprisonment, less time served of 42 days, and requests that Mr. Budalic be permitted to serve the remaining 78 days on an intermittent basis.
[49] The sentencing judge set out the mitigating factors, which are as follows:
i. Mr. Budalic pleaded guilty, which is an expression of remorse.
ii. He attended residential treatment after the offences, voluntarily depriving himself of liberty for one month to receive intensive rehabilitation.
iii. He attended counselling, including relapse prevention and an aftercare program.
iv. After his last arrest, he was on house arrest bail for 22 months and complied with that condition.
v. Mr. Budalic has a history of depression.
vi. Mr. Budalic is 65 years of age. He has a supportive family who will continue to assist with his rehabilitation.
[50] The following are aggravating factors in this case:
i. Mr. Budalic has a criminal record for two impaired driving offences.
ii. As reflected in his presentence report, he accepted responsibility for his actions but tended to minimize his behaviour. He did not express any concern for the seriousness of driving while impaired, but simply stated, “when I drink, I forget everything and I forget that I am driving.”
iii. He is being sentenced for four drinking and driving offences that occurred on three distinct occasions in 2016. These convictions were his third through sixth drinking and driving related offences.
iv. Two of the impaired driving incidents occurred while he was on release awaiting disposition on other drinking and driving offences. In addition, he also acknowledged breaching his recognizance on another occasion by consuming alcohol.
v. Drinking and driving is a serious offence. In R. v. McVeigh (1985), 115 (ON CA), 22 C.C.C. (3d) 145, the Court of Appeal for Ontario pointed out that every intoxicated driver is a potential killer. There is a pressing societal interest in curtailing the death and destruction wrought by impaired driving in Canada.
[51] Even if I am wrong in my interpretation of the legislation and the application of the mandatory minimum, I would still find that the sentences imposed were demonstrably unfit. The sentence was inadequate to address denunciation and deterrence, which should be two of the primary goals for sentencing for this type of offence: see R. v. Brake, [2005] N.J. No. 78 (P.C).
[52] Pursuant to s. 822(6) of the Criminal Code, an appellate court may vary a sentence. In my view, the sentence after trial for these offences would be in the range of 9 to 12 months. I have considered the totality principle, the guilty plea, and Mr. Budalic’s significant steps toward rehabilitation (including residential rehab and counselling). I have also considered the fact that Mr. Budalic has been out of jail for more than a year.
[53] I find that the appropriate sentence is one of 6 months custody, less pretrial time served; 3 years’ probation; and a 5-year driving prohibition. In my view, this sentence addresses the need for denunciation and deterrence, but is also measured in that it addresses rehabilitation and assigns credit to Mr. Budalic for the steps that he has taken toward rehabilitation.
[54] With respect to the driving prohibition, a minimum three-year driving prohibition applies for the third offence. I find that it should be increased. In the presentence report, Mr. Budalic’s family stated that if he relapses and consumes alcohol, he will drive. His family asked for a driving prohibition in the best interests of community safety. In light of Mr. Budalic’s record and his tendency to minimize the seriousness of driving while impaired, a five year driving prohibition is appropriate.
[55] In the result, the custodial portion of the sentence is varied as follows:
i. Over 80 (offence date of April 9, 2016): 6 months custody less time served (the equivalent of 42 days), for a remaining sentence of 138 days.
ii. Impaired Operation of a Motor Vehicle (offence date of May 28, 2016): 6 months custody less time served (42 days), for a remaining sentence of 138 days, concurrent.
iii. Refuse to Provide Breath Sample (offence date of May 28, 2016): 6 months custody less time served (42 days), for a remaining sentence of 138 days, concurrent.
iv. Impaired Operation of a Motor Vehicle (offence date of July 18, 2016): 6 months custody less time served (42 days), for a remaining sentence of 138 days, concurrent.
[56] In addition, the court imposes a 5-year driving prohibition and 3 years probation on all four of these charges, concurrent. There shall be no variation to the terms of probation imposed by the sentencing judge. In light of the fact that the probation length and terms are not being varied, the probation order that was imposed by the sentencing judge will remain in effect and will not be varied. The probation order that was imposed by the sentencing judge on May 8, 2018, shall be suspended for the new period of custody.
[57] Finally, the victim fine surcharge is vacated, pursuant to R. v. Boudreault 2018 SCC 58, R v. Henry, 2019 ONCA 229, R. v. Drysdale, 2019 ONCA 129, and R. v. Porter, 2019 ONCA 114.
VII. CONCLUSION
[58] For these reasons, the appeal is allowed and the sentence is varied as set out above.
Braid, J.
Released: September 24, 2019
APPENDIX A – SUMMARY OF LEGLISLATIVE HISTORY
COURT FILE NO.: SCA 9387/18
DATE: 2019-09-24
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
MILAN BUDALIC
REASONS ON APPEAL
CDB
Released: September 24, 2019