COURT FILE NO.: 15139/19/AP

DATE: 20210506

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R. v. Morgan Luke

BEFORE: Justice S. Woodley

COUNSEL: David Parke, for the Crown

Amanda Ross, for the Respondent

HEARD: January 22, 2021

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

Overview

[1] On March 15, 2018, the Respondent Morgan Luke pled guilty in the Ontario Court of Justice to one count of impaired operation of a motor vehicle. In connection with her guilty plea, Ms. Luke brought a section 12 Charter challenge to the mandatory minimum sentence of a $1,000 fine.

[2] The sentencing judge, the Honourable Justice Burstein, found that the mandatory minimum sentence (“MMS”) was grossly disproportionate to the Respondent Ms. Luke and to the posited reasonable hypothetical offender and as such infringed s. 12 of the Charter and was not saved by s. 1 of the Charter. The Respondent was sentenced to a conditional discharge with two (2) years’ probation and a 12 -month driving prohibition.

[3] The Crown appeals the sentence imposed by the sentencing judge and the s. 12 Charter ruling. The Crown seeks, the imposition of a $2,000 fine, and a 12-month driving prohibition.

[4] The Crown further seeks to tender fresh evidence of the Respondent’s subsequent plea and sentence on an additional charge of operation of a conveyance with a blood alcohol concentration equal to or exceeding 80 milligrams.

[5] The Respondent Ms. Luke opposes the fresh evidence application and opposes the appeal.

[6] The Respondent submits that the sentencing judge correctly found that the MMS set out in s. 255(1)(a)(i) of the Criminal Code (as it was then) constituted cruel and unusual punishment for both the Respondent and the reasonable hypothetical offender and violated s. 12 of the Charter. The Respondent submits that these findings were correct and should be upheld on appeal.

The Offence

[7] On November 4, 2017, the Respondent took her mother’s motor vehicle and drove it north from a parking lot at Simcoe Street and Scugog Street in Port Perry towards Highway 7A.

[8] Due to the vehicle’s rapid acceleration, the back end of the motor vehicle fishtailed as it turned east on Highway 7A. The vehicle then overcorrected and swung right over the south curb and became airborne launching 2 – 3 feet in the air before landing on the sidewalk. The Respondent steered the vehicle onto Highway 7A and continued driving.

[9] The Respondent was stopped by the police. The police noted a strong odor of alcohol emitting from the vehicle. The Respondent had glassy eyes and a blank stare. When the Respondent advised the officer of her name her speech was slurred and there was a strong odor of alcohol on her breath. The Respondent admitted to consuming a few beers that night and was arrested, read her right to counsel, cautioned, and a breath demand made.

[10] The Respondent was transported to the police station where she provided 2 suitable samples of her breath to a qualified technician. The results of those samples were 220 milligrams of alcohol in 100 milliliters of blood and 200 milligrams of alcohol in 100 milliliters of blood respectively. In other words, the Respondent’s blood alcohol level was between 2 and 3 times the legal limit to operate a motor vehicle.

[11] On March 15, 2018, the Respondent pled guilty to impaired driving and a Gladue report was ordered. The agreed statement of facts was read into the record and the hearing was adjourned to May 1, 2019.

[12] Sentencing submissions in the present case were delivered on May 1, 2019.

[13] At sentencing, the Respondent submitted that the appropriate sentence in the circumstances was a conditional discharge and that the imposition of the MMS under s. 255(1) of the Criminal Code (as it then was) violated s. 12 of the Charter and was not saved by s. 1 of the Charter.

[14] The Appellant Crown submitted that the appropriate sentence in the circumstances was the imposition of a $2,000 fine and a 12 - month driving prohibition. The Crown argued that the imposition of the MMS under s. 255(1) of the Criminal Code (as it then was) was not grossly disproportionate to the Respondent nor the posited reasonable hypothetical and did not violate s. 12 of the Charter.

[15] The Court released the Reasons for Decision re Sentence on July 16, 2019. Pursuant to the Reasons for Decision, Justice Burstein held that the appropriate sentence was a conditional discharge. His Honour held that the imposition of the MMS requiring the registration of a conviction and the imposition of a $1,000 fine violated s. 12 of the Charter as it applied to the Respondent and the posited reasonable hypothetical offender and was not saved by s. 1 of the Charter. The Court determined that the appropriate sentence was that of a conditional discharge, 2 years of probation, and a 12- month driving prohibition.

Fresh Evidence of a Subsequent Offence

[16] On June 6, 2019, after the sentencing hearing but prior to the date the sentencing judge imposed the sentence (being July 16, 2019), the Respondent was arrested for driving with a blood alcohol concentration greater than or equal to 80. The Respondent’s first appearance on that charge was July 24, 2019.

[17] The Respondent pled guilty to the June 6, 2019 “80 plus” charge on August 28, 2019, and was sentenced on August 29, 2019, to 7 days in jail to be served intermittently and a 2-year driving prohibition.

[18] Neither the sentencing judge nor the Crown in the present case were made aware of the June 6, 2019 charge prior to imposition of the Respondent’s sentence.

Issues and the Law

[19] The issues on this appeal are as follows:

i. Should the Crown’s fresh evidence application be granted, and the fresh evidence admitted for the purpose of determining the appeal?

ii. Did the sentencing judge err in principle in determining that the appropriate sentence for the Respondent was a conditional discharge?

iii. Does the imposition of the MMS under s. 255(1) of the Criminal Code (as it then was) violate s. 12 of the Charter?

Issue #1: The Crown’s Application to Admit Fresh Evidence

[20] The Crown seeks to adduce fresh evidence of the Respondent’s June 9, 2019 “over 80” charge, her subsequent August 29, 2019 conviction of that charge, and her sentence relating to that charge being 7 days in jail served intermittently, and a 2-year driving prohibition.

[21] The test for admittance of fresh evidence on appeal of a conviction was articulated by the Supreme Court in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, as follows:

i. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in criminal cases as in civil cases;

ii. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

iii. The evidence must be credible in the sense that it is reasonably capable of belief; and

iv. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[22] In R. v. Levesque, 2000 SCC 47, [2000] 2 S.C.R. 487, at para 35, the Supreme Court held that the test for fresh evidence as set out in R. v. Palmer, supra, applies equally to appeals against sentence.

[23] In the present case, at the time of imposition of the sentence by Burstein, J., although the Respondent had been charged with an offence, she not been found guilty or convicted of the offence. As such, at the time of imposition of the sentence, the Respondent was presumed innocent of the subsequent charge and as such the charge would have had no bearing on the sentence imposed.

[24] In the circumstances of the present case, the fresh evidence is not admissible in relation to determining the fitness of sentence imposed by Burstein, J.

Issue #2: Did the sentencing judge err in principle in determining the appropriate sentence for the Respondent?

The Test for Intervention on Appeal from a Sentence

[25] The Supreme Court has reiterated on many occasions that appellate courts may not intervene lightly as sentencing judges have a broad discretion to impose the sentence they consider appropriate within the limits established by law: s. 718.3(1) of the Criminal Code; see also R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, at para. 46; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14; R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, at para. 25; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 43‑46.

[26] In Lacasse, Wagner, J. (as he then was), clarified that an error in principle, meaning the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor can justify intervention and permit that court to inquire into the fitness of the sentence and replace it with the sentence it considers appropriate. However, every such error will not necessarily justify appellate intervention. Instead, appellate intervention will be justified only where it appears from the trial judge’s decision that such an error had an impact on the sentence.

Analysis Regarding Errors in Principle

[27] Having reviewed the Reasons for Decision of the sentencing judge, it is my view that the judge made several separate and distinct errors in principle in determining the appropriate sentence for the Respondent and it appears from the trial judge’s decision that the errors had an impact on the sentence imposed.

Error #1: Failure to Give Primary Consideration to Deterrence and Denunciation

[28] The Supreme Court of Canada and the Court of Appeal have consistently repeated that the primary sentencing principles in impaired driving cases are denunciation and general deterrence. (See R. v. McVeigh (1985), 1985 115 (ON CA), 22 C.C.C. (3d) 145 (Ont. C.A.); R. v. Ramage, 2010 ONCA; R. v. Junkert, 2010 ONCA 549 at para. 47; R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254; R. v. Lacasse, 2015 SCC 64; and (in the Superior Court) R. v. Muzzo, 2016 ONSC 2068).

[29] The rationale for emphasizing denunciation and general deterrence is related to the following:

(1) Impaired driving is the type of offence often committed by ordinarily law-abiding people who are otherwise of good character. It is for these types of people that the deterrent effect is intended to be most effective. (See R. v. Lacasse, supra at para. 73; R. v. Ramage, supra, at para. 75; R. v. McVeigh, supra); and

(2) Impaired driving causes more deaths than any other offence in Canada yet impaired driving continues despite countless awareness programs. (See R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254; and R. v. Lacasse, supra, at para 7.)

[30] However, notwithstanding these binding authorities, the sentencing judge emphasized the principles of rehabilitation and restorative justice, provided reasons that are largely conclusory, and contain little consideration to the principles of deterrence and denunciation.

[31] The Reasons for Decision, at para. 45 – 46, state as follows:

“[45] The mandatory minimum sentence in s. 255(1) prevents me from giving effect to several important factors that would otherwise be central to a determination of a just and appropriate sanction in Ms. Luke’s case; namely that:

(1) Ms. Luke is a young first offender with strong rehabilitative potential;

(2) Ms. Luke’s offence was motivated largely by her alcohol addiction and there is good reason to believe that continued treatment will effectively deal with that issue; and

(3) Ms. Luke’s offence was connected to her Aboriginal background and her Aboriginal heritage provides for rehabilitative and restorative sentencing options.

[46] As I have already explained, if I were to apply all of those sentencing principles, I would be satisfied that the appropriate and just sanction in this case – i.e., the proportionate sentence – is a conditional discharge…”

[32] The foregoing excerpt is one of several examples in the Reasons where the sentencing judge over-emphasized the principles of rehabilitation and restorative justice and failed to give proper consideration to the principles of general deterrence and denunciation. These error in principle had a specific impact on the sentence imposed as is apparent from a simple reading of the Reasons for Sentence.

Error #2: Mischaracterization of the Circumstances of the Offence as a Mitigating Factor

[33] The second error in principle contained in the Reasons for Sentence is the mischaracterization of the circumstances of the offence as mitigating.

[34] Paragraphs 33 of the Reasons for Sentence state as follows:

[33] In determining whether a discharge is appropriate in Ms. Luke’s case, I fully recognize that impaired driving must be seen as a serious offence. The facts of this case exemplify how alcohol-impaired driving can easily lead to damage or injury. However, this was not the typical case of impaired driving that we so often see in court. Ms. Luke had not been out driving as a convenient means of transporting herself somewhere after having consumed some alcohol. Rather, Ms. Luke assumed control of a vehicle after having become extremely intoxicated as an emotional response to having learned of her boyfriend’s infidelity with her own cousin…Ms. Luke’s blood alcohol level when stopped by the police was almost three times the legal limit…In terms of the relevant sentencing objectives, although denunciation is a key consideration in all drinking and driving offences, where the offence was motivated by extreme emotional turmoil, deterrence of like-minded potential offenders seems futile. In any event, to the extent that Ms. Luke’s impaired driving offence demands some measure of deterrence and denunciation, that is accomplished much more effectively by the court imposing a driving prohibition – a sentencing measure which is available irrespective of whether Ms. Luke is convicted or discharged.”(my emphasis).

[35] The Reasons for Sentence describe this case as “not being the typical case” because the offence was motivated by “extreme emotional turmoil”. The Reasons suggest that where an offence is motivated by “extreme emotional turmoil” the seriousness of the offence is somehow mitigated such that deterrence becomes less important and “futile” to enforce what otherwise could be accomplished through a driving prohibition.

[36] It is an error in principle to conclude that because the offence was motivated by extreme emotional turmoil that deterrence “seems futile”. While it is possible that the Respondent may not be specifically deterred – that does not mean that general deterrence and denunciation are displaced as a primary sentencing principle.

[37] Moreover, the fact that the offence was “motivated by extreme emotional turmoil” merely highlights the very serious and dangerous nature of the offence. A person in extreme emotional turmoil who is also impaired and operating a motor vehicle poses a serious and grave danger to society. The appellate Courts have engaged in an upward trend in the sentencing of impaired driving offences because of society’s abhorrence for the oft tragic circumstances that result when individuals choose to drink and drive putting the lives and safety of others at risk. It is an error in principle to conclude otherwise. (See R. v. Altman, 2019 ONCA 511 at para. 51-55; and R. v. Junkert, supra, at para. 46).

[38] In the present case, on a proper appreciation of the offence, principles of denunciation and general deterrence had to play a significant part in determining the appropriate sentence. These sentencing principles have no less currency when the offence is committed by an offender experiencing extreme emotional turmoil.

Error #3: Failing to Give Effect to a Statutorily Aggravating Factor

[39] The third error in principle was the sentencing judge’s failure to note that the breath readings in this case satisfied the test for statutory aggravation set out in s. 255.1. Although the judge did note at para 33 of the Reasons for Sentence that the Respondent’s “blood alcohol level when stopped by the police was almost three times the legal limit”, there is no discussion or consideration that the Respondent’s blood alcohol level was statutorily aggravating.

[40] Pursuant to s. 255.1 of the Criminal Code (as it then was), having a blood alcohol concentration over 160 mg of alcohol in 100 ml of blood is an aggravating factor. In the present case the Respondent’s blood alcohol concentration was 200 and 220 mg of alcohol in 100 ml of blood, which is two and a half times the legal limit. This statutory aggravating factor was not considered by the sentencing judge as an aggravating factor required by the Criminal Code and this is an error in principle.

Error #4: Failing to Give Effect to the Circumstances of the Driving in Question

[41] The final error in principle is the judge’s failure to give effect to the dangerous nature of the Respondent’s driving.

[42] Pursuant to para 13 of the Reasons for Sentence, the following is the sentencing judge’s findings with respect to the Respondent’s driving circumstances:

[13] …As the car was quickly accelerating out of the lot, the back slid out as it turned on to the highway. Ms. Luke overcorrected for the slide and caused the vehicle to hit a curb and become airborne by two or three feet. When the vehicle landed on the sidewalk, it narrowly missed a lamp post. Ms. Luke continued along Highway 7A until she was stopped by the police…

[43] As is apparent from the foregoing excerpt, the Respondent engaged in significant erratic driving that included losing control of the vehicle, hitting a curb, becoming airborne, landing on the sidewalk while narrowly missing a lamp post, and then continuing driving onto a highway until she was stopped by the police. The nature and circumstances of the driving posed a real and present danger to society yet nowhere in the Reasons for Sentence does the trial judge recognize the aggravating nature of the driving. The failure to consider the circumstances of the driving as an aggravating factor is an error in principle.

Conclusion: Cumulative Effect of the Errors in Principle

[44] The errors in principle that are reflected in the Reasons for Sentence are integral to the sentence imposed by the trial judge. While any one of the errors may be sufficient to trigger a review – cumulatively, the errors are determinative. As a result of the errors in principle I find that the imposition of the conditional discharge by the sentencing judge is reviewable.

[45] In view of the Respondent’s elevated blood alcohol readings and the serious nature of the driving, a sentence well beyond the statutory minimum might have been fit and proper. However, given the Respondent’s personal circumstances and personal history, and the Gladue factors, I am of the view that a fit sentence is the minimum prescribed statutory sentence.

[46] It appears from the sentencing judge’s reasons that he concluded that a discharge would be in the Respondent’s best interests based primarily upon the determination that the impact of a conviction would amount to a potentially lifelong crushing burden given her personal circumstances.

[47] While I do not disagree with this finding, I note that following the Respondent’s sentencing by Burstein, J. the Respondent was convicted of an “over 80” offence and has a criminal record. While I do not rely on the “fresh evidence” to aggravate the sentence imposed, as per Lord Coke’s principle, I take note that this subsequent conviction renders moot the impact that a conviction would have on the Respondent. (See R. v. Wilson, 2020 ONCA 3).

[48] Having considered all of the factors in this case, including the personal history and circumstances of the Respondent as outlined in the Gladue report, I don’t disagree that a discharge may ever so slightly still be in the Respondent’s best interests, however, it is clearly not in the public interest.

[49] For the reasons set out above, the sentence is varied to a $1,000 fine and a 12-month driving prohibition.

Issue #3: Does the imposition of the MMS under [s. 255(1)](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) (as it then was) violate s. 12 of the Charter?

[50] As for the s. 12 Charter issue, it has been repeatedly held that courts should not decide issues of law, particularly constitutional issues, that are not necessary to the resolution of the matter before the court: (See R. v. Hewitt, 2018 ONCA 561; R. v. Kinnear, 2005 21092 (ONCA) at para 59; and Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 86 (SCC), [1995] 2 S.C.R. 97 at paras. 5-11).

[51] As I have determined that the fit sentence is the minimum prescribed statutory sentence, determination of the s. 12 Charter issue is not necessary to the resolution of this matter and shall not be determined by me on this appeal.

Justice S. J. Woodley

Date Released: May 14, 2021