Court File and Parties
Court File No.: CR-25-91100598-00AP Date: 2025-12-03 Ontario Superior Court of Justice
Between:
HER MAJESTY THE QUEEN Appellant
– and –
DAVINDRA SHIWRATAN Respondent
Sean Doyle, for the Crown
Respondent appears in person
Heard: October 16, 2025
Reasons for Judgment
J. Di Luca J.
Overview
1The Crown appeals the sentence imposed by Sickinger J. on April 2, 2025, following the respondent's guilty plea to a charge of operating a conveyance with a blood-alcohol concentration of 80 mgs of alcohol or more in a 100 ml of blood.
2At the sentencing hearing, Crown and defence counsel jointly submitted that a 60-day conditional sentence of imprisonment, with probation and a driving prohibition, was an appropriate disposition. Instead of the jointly recommended position, the sentencing judge imposed a fine of $2,500 plus a driving prohibition and a probation order for 18 months.
3At the hearing of the appeal, the respondent attended in person. He advised the court that he was content with the originally agreed upon joint submission and was therefore not opposed to the Crown's appeal.
4After hearing the Crown's submissions, I allowed the appeal, vacated the fine, and imposed the conditional sentence of imprisonment that had been jointly submitted as appropriate at the time of the sentencing hearing. The remaining aspects of the sentence imposed, including the driving prohibition order, were not disturbed.
5At the conclusion of the hearing, I indicated that I would later provide brief reasons, and I do so now.
The Guilty Plea Proceedings
6At the outset of the proceedings, Crown counsel advised the Court that the matter would be proceeding with a joint submission for a 60-day conditional sentence of imprisonment, with probation and a driving prohibition. Defence counsel was then invited to place comments on the record regarding a plea comprehension inquiry. Counsel's comments were confirmed with the respondent, who then entered a guilty plea upon arraignment.
7In terms of facts in support of the guilty plea, the respondent admitted the following:
a. On January 9, 2025, he was operating a vehicle on Highway 407 at very high speeds.
b. He was observed having difficulty remaining in his lane. He was pulled over for a traffic stop and the officer conducting the stop had some difficulty getting him to pull the vehicle off onto the shoulder of the roadway.
c. Some roadside coordination tests were administered, and the respondent had difficulty walking in a straight line. The investigating officer also smelled alcohol.
d. The respondent was arrested for stunt driving and dangerous driving.
e. At the police station, he provided two samples of his breath which resulted in readings of 206 and 205 mgs of alcohol in 100 ml of blood.
8Based on these admitted facts, the judge entered a finding of guilt. The parties then made sentencing submissions, during the course of which, the sentencing judge was advised that the respondent is a licensed electrician. The sentencing judge then asked defence counsel whether the conviction would affect his ability to work as a licensed electrician, and stated "I'm just wondering if maybe he wants to double check on that before we go ahead."
9The matter was then held down so counsel could make inquiries. Upon returning, defence counsel explained, "We have canvassed the employment consequences, and he's content to proceed. I do want to make Your Honour aware we are on a crunch timeline given the Stream A considerations of April 9th."
10Defence counsel then proceeded to make further sentencing submissions focusing on the fact that the respondent had prior struggles with alcohol and had put in place a plan to address his issues, including using professional recovery services and a life coach.
11The following exchange then occurred:
THE COURT: Ms. Shaw [the Crown], can I ask, why the sentence is so high, given the facts that I've heard? Like, am I missing something? Is there a record? Are there – it just seems to me that this sentence is incredibly disproportionate given what I've heard.
E. SHAW: Well, Your Honour...
THE COURT: I mean, I – I understand there may be a reason for it. I think I just need to hear it.
E. SHAW: There is a reason. There was a record suspension that we're not relying on, in terms of this – the joint submission is – is – is because of the early plea, but there is a suspension. There has been a suspension on the record. 1
THE COURT: Like, just usually something like this would be maybe an increased fine. That's why I'm asking, a 60-day conditional sentence order, I think I need some justification for why I should give him a conditional sentence when someone else in his position would usually get a fine and a driving – and an increased prohibition maybe. I mean, I appreciate that – whoever's phone is that, please go outside. I mean, I appreciate the readings are relatively high, but this is Newmarket and that doesn't even get close to some of the readings I've seen where we've done, you know, a fine and a prohibition. [emphasis added]
12The sentencing judge then indicated that she was "having a hard time justifying the sentence" based on the additional information provided. In response, the Crown added that the respondent was travelling at 167 km/h on Highway 407 with blood alcohol readings of 200 mgs.
13In her reasons for sentence, the sentencing judge made the following comments and findings:
I appreciate that this is a joint submission, but in the circumstances, given the facts that have been admitted, and what Ms. Shaw is able to tell me, it seems to me that what has been proposed is disproportionate, given the facts that have been admitted.
Certainly there are some aggravating factors. It is statutorily aggravating that he had readings as high as he did. As well, it appears there is some, and I say this not in terms of the criminal definition of dangerous driving, but what amounts to some dangerous driving. He is driving extremely fast on a 400-series highway, almost 70 percent in excess of the posted speed limit.
That being said, these types of offences normally would attract an elevated fine, an elevated driving prohibition, and I cannot, on the face of what is before me today, justify the imposition of a conditional sentence. It is just not made out on the facts. I appreciate the position that Ms. Shaw is in, that she has only got the information that she has, but absent someone being able to justify it for me, I just do not think that it is in keeping with the administration of justice. [emphasis added]
14The sentencing judge then asked the Crown what the mandatory minimum fine for the offence was and was advised that given the readings it was $2,000. The sentencing judge then indicated "I am going to order that you pay a fine in the amount of $2,500. That is $500 above the mandatory minimum."
15The sentencing judge also imposed the probation order and driving prohibition orders as jointly requested by counsel. The remaining charges which include impaired operation of a conveyance, dangerous operation of a conveyance and stunt driving were withdrawn.
The Test for Rejecting a Joint Submission
16Guilty pleas resolve the vast majority of criminal cases and in doing so, they contribute to effective and efficient criminal justice system, see R. v. Nixon, 2011 SCC 34 at para. 47. As Moldaver J. explains in R. v. Anthony-Cook, 2016 SCC 43 at para. 40. "Without them, our justice system would be brought to its knees, and eventually collapse under its own weight."
17Joint submissions on sentence are an important feature of the guilty plea process. The aim of a joint submission is to eliminate the risk of an adverse outcome and to provide certainty. These features promote efficiency and fairness, see Anthony-Cook, at paragraphs 35-44.
18In order to ensure that the guilty plea process remains not only efficient but also fair, the parties must enjoy a high degree of certainty in the outcome of a negotiated resolution. The stakes are obviously high for a defendant who forgoes the right to a trial in exchange for the imposition of an agreeable outcome. The need for certainty also applies in terms of the Crown and the victims of criminal offences.
19The need for certainty in guilty pleas is not limitless and the Court must ultimately retain authority for imposing an appropriate sentence in the circumstances of a particular case. That said, in view of the policy considerations surrounding plea bargaining, the courts have adopted a very deferential approach to joint submissions.
20In Anthony-Cook, the Supreme Court considered the degree of deference to be accorded to joint submissions. The Court specifically rejected the "fitness of sentence" test for interfering with a jointly proposed sentence. Instead, the Court settled on the "public interest" test set out in the Martin Committee Report. This test only permits interference with a joint submission where the proposed sentence would bring the administration of justice into disrepute or is otherwise not in the public interest, see Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, the Hon. G. Arthur Martin, Chair (Toronto: Queen's Printer for Ontario, 1993), at p. 327.
21The Court in Anthony-Cook explained that joint submissions warrant a very high degree of deference and noted at para. 34:
...a joint submission should not be rejected lightly ... Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold – and for good reason ...
22Since the Anthony-Cook decision, the Court of Appeal for Ontario has also affirmed the direction that joint submissions should only be interfered with in rare and exceptional circumstances, see R. v. Fuller, 2020 ONCA 115 and R. v. Harasuik, 2023 ONCA 594.
23While issues relating to "jumping" a joint submission usually arise in instances where the court is considering a sentence in excess of the jointly proposed sentence, the same public interest test applies when the court is considering undercutting a joint submission.
24In those circumstances, the court must still consider whether the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. However, given that the policy considerations are different where the court undercuts a joint submission in favour of a defendant, the application of the public interest test rests on different considerations. On this issue, Moldaver J. provided the following guidance in Anthony-Cook at para. 52:
Second, trial judges should apply the public interest test when they are considering "jumping" or "undercutting" a joint submission (DeSousa, per Doherty J.A.). That is not to say that the analysis will be the same in either case. On the contrary, from the accused's perspective, "undercutting" does not engage concerns about fair trial rights or undermine confidence in the certainty of plea negotiations. In addition, in assessing whether the severity of a joint submission would offend the public interest, trial judges should be mindful of the power imbalance that may exist between the Crown and defence, particularly where the accused is self-represented or in custody at the time of sentencing. These factors may temper the public interest in certainty and justify "undercutting" in limited circumstances. At the same time, where the trial judge is considering "undercutting", he or she should bear in mind that the community's confidence in the administration of justice may suffer if an accused enjoys the benefits of a joint submission without having to serve the agreed-upon sentence (see DeSousa, at paras. 23-24).
The Sentencing Judge Applied the Wrong Test
25The sentencing judge in this case was clearly concerned about the propriety of the sentence that was jointly submitted. Appropriately, she called for further submissions on the issue. However, in deciding whether the jointly proposed sentence was acceptable, she applied the wrong test.
26The sentencing judge's reasons make clear that she found the proposed sentence to be "disproportionate" to the facts of the case. Her concern appears to have been focused on whether the proposed sentence was warranted by the admitted facts. While she did state that the sentence proposed was ultimately "not in keeping with the administration of justice," this finding is unclear and must be read in concert with her earlier comment, "...but this is Newmarket and that doesn't even get close to some of the readings I've seen where we've done, you know, a fine and a prohibition." 2
27Read in context, the sentencing judge appears to have applied the "fitness of sentence" test in rejecting the joint submission. This was an error. As indicated earlier, the "fitness of sentence" test was explicitly rejected by the Supreme Court in Anthony-Cook.
28Nowhere in her reasons did the sentencing judge grapple with the real issue, which was whether the joint submission would bring the administration of justice into disrepute or was otherwise contrary to the public interest.
29On the facts of this case, had the sentencing judge applied the correct test, she could not have come to the conclusion that the proposed sentence was "so unhinged from the circumstances of the offence and the offender" that it would cause a reasonable and informed member of the public to conclude that "the proper functioning of the justice system had broken down."
30I reach this conclusion for the following reasons:
a. The respondent was driving at 167 km/h with blood-alcohol readings over 200 mgs of alcohol in 100 ml of blood. He was having difficulty controlling his vehicle within his lane and had difficulties moving the vehicle onto the shoulder of the highway. The facts are not only statutorily aggravating, they are manifestly and objectively serious. It is a minor miracle that no one was hurt or killed.
b. The respondent had a record suspension in relation to a prior offence and as such, while he had no criminal record, he was not a first-time offender. 3
c. While a conditional jail sentence for this type of offence may not be standard fare in Newmarket, it is not an unfit sentence let alone a sentence "unhinged from the circumstances of the offence and the offender." Actual jail and conditional jail sentences are within the range for this type of offence committed in these types of circumstances. 4
d. The respondent was represented by counsel and there are no concerns that counsel may have been taken advantage of by the Crown or that the joint submission was arrived at under pressure. 5
31Applying the proper test, the joint submission should have been acceded to by the sentencing judge. The appeal is allowed. A 60-day conditional sentence of imprisonment is imposed on terms as discussed at the hearing of the appeal.
J. Di Luca J.
Released: December 3, 2025
Footnotes
Footnotes
- In further submissions, the Crown indicated that while it was not seeking to have the record suspension "removed", the record suspension was a factor in the Crown's position on sentence. I pause to note that the provisions relating to revocation of a record suspension as set out in s.7 and 7.2 of the Criminal Records Act suggest that a revocation will not result by virtue of a subsequent conviction for an offence under s.320.14(1) of the Criminal Code. While it is unclear whether the resolution discussions in this case included a suggestion by the Crown that it would seek revocation of the respondent's record suspension, future resolution discussions should be guided by a proper consideration of the applicable statutory provisions and a consideration of whether it is appropriate to suggest that a revocation of a record suspension will be sought unless the matter resolves. I need not decide this issue in this appeal.
- The fact that the blood alcohol readings in this case "don't even come close" to the readings in other Newmarket cases which attracted a fine and driving prohibition is hardly a reason suggesting that the public interest test for jumping a joint submission has been met. Arguably, it actually suggests that there may be a problem with the sentences being imposed in those cases.
- The fact that a defendant has been granted a record suspension in relation to a prior offence is a factor that can be taken into consideration in negotiating a resolution. A record suspension does not retroactively wipe out a conviction. It is different than a free pardon under s. 748 of the Criminal Code, see R. v. Foreshaw, 2024 ONCA 177 and Re Therrien, 2001 SCC 35. A record suspension may also be considered in a very limited sense by a sentencing judge. In R. v. Montesano, 2019 ONCA 194, the court considered whether an absolute discharge that was subject to the non-disclosure provisions of s. 6.1(1) of the Criminal Records Act could be considered by a sentencing judge at a sentencing hearing for a subsequent offence. While the court held that the sentencing judge could not specifically rely on the previous absolute discharge, it held that the judge could properly rely on "the factual reality that the incident on which there has been a plea is not the first incident." It would appear that the same reasoning applies to a record suspension.
- See R. v. Sabattis, 2020 ONCJ 242 at para. 94, R. v. Patel, 2017 ONCJ 728 at para. 9, R. v. Titova, 2018 ONCJ 186 at paras. 6-8, R. v. Tam, 2021 ONCJ 582 at para. 12 and R. v. Sivandi, 2017 ONSC 5740 at para. 18.
- While not ultimately relevant to deciding the appeal, I note that the respondent was relieved to not have to pay the fine and appeared perfectly content with the proposed terms of the conditional sentence.