R v M 2002

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Between
Her Majesty the Queen, and M
[2002] O.J. No. 667 Ontario Court of Justice, Brampton, Ontario
Hawke J.
Oral judgment: January 9, 2002.
(41 paras.)

Criminal law — Punishments (Sentence) — Conditional sentence — When available or appropriate — Prohibition orders — Respecting driving of motor vehicle — Sentencing — Considerations on imposing sentence — Guilty plea — Rehabilitation — Deterrence — Seriousness of offence — Denunciation or repudiation of conduct — Drinking and driving offences.

Sentencing of the accused M on convictions for impaired driving and refusing to provide a breath sample. M had been involved in a motor vehicle accident involving property damage but no serious personal injury. He pleaded guilty to the offences and had undertaken serious and successful rehabilitation. He was the primary source of financial support for his household. He had an extensive criminal record with numerous related convictions.

HELD: Accused sentenced to a term of five months to be served in the community, with a five-year driving prohibition. The seriousness of the offence, the fact that M was solely responsible, and the principle of general deterrence were factors against imposing a conditional sentence. However, M was not a danger to the community and he was involved in successful rehabilitation. Denunciation of his conduct as well as reparation to the community were available through imposition of a conditional sentence.

Statutes, Regulations and Rules Cited: Criminal Code, ss. 255, 718, 718.2, 742, 742.1.
Court Note:
Charges: S. 253(a) Criminal Code of Canada — S. 254(5) Criminal Code of Canada

Counsel:
V. Reid, for the Crown.
C. Fromstein, for the accused.
    • HAWKE J. (orally):— Is a conditional sentence appropriate and fit.  Regina v. Gladue, 133 C.C.C. (3d) 385, Supreme Court of Canada, 133, Canadian Criminal Cases 3rd, 385, and Regina v. Proulx, 140 C.C.C. (3d) 449, Supreme Court of Canada, 140, Canadian Criminal Cases 3rd, at 449, are the leading authorities on the interpretation of the new sentencing positions, particularly Sections 718 and 742.
    • It is apparent from these cases that these sections are a major reform in sentencing practices. By summarized in Proulx, at paragraph 46, the criteria from Section 742.1, the Court must consider before deciding to impose a conditional sentence are, one, the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment. Two, the Court must impose a term of imprisonment of less than two years. Three, the safety of the community would not be endangered by the offender serving the sentence in the community, and four, a conditional sentence would be consistent with the fundamental purposes and principles of sentencing, as set out in Section 718 to 718.2.
    • Criteria number one. In light of the above ruling, the defendant is not barred for consideration on this criteria.
    • Criteria number two. This is a summary conviction matter, and hence the defendant meets the second criteria.
    • The aggravating factors on his sentence include one, the fact that there are two counts before this Court, impaired and refuse, two, there was an accident involving property damage, three, the defendant's significant criminal record, including numerous prior related convictions.
    • The mitigating factors include one, the plea of guilty, two, his serious and successful rehabilitative efforts, three, he is gainfully employed and is the primary financial support for his household.
    • If I had sentenced him under Section 255 and the Constitutional argument had not been presented, I would have sentenced him to the statutory minimum to be served intermittently, along with probation with terms for two years.
    • It is my view that that would satisfy the balancing act between general deterrence and rehabilitation in this case, and would recognize, because of the mandatory jail term, the principle of general deterrence adequately.
    • Moving to the third criteria, there is evidence that I accept that supports the finding that the offender serving his sentence in the community would not endanger the community.
    • Part of any conditional sentence for this defendant should include terms directed towards treatment. The defendant has made it clear that he is amenable to this, and appropriate terms could ensure this.
    • Criteria number four. I will first set out the elements that militate against a conditional sentence. A, the gravity of the offence. These are serious crimes. Fortunately, no one was killed or injured. I would note that no offence presumptively excludes a conditional sentence. In that regard, I would refer to Proulx, at paragraph 79.
    • B, general deterrence. General deterrence has long been accepted as an important and even the primary principle in drinking and driving cases. This is particularly true with respect to repeat offenders.
    • In Proulx, paragraph 40, the Court acknowledged the qualitative difference between jail and any type of sentence served in the community. It cautioned, however, that a conditional sentence is not necessarily a lighter punishment, given the lack of parole and the terms that may be placed in the order, see paragraphs 41 and 42.
    • Further, in Proulx, the Court cautioned against too much weight on deterrence when choosing between incarceration and a conditional sentence, as the deterrent effect of incarceration is uncertain, paragraph 107.
    • However, the Court also acknowledged that arguably, dangerous driving and impaired driving may be offences for which harsh sentences possibly provide general deterrence, paragraph 129.
    • C, degree of responsibility of the offender. In this case, the defendant is the sole person responsible for the offence.
    • Elements militating in favor of a conditional sentence. A, rehabilitation. The evidence is clear that Mr. M has shown a concerted and successful effort towards rehabilitation, and is prepared to continue on this path, with or without the Court's assistance.
    • B, reparation to the community and promotion of sense of responsibility. This objective can be achieved through a condition involving community service.
    • C, denunciation. Denunciation is the communication of society's condemnation of an offender's conduct. More often than not, denunciation is thought to be a goal that militates against a conditional sentence.
    • Surely the decision about the best method of achieving this communication has everything to do with the offender you are communicating with. It is meant to send a message to the offender.
    • Terms that illustrate that there will be consequences that interfere with your life, and at the same time demand that you maximize your contribution, can communicate this point quite adequately to many offenders.
    • I believe that Mr. M has finally gotten the message, and will continue to be receptive to the message, and hence I have listed denunciation as one of the things that militates in favor of a conditional sentence.
    • Conclusions. Having considered and balanced the relevant purposes and principles of sentencing and the criteria for a conditional sentence, I conclude that for this offence and this offender, that a conditional sentence is a fit sentence.
    • The length of that sentence will be five months. The conditional sentence is longer than I would have given him if he was to serve the time in jail. This is simply because more time is required in this case to allow the sentence to achieve the sentencing objectives.
    • Terms and conditions. Having considered the weapons provisions, they are not applicable in the circumstances. There are the usual mandatory terms of the order, and they are as follows.
    • Keep the peace and be of good behaviour, appear before the Court when required to do so by the Court. Report today, in person, to a supervisor, and thereafter report as required by the supervisor in the manner directed by the supervisor.
    • Remain within the Province of Ontario unless written permission to go outside the province is obtained by the Court or the supervisor, and notify the supervisor in advance of any change of your name or address, and promptly notify the supervisor of any change of employment or occupation.
    • Abstain from the purchase, possession or consumption of alcohol or other intoxicating substances. Abstain from the purchase, possession or consumption of drugs, except in accordance with a medical prescription. Regarding that last term, there is an exception for drugs that are sold over the counter and in a drug store.
    • Continue treatment and counseling for alcohol abuse as directed by the supervisor. Proof is to be provided to your supervisor upon request.
    • Perform 40 hours of community service at a rate of not less than eight hours per month, to begin no later than February 9th, 2002. Provide the supervisor upon request with proof of attendance and completion of the community service assignments.
    • For the first three months of the order, the defendant is to remain at his residence at all times, except A, as required to attend school or employment or to deal with the necessities of life, including but not limited to medical appointments, hospitalization, emergencies and grocery shopping.
    • B, as required to satisfy or comply with any condition in this order, C, as permitted in advance and in writing by the supervisor, D, as required to attend legal counsel or any court proceeding which you are obliged by law to attend.
    • For the remainder of the order, you are to remain at your residence between the hours of 9:00 p.m. to 6:00 a.m. The exceptions that I have outlined above will apply to the more moderate curfew.
    • Residence, with respect to all aspects of your curfew, in the case of a house, includes the yards, and in the case of an apartment building, includes facilities within the building.
    • The next term is that the defendant is to comply and cooperate with any arrangement devised by the supervisor designed to monitor compliance with the two curfews.
    • In addition, the defendant will be placed on probation for a period of 12 months. There will be the statutory terms. Also he is to report at the end of his conditional sentence and thereafter as required.
    • He is to continue with any treatment, counseling or support groups with respect to alcohol abuse as deemed necessary by the probation officer, and he is to provide proof upon request.
    • There is also the issue of the driving prohibition. The defendant is prohibited from driving anywhere in Canada for a period of five years.
    • I believe, Ms. Fromstein, that brings us to the point of the cause disturbance that I have in front of me.
    • MS. FROMSTEIN: That is right.
    • THE COURT: So, Mr. M, with respect to that matter, there is a suspended sentence and a period of probation for six months. Keep the peace and be of good behaviour. Report today only on that, for purposes of entering the order.

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