R v Poryadin, 2016 ABQB 320

Court of Queen ’ s Bench of Alberta Citation: R v Poryadin, 2016 ABQB 320 Date: 20160608 Docket: 141423608S1 Registry: Calgary Between: Her Majesty the Queen Appellant - and - Artem Poryadin Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice K. D. Yamauchi _______________________________________________________ Appeal from the Sentence by The Honourable Judge H. A. Lamoureux Convicted on the 24 th day of November, 2015 ( Docket: 141423608P1) I. Introduction

[1] After trial, the learned Provincial Court judge (“PCJ”) convicted Artem Poryadin of the following: On or about the 6th day of December, 2014, at or near Calgary, Alberta, he did unlawfully operate a motor vehicle in a manner that wasdangerous to the public, contrary to section 249(1)(

a) of the Criminal Code of Canada. [2] The PCJ sentenced Mr. Poryadin to a conditional discharge of 4 months, including conditions for a $1,000 donation tocharity, and for him to appear before the Alberta Motor Association or Young Drivers of Canada and give a 30-minute lecture about safedriving. [3] The Crown appeals that sentence. II. Background [4] Much of what follows is taken from the Transcript of Proceedings that took place on June 26, 2015, and the PCJ’s decisionthat she delivered orally on November 24, 2015.

This Court will not pinpoint the places in the Transcript of Proceedings, except where itis providing direct quotations. [5] On December 6, 2014, a civilian observed Mr. Poryadin’s Audi motor vehicle on Memorial Drive in Calgary. The civilianhonked his horn at Mr. Poryadin to request that he proceed through an intersection. Mr. Poryadin was using his cellular telephone whiledriving, it was nighttime, and there was snow on Memorial Drive. The civilian observed the back-end of Mr. Poryadin’s vehicle “skidout” in a “fishtail” 2 or 3 separate times before Mr.

Poryadin’s vehicle exited Memorial Drive on to Deerfoot Trail. The civilian calledthis matter into the Calgary Police Service (“CPS”) dispatch. [6] CPS Csts. Spurr and McKinnon observed Mr. Poryadin’s Audi driving on Deerfoot Trail and recorded portions of his drivingusing an in-car video. Cst. Spurr observed Mr. Poryadin driving in excess of the speed limit, and at one point forty kilometres per hourover the posted one hundred kilometres per hour speed limit. Mr. Poryadin made several sudden, without-warning lane changes. Hecrossed directly in front of a gas tanker without warning and at a high rate of speed.

He was following too closely to the vehicles in frontof him, given the amount of traffic on the road and its conditions, although there was no evidence that there was snow on Deerfoot Trail. [7] There was evidence, and the PCJ concluded, that Mr. Poryadin had consumed “some alcohol.” [8] The PCJ made several comments about the area where the offence took place, noting that Deerfoot Trail "is a veryproblematic roadway for the City of Calgary" and that due to Mr.

Poryadin's driving, "[i]n a flash, in a second, there could have been amost serious accident, adding to the wealth of collisions, accidents, that occur on Deerfoot almost every day of the week in Calgary inthe wintertime": Transcript of Proceedings, November 24, 2015, p 108, ll 19-25, p 109, ll 17-19. [9] The PCJ found that the driving evidence was not a single event or single action, but constituted a wide scope of activity thatwas far beyond the care of a reasonable motorist. [10] After conviction, the Crown sought a sentence of thirty days intermittent incarceration and no license suspension.

Defencecounsel sought a conditional discharge. [11] The Crown opposed a conditional discharge, agreeing that while it is in Mr. Poryadin’s best interests for one to be granted, itwould be contrary to the public interest. III. Discussion [12] The Crown appeals Mr. Poryadin’s sentence on the following 3 grounds: (

a) The PCJ failed to consider the appropriate test for a conditional discharge. (

b) By discharging Mr. Poryadin with minimal conditions for 4 months, the PCJ failed to consider and give effect to mandatorystatutory principles. (

c) The sentence is demonstrably unfit. A. Standard of Review [13] The parties agree on the standard of review that this Court must apply when it considers the appeal of a sentence that aProvincial Court judge imposes. This Court may intervene to vary the sentence if the PCJ has committed an error of principle, failed toconsider a relevant factor, overemphasized appropriate factors, or imposed a sentence that is demonstrably unfit.

This standard of reviewapplies to both the length and the type of sentence that she has imposed: R v M(CA) (1996), (SCC), 105 CCC (3d) 327at 374 (SCC). [14] The standard of review for fitness of a sentence is one of deference. In R v Shropshire, (SCC), [1995] 4 SCR227 at 249-50, Iacobucci J, for the court, said the following: ... An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought tohave been made.

The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of havingseen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence

should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearlyunreasonable. I would adopt the approach taken by the Nova Scotia Court of Appeal in the cases of R. v. Pepin (1990), (NS CA), 98N.S.R. (2d) 238, and R. v. Muise (1994), 1994 NSCA 198 , 94 C.C.C. (3d) 119.

In Pepin, at p. 251, it was held that: ... in considering whether a sentence should be altered, the test is not whether we would have imposed a different sentence; we mustdetermine if the sentencing judge applied wrong principles or [if] the sentence is clearly or manifestly excessive. Further, in Muise it was held at pp. 123-24 that: In considering the fitness of a sentence imposed by a trial judge, this court has consistently held that it will not interfere unless thesentence imposed is clearly excessive or inadequate. ... . . . The law on sentence appeals is not complex.

If a sentence imposed is not clearly excessive or inadequate it is a fit sentence assuming thetrial judge applied the correct principles and considered all relevant facts ... My view is premised on the reality that sentencing is not anexact science; it is anything but. It is the exercise of judgment taking into consideration relevant legal principles, the circumstances of theoffence and the offender.

The most that can be expected of a sentencing judge is to arrive at a sentence that is within an acceptable range.In my opinion, that is the true basis upon which Courts of Appeal review sentences when the only issue is whether the sentence isinadequate or excessive. [Emphasis added]. B. Test for Conditional Sentence 1. Legislation [15] Criminal Code s 730(1) provides as follows: 730

(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which aminimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court beforewhich the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, insteadof convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation ordermade under subsection 731(2). [Emphasis added]. [16] This Court has emphasized what it considers to be the “test” that a court will apply when it considers whether it will dischargethe accused person.

As for the first branch of the test, it is arguable that a discharge will always be in the accused person’s best interests.A suspended sentence will result in the accused person not having a conviction recorded on their criminal record. However, it is thisCourt’s view that the accused’s best interests go beyond that. There might, for example, be a necessity for a punitive aspect to thesentence, which goes to specific deterrence.

As well, this branch might enter into the sentencing court’s consideration if, for example, theaccused person’s safety or rehabilitation go beyond what can be ordered through probation conditions. Arnup JA for the Ontario Court ofAppeal said the following in R v Sanchez-Pino (1973), (ON CA), 11 CCC (2d) 53 [Sanchez-Pino] at 59: Normally [the accused person] will be a person of good character, or at least of such character that the entry of a conviction against himmay have significant repercussions.

See also R v Fallofield (1972), (BC CA), 13 CCC (2d) 450, [1973] 6 WWR 472 (BCCA) [Fallofield, cited to CCC]at 454. [17] In the case at bar, Mr. Poryadin had no criminal record when he faced his sentencing. As well, the PCJ found that he wasemployed “at a very high level in the work he does,” that he is “obviously highly articulate,” and, most importantly, “he’s not going to beback before the courts”: Transcript of Proceedings, November 24, 2015, p 121, l 18, p 122, ll 16-17.

The PCJ also noted that Mr.Poryadin “lost a job opportunity to relocate to the United States”: Transcript of Proceedings, November 24, 2015, p 121, l 19. Thus, itappears, this is the type of person the court was considering in Sanchez-Pino, and the PCJ correctly took those factors into account. TheCrown correctly conceded that a discharge would be in Mr. Poryadin’s best interests. [18] The real question before this Court is whether the PCJ correctly considered whether a discharge is “not contrary to the publicinterest.” General deterrence is a criterion that a sentencing court must consider: Sanchez-Pino at 59.

This criterion must not, however,overwhelm the sentencing judge’s consideration of an appropriate sentence. In Fallofield, Farris CJBC for the court said that “the publicinterest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions.”Fallofield at 455. See also R v Boyko, 2003 SKQB 139, [2003] 7 WWR 489, 231 Sask R 57 [Boyko]. [19] There are other criteria that the sentencing judge must consider, in addition to general deterrence.

In R v Elsharawy (1997), (NL CA), 119 CCC (3d) 565 at 567, 483 APR 297 (Nfld CA) [Elsharawy], Green JA for the court said thefollowing: ... The second condition involves a consideration of the principle of general deterrence with attention being paid to the gravity of theoffence, its incidence in the community, public attitudes towards it and public confidence in the effective enforcement of the criminallaw.

2. Crown’s Position [ 20 ] The Crown argues that the PCJ did not consider any of these aspects when she granted the conditional discharge. The comment she made about the public interest was "Well, and we have to look at the public interest as well.

If we fix a significant charitable donation of a thousand dollars, we're looking at the – at the public interest": Transcript of Proceedings, November 24, 2015, p 121, ll 34-36 The Crown argues that the PCJ’s imposition of a charitable donation is not adequate to address the factors listed in Elsharawy . [ 21 ] Most importantly, the Crown argues that the PCJ did not give adequate consideration to the necessity of a sentence that will be deterrent to others who may be minded to commit a like offence.

The trial Crown alerted the PCJ to this principle, asking her to “[send] the strongest possible message that the activity of ... this offence should be strongly discouraged.” The PCJ responded by imposing another condition on the discharge, viz , for Mr.

Poryadin to give a lecture on safe driving. [ 22 ] Thus, the Crown argues, although the PCJ made reference to the public interest in her reasons, her consideration falls short of the proper legal analysis in which she was required to engage, specifically whether a discharge was “not contrary to the public interest.” When she failed to consider this branch, she erred. [ 23 ] Within the broad scope of “not contrary to the public interest,” the case law suggests a detailed consideration of principle of deterrence. When the PCJ failed to consider this principle, she erred. 3. Mr. Poryadin’s Position [ 24 ] Mr.

Poryadin argues that the PCJ considered general deterrence, but in keeping with the authorities, she did not “overemphasize” it. When the PCJ outlined the “significant penalty” that Mr.

Poryadin suffered when he was charged with the offence he was facing, such as lost opportunity, the cost of the trial, and other factors. [ 25 ] As well, he argues that the fact that the PCJ placed him under probation for 4 months, had to make a $1,000 charitable donation, and had to provide a lecture to other drivers could, as the PCJ said, “accomplish justice here, to send out the message to the public about the dangers of expensive motor vehicles operating at high rates of speed at night on the roadway, and at the same time give back to the community”: Transcript of Proceedings, November 24, 2015, p 122, ll 33-36. [ 26 ] Interestingly, Mr.

Poryadin provided this Court with the transcript of his probation review proceedings, which this Court does not often see. In it, he talks about the fact that he fulfilled the conditions the PCJ imposed on him, and the effect it has had on him. The PCJ was pleased with the report. [ 27 ] As for the public attitudes towards dangerous driving and the incidence of it, Mr. Poryadin argues that the PCJ addressed these as well. The PCJ, in her reasons discussed the prevalence of motor vehicle accidents in Alberta, and provided statistical data supporting this. C.

Analysis [ 28 ] The Crown provides a lengthy quotation from Sahaluk v Transportation Safety Board (Alberta) , 2015 ABQB 142 , 75 MVR (6th) 10, in which Wakeling J, as he then was, discusses the incidence and seriousness of impaired driving offences in Canada. While those statistics are important, in the case at bar, the PCJ did not find Mr. Poryadin guilty of driving while impaired. Although the PCJ made reference to and found that Mr.

Poryadin had consumed alcohol, Wakeling J’s comments are not apposite to the case at bar. [ 29 ] This, however, does not derogate from the finding the PCJ did make as it related to the Mr. Poryadin’s driving. Mr. Poryadin drove his vehicle in a consistently dangerous way, on different roadways over a period of time. He placed many other motorists in danger with his driving, in circumstances where the effect of a collision could have been catastrophic. This speaks not only to the gravity of the offence, but also places a high level of moral blameworthiness on Mr.

Poryadin. [ 30 ] In her reasons for judgment, the PCJ duly considered these factors. The Crown, however, argues that when it came time for sentencing, the PCJ simply ignored these important factors. [ 31 ] There can be no doubt that driving offences could result in catastrophic consequences. In the case at bar, there was no collision and no injuries.

However, the PCJ said, “[i]n a flash, in a second, there could have been a most serious accident, adding to the wealth of collisions, accidents, that occur on Deerfoot almost every day of the week in Calgary in the wintertime": Transcript of Proceedings, November 24, 2015, p 109, ll 17-19. [ 32 ] Criminal Code s 718 provides as follows: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; ... (

d) to assist in rehabilitating offenders;

... (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 33 ] The Crown argues that the PCJ “ultimately gutted the objective of general deterrence when she discharged Mr. Poryadin for only four months with minimal conditions.” In the Crown’s mind, the PCJ gave Mr. Poryadin nearly the most lenient disposition known to Canadian criminal law and no member of the public, and no one in the offender's situation, would regard that as a heavy sentence, or even an appropriate one.

Said differently, the PCJ's disposition fell well short of a warning to the public in general that the extreme risk created by this type of driving will be regarded as serious by the courts. [ 34 ] The PCJ did not find that this particular offence was on the serious end of the spectrum, even though she made findings that Mr. Poryadin’s driving was dangerous and irresponsible. Those findings, however, are made in all cases where an accused person is convicted of dangerous driving. They are the essential elements of the offence.

She said, “in the Court’s view, this is not a fact pattern where I want to publicly metaphorically lash this gentleman any further”: Transcript of Proceedings, November 24, 2015, p 122, ll 32-33. The PCJ was cognizant of what could have happened, and expressed her concern about the potential for these eventualities. This served as a warning to Mr. Poryadin. [ 35 ] Mr. Poryadin argues that although all acts of dangerous driving are serious, the gravity of this particular offence that Mr. Poryadin committed is on the low end of dangerous driving scale.

He provides this Court with the following statement that the PCJ made: Regretfully , the Court says that it must punish this kind of conduct, and it must conclude that the Crown has proven the requisite mens rea and actus reus beyond a reasonable doubt. Transcript of Proceedings, November 24, 2015, p 110, ll 5-7 (emphasis added). [ 36 ] Following Mr.

Poryadin’s conviction of dangerous driving, for which the Crown proceeded summarily, the range of sentences available to the PCJ was anything from a discharge (at the lowest end) to 6 months of jail (at the high end, the maximum jail available here since the Crown proceeded summarily). [ 37 ] The Crown argues that the PCJ erred when she imposed a sentence of a conditional discharge, as it was nearing the most lenient sentence available to her. An absolute discharge was the most lenient. [ 38 ] The Crown argues that dangerous driving can arise in a multitude of ways.

In R v Arcand , 2010 ABCA 363 at para 51 , 499 AR 1, the Alberta Court of Appeal framed this as identifying categories within an offence based on the varying degrees of seriousness. It referred to this as “cardinal proportionality.” This requires the sentencing court to undertake a comparison with other cases to arrive at the offender’s moral blameworthiness. [ 39 ] Here, the Crown argues that the following factors aggravated the offence that Mr.

Poryadin committed beyond the essential elements of the offence: • The driving occurred over a prolonged period of time on a number of different roadways • The winter and night time driving conditions created an increased risk of harm • Mr. Poryadin had consumed alcohol • There were very high speeds, not just for the road and traffic conditions (dangerous in itself) but far in excess of the posted limit These factors, it argues, bring Mr. Poryadin’s offence well above the minimum sentence available. Mr.

Poryadin, on the other hand, argues that these make up the actus reus of dangerous driving and the absence of any of these factors could have resulted in a finding of not guilty. [ 40 ] Mr. Poryadin does not get the benefit of the mitigating factor of a guilty plea. The absence of a guilty plea, however, is not an aggravating factor. It is neutral. [ 41 ] As well, Mr. Poryadin appeared before the PCJ without a criminal record.

Again, this is neither mitigating nor aggravating, but it is something that the PCJ could consider when imposing a sentence. [ 42 ] The Crown also argues that the PCJ erred when she considered certain factors as “penalties” that would reduce the sentence that she imposed. These included his lost opportunity, and the amount he paid to his counsel to run the trial. These are not “penalties,” but Mr. Poryadin’s characteristics that the PCJ had to take into account as part of the sentencing process. For her not to consider Mr.

Poryadin’s characteristics and situation would have been an error in law. [ 43 ] The parties provided this Court with numerous cases to deal with the “cardinal proportionality” aspect of this decision. All those cases are distinguishable. The closest ones to the case at bar are the following: In R v Mosterd , 2009 SKPC 47 , the accused was originally charged with racing another motor vehicle on a highway in a manner that was dangerous to the public. He ended up pleading guilty to the lesser included offence of dangerous driving. The Crown did not allege racing as an aggravating factor.

The accused engaged in unsafe passing while driving at speeds of between 140 and 150 kilometres per hour. The reckless passing, described by the accused as “suicide passing,” went on for some minutes. The accused had no criminal record and sought a conditional discharge. Judge Gray found that the accused was a low risk to re-offend, but that his degree of moral culpability was great. He deliberately created a situation of grave risk. Judge Gray held that for her to fail to register a conviction would undermine the confidence of the community in the administration of justice.

She imposed a fine of $1,000 and prohibited the accused

from driving for 1 year. In Boyko, the accused appealed his sentence that was imposed after conviction for dangerous driving. The accused cut off anotherdriver. The other driver confronted the accused and smashed the accused’s windshield. The accused then proceeded to drive recklessly inan attempt to scare the other driver and struck him with his vehicle. The accused was of good character, was without a criminal record,and came before the court with a desire to pursue a career in firefighting.

Barclay J found that the sentencing judge made an error inoveremphasising general deterrence when considering the “not contrary to the public interest” criterion. He overturned the sentence, andimposed a conditional discharge. [44] To a certain extent, the first criterion, “the best interests of the accused” is important when considering the second criterion. InSanchez-Pino at 59, Arnup JA said the following: I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extentrequired by conditions in a probation order.

Nor is his rehabilitation through correctional or treatment centres, except to the same extent.Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may havesignificant repercussions. [Emphasis added]. [45] In other words, it is not just any accused person who would be entitled to a discharge. “Normally” the accused person wouldbe “a person of good character.” This is why considering Mr.

Poryadin’s characteristics and situation was an important step for the PCJto take. [46] Thus, the court must then consider the “not contrary to the public interest” criterion against the backdrop of its findingsconcerning “the best interests of the accused” criterion.

In Boyko at para 11, Barclay J paraphrased what Dubin JA said in R v Meneses(1974), (ON CA), 25 CCC (2d) 115 (Ont CA) [Meneses], when he said that the “need for deterrence can be fulfilledby the facts that an accused was arrested, compelled to hire counsel and appear in Court, and must face the notoriety that comes with anappearance and the fulfilment of judicially imposed probation requirements.” Dubin JA went on to say “It is in the public interest for thiswoman to be given every opportunity to become a useful person in the community and earn a livelihood for herself and her family”:Meneses at 117.

He continued by saying the following: The argument that a conviction and fine against this accused must stand to effect a more apparent deterrent to others must give way whenother considerations are more paramount, and when the broad view of the public interest is considered. In our opinion, the knowledge ofspeedy apprehension, arrest and trial should be an effective deterrent to persons such as the accused who may be tempted to commit suchan offence.

A conviction and a fine would not be a deterrent to a professional shoplifter, but, of course, such a person would not receiveeither an absolute or conditional discharge. Ibid [47] In the case at bar, the PCJ followed this analysis and considered the 2 criteria contained in Criminal Code s 730(1). [48] The Crown argues, however, that the PCJ “put the cart before the horse” in the sense that she did not consider the “contrary tothe public interest” criterion at all, but imposed a condition that was in the public interest, viz, the charitable donation.

In other words, sheshould have first considered whether imposing the conditional discharge would not be contrary to the public interest, giving the term“public interest” a broad

interpretation. By imposing a condition that Mr. Poryadin make the $1,000 charitable donation, “we're lookingat the -- at the public” is not considering whether the conditional discharge is not contrary to the public interest, but is simply allowingMr. Poryadin to give back to the public. [49] With respect, that is taking too narrow a view of what the PCJ did. She was alive to the issue of general deterrence, and howMr.

Poryadin’s sentence would not be contrary to the public interest by ensuring that he gave something back to the public, when shesaid the following: So in the Court's view, this is not a fact pattern where I want to publicly metaphorically lash this gentleman any further, but I think whatwe could do to accomplish justice here, to send out the message to the public about the dangers of expensive motor vehicles operating athigh rates of speed at night on the roadway, and at the same time giving back to the community, I think what we could do is we couldgrant a conditional discharge for a period of four months, which would require Mr.

Poryadin to make a $1,000 charitable donation to Mr.Fagan's trust account by November 30th, and require Mr. Fagan to approach the AMA or the Young Drivers Education of Canada withan offer to allow his client to give a brief talk, no more than 30 minutes, taking questions about what it means to be a safe driver, andwhat happens if you are not.

Transcript of Proceedings, November 24, 2015, p 122, ll 32-41. [50] Although she did not articulate that imposing a conditional discharge would not be “contrary to the public interest,”practically, she structured the sentence in such a manner as to show that she was considering the matrix of factors that she was requiredto consider when applying that criterion, including general deterrence. Accordingly, this Court finds that the sentence that the PCJ wasnot demonstrably unfit. Although it is on the low end of the scale, it is not clearly unreasonable or clearly inadequate. IV.

Conclusion [51] For the foregoing reasons, this Court dismisses the Crown’s appeal.

Heard on the 5 th day of May, 2016. Dated at the City of Calgary, Alberta this 8 th day of June, 2016. K. D. Yamauchi J.C.Q.B.A. Appearances: Scott A. Wilson Alberta Crown Prosecution Service for the Appellant Sean Fagan Evans Fagan Rice McKay Barristers for the Respondent