Her Majesty the Queen ) Marnie Evans ) for the Crown ) v. ), 2019 MBPC 8

2019 MBPC 8 IN THE PROVINCIAL COURT OF MANITOBA Brandon Centre BETWEEN: Her Majesty the Queen ) Marnie Evans ) for the Crown ) And ) ) Michelle Justine GORDIEV ) Mark Wasyliw ) for the Accused Accused ) ) ) Reasons for Decision delivered: ) February 13, 2019 at the City of ) Brandon, in the Province of ) Manitoba Hewitt-Michta, A.C.J. [ 1 ] At the conclusion of a trial, I found Ms. Gordiev guilty of driving while impaired. Her impairment resulted from prescription sleeping medication, zoplicone , which she ingested after consuming alcohol. Ms. Gordiev then drove resulting in a collision with another vehicle.

Fortunately, no one was seriously injured. Issue: [ 2 ] At issue now is the appropriate sentence, including whether the section 259(1) (

a) Criminal Code [ CCC ] mandatory minimum driving prohibition may be reduced to credit Ms. Gordiev for a pre-conviction administrative suspension required by

section 263.1 of The Highway Traffic Act, RSO 1990, c H.8 [ HTA ]. Circumstances of Ms. Gordiev: [ 3 ] Ms. Gordiev is thirty-nine years old. At the time of the offence, she had a class 1 driver’s license and six years employment as a city of Brandon transit operator. Not surprisingly, she lost her employment because of this offence. She has since re-located to Winnipeg and is coming to terms with the reality she will need to seek out a different career path. It is likely she will suffer financial consequences with Manitoba Public Insurance because of the accident.

Her finger was broken in the collision and she sustained a cut to her hand that required thirty-eight stitches. Ms. Gordiev struggles with depression. Aggravating and Mitigating Factors:

[4] It is aggravating that Ms. Gordiev’s actions resulted in a collision with another vehicle. Her lack of prior criminal record ismitigating, as are the efforts she made to taper and eventually stop using zoplicone. She does not present as particularly remorsefulthough her lawyer indicates she acknowledges it was reckless to combine prescription medication with alcohol consumption. Principles of Sentencing: [5] Because of the continued prevalence of alcohol-related driving offences and the associated destruction to lives and property,deterrence and denunciation are the paramount sentencing objectives.

Positions of the Parties: [6] The crown seeks a fine and driving prohibition reflecting the fact that Ms. Gordiev’s recklessness resulted in a collision with anoccupied vehicle. [7] Counsel for Ms. Gordiev concedes a fine and driving prohibition commensurate with the circumstances is appropriate. [8] With respect to the CCC mandatory minimum driving prohibition, the defence asserts Ms. Gordiev is entitled to credit and areduction to account for a pre-conviction administrative suspension required by the HTA. [9] In support of this position, defence counsel filed R. v. Watson [2018] ABQB 832 and R. v.

Bland (2016) 2016 YKTC 27, Y.J. No. 89. In both cases, courts reduced driving prohibitions to credit the accused for pre-conviction driving restrictions. [10] In Bland, the judge reduced a driving prohibition crediting the accused for the seven months he was subject to a recognizancethat prohibited him from driving. In Watson, an appellate court upheld a sentencing judge’s decision to reduce a CCC drivingprohibition crediting the accused for a pre-conviction administrative suspension mandated by provincial legislation. Both decisionsreferenced R. v. Lacasse, 2015 SCC 64 in support of their conclusions.

In Lacasse, the Supreme Court of Canada endorsed the reductionof a driving prohibition imposed under section 259(2) CCC by the duration of a bail-ordered ban on driving. [11] The crown opposes any reduction in the driving prohibition and filed cases including R. v. Sohal [2018] ABQB 845 and R. v.Osnach, 2019 MBPC 1 in support of its position. [12] Sohal is an Alberta case decided one week after Watson. The Court in Sohal declined to reduce the mandatory drivingprohibition at sentencing to credit the pre-conviction administrative driving suspension.

The court concluded that Lacasse wasdistinguishable on its facts and that there was no statutory authority permitting the reduction sought. [13] In Osnach, this court recently rejected a similar application. Mr. Wasyliw was counsel for the defence in that case as well. JudgeChoy adopted the reasoning in Sohal and declined to reduce the driving prohibition imposed at sentencing to credit the accused for hispre-sentence administrative driving suspension. [14] Watson, Sohal, and Osnach are all under appeal. Analysis: [15] The defence advocates a broad

interpretation of Lacasse, arguing an administrative suspension under provincial legislation isequivalent to a bail condition prohibiting the accused from driving. Mr. Wasyliw says the judge in Osnach overlooked this reality whenshe emphasized the difference in consequences arising from a breach instead of assessing similarity of impact on the rights and liberty ofthe accused person. [16] The defence asserts failure to credit an accused for a pre-sentence administrative driving suspension results in a “doublepunishment”.

[ 17 ] I agree with the defence that the practical effect of an administrative suspension is equivalent to the effect of a bail condition banning driving and is similarly equivalent to the effect of a driving prohibition imposed at sentencing. All deprive the accused of the ability to drive. The courts in Sohal and Osnach did not overlook this practical reality but rather concluded it was not determinative of the ultimate issue. [ 18 ] Federal and provincial legislation can have similar impact but distinct purposes.

Federal and provincial legislation can have dual and shared aims flowing from their individual areas of responsibility. Federal and provincial jurisdiction can overlap without being inconsistent and without conflicting. [ 19 ] The “double punishment” argument ignores the actuality that provincial and federal legislation can run parallel without necessarily being incompatible or duplicitous.

At paragraph 26 of Sohal , the court observed: “ adding to the time that an offender cannot operate a motor vehicle does not make [the provincial legislation] and s. 259(1) incompatible, but subtracting from that one-year minimum may very well offend Parliament’s intent. ” I agree. [ 20 ] I do not agree with the defence that Lacasse is instructive.

The case is distinguishable in material respects – it was concerned with a prohibition under a different subsection of the CCC (not a mandatory minimum) and bail conditions also imposed pursuant to the CCC . [ 21 ] The defence further asserts a pre-sentence license suspension is comparable to pre-sentence time in custody. Pre-sentence custody, he argues, is a preventative detention before conviction considered part of the punishment post-conviction.

Similarly, the defence says, an administrative license suspension is a preventative detention of the accused’s right to drive before conviction deserving of credit post-conviction. Additionally, the defence says lack of express statutory authority to credit pre-sentence custody did not prevent courts historically from giving credit and that common sense should similarly dictate in the case of pre-conviction license suspensions. [ 22 ] The defence argues driving is not a luxury and that Ms. Gordiev, in particular, relied on her license for her livelihood.

The defence contends license suspensions impact mobility and equality rights, especially for people residing and working in regional and rural areas of the province. [ 23 ] While I recognize the value of a driver’s license and the extent to which many people rely on their ability to drive, driving suspensions are not analogous to pre-trial detention. There is no Charter protected right to drive.

Loss of driving privileges does not realistically compare to the loss of liberty occasioned by the denial of bail and detention in a correctional facility. [ 24 ] Unlike pre-trial detention, Manitoba’s administrative pre-sentence driving suspension applies to all individuals charged with alcohol-related driving offences equally. Not everyone charged with a particular criminal offence will be denied release and accumulate pre-trial time in custody but every individual charged with an alcohol-related driving offence will be subject to an administrative suspension of their driving privileges.

Individuals who plead guilty quickly may minimize the impact of the administrative suspension but that outcome is not incompatible with or offensive to CCC sentencing provisions or practices, which recognize a quick guilty plea will generally mitigate consequences. Conclusion: [ 25 ] Having considered the arguments of counsel and the relevant case law, I conclude the court does not have jurisdiction to reduce the mandatory minimum driving prohibition pursuant to section 259(1) (

a) CCC by the duration of the administrative driving suspension applied to Ms. Gordiev by virtue of

section 263.1 HTA . [ 26 ] While I have not herein exhaustively reviewed the analyses, I agree with the reasoning set out in the Sohal and Osnach decisions. [ 27 ] There is no statutory authority allowing this court to depart from section 719(1) CCC or to reduce the mandatory minimum driving prohibition by the duration of the provincial administrative driving suspension. Further, there is no common law authority arising from any analogy to pre-trial detention that would justify the reduction sought by the defence. The defence argument is an invitation to disregard a mandatory minimum punishment absent a constitutional challenge.

Sentence: [ 28 ] I therefore sentence Ms. Gordiev to a $1500.00 fine payable within one year and a one-year driving prohibition. “original signed by ACJ Hewitt-Michta” Associate Chief Judge S. Hewitt-Michta