R. v. R.Z., 2016 ONCJ 438

Information No. 10957/14 CITATION: R. v. R.Z. , 2016 ONCJ 438 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN - and – R.Z. ********** BEFORE THE HONOURABLE JUSTICE G. WAKEFIELD , AT THE COURTHOUSE, 150 BOND ST. E., OSHAWA, ONTARIO, ON WEDNESDAY, JUNE 1, 2016 . ********** RULING ON CROWN APPLICATION AND SENTENCE PUBLICATION BAN PURSUANT TO THE ORDER OF WAKEFIELD J. - JUNE 1, 2016 These reasons, if printed, electronically reproduced or audio copied, shall have the personal identifiers of the offender removed and replaced with his initials.

The Crown material attached to these reasons has been amended to replace the offender’s name with initials. APPEARANCES: K. Saliwonchyk Counsel for the Crown. Counsel for the Crown. R.Z. in Person. TABLE OF CONTENTS DESCRIPTION PAGE NO. Ruling on Crown Application 2 Reasons for Sentence 19 Addendum -

Schedule A 27

Crown Written Submissions on Sentence and Impact of “Pardoned Convictions” Legend: [sic] Indicates preceding word has been reproduced verbatim and is not a typographical error, but is a spoken error (ph) Indicates preceding word has been spelled phonetically as pronounced and is not a typographical error, or indicates a deficiency in the annotations made by the in-court reporter, or due to the quality of the audio recording, and does not represent typographical errors.

WEDNESDAY, JUNE 1, 2016 RULING ON CROWN APPLICATION WAKEFIELD J. (Orally) R.Z. entered a plea of guilty to over 80 on his trial date of December 15, 2015 as a self-represented defendant. The Crown elected to proceed summarily and further elected not to file any Notice of Increased Penalty.

However, on sentencing, the Crown alleged the defendant had a prior cognate record, a record containing three separate prior convictions for drinking and driving and a possession for the purpose of trafficking. All but the earliest conviction had been previously pardoned.

While the records have not been proven pursuant to s. 667 of the Code , I have been provided with a Ministry of Transportation record of convictions which reflects three prior drinking and driving offences from 1982, 1989 and 1996, together with a letter from the RCMP confirming authorization by the Minister of Public Safety and Emergency Preparedness releasing, presumably for the purposes of this hearing only, a copy of the defendant’s record suspension printout in which are a 1989 over 80, a 1990 possession for the purpose of trafficking and a 1996 impaired, together with the National Parole Board confirmatory letter of a pardon being granted for the same three offences in the record suspension printout.

Neither document mentions the 1982 conviction for over 80 reflected in the Ministry of Transportation Record, assuming that matter is a legitimate conviction. The Crown has quite generously taken the position that for the purposes of this application, I should treat the 1982 conviction as an administrative oversight on the part of the National Parole Board and that the defendant’s pardon includes that earlier conviction as well.

The issue before me is whether the then-pardoned, now record suspended convictions, with the appropriate Ministry’s permission to disclose, can be used on sentencing or whether the effect of the pardon is to exclude the prior convictions as a sentencing consideration. While the Crown is only seeking a modest increase over the minimum sentence for this defendant, their application is to obtain a ruling as to the use of such records in future sentencings of other like offenders. The applicable sections of the Criminal Records Act are set out in the attached Crown submissions.

Of specific application here is s. 2.3 which reads as follows: Effect of record suspension 2.3 A record suspension (

a) is evidence of the fact that (

i) the Board, after making inquiries, was satisfied that the applicant was of good conduct, and (ii) the conviction in respect of which the record suspension is ordered should no longer reflect adversely on the applicant’s character; and (

b) unless the record suspension is subsequently revoked or ceases to have effect, requires that the judicial record of the conviction be kept separate and apart from other criminal records and removes any disqualification or obligation to which the applicant is, by reason of the conviction, subject under any Act of Parliament — other than

section 109 , 110 , 161 , 259 , 490.012 , 490.019 or 490.02901 of the Criminal Code , subsection 147.1(1) or

section 227.01 or 227.06 of the National Defence Act or

section 36.1 of the International Transfer of Offenders Act . As well, s. 4.1 of the same Act sets out that: 4.1 (1 ) The Board may order that an applicant’s record in respect of an offence be suspended if the Board is satisfied that (

a) the applicant, during the applicable period referred to in subsection 4(1), has been of good conduct and has not been convicted of an offence under

an Act of Parliament; Finally, s. 7 of the same Act: Revocation of record suspension 7 A record suspension may be revoked by the Board (

a) if the person to whom it relates is subsequently convicted of an offence referred to in paragraph 4(1)(b), other than an offence referred to in subparagraph 7.2(a)(ii); (

b) on evidence establishing to the satisfaction of the Board that the person to whom it relates is no longer of good conduct; or (

c) on evidence establishing to the satisfaction of the Board that the person to whom it relates knowingly made a false or deceptive statement in relation to the application for the record suspension, or knowingly concealed some material particular in relation to that application.

Additionally, in 7.2, Cessation of effect of record suspension 7.2 A record suspension ceases to have effect if (

a) the person to whom it relates is subsequently convicted of (

i) an offence referred to in paragraph 4(1)(a), or (ii) any other offence under the Criminal Code , except subsection 255(1) , or under the Controlled Drugs and Substances Act , the Firearms Act ,

Part III or IV of the Food and Drugs Act or the Narcotic Control Act ,

chapter N-1 of the Revised Statutes of Canada, 1985, that is punishable either on conviction on indictment or on

summary conviction; or (

b) the Board is convinced by new information that the person was not eligible for the record suspension when it was ordered. Unlike any other offence in the Criminal Code , a post-pardon or post record suspension summarily elected conviction under s. 255(1) will not automatically revoke or cause the cessation of the record suspension as it is explicitly excluded pursuant to s. 7.2(a)(ii). If I understand Criminal Records Act s. 7 (

a) correctly, a subsequent Criminal Code s. 255(1) conviction would not be an offence which permits opening an application to the Parole Board to revoke the record suspension, given the same exclusionary wording, and any such application to the Board would need to be grounded on a s. 7(

b) with evidence of the person “is no longer of good character”. The assistant Crown, Mr. Malleson, confirms that there is not any case law directly on point since 1977. He also recognizes that the defendant is self-represented and, as such, has made submissions in support of the defendant’s position that this prior pardoned offences are not admissible on sentencing. I direct that any transcript of these reasons include, as an appendix, a copy of Mr. Malleson’s written submissions. I also note that Mr.

Malleson has devoted substantial time, and no doubt personal time, given the limited Crown resources in this region, in preparation of these materials. The language used in the Criminal Records Act has evolved since the 1977 Ontario court of Appeal case of R. v. Spring [1977] O.J. No. 463 . Pardons have become record suspensions and the actual convictions, which at one time were “vacated”, transitioned into a direction that the “judicial record of the conviction be kept separate and apart from other criminal records”.

The version of the Act in effect at the time of granting the defendant’s pardon was amended yet again in 2014 when the word “pardon” was replaced by the phrase “record suspension”. The issue of what impact, if any, the 2014 statutory amendment and change in wording of what was being granted might have on this application was not argued, including such as whether the subsequent amendments were retrospective or retroactive.

In the Spring case, the court, without citing any specific language in the act, states in para 5 that: The appellant had previously been pardoned, and the question arose as to whether or not he should be treated as a first offender. We treat him as such because we think the statute gives us this direction in these circumstances. Has the subsequent changes in the wording of the Act, prior to this defendant’s pardon being issued, resulted in a different statutory direction?

By referencing the word “statute” as opposed to any particular word, I understand that court to be referring to the intent of the statute as a whole or to use the wording of s. 5 of that Act, that upon a pardon being granted, the prior record “should no longer reflect adversely on the applicant’s character”. This wording has survived each of the Act’s several amendments, whether in s. 5 or now s. 2.3. The subsection (

b) wording of either s. 5 or s. 2.3, in my view, is more consistent wording and sets out the effect of a revocation or additionally, after 2006, “revoke or ceases to have effect”. The earlier wording of a pardon vacating the conviction unless revoked might be considered an oxymoron given the Black’s Law Dictionary , 5 th edition meaning of: to annul; to set aside, to cancel or rescind. To render

an act void; as to vacate an entry of record, or a judgement. As applied to a judgement or a decree it is not synonymous with ‘suspend’ which means to stay enforcement of judgment or decree. However, a common power through the various wording changes in the Act as been the ability to revoke the pardon, which is more than to “un-annul”. In my view, “to be kept separate and part from other criminal records” is wording more consistent with the residual power of Parliament to revoke outright or enable a regime in which the benefit of a pardon “ceases to have effect”, as opposed to inferring a

greater degree of permanence to a pardon by the use of the word “vacate”. The Oxford English Dictionary (2d ed. 1989) Vol. XIX at p. 385 defines “vacate” as “to make void in law, to deprive of legal authority,validity, force, efficacy or value to render inoperative or to annul or cancel”; “which does not necessarily involve retroactive effects”(referred to in R. v. Therrien 2001 SCC 35 , [2001] 2 S.C.R. 3). Indeed, the Criminal Records Act in effect at the time of R. v.

Spring, supra, set out that the privilege of a pardon and the “vacated”record of conviction could be revoked, meaning that the vacated record was no inviolably permanent as it was subject to revocation andhad not simply disappeared. I appreciate an argument could be made that the use of the phrase “kept separate and apart” could infer a more accessible record than onevacated, but that would ignore the context of the

section which now includes exceptions to the disqualification removals for suchprivileges as possessing firearms, as well as ignoring the underlying policy direction to remove the adverse reflection on the offender’scharacter.

It would also ignore the conclusion of the Supreme Court of Canada in Re: Therrien that there would be no need for the variousprovisions to revoke or reveal the pardoned offences if those “convictions were deemed never to have existed” (Therrien, para 120) andinfer the further conclusion that the various amendments to the wording in both official languages “embody the meaning that Parliamenthas always intended the Act to have” (Therrien, para 119) equally expands to include the pre-2000 version of the Act.

If the meaning Parliament has always intended includes the wording in effect at the time of the Spring decision, then I agree with theconclusions of Justice Wein in R. v. Gyles [2003] O.J. No. 1924 that pardons granted under previous Criminal Records Act wordingshould not be given greater weight.

Leaving aside the limited use in cross-examination of a prior record acknowledged by the witnessbefore trespassing into propensity reasoning, I view this decision as being of limited value to the issue before me, especially givenJustice Wein’s observations as to how rarely counsel would be aware of a witness’ prior pardoned record. In the case at bar, the Crownwould always be aware of any prior drinking and driving record, which is recorded in either provincial or municipal record printouts ifrequested by the Crown.

Counsel are often aware of a prior record by stint of research into social media or just common knowledgewithin the community. Of course, whether “vacated” or “kept separate and apart”, the restrictions on the use of a prior record are limited to federal matters andnot provincial or municipal matters. (R. v. Therrien, para. 116). The Parole Board letter to the defendant confirming the granting of thepardon also states that the pardon only applies federally.

That limitation is reflected in the Ontario Highway Traffic Act, s. 1(6), settingout that a pardoned federal record is still admissible against a defendant on sentencing pursuant to that provincial legislation. In Re Therrien, 2001 SCC 35 , [2001] 2 S.C.R. 3, the Supreme Court reviewed the obligation of a judicial candidate to disclosea prior pardoned record. Commencing at paragraphs 113 and following, the Court set out the ‘Meaning and Effect of a Pardon’ and abrief contextual history of the types of pardon.

For my purposes, the Criminal Records Act sets out the procedure for administrativepardons and the court, in Therrien, concluded that a pardon does not retroactively wipe out the conviction but instead minimizes thefuture consequences of that record. As previously noted, the court, in reviewing the changes in wording, concluded that those changes“embody the meaning that Parliament has always intended the Act to have” (para 119), which I take to mean that the use of the word“vacate” in the previous versions of the Act does not mean that the effect of an administrative pardon was any stronger in previousdecades.

The Crown submits that policy considerations favour admission of the pardoned records and that the Criminal Records Act lacks anylanguage preventing a court from considering pardoned convictions on a subsequent sentencing. I must disagree. Ultimately, prior convictions are aggravating factors on sentencing partly due to those convictions being a commentary on the characterof the offender. Often a sentencing justice will comment on how the offender’s history is the best predictor of that offender’s future.

Theunpardoned prior convictions are the clearest commentary of the type of person the offender is or, in other words, the type of characterthe offender possesses. However, the Criminal Records Act clearly sets out that once the offender’s character has been assessed by theBoard and the prior offences pardoned by the Board, the pardoned convictions “should no longer reflect adversely on the applicant’scharacter”. In my view, this is a clear direction from Parliament to sentencing justices to disabuse oneself of any knowledge of pardoned offences not

revoked or by procedure resulting in cessation of effect of pardon. This would be my understanding of the rationale in R. v. Paterson(1998) (BC CA), 122 C.C.C.(3d)254, B.C.C.A., cited in Gyles, where that appellate court refused cross-examinationon a pardoned record which would otherwise permit attacking the character of a witness despite the Criminal Records Act explicitlystating that the subject charges are no longer to reflect adversely on the witness’ character.

An additional issue is the Ministerial consent to disclose the pardoned offences to this court, though the consent form is silent as towhether the disclosure is being permitted for sentencing purposes or for the Crown application for a ruling as to the admissibility of thepardoned record on sentencing. If the former, the record is silent as to whether any opportunity was provided to the defendant forsubmissions to the Minister, nor do I have any submissions as to what standing the defendant might have, if any.

Given the delays incompletion of this sentence, I did not intend to delay matters further by embarking on additional proceedings by providing the defendantwith an opportunity for a review of the Minister’s order. My ruling in this application would, in any event, make such a proceeding moot. I infer the Ministerial consent was for the purposes of the application only as opposed to exerting any decision making process whichwould predetermine the Crown application.

While the Crown application asserts the Ministerial consent was for sentencing, I note thecovering letter from the RCMP advises that the record disclosure “be restricted for use only in connection with the pending charges andthat its existence be made only to those directly involved in the investigation and court proceedings” (Crown Material for Sentencing,Tab 2).

The actual consent form itself sets out a Ministerial finding that “disclosure is desirable in the interests of the administration ofjustice”, same reference, which is much broader than any stated reason pertaining to sentencing, and I also infer the Ministerial release ofrecords leaves to my discretion what use is to be made of the records and specifically whether admission of pardoned records is desirablein the interests of justice, which would arise from the wording of the Criminal Records Act. The Crown asserts that the clear policy of the Criminal Records Act is the rehabilitation of offenders.

I lack any Hansard excerpts andapproach the legislation policy interests from the four corners of the Act itself. I would certainly agree that a pardon, or now recordsuspension, is the recognition of an offender’s successful rehabilitation. Where the Crown and I

part company is his assertion that theexclusion of s. 255 convictions within the Criminal Records Act is a justifiable policy consideration as it only means to protect “low end”drunk driving offences in order to prevent adverse and disproportionate impact on rehabilitation. Apart from the possible influence froman outmoded societal acceptance of drinking and driving, I am bereft of any understanding why Parliament would choose to protect thosedrunk drivers lucky enough to miss killing or maiming innocent victims over any other criminal offence in the Code.

Indeed, theCrown’s suggestion that exposing the defendant’s prior pardoned conviction for possession for the purpose of trafficking would garnergreater societal challenges, such as employment or travel, which would depend very much on the substance involved. As for travel, therecord before me is silent as to whether pardoned offences are sealed from other countries such as the United States given the post 9/11broadening of record sharing between our two countries.

The reality of the s. 255 exclusion in the Criminal Records Act is that Parliament has enhanced the protection of the pardon from a drunkdriving charge prosecuted on

summary conviction. That is the policy conclusion I draw from the clear wording of the Act. The Crown’s“in terrorem” assertion that excluding this record from the sentencing consideration would “incentivize” the Crown to apply to theNational Parole Board for pardon revocation on all future similar cases does not address my concern that all other offences in theCriminal Code, including the shoplifting of a chocolate bar or a mischief or other similar offence lack a protection which Parliament hasreserved for s. 255 offences.

Should that mean in the future, whether this or similar defendants, the choice to drive drunk results in theexposure of other cognate and non-cognate prior offences is a simple consequence of choosing to drink and drive. The conviction on anyhybrid offence in which the Crown elected by way of indictment automatically suspends the pardon: R. v. Gamble [2011] O.J. No. 4469and R. v. Kanagarajah et al [2013] O.J. No. 258.

I certainly agree with the Crown’s submission of unfairness that a re-offending pardoned offender whose cognate record is not revokedwould receive a lesser penalty, probably the minimum, and escape jail than someone who has a prior cognate record of drinking drivingoffences who would face mandatory incarceration. The Crown suggests that this would be a totally absurd result. It is not in mypurview to comment on Parliament’s balancing of competing societal interests. I do note that such a result is not unprecedented.

Underthe Juvenile Delinquents Act, a youth might accumulate dozens of offences each year until turning 16, and then immediately be treated asa first offender, receiving an equivalent sentence as any other adult who, up to that point, had led an unblemished life. A similar exampleis referenced in Therrien where the court points out that under the Young Offenders Act, s. 36(1), after the applicable periods of time, thedispositions and terms imposed on young offenders are deemed never to have existed (para 121).

I do agree with the Crown’s submission regarding the impact of pardoned offences under the Highway Traffic Act. The Criminal RecordsAct clearly sets out its mandate is for federal matters only and does not prevent provincial and municipal record keepers from utilizing thepardoned offences. That restriction is the reason why the Ministry of Transportation record is able to retain the prior drinking/drivingoffences of R.Z. in their provincial records.

In sentencing R.Z., I have the jurisdiction to increase his licence suspension as opposed to a Criminal Code driving prohibition, as doesthe Ministry of Transportation in their mandate to review the defendant’s privilege of driving. The Highway Traffic Act, s. 41(4)empowers me to increase the length of the suspension and s. 1(6) directs that pardoned and non-pardoned convictions are treated the

same and certainly my jurisdiction as a Provincial Offences Court is set out in the Courts of Justice Act permitting my utilization of the Highway Traffic Act principles. In closing, I would remiss in not commenting on an issue which has completely flummoxed me in completing these reasons. A post- pardon indictable conviction automatically results in losing the benefit of that pardon. Choosing the mode of election is solely with the purview of the Crown office.

Given the undisputed carnage created by drinking drivers, the most efficient community response to a defendant who has previously been entrusted with the privilege of a pardon, who is then charged with a drinking/driving offence, would be an indictable election to ensure upon any eventual conviction that the offender’s entire prior court record is made available to the sentencing justice, as well as deprive that offender of the pardon. The Crown will be on notice of the likelihood of a prior pardon by reviewing the Ministry of Transportation record and comparing it to the CPIC printout.

Alternatively, Parliament might consider removing the exception in s. 7.2 (a)(ii) of the Criminal Records Act exempting s. 255(1) convictions from cessation of Effect. I am again completely flummoxed in finding any policy justification in protecting drunk drivers who have chosen to put the community at risk by drinking and driving, should be protected from the consequences of their actions, especially should that prior record include cognate offences which would mandate mandatory incarceration. SENTENCING WAKEFIELD J . (Orally) Today I have this defendant before me to be sentenced as the law is today.

As such, R.Z., I would ask you to stand up at this point. With respect to the sole criminal charge before me of over 80 and being treated as a first offender who has taken responsibility for his actions, thereby demonstrating remorse by a contextually early guilty plea, I sentence you to the minimum fine of $1000, to which is added the victim surcharge of $300. If the fine is not paid, there is an estimated time in default of 15 days’ incarceration. R.Z.: I’m sorry, say that again? THE COURT: 15 days’ incarceration if you don’t pay the fine is the anticipated time in jail.

There is a process involved which has to be followed should that occur but what I am leading up to - this is why I asked you earlier about your income. I am going to grant you one year in which to pay the fine. If you are not able to pay it within that one year, speak to duty counsel about the process by which you apply for an extension of time to pay the fine. That comes to me.

I look to see how fastidiously you are whittling down the fine and if I see that you are taking responsibility and making regular payments, then I will certainly look at granting you additional time, but I want to see you make the effort first. Secondly, I hope you did not drive here today? R.Z.: Say what? THE COURT: You did not drive here today? R.Z.: I did not. THE COURT: “Did not”, good. Have you got your driver’s licence back? R.Z.: Yes, I do. THE COURT: Did you bring that with you today? R.Z.: Yes, I did. THE COURT: Would you pass that to Mr. Clerk, please?

Is the address on the driver’s licence your current address?

R.Z.: It is, Your Honour. THE COURT: As such, pursuant to the Criminal Code , you are now prohibited from operating a motor vehicle on any street, road, highway or other place for a period of 12 months, commencing on today’s date. You have to understand, sir, that if you are found driving, more to the point, convicted of breaching this order, the Crown by an indictable election would open up the possibility of five years in a penitentiary. So it is essential that you don’t drive again until you are legitimately entitled to do so.

However, I do have concurrent jurisdiction under the Highway Traffic Act and, within that jurisdiction, have the capacity to review the pardoned drinking and driving offences set out in the Ministry of Transportation record, which more than justifies an increased suspension as “being desirable for the protection of the public using the highways” ( s. 41(4) of the Highway Traffic Act) . As such, there will be a licence suspension of a concurrent - so a licence suspension of two years duration concurrent to the Criminal Code prohibition; however, subject to inclusion in the Interlock Program.

I understand the Highway Traffic Act , s. 41(4.1) permits the Interlock privileges to the licence suspension as well as the driving prohibition and that understanding is the basis of my additional suspension. I should also acknowledge in this judgment that the delay in sentencing is partly due to the Crown application to the Ministry and the subsequent preparation of material and illness delays caused by myself before releasing this judgment. I am declining to impose the additional sentencing component submitted by the Crown of a probationary period for counselling.

The public will be protected for the next two years and the defendant now realizes the consequences to him should he re-offend, thereby permitting the Crown to elect by way of indictment. It is very much in the defendant’s best interests to independently follow up with counselling. The one outstanding issue is the consequence of revealing the offender’s prior pardons, as permitted by the Ministerial consent, in open court on the record. The Ministerial documents, I understand, are required to be returned to the Ministry.

However, to permit publication of the offender’s name, together with the publication of the prior pardons, would defeat the core intent of the Criminal Records Act . To put the press on notice, and I acknowledge that should be, in the ordinary course, the next step, would also defeat the core intent of the Act.

I note that the Canadian Judicial Counsel protocol on personal information, at paragraph 19 states that: However, even in cases where no publication ban is in place, it may still be appropriate for a judge when drafting reasons to omit certain personal information from a judgment in the interest of protecting the privacy of the litigants or other participants in the proceedings. The protocol establishes some basic types of cases where individual identities or factual information needs to be protected and suggests what types of information should be removed.

There are four objectives which must be taken into account when determining what information should be included or omitted from reasons for judgment: 1) ensuring full compliance with the law; which I believe to be in full compliance with the Criminal Records Act . 2) fostering an open and accountable judicial system; This, again, would be served by maintaining the privacy of the offender. 3) protecting the privacy of justice system participants where appropriate; and 4) maintaining the readability of reasons for judgment.

That is the Judges’ Technology Advisory Committee, Use of Personal Information in Judgments and Recommended Protocol, approved by the Canadian Judicial Counsel in March 2005.

As such, I hereby order that these Reasons, if printed, electronically reproduced or audio copy, have the personal identifiers of the offender removed and replaced with his initials. The Crown material attached to these reasons will be similarly amended to replace the offender’s name with initials. The Crown material will be sealed to be opened only by a court of competent jurisdiction. Obviously, the conviction at bar is part of the public record and the offender’s name can be set out in full with respect to this conviction only. That is my ruling and sentencing in this matter.

There will be documents for you to sign before you leave the building. As I said, I have given you time to pay on the fine and you will check in to how you extend the time, should you need that, but you have to justify it in that application. R.Z.: Yes, Your Honour. THE COURT: Anything further from the Crown with respect to this matter? MR. SALIWONCHYK: No, thanks. THE COURT: Any questions, sir? ... DISCUSSION BETWEEN R.Z. AND THE COURT ABOUT WHEN THE TRANSCRIPT OF THIS JUDGMENT WILL BE AVAILABLE THE COURT: Mr. Saliwonchyk, while I have put it into the judgment, it would be remiss of me not to thank Mr.

Malleson for submissions that covered both the defence aspect and the Crown aspect in the best traditions. FORM 2 Certificate of Transcript Evidence Act, subsection 5(2) I, Maxine Newell, certify that this document is a true and accurate transcript of the recordings of Maxine Newell in R. v. R.Z. in the Ontario Court of Justice held at 150 Bond St.

E., Oshawa, Ontario, taken from Recording number 2811-106-20160601-085124-10- WAKEFIG, which has been certified in Form 1. 20 June, 2016 _______________________________ Maxine Newell, C.C.R. **Transcript ordered: June 1, 2016 **Transcript completed: June 20, 2016 **Transcript Released: July 14, 2016 ON T ARIO COURT OF JU ST ICE ( C e n tr al E ast R e gio

n) B E T W E E N: H E R M AJ EST Y T HE QU EEN - a nd - R.Z.

CROWN WRI TTE N S U B M I SS IONS ON SE N TE NCE & I M P ACT OF “ P ARDON E D” CONVIC T IONS TA B L E OF C ONTENTS P AGE The Fac ts ............................................................................................................................. 2 The P osition of the C r own .................................................................................................. 4 G e n era l R ule – Abs e nt a n E x c lusion ar y R ul e , All R e l e v a nt Evid e n c e is Admissible .... 4 I n L i g ht of L e g isl a tive C h a n g e s , R. v .

Spring Do e s not C rea te a n E x c lusion ar y R ule .... 5 S ec tion 2.3 of the C RA Do e s Not C rea te a n E x c lusion ar y R ul e ...................................... 9 S ec tion 7.2 of the C RA Do e s Not C rea te a n E x c lusion ar y R ul e .................................... 12 P oli c y C onsid era tions Also Fa vour Admission of the P ar don e d C onvi c tions .............. 14 The I nt er p re t a tion P r opos e d by M r .

Z. w ould H a ve Un fa ir R e sults ................. 16 The Ont ar io High w ay T raffic A c t .................................................................................. 18 Th e F a ct s 1. M r . Z. pl ea d g uilty to ov e r 80 on his t r i a l d a y of D ece mb e r 15, 2015. The ca se w a s a djou r n e d f or s e nt e n c ing to M arc h 15, 2016. The C r own s ee ks to t e nd e r p r oof of th re e s e p ara te p r ior c onvi c tions f or d r unk d r ivin g , whi c h ar e c ont a in e d on M r . Z. ’ s cer ti f i e d Ont ar io Minist r y of T ra nspo r t a tion rec o r d.

F or c l ar it y , the C r own in this ca se is e x erc ising its dis cre tion n ot to f ile the “ noti c e of in crea s e d p e n a lt y ” ( pu r su a nt to s. 727 of the C riminal C od

e) due to the d a t e d n a tu r e of the c onvi c tions.

2. The C r own ac knowl e d g e s th a t M r . Z. rece iv e d a p ar don in Nov e mb e r 2006 – he h a s p r ovid e d to the C r own a s p r oof a l e tt e r w r itt e n by the N a tion a l P ar ole B o ar d whi c h the C r own ac knowl e d g e s is acc u ra t e . 1 Boo k o f Cr o w n M a te r i a l s , T a b 1 : Letter f r o m t h e N a ti ona l Pa r o le Boa r d to M r . Z. 3.

On D ece mb e r 30, 2015, the C r own sou g ht p er mission of the Fe d era l Minist e r of P ublic S afe ty & Em er g e n c y P re p are dn e ss to a utho r i z e dis c losu r e of the fe d era l rec o r d of the c onvi c tions to this c ou r t f or the pu r pos e s of s e nt e n c in g , pu r su a nt to s. 6 ( 2) a nd s. 6 ( 3) of the C riminal R ec ords A c t ( h ere in the “ C RA ”). The fe d era l Minist e r c onsid ere d this re qu e st, a nd on J a nu ar y 27, 2016, d ec id e d to g ra nt su c h p er mission.

Boo k o f Cr o w n M a te r i a l s , T a b 2 : Letter f r o m t h e Mi n i s ter o f Pub lic Sa fety & E me r g e n cy P r e pa r e dn e s s 1. A lt h o ug h t h e Nati o n al P a ro le B o a r d letter o n ly m e n ti o n s p a rdo n s f o r t w o dr un k dr i v i ng c o nv icti o n s (r at h er t h an t h r ee ) , t h e C ro w n do es n o t s eek to ta k e a d v a n ta g e o f w h at m ay s i m p ly b e an a d m i n i s t r ati v e o v e r s i gh t at t h e ti m e. 4.

To be c l ear , the C r own h a s rece iv e d p er mission to dis c lose the rec o r d to this s e nt e n c ing c ou r t pu r su a nt to s. 6 ( 2) a nd s. 6 ( 3) of the C RA. This is di ffere nt th a n r ev oki n g the p ar don a lto g e th er , the st a tuto r y fra m e wo r k f or whi c h fa lls und e r s. 7 of the C RA . The C r own do e s not s ee k re vo ca tion of the p ar don in this ca s e . This is v er y mu c h to the b e n ef it of M r . Z. .

I f a pot e nti a l e mplo y e r or volunt ee r a g e n c y w er e to c ondu c t a fe d era l cr imin a l rec o r d c h eck tod a y , his p ar don would still p re v e nt dis c losu r e of those rec o r ds in those c i rc umst a n ce s. 5. The C r own position is th a t Your Honour ca n a nd ou g ht to w e i g h th e se th ree p r ior d r unk d r iving c onvi c tions in o r d e r to craf t a f it s e nt e n ce .

The C r own submits the s e nt e n c e sou g ht is a mod e st one in the c i rc umst a n ce s: $1100 f in e , 6 months p r ob a tion, with a t er m re qui r ing a l c ohol c ouns e llin g , a nd a th re e y ea r

driving prohibition, during which the Crown is not asking Your Honour to prohibit Mr. Z. from benefiting from the Interlock program. In light of Mr. Z.’s history endangering the public by drunk driving – apattern with convictions spanning three separate decades – the Crown submits the sentence sought is proportionate and would betterprotect the public and assist Mr. Z. in his rehabilitation. Book of Crown Materials, Tab 3: Ministry of Transportation Record Showing Three Prior Drunk Driving Convictions 6. The Crown understands Mr.

Z.’s position to be that none of the three drunk driving convictions are admissible due to the pardon,and that Mr. Z. should be treated by this sentencing court as though he had never even once before been found guilty of drunk driving. The Position of the Crown General Rule – Absent an Exclusionary Rule, All Relevant Evidence is Admissible 7. The general rule is that all relevant credible or trustworthy evidence is admissible at sentencing unless it is subject to anexclusionary rule. This general rule is well established in Canadian law.

Notably, the Supreme Court of Canada once invoked this rule with respect to the common law admissibility of a certified Ministry of Transportation record to prove a non- pardoned criminal drunkdriving conviction in a criminal sentencing hearing for drunk driving: ….The [Ministry of Transportation] certificate is admissible at common law because, irrespective of the hearsay rule, all credible andtrustworthy evidence is admissible at a sentencing hearing… R. v. Albright, (SCC), [1987] 2 S.C.R. 383 at para. 14 8.

The key question at issue in this case is thus as follows: “Does any caselaw or statute create an exclusionary rule that barsadmission or consideration of a pardoned conviction at a sentencing hearing?” The Crown submits the answer is no. 9. Since the accused is self-represented, and there is no reported case that I can locate that is directly on point, the Crown will reviewcaselaw and several sections of the CRA that might arguably create such an exclusionary rule.

However, the Crown ultimately submitsthat no case or statute, when properly appreciated in context, creates such an exclusionary rule – and thus the pardoned convictions are admissible and ought to be weighed by Your Honour.

I n L i g ht of L e g isl a tive C h a n g e s , R. v . Spring Do e s not C rea te a n E x c lusion ar y R ule 10. I n 1977, the Ont ar io C ou r t of App ea l h e ld th a t the C RA st a tute re qui re d s e nt e n c ing c ou r ts to t rea t those with p ar dons, who w er e subs e qu e ntly c onvi c t e d, a s f i r st o ffe nd er s. I t is impo r t a nt to note th a t this d ec ision w a s b a s ed on int er p re ting the st a tute as it w as t h e n , in 1977. Only one p ara g ra ph in R. v .

Spring a dd re ss e s the issu e , a nd it is a s f ollows: A m a tt e r of impo r t a n c e w a s point e d out to us in ar g um e nt. The a pp e ll a nt h a d p re viously b ee n p ar don e d, a nd the qu e stion ar ose a s to wh e th e r or not he should be t rea t e d a s a f i r st o ffe nd er . W e t rea t him a s su c h b eca use we think the st a tute g iv e s us this di rec tion in th e se c i rc umst a n ce s. R . v. S p r in g , [1977 ] O.J . N o . 46 3 a t p a r a . 5 ( C . A . ) [ E m ph a s is a dded ] . ( T a b 1, B O A) 11. How e v er , sin c e R. v .

Spring, th er e h a s b ee n a si g ni f i ca nt c h a n g e in the l aw a nd, in p ar ti c ul ar , the C RA – a nd thus, the C r own submits, the opposite c on c lusion is the l e g a lly c o rrec t one tod a y . 1 2. I n 1977, wh e n R. v . Spring w a s d ec id e d, the C RA st a t e d th a t a p ar don “ v aca t es the c onvi c tion.” Th a t ph ra se h a s sin c e b ee n c ompl e t e ly d e l e t e d. Th a t ph ra se h a s b ee n r e pla ce d by the re qui re m e nt, inst ea d, th a t p ar don e d c onvi c tions be “ k e pt s e p ara te a nd a p ar t fr om oth e r cr imin a l rec o r ds ” . 13.

The c h ar t on the f ollowing p a g e outlin e s the re l e v a nt po r tion of the C RA du r ing th re e time p er iods: 1) the C RA wh e n R. v . Spring w a s d ec id e d; 2) the C RA wh e n M r . Z. rece iv e d his p ar don in Nov e mb e r 2006; a nd 3) the C RA in effec t tod a y . P l ea se note in p ar ti c ul a r the y e llow hi g hli g ht e d po r tions: CR A ( as it w as in 1977, w h e n R . v . S pri n g , s u pra w as d ec i d e d ) . CR A ( as a m e nd e d on A u g u st 1, 2000, a n d w as in e ff ec t on Nov e m b e r 2006, w h e n Mr . Z. rece iv e d h is p a r d o n ) .

CR A ( as of t o d ay, w h i c h c a m e i n t o f o rc e on D ece m b e r 6, 2014 ) .

EFFECT OF GRANT OFPARDON 5. The grant of pardon (

a) is evidence of the factthat the Board, after makingproper inquiries, wassatisfied that an applicantwas of good behavior andthat the conviction inrespect of which the pardonis granted should no longerreflect adversely on hischaracter; and (

b) unless the pardon issubsequently revoked,vacates the conviction inrespect of which it isgranted and, withoutrestricting the generality ofthe foregoing, removes anydisqualification to whichthe person so convicted is,by reason of suchconviction, subject byvirtue of any Act of theParliament of Canada or aregulation made thereunder. EFFECT OF PARDON 5. The pardon (

a) is evidence of the fact (

i) that, in the case of a pardon for anoffence referred to in paragraph 4(a), theBoard, after making inquiries, wassatisfied that the applicant for the pardonwas of good conduct, and (ii) that, in the case of any pardon, theconviction in respect of which the pardonis granted or issued should no longerreflect adversely on the applicant’scharacter; and (

b) unless the pardon is subsequentlyrevoked or ceases to have effect, requiresthe judicial record of the conviction to bekept separate and apart from othercriminal records and removes anydisqualification or obligation to whichthe person so convicted is, by reason ofthe conviction, subject by virtue of theprovisions of any Act of Parliament,other than

section 109, 110, 161, 259, 490.012 or 490.019 of the CriminalCode or subsection 147.1(1) of theNational Defence Act, or of a regulationmade under

an Act of Parliament. EFFECT OF RECORD SUSPENSION 2.3 A record suspension (

a) is evidence of the fact that (

i) the Board, after making inquiries, wassatisfied that the applicant was of goodconduct, and (ii) the conviction in respect of which therecord suspension is ordered should nolonger reflect adversely on the applicant’scharacter; and (

b) unless the record suspension issubsequently revoked or ceases to haveeffect, requires that the judicial record ofthe conviction be kept separate and apartfrom other criminal records and removesany disqualification or obligation towhich the applicant is, by reason of theconviction, subject under any Act ofParliament — other than

section 109,110, 161, 259, 490.012, 490.019 or 490.02901 of the Criminal Code, subsection 147.1(1) or

section 227.01 or 227.06 of the NationalDefence Act or

section 36.1 of theInternational Transfer of Offenders Act. 14. Whether or not the conviction is “vacated” by the pardon – such that it is judicially deemed to no longer exist -- is important to theissue currently facing this court. If the conviction is deemed to be vacated and to essentially no longer exist, then the Crown agrees R. v.Spring, supra dictates the result, and Mr. Z. should be treated as a first offender (unless and until the pardon is revoked by the NationalParole Board). However changes to the wording of the CRA, outlined above, make clear that a pardon no longer deems a conviction to be“vacated”.

Notably, these changes to the law took effect well before November 2006 when Mr. Z. received his pardon. 15. Indeed the French version of the law deleted the phrase "annule la condamnation" (i.e. vacates the conviction) in 1985, anddid the same for the English version on August 1, 2000. For a discussion of the legislative changes in English and French with respect to“annule la condamnation”/”vacates the conviction”, see: R. v. Gyles, [2003] O.J. No. 1924 at para.10&11 (S.C.J.) (Tab 2, BOA) Re Therrien, 2001 SCC 35 , [2001] 2 S.C.R. 3 at para. 117 (Tab 3, BOA)

16. Even more importantly, the Supreme Court of Canada considered the CRA in Therrien, and interpreted the statute and explicitlyrejected the notion that a pardon means that a conviction is deemed to not exist Re Therrien, 2001 SCC 35 , [2001] 2 S.C.R. 3 at para. 117 - 123 17. The significance of the deletion of the words “vacates the conviction” from the CRA was commented on by Justice Wein of theOntario Superior Court of Justice in R. v. Gyles. In that case, defence sought to cross examine a Crown witness on his pardonedconviction. At that time, the main authority on point was R v.

Paterson (1998), (BC CA), 122 C.C.C. (3d) 254 (B.C.C.A.), which prohibited such cross-examination. Justice Wein reviewed changes to the CRA, including the deletion of the phrase “vacatesthe conviction,” as well as the Re Therrien Supreme Court of Canada case, and concluded: “I therefore do not find that Paterson remains authoritative, even if it was correctly decided.” Justice Wein thus allowed cross examination of the witness on hispardoned conviction – holding that the existence of the pardon goes to the weight of the evidence – not its admissibility. R. v. Gyles, [2003] O.J.

No. 1924 at paras. 3-11 and paras. 15-19 18. It is also noteworthy that the form letter the National Parole Board sent to Mr. Z., when granting him the pardon, warned: “… a pardon does not erase the fact that an individual was convicted of an offence(

s) and hasa criminal record…” Book of Crown Materials, Tab 1: Letter from the National Parole Board to Mr. Z.

Section 2.3 of the CRA Does Not Create an Exclusionary Rule 19. The “effects” of an administrative pardon and/or “record suspension” are explicitly prescribed by the CRA. The Crownsubmits a careful reading of this

section reveals that none of these “effects” create an exclusionary rule at a subsequent sentencing hearing. Effect of Record Suspension

2 . 3 A r e c o rd s u s pe n s io n (

a) i s e v ide n ce o f t h e f act t h at (

i) t h e [Na tio n al P ar ole ] B o ar d , a f te r ma k i n g i n q u i r ie s, w as sa ti s f ie d t h at t h e a ppli ca n t w as o f goo d c o n d u c t , a n d ( ii ) t h e c o nv i c tio n i n r e s pe ct o f wh i ch t h e r e c o rd s u s pe n s io n is o r de r e d s h o u l d n o lo n ge r r e f le ct a d v e rs el y o n t h e a ppli ca n t ’s c h arac te r; a n d (

b) unl e ss the rec o r d susp e nsion is subs e qu e ntly re vok e d or cea s e s to h a ve effec t, re qui re s th a t the judi c i a l rec o r d of the c onvi c tion be k e pt s e p ara te a nd a p ar t fr om oth e r cr imin a l rec o r ds a nd re mov es a ny disqu a li f i ca tion or obli g a tion to whi c h the a ppli ca nt is, by rea son of the c onvi c tion, subj ec t und e r a ny A c t of P ar li a m e nt — oth e r th a n s ec tion 109 , 110 , 161 , 259 , 490.012 , 490.019 or 490.02901 of the C riminal C od e , subs ec tion 147.1 ( 1) or s ec tion 227.01 or 227.06 of the N ational D e f e n c e A c t or s ec tion 36.1 of the I nt e rnational T ransf e r of Off e nd e rs A c t . 2 0.

The C r own will divide submissions h er e into the f ollowing th re e p ar ts: i. S ec tion 2.3 (a)(

i) do e s not crea te a n e x c lusion ar y r ul e . ii. S ec tion 2.3 (a)( ii) do e s not crea te a n e x c lusion ar y r ul e. iii. S ec tion 2.3 (

b) do e s not crea te a n e x c lusion ar y r ul e. i. S ec tion 2.3 (a)(

i) do e s not crea te a n e x c lusion ar y r ul e . 21. W ith re sp ec t to s. 2.3 (a)( i ) , the C r own submits th a t the ph ra se “ g ood c ondu c t” do e s n ot m ea n the o ffe nd e r is now d ee m e d to h a ve b ee n of “ g ood c ondu c t” with re sp ec t to the subj ec t m a tt e r of the cr imin a l c onvi c tion whi c h w as p ar don e d, but ra th e r is e vid e n c e th a t the o ffe nd e r w a s of “ g ood c ondu c t” du r ing a p re s cr ib e d p er iod a f t e r the o ffe n c e f or whi c h he h a s b ee n p ar don e d.

This int er p re t a tion is e sp ec i a lly c l ea r wh e n rea ding the whole of the C RA h ar moniousl y , with a f o c us on the cr it er ia f or g ra nting a rec o r d susp e nsion in the f i r st pl ace , f ound in s. 4.1, whi c h in c lud e s the sp ec i f ic ph ra se “ g ood c ondu c t” du r ing the “a ppli ca ble p er iod” af t e r the c onvi c tion: 4 . 1 ( 1 ) Th e B o ard may o r de r t h at an a ppli ca n t ’s r e c o rd i n r e s pe ct o f an o ff e n ce b e s u s pe n de d i f t h e B o ard i s sa ti s f ie d t h at

(

a) t h e a ppli ca n t , d u r i n g t h e a ppli ca bl e pe r io d r e f e rr e d t o i n s u b s e c tio n 4 ( 1 ), h as bee n o f goo d c o n d u ct a n d h as n o t bee n c o nv i c te d o f an o ff e n ce un de r an A ct o f P ar li am e n t ; a n d [ E m p h as i s a dded ]. … 22. I n oth e r wo r ds, the “ g ood c ondu c t” ph ra se in the C RA, refer s to the p er son ’s c ondu c t du r ing the m a nd a t e d “ w a iting p er iod,” in b e tw ee n on e’ s l a st c onvi c tion a nd b ec oming e li g ible f or a p ar don.

The st a tute in no w a y pu r po r ts to t ra ns f o r m wh a t w a s p re viously c onsid ere d “cr imin a l c ondu c t” into d ee m ed “ g ood c ondu c t ” . Th eref o re , this subs ec tion do e s not crea te a n e x c lusion ar y r ule p re v e nting p ar don e d c onvi c tions fr om b e ing c onsid ere d a t s e nt e n c in g . ii. S ec tion 2.3 (a)( ii) do es not crea te an e x c lusion ar y r ul e. 23.

This subs ec tion st a t e s th a t the rec o r d susp e nsion is “e vid e n c e of the fac t th a t… the c onvi c tion in re sp ec t of whi c h the rec o r d susp e nsion is o r d ere d should no lon g e r ref l ec t a dv er s e ly on the a ppli ca nt ’ s c h arac t er” . The C r own submits this too do e s not crea te a s a n e x c lusion ar y r ule a t a subs e qu e nt s e nt e n c ing h ear in g . The C r own is n ot s ee king the C ou r t to impose a di ffere nt s e nt e n c e on M r . Z. b eca use his ( now p ar don e

d) c onvi c tions ref l ec t poo r ly on his “c h arac t er .” R a th er , the C r own is s ee king a f it s e nt e n c e th a t t a k e s into c onsid era tion th a t M r . Z. h a s b ee n c onvi c t e d of th re e p r ior d r unk d r iving o ffe n ce s, a nd thus pos e s a h e i g ht e n e d c on cer n to both public s afe ty a nd hims e l f . The C r own submits this c on cer n is distin c t fr om M r . Z. ’ s “c h arac t er ,” a nd thus s. 2.3 (a)( ii) do e s not crea te a n e x c lusion ar y r ule a t s e nt e n c in g . iii. S ec tion 2.3 (

b) do e s not crea te a n e x c lusion ar y r ul e. 24. This subs ec tion re qui re s th a t rec o r ds be “ k e pt s e p ara te a nd a p ar t fr om oth er cr imin a l rec o r ds ” . The C r own submits nothing in this s ec tion crea t e s a n e x c lusion ar y r ule a t s e nt e n c in g , e sp ec i a lly now th a t the fe d era l Minist e r h as g ra nt e d p er mission to dis c lose the rec o r d, pu r su a nt to s. 6 ( 2) a nd 6 ( 3) of the C RA , to this C ou r t f or the pu r pos e s of s e nt e n c in g . S ec tion 7.2 of the C RA Do es Not C rea te an E x c lusion ar y R ule 25.

S ec tion 7.2 of the C RA st a t e s th a t if a n acc us e d is c onvi c t e d of a C riminal C ode o ffe n c e th a t is p r os ec ut a ble by indi c tm e nt, th a t a ny p ar don is a utom a ti ca lly a nd imm e di a t e ly r ev o ke d ; how e v er , the C RA e x e mpts o ffe n ces und e r s. 255 of the C riminal C ode – i. e . d r unk d r iving o ffe n ce s wh er e th er e h a s b ee n no inju r y or d ea th – fr om t r i gg er ing this a utom a tic re vo ca tion. The C r own ac knowl e d g e s M r . Z. b e n ef its fr om this e x e mption, in th a t his p ar don is not a utom a ti ca lly re vok e d.

F or e x a mpl e , if M r . Z. w er e to a pply f or e mplo y m e nt a nd be subj ec t to a cr imin a l rec o r d c h ec k, his p re vious c onvi c tions would re m a in s ea l e d a nd would not be dis c los e d. How e v er , the C r own submits th a t nothing in this s ec tion p re v e nts the C r own fr om s ee king a nd obt a ining p er mission fr om the fe d era l Minist e r to dis c lose the p ar don e d rec o r d, a nd submit it to the c ou r t to c onsid e r du r ing s e nt e n c in g . 26.

The C r own ac knowl e d g e s th er e ar e a numb e r of ca s e s in whi c h a n acc us ed w a s f ound g uilty of a n indi c t a ble o ffe n ce , oth e r th a n d r unk d r ivin g , a nd his p ar dons w er e d ee m e d by the c ou r t to be a utom a ti ca lly a nd imm e di a t e ly re vok e d und e r s. 7.2 (a) , a nd the s e nt e n c ing

judge, over the objection of the defence, then took the pardoned convictions into consideration at sentencing on that basis – i.e. that thepardon had been revoked. R. v. Poupart, 2010 QCCA 1956 R. v. Gamble, 2011 ONCJ 513 at paras. 8-11 (De Filippis J.) (Tab 5, Crown’s BOA) R. v. Kanagarajah, 2013 ONCJ 16 at para. 41 (De Filippis J.) 27. In this above line of cases, there was no need to seek permission of the federal Minister to disclose the record, as the Crown hasdone in this case, because the pardon was deemed to no longer exist as it had been revoked. 28.

The Crown submits that these three cases do not stand for the converse principle – i.e. if the conviction does not by virtue of s. 7.2 revoke the pardon, the pardoned convictions are inadmissible. The Crownsubmits nothing in s. 7.2, or in this line of three cases noted above, suggest that s. 7.2 of the CRA creates an exclusionary rule at sentencing. Policy Considerations Also Favour Admission of the Pardoned Convictions 29.

The Crown submits the language of the current CRA makes clear that nothing in that Act prevents a court from consideringpardoned convictions at sentencing, especially after the federal Minister has provided permission to the Crown to disclose the pardonedconvictions to the sentencing judge under s. 6(2) and 6(3) of the CRA. 30. However, in the event Your Honour disagrees with the Crown, and concludes that the wording of the CRA is not sufficiently clearto on its own resolve the issue, rules of statutory

interpretation require this court to consider policy considerations: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. R. v. Bell Expressvu, 2002 SCC 42 , [2002] 2 SCR 559 at para. 26 31. The Crown submits it is clear that the object of the CRA is the rehabilitation of offenders. In this light, the Crown submitsParliament prevented s. 255 drunk driving offences from automatically revoking a pardoned criminal record, because of a concern thatrelatively “low end” drunk driving offences, would have an adverse and disproportionate impact on rehabilitation, including employment

a nd t ra v e l, a nd n ot b eca use of a c on cer n th a t d r unk d r iv er s, who c ommitt e d a noth e r d r unk d r iving o ffe n c e af t e r rece iving a p ar don, would rece ive a n un fa i r ly st r i c t s a n c tion. 3 2. M r . Z. is a g ood e x a mple of this poli c y c on cer n. Your Honour will note th a t one of M r . Z. ’ s p ar don e d c onvi c tions, whi c h the fe d era l Minist er h a s g iv e n p er mission to dis c lose to the C ou r t, is f or poss e ssion of d r u g s f or the pu r pose of t raff i c kin g , f or whi c h M r . Z. rece iv e d a s e nt e n c e in S e pt e mb e r 1990 of two y ear s ( l e ss one d a

y) j a il. I t is rea son a ble to in fe r th a t su c h a c onvi c tion on a cr imin a l rec o r d would a dv er s e ly imp ac t oppo r tuniti e s in M r . Z. ’ s li fe , in c luding those th a t mi g ht a ssist re h a bilit a tion, su c h a s t ra v e l, volunt eer ism a nd e mplo y m e nt. No doubt, m a ny e mplo y er s or volunt ee r a g e n c i e s, whi c h mi g ht be willing to ov er look d r unk d r iving c onvi c tions, mi g ht d ec line to hi r e som e one if th e ir cr imin a l rec o r d in c lud e d su c h a n indi c t a ble o ffe n c e th a t carr i e d su c h a long j a il s e nt e n ce .

C er t a inl y , if e mplo y m e nt or volunt eer ism involv e d t ra v e l to a noth e r c ount r y , a d r ug t raff i c king re l a t e d- c onvi c tion would be fa r mo r e p r obl e m a tic th a n a d r unk d r iving c onvi c tion. 33. The C r own submits it is c l ea r s. 7.2 (a)( ii) of the C RA , whi c h p re v e nts a d r unk d r iving simpli c it e r c onvi c tion fr om a utom a ti ca lly re voking a p ar don, w a s craf t e d with this c on cer n in mind.

How e v er , this issue is tot a lly di ffere nt fr om wh e th e r a c ou r t should be a llow e d to w e igh a p ar don e d c onvi c tion a t s e nt e n c ing – whi c h the C r own submits is e nti re ly a pp r op r i a te a nd c onsist e nt with the obj ec tiv e s of the C RA. 34. The position f o r w ar d e d by the d efe n c e c ould ac tu a lly d e t e r the re h a bilit a tive obj ec tive of the C RA .

I f the C RA w er e int er p re t e d so th a t the o n ly w ay a C ou r t c ould c onsid e r p ar don e d c onvi c tions of a re p ea t d r unk d r iv e r a t a s e nt e n c ing h ear ing is if the p ar don w er e re vok e d, th e n the C r own, in the f utu re , would be in ce ntivi z e d to invite the N a tion a l P ar ole B o ar d to use its dis cre tion und e r s. 7 (

b) the C RA to re voke the p ar don ( whi c h would n ece ss ar ily m ea n a ll c onvi c tions whi c h h a d b ee n p ar don e d ) . F or a p er son su c h a s M r . Z. , this would n ece ss ar ily m ea n th a t, if the C r own w er e su cce ss f ul, a f utu r e e mplo y e r or volunt ee r a g e n c y would, du r ing a fe d era l cr imin a l rec o r d c h ec k, l ear n of his d r ug t raff i c king c onvi c tion. (F or c l ar it y , the C r own wish e s to e mph a si z e a g a in h er e it is not s ee kin g , a nd will not s ee k, the re vo ca tion of M r . Z . ’ s p ar don in this ca s e) .

I n c ont ra st, the l e g a l int er p re t a tion put f o r th by the C r own b e tt e r p r omot e s re h a bilit a tion, b eca use it a llows a c ou r t to c onsid e r a n o ffe nd er’ s p a st p ar don e d c onvi c tions in craf ting a f it s e nt e n ce, while simult a n e ously m a int a ining the p ar don f or the tot a lly un re l a t e d d r ug t raff i c king c onvi c tion. The I nt er p re t a tion P r opos e d by the D efe n c e W ould H a ve Un fa ir R e sults 35.

Mo re ov er , int er p re ting the l a w in su c h a w a y th a t crea t e s a n e x c lusion ar y r ule a t s e nt e n c ing would crea te hi g hly ar bit rar y a nd un fa ir re sults. C onsid e r a h y poth e ti ca l e x a mple of two p er sons: “ P er son A” a nd “ P er son B ” , eac h of whom ar e c onvi c t e d of a simil a r d r unk d r iving o ffe n c e on J a nu ar y 11, 2016, a nd eac h now fac e s e nt e n c in g . P er son A P er son B

• C onvi c t e d of imp a i re d d r iving p re viously six tim e s: 1. J a nu ar y 10, 1987, 2. J a nu ar y 10, 1988, 3. J a nu ar y 10, 1999, 4. J a nu ar y 10, 2000, 5. Fe b r u ar y 10, 2010, 6. J a nu ar y 10 th , 2011. • Appli e s f or a nd rece iv e s a p ar don/ “rec o r d susp e nsion” on J a nu ar y 10, 2016 ( so long a s the C r own p r o cee d e d summ ar ily on p r ior o cca sions, by st a tute “ P er son A” is e ntitl e d to the rec o r d susp e nsion.) • C r own f il e s noti c e of hi g h e r p e n a lty • C onvi c t e d of imp a i red d r iving p re viously o n ce : 1.

J a nu ar y 10, 2011. • Do e s not s ee k or rece ive a p ar don/ “rec o r d susp e nsion ” . • C r own f il e s noti c e of hi g h e r p e n a lt y . 36. S u re l y , “ P er son A” is a g rea t e r th rea t to public s afe ty a nd w arra nts a mo r e si g ni f i ca nt s a n c tion th a n “ P er son B ” . How e v er , the int er p re t a tion th a t p ar don e d c onvi c tions ar e in a dmissible would l ea d to a tot a lly a bsu r d re sult: “ P er son A” would be e li g ible f or (a nd lik e ly rece iv

e) the minimum $1000 f in e , while “ P er son B ” would fac e a minimum s e nt e n c e of 30 d a y s in carcera tion. This would be tot a lly un fa ir a nd ar bit rar y , a nd a t odds with C riminal C ode s e nt e n c ing p r in c ipl e s. 37. I n sho r t, c onsist e nt with the re h a bilit a tive obj ec tive of the C RA , a p er son who rece iv e s a p ar don should fee l s ec u r e th a t th e ir p ar don e d c onvi c tion will not a dv er s e ly affec t th e ir e mplo y m e nt, int er n a tion a l t ra v e l, or volunt eer ism.

How e v er , th er e is no sound public poli c y ra tion a le f or int er p re ting the C RA so th a t a p ar don e d p er son ca n re st a ssu re d th a t if he c ommits the o ffe n c e of d r unk d r iving a g a in, in the futur e , he will be p r ot ec t e d fr om his num er ous p a st d r unk d r iving c onvi c tions b e ing c onsid ere d a t s e nt e n c ing in craf ting a f it s e nt e n ce . The Ont ar io High w ay T raffic A c t 38. Th er e is y e t a noth e r b a sis upon whi c h the C r own submits this C ou r t ou g ht to w e i g h the p ar don e d c onvi c tions.

A jud g e p re siding ov e r a cr imin a l d r unk d r iving s e nt e n c ing h ear ing in Ont ar io w ear s two h a ts – one und e r the fe d eral C riminal C ode a nd the oth e r und e r the Ont ar io High w ay T raffic A c t .

W ith re sp ec t to the l a tt er , the High w ay T raffic A c t g ra nts this c ou r t the dis cre tion to m a ke a n a ddition a l d r iving susp e nsion und e r s. 41 ( 4) of the High w ay T raffic A c t: 41 ( 4) W h er e the c ou r t or jud g e , a s the ca se m a y b e , m a king the c onvi c tion referre d to in subs ec tion ( 1) c onsid er s it to be d e si ra ble f or the p r ot ec tion

of the public using the hi g hw a y s, the c ou r t or jud g e m a y m a ke a n o r d e r e x t e nding the susp e nsion of the li ce n ce , (

a) f or a ny p er iod in a ddition to the p er iod sp ec i f i e d in subs ec tion ( 1) th a t the c ou r t or jud g e c onsid er s p r op er , if the p er son is li a ble to imp r isonm e nt f or li f e in re sp ec t of the o ffe n ce ; or (

b) f or a ny p er iod in a ddition to the p er iod sp ec i f i e d in subs ec tion ( 1) th a t the c ou r t or jud g e c onsid er s p r op e r but not e x cee ding th re e y ear s, if the p er son is not li a ble to imp r isonm e nt f or li f e in re sp ec t of the o ffe n ce . R . S .O. 1990, c . H.8, s. 41 ( 4 ). 39.

I t is not e wo r thy th a t s. 1 ( 6) of the Ont ar io High w ay T raffic A c t , e x pli c itly st a t e s th a t, f or its pu r pos e s, a c onvi c tion th a t h a s b ee n p ar don e d by the fe d era l g ov er nm e nt is t rea t e d no di ffere ntly th a n a non - p ar don e d c onvi c tion: 1 ( 6) This A c t a nd the re g ul a tions a pply to a p er son who h a s b ee n g ra nt e d a p ar don und e r the C riminal R ec ords A c t ( C a n a d

a) in the s a me m a nn e r a s if the p er son h a d not b ee n g ra nt e d the p ar don. R . S .O. 1990, c . H.8, s. 41 ( 4 ) . 4 0. Ev e n in B r itish C olumbi a , wh ere , unlike in Ont ar io, the a n a lo g ous p r ovin c i a l hi g hw a y s afe ty l e g isl a tion w a s c ompl e t e ly sil e nt on the issu e , the S up re me C ou r t of B r itish C olumbia r ul e d th a t the B . C . S up er int e nd e nt of Motor V e hi c l e s c ould t rea t a p ar don e d d r unk d r iving c onvi c tion a s it would a non- p ar don e d d r unk d r iving c onvi c tion. Gutt e ridge v .

British C olumbia ( S up er int e nd e nt of Motor V e hi c l e s ) , 2001 B CS C 620 ( T a b 7 of the C r own ’ s B OA ) . 41. I t is not e wo r thy th a t e v e n the l e tt e r w r itt e n by the N a tion a l P ar ole B o ar d to M r .

Z. in Nov e mb e r 2006, g ra nting him the p ar don, w ar n e d him th a t the C RA only a ppli e s fe d era ll y , a nd do e s not a pply to p r ovin c i a l l a w: A p ar don do e s not e nsu r e th a t e ith e r muni c ip a l or p r ovin c i a l a g e n c i e s or p r iv a te c iti z e ns will not dis c lose a cr imin a l rec o r d, b eca use the CR A a ppli e s only rec o r ds k e pt a t the fe d eral l e v e l.

How e v er , m a ny p r ovin c i a l a nd muni c ip a l a g e n c i e s, wh e n noti f i e d of the a w ar d of a p ar don und e r the CR A, c hoose to c oop era te by re st r i c ting the dis c losu r e of th e ir rec o r ds e v e n thou g h th e y ar e not re qui re d by l a w to do so . Boo k o f Cr o w n M a te r i a l s , T a b 1 : Letter f r o m N a ti ona l Pa r o le Boa r d to M r . Z., pag e 2 42. The C r own submits the Ont ar io High w ay T raffic A c t is y e t a noth e r b a sis upon whi c h Your Honour ou g ht to rece ive a nd c onsid e r M r .

Z. ’ s p ar don e d d r unk d r iving c onvi c tions in this s e nt e n c ing h ear in g . A L L OF WHICH IS R ES P E C T F U LL Y S U B M I TTE D B Y:

Mi c h ae l M a ll e son Assist a nt C r own Atto r n e y D a t e : M arc h 3, 2016 Du r h a m C r own Atto r n e y ’ s O ff i c e