R. v. OSNACH, 2019 MBPC 1

CITATION: R. v. OSNACH , 2019 MBPC 1 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Nick Reeves ) for the Crown ) and ) ) ) Lenny Osnach ) Mark Wasyliw ) for the Accused ) ) ) ) Decision delivered: ) January 4, 2019 CHOY, P. J. [ 1 ] This is the sentencing decision of Lenny Osnach. The main issue to be addressed is whether the mandatory minimum one- year driving prohibition imposed under s. 259(1) of the Criminal Code may be reduced on account of time spent under a three-month provincial administrative suspension. BACKGROUND [ 2 ] On October 31, 2018, Mr.

Osnach was found guilty after trial of operating a motor vehicle with a blood alcohol concentration of over 80 mg alcohol in 100 ml of blood, contrary to s. 253(1) (

b) of the Criminal Code . The facts were that on June 30, 2017, Mr. Osnach was travelling on Manitoba Provincial Highway 6, between Lundar and Ashern, when he was stopped by a check stop. After failing an approved screening device test, Mr. Osnach was arrested for impaired driving and was read the breath demand. He was taken to the Lundar R.C.M.P. Detachment where he gave two breath samples. The samples registered at 160 mg% and 150 mg% and he was charged under s. 253(1) (

b) of the Criminal Code . [ 3 ] Defence counsel raised

section 8 and 9 Charter breaches and a voir dire was entered into. On October 31, 2018, I gave my decision on the voir dire, which found that Mr. Osnach’s

section 9 Charter right not to be arbitrarily detained was breached when he was placed in the rear of the police vehicle. On the facts of the case, securing Mr. Osnach in the cruiser was more intrusive than was reasonably necessary in the circumstances, and was therefore, a breach of

section 9. [ 4 ] After conducting a section 24(2) analysis, I concluded that admission of the breathalyzer results would not bring the administration of justice into disrepute, and accordingly, they were admitted into evidence. Mr. Osnach was subsequently convicted of operating a motor vehicle with a blood alcohol concentration over the legal limit. SENTENCING SUBMISSIONS [ 5 ] Sentencing submissions were made. Both Crown and defence submitted that a fine of $1,200.00 and a one-year driving prohibition would be an appropriate sentence for Mr. Osnach. He is a 59-year-old male who resides on a farm. He has a Class 1 licence

and makes a living as an oil seed farmer and grain hauler. He has no prior criminal record and his driving record reveals that he has the maximum 15 driving merits. The only aggravating factor in his sentencing was the high breathalyzer readings. Since the incident, Mr. Osnach has attended programming with the Addictions Foundation of Manitoba. [ 6 ] The only point where counsels’ submissions diverged was whether Mr. Osnach should be given credit for the three-month administrative suspension he had already served.

When sentencing submissions were made on October 31, 2018, defence counsel made a brief reference to recent Alberta case law where the suspension served under Provincial legislation was deducted from the mandatory minimum one-year prohibition required under s. 259(1) (

a) of the Criminal Code . Counsel were given opportunity to file case law and provide oral argument on whether the three-month suspension already served by Mr. Osnach could be subtracted from the one-year driving prohibition. On December 10, 2018, I heard oral argument and reserved my decision. After considering the case law and argument, I have determined that the three-month provincial driving suspension cannot be deducted from the mandatory one-year Criminal Code driving prohibition. ALBERTA CASES [ 7 ] Counsel provided me with two lines of authority coming from the Alberta Court of Queen’s Bench on

summary conviction appeals . R v. Watson , 2018 ABQB 832 , held that the automatic driving suspension imposed under The Alberta Traffic Safety Act could be credited against the one-year driving prohibition imposed under s. 259(1) (

a) of the Criminal Code . In Watson , Mr. Justice Mandziuk concluded that the driving suspension created by s. 88.1 of The Traffic Safety Act was for all intents and purposes, tantamount to the recognizance considered by the Supreme Court of Canada in R v. Lacasse , 2015 SCC 64 . In Lacasse , the Supreme Court held that the length of the pre-sentence driving prohibition should be subtracted from that of the prohibition imposed in the context of the sentence.

In that case, the period of driving prohibition was reduced to take account of the time spent under recognizance pursuant to which the offender was to refrain from driving. [ 8 ] In Watson , it was further determined that the administrative driving suspension had an overwhelmingly punitive impact on the accused which was the same effect on the convicted person whether it was imposed under Provincial or Federal legislation. Mr. Justice Mandziuk concluded that the automatic suspension under Provincial legislation should be subtracted from the mandatory minimum prohibition imposed under the Criminal Code .

Failure to do so would be to inflict a form of double punishment on the convicted person. [ 9 ] The Crown relies on R v. Sohal , 2018 ABQB 845 , which was released seven days after Watson . In that case, Mr. Justice de Wit concluded that no credit could be granted for pre-sentence suspension from the mandatory minimum one-year prohibition prescribed under the Criminal Code . In his analysis, Justice de Wit rejected the analogy to Lacasse that a Criminal Code bail condition, which ordered a driving prohibition, was akin to a provincially legislated driving suspension.

He concluded that there was nothing in the Criminal Code which would permit an

interpretation reducing the prescribed mandatory minimum one-year prohibition which was to commence on the date of conviction. [ 10 ] Applications for leave to appeal have been filed in both Watson and Sohal . Leave has been granted in the Watson case reported at 2018 ABCA 404 with Mr. Justice Wakeling stating: The position advanced by the Crown and adopted by Justice deWit in The Queen v. Sohol and other judges of The Provincial Court of Alberta is sound. The Crown easily passes the merit-based component of the leave-to-appeal test. MANITOBA LEGISLATION [ 11 ] In Manitoba, the relevant Provincial legislation is found under The Highway Traffic Act .

Section 263.1 provides that if a peace officer reasonably believes that the concentration of alcohol in a person’s blood equals or exceeds 80 mg of alcohol in 100 ml of blood, a suspension and disqualification order is to be served to take effect immediately. [ 12 ] Accordingly, in Manitoba, a first time offender faces the following drivers licencing suspensions: • Three month provincial administrative suspension under s. 263.1 of The Highway Traffic Act commencing immediately from the time of the offence; and • One-year Criminal Code driving prohibition under s. 259(1) (

a) of the Criminal Code which begins at the date of conviction. ANALYSIS [ 13 ] After reviewing the case law and considering counsel’s oral submissions, I conclude that the reasoning under the Sohal case is to be adopted. [ 14 ] In particular, I do not accept that an administrative suspension under The Highway Traffic Act and a driving prohibition under the Criminal Code are, for all intents and purposes, the same. While the practical effect may be the same, the source of the jurisdiction to pass the legislation and the purpose of the laws are quite different.

Under s. 91(27) of t he Constitution Act , the Federal government has jurisdiction over criminal law. Under s. 92, the provinces have jurisdiction over local works and undertakings and civil and property rights in the province. The Highway Traffic Act is an exercise of this provincial responsibility for regulation of highways, licensing of drivers and general matters of traffic safety. While there may be concurrent jurisdiction to restrict driving privileges, this does not

necessarily mean that two types of disqualifications are the same. In fact, they have very different consequences in the case of a breach. If an offender breaches a Criminal Code driving prohibition, they will be subject to criminal sanctions and possible incarceration. Abreach of a Provincial driving suspension may not result in a criminal charge. [15] The effect of reducing Mr.

Osnach’s one-year driving prohibition by the three-month administrative suspension already servedwould mean that in the case of breach, he would only be subject to criminal prosecution for a nine-month period, instead of themandatory minimum one year. Effectively, this would reduce the penal effect of Mr. Osnach’s sentence to below the mandatoryminimum. [16] I find no analogy to the situation considered by the Supreme Court of Canada in Lacasse, where the restriction on driving was abail condition imposed pursuant to the Criminal Code.

I do not accept defence counsel’s submissions that Lacasse establishes a commonlaw precedent. What distinguishes Lacasse is that the licence suspension was a judicial interim release condition imposed underauthority of the same statute, i.e. the Criminal Code. As noted above, I find that there are constitutional differences between theProvincial and Federal legislation and they are not interchangeable. [17] I also do not accept the defence submission that the situation is analogous to credit for time in custody. In that regard, the caseR. v. Wust, 2000 SCC 18 , [2000] 1 S.C.R. 455 was relied upon by defence.

I find that the leap from pre-sentence custodycredit to credit for Provincially mandated driving suspension cannot be made. Depriving a person of their liberty is not the same as aperson being inconvenienced by the inability to operate a motor vehicle. Liberty is a fundamental individual right, whereas driving is aprivilege which is earned. There is no inherent right to drive.

They attract different treatment, with liberty interests being far moreprotected than would be any licence to operate a motor vehicle. [18] Further, there is specific provision under s. 719(3) of the Criminal Code for giving credit for any time spent in custody. Thiswould suggest that statutory authority is required in order to give credit.

I do, however, acknowledge defence counsel’s arguments thateven before authority for crediting for time in custody was codified, courts were doing so under the common law. [19] Section 719(1) of the Criminal Code provides that: “a sentence commences when it is imposed, except where a relevantenactment otherwise provides.” As discussed in Sohal, there is nothing in the Criminal Code which provides for any reduction of theone-year prohibition which commences when the sentence is imposed.

I do not accept that The Highway Traffic Act administrativesuspension is a relevant enactment which “provides otherwise.” It is not Parliament, but a Provincial Legislature, which is enacting thatlegislation. It could not have been the intention of Parliament to allow for a reduction of an offender’s punishment below the mandatoryminimum based on a traffic safety policy enacted by a province. This is particularly so given that the policy would very likely differfrom province to province. [20] Finally, I note the slippery slope argument put forward by Crown counsel regarding costs.

If we accept that the drivingsuspension can be credited, could it next be argued that other administrative costs paid by the offender pursuant to Provincial legislationbe deducted off the mandatory minimum fine imposed under the Criminal Code? Surely, this would not reflect the penal intention ofParliament in imposing minimum fines and driving prohibitions. SENTENCE [21] In the result, I do not accept that any deduction or credit from the mandatory minimum one-year driving prohibition isavailable. I therefore impose a fine of $1,200.00 and a one-year driving prohibition.

Since the time of oral submissions, the victimsurcharge provisions under s. 737 have been ruled unconstitutional and of no force and effect (see R. v. Boudreault, 2018 SCC 58). Assuch, the 30% victim surcharge amount will not be imposed. The total amount payable is therefore $1,200.00. Mr. Osnach will be givenone year time to pay. Original Signed by CHOY, P. J.