R. v. Pham, 2013 ONCJ 635

Citation: R. v. Pham , 2013 ONCJ 635 ONTARIO COURT OF JUSTICE (East Region) Her Majesty the Queen v. Viet Pham Before Justice David M. Paciocco – Ottawa, ON Reasons for Sentencing Decision relating to Driving Prohibition Released 21 November 2013 Mr. Hart Shouldice ………………………………………………………………..for the Crown Mr. Mark Ertel …...……………………………………………………..……….for the Accused Paciocco J. [ 1 ] On 8 November 2013 Mr. Viet Pham was retried before me and convicted on an impaired driving charge relating to an accident that occurred on 3 February 2010. His first trial on this same charge also ended in Mr. Pham’s conviction.

The trial judge who convicted him at this first trial on this same offence sentenced Mr. Pham, on 19 April 2011, to a 15 month driving prohibition. Mr. Pham appealed that first conviction successfully, and the conviction and sentence were set aside on 19 September 2012. By then Mr. Pham had served the entire 15 month driving prohibition, as that prohibition had not been stayed pending appeal. The Crown is now asking that I impose a new prohibition on Mr. Pham, arguing that section 259(1) leaves me with no choice, regardless of whether Mr.

Pham already served a prohibition for the same conduct and the same charge that I am now sentencing. Section 259(1) provides in relevant part: “259(1) When an offender is convicted of an offence committed under

section 253 or 254 …the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an ordering prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place… (

a) for a first offence, during a period of not more than three years plus any period to which the offender is sentenced to imprisonment, and not less than one year.” [ 2 ] This outcome - imposing a new driving prohibition on someone who has already served a driving prohibition for the same charge - is not appealing, either as a matter of instinct or equity.

Indeed, it would create the effect that someone who successfully appeals an alcohol driving conviction where the appeal hearing has been delayed until a material part of the prohibition sentence has been served, will be in a worse position if retried and convicted than if their appeal had failed. At best this could serve as a disincentive for enjoying the statutory right to appeal even where good grounds for appeal are apparent.

At worst it can appear as though the law penalizes those who seek to have their guilt determined appropriately and lawfully. [ 3 ] Other judges who have been asked to arrive at such a result have found creative ways to avoid it. In order to do so a

summary conviction appeal judge did order a prohibition, ostensibly complying with section 259(1), but he attempted to remove the mischief of what he perceived to be double-punishment by making his prohibition, ordered on 21 March 2002, retroactive to 9 November 2000: R. v. Rallison [2002] O.J. No. 3323 (Ont.S.C.J.) . As I say, instinct and equity commend the outcome in this case but it seems to me that a retrospective prohibition, expired by the time it is imposed, is a nullity. It is no sanction at all and I do not consider myself at liberty to follow this example.

[4] In R. v. Gilbert 13 Oct 2005, Cour Municipale de la Ville de Montréal Dossier No. 102-690-013 the trial judge held that commonlaw principles of fairness and equity require avoiding outcomes that strike the ordinary conscience and sense of justice. It is not entirelyclear what legal mechanism permitted those principles to enable the trial judge to credit time served under a prior prohibition in that case. [5] In R. v.

Wust 2000 SCC 18 , [2000] 1 S.C.R. 455 the Supreme Court of Canada avoided an analogous outcome in whichminimum sentences of imprisonment would be imposed anew regardless of time served, commenting that such a “result would beoffensive both to rationality and justice.” The Wust Court went on to say “[f]ortunately… this result is avoided through the application ofsound principles of statutory

interpretation.” I find the same to be so here.

Sound principles of statutory construction require that Iinterpret section 259(1) so that it permits credit to be given for “time served” under a previous driving prohibition order made on thesame charge. [6] Specifically, as I interpret it, the section’s direction to “make an order prohibiting the offender from operating a motor vehicle for… not less than a year” requires the judge that sentences the offender on an enumerated alcohol driving offence to make a prohibitionorder that is sufficient to ensure that the offender ultimately serves an appropriate and fit driving prohibition of not less than one year. [7] In this case Mr.

Pham has already been prohibited from driving for 15 months for this offence, a fit and appropriate sentence, andthe one that I would have imposed had Mr. Pham served no time under a prior driving prohibition arising from this same charge. Giventhat he had in fact already served that fit and appropriate prohibition sentence when I sentenced Mr. Pham on 14 November 2013 Iimposed a one day driving prohibition on him, in addition to a $1,500.00 fine.

I imposed that one day prohibition to comply with thelegislative direction that I order a driving prohibition, and so that I could enable his “time served” under a driving prohibition for thissame offence to be recorded. Accordingly I directed that the Court record reflect that Mr. Pham has already served a prohibition of 15months for this offence. [8] This disposition, in my view, satisfies the requirements of section 259(1).

These are the technical reasons that support my Ruling. [9] In arriving at this decision I do accept that, interpreted in their grammatical ordinary sense, the words of section 259(1) morecomfortably support the Crown position. The principles of statutory construction do not require courts to select the most linguisticallyconsistent outcome, however. Instead, while a Court cannot do damage to the language of a provision by adopting an unrealisticconstruction a Court must consider the words of

an Act “in their entire context and in their grammatical and ordinary sense harmoniouslywith the scheme of the Act, the object of the Act, and the intention of Parliament”: Bell ExpressVu Limited Partnership v. R. 2012 SCC43 , [2012] S.C.J. No. 43 at para. 26. When it comes to mandatory minimum sentence legislation related but more preciselypointed principles of construction also apply. In R. v.

Wust, supra at para. 22, the Supreme Court of Canada directed that “it is importantto interpret legislation which deals, directly or indirectly, with mandatory minimum sentences, in a manner that is consistent with generalprinciples of sentencing, and that does not offend the integrity of the criminal justice system.” To read the words of section 259(1) inisolation to require a new one year minimum prohibition to be ordered regardless of “time served” under a prohibition imposed for thesame charge would not be harmonious with the scheme or object of the Criminal Code of Canada, including the principles of sentencing.It would not reflect the intention of Parliament, nor would it respect the integrity of the criminal justice system. [10] I will begin with the intention of Parliament.

Even without conducting an intricate exploration of the legislative history of thisprovision it is obvious that Parliament wanted to require those who are found guilty of committing the designated alcohol offences toexperience the punishment of a driving prohibition in a case such as this one of at least one year.

It could not have been Parliament’sintention that an individual who is convicted through legal error and who exercises their right of appeal successfully will experience twodriving prohibitions of at least that length if convicted again, in cases where the appeal of the first conviction has been delayed until thefirst prohibition has already been served. I am confident of this because there is no rational basis for supporting such an outcome. Asindicated, that outcome would also be destructive.

It would increase the penalty for those individuals who have successfully exercisedtheir statutory right to appeal by piggybacking a mandatory sentence on top of an erroneously imposed sentence when they areultimately, properly convicted.

I cannot ascribe such an intention to Parliament without the clearest of evidence to show that Parliamentwanted to achieve such an outcome. [11] In spite of the prosecuting Assistant Crown’s best efforts to the contrary, I can glean no such intention from the statutory powergiven to courts to stay driving prohibitions pending appeal.[1] While the authority to stay driving prohibitions, whatever its genesis, canallay the problem, this authority cannot fairly be taken as a signal that Parliament wanted full prohibitions after retrials.

First, it cansafely be said that this authority exists to ameliorate the more likely risk that individuals who are ultimately acquitted do not servesentences that the law cannot support.

Moreover, had this authority been intended to be the palliative that would prevent doublepunishment in rare cases such as this one, it has to be wondered why the power to stay is discretionary and not mandatory.[2] [12] Ultimately, I believe that to interpret section 259(1) as requiring prohibitions to be imposed in a way that ignores priorprohibitions imposed and served, in whole or in part, for the same charge would be contrary to Parliament’s intention. This agitates infavour of an alternative

interpretation if reasonably available, and away from the most literal

interpretation of section 259(1). [13] I am also persuaded that to impose the

interpretation on section 259(1) that the Crown is seeking in this case would not be aninterpretation that is harmonious with the scheme of the Act, and in a manner that is consistent with general principles of sentencing. R.v. Wust 2000 SCC 18 , [2000] 1 S.C.R. 455 provides an example of harmonious construction.

There the Supreme Court ofCanada held that because of the need to read the provisions of the Criminal Code of Canada harmoniously with other sections, the timeserved in pretrial custody can be credited even where the Criminal Code of Canada appears to require sentencing judges to imposeminimum sentences of incarceration at the time of sentencing. While the Wust decision turned specifically on the statutory authority

provided to judges in section 719(3) to give credit for “time spent in custody,” the same result is required in the case of drivingprohibitions, in my view, after consulting the more general sentencing provisions as well as general principles of sentencing that have notbeen legislated. [14] To see this it is helpful to consider what the implications of the Crown’s suggested reading are.

The net effect if that reading isaccepted is that instead of the convicting judge ensuring that the convicted accused receives a prohibition for the offence that isappropriate, fit and respectful of the minimum and maximum periods in the legislation, the trial judge is statutorily obliged to add aprohibition of that length to the time already served under a prior prohibition for the same offence. [15] The insult that this creates is in no way mollified by the fact that technically the earlier prohibition sentence no longer exists inlaw at the time of the ultimate sentencing, as the conviction it depended upon will have been invalidated.

This legal characterization doesnot change factual history, and the factual history is that the offender will have endured, while it lasted, the same lifestyle impedimentsand the same enforceable legal effects of a valid driving prohibition. The prohibition sentence the Crown seeks before me amountsfunctionally to the imposition of a period of appropriate prohibition plus any period of pre-conviction suspension. [16] This outcome rubs impossibly against

section 718 which sets out the purpose of sentencing. If the prohibition order imposed afterthe retrial itself expresses the appropriate objectives of sentencing, time served under the previous suspension has been served for novalid sentencing purpose, contrary to

section 718. [17] This same analysis applies to the principle of proportionality in

section 718.1. Extracting a bonus suspension from the accusedwho was wrongfully convicted and sentenced at the first trial and who served that sentence before that initial conviction was set aside, isalso incompatible with the statutory obligation sentencing judges have under

section 718.2(

b) to endeavour to impose similar sentencesfor the offender to what other similarly situated offenders receive; others committing similar offences under similar circumstances serveonly the prohibition that fits the crime, not the prohibition that fits the crime plus any prior period of served prohibition. The Crown’sinterpretation would also offend the principle of totality implicit in

section 718.2(c). [18] Then there are other central principles of sentencing not statutorily expressed but still vibrant as “general principles ofsentencing.” The place to start is with the Kienapple principle, which operates to require a stay or proceedings on duplicate convictions.Although expressed as a principle against duplicate convictions, its origins are in the principle “nemo debet bis puniri pro uno delicto”which is a principle against double punishment Hudson v. Lee (1589), 4 Co. Rep 43a, 76 E.R. 989 at 990, cited in R. v. Kienapple (SCC), [1975] 1 S.C.R. 729.

To allow the minimum sentence provision in this case or in any case where an improperlyimposed prohibition has already been served before retrial is to achieve double punishment. [19] The revulsion against double punishment can also be seen in the Charter protected version of double jeopardy,

section 11(h),which expressly bars double punishment where final judgments have been rendered. This

section does not apply per se to Mr. Pham’scase but its underlying principles pertain and those principles would be offended by the

interpretation being sought by the Crown. [20] Finally, I am to interpret section 259(1) in a fashion that “does not offend the integrity of the criminal justice system.” Iappreciate that this invitation from R. v. Wust was not intended to invite subjective judgment. Guidance can, however, be found inCharter doctrine, which operates as the ultimate fail-safe for things that offend the integrity of the criminal justice system. I am awarethat a driving prohibition is not an infringement of life, liberty or security of the person: see Buhlers v.

British Columbia (Superintendentof Motor Vehicles 1999 BCCA 114 , [1999] B.C.J. No. 408, (B.C.C.A.) where the reasons are artfully expressed. Still, eventhough no actual breach of

section 7 is possible in this case, the principles of fundamental justice do help animate what the integrity ofthe criminal justice system requires. The principle of fundamental justice against arbitrariness is engaged. In Rodriguez v. British Columbia (A-G) (SCC), 1993 24 C.R. (4th) 281 (S.C.C.) Justice Sopinka said at para. 28, “it seems to me that a breachof fundamental justice will be made out, as the individual's rights will have been deprived for no valid purpose.” There is no validpurpose for this outcome. Recently, in R. v.

Nur, supra the Ontario Court of Appeal affirmed a more exacting version of the sameprinciple, saying at para. 197 that “a law is arbitrary for the purposes of s.7 if the effect of the challenged law bears no relation to, or isinconsistent with, the legislative objective of the challenged law.” The legislative objective of the challenged law here is to ensure thatpersons convicted of enumerated alcohol driving offences are punished by fit prohibitions that reflect minimum periods set out in theenactment.

A law that requires persons to be under driving prohibitions that functionally are of that length plus time served underprohibitions served prior to final conviction on the same charge is, in my view, an arbitrary law. [21] I am also inclined to the view that such an outcome would amount to cruel and unusual treatment or punishment under section12.

Section 12 of the Charter provides:

“12. Everyone has the right not to be subjected to any cruel or unusual treatment or punishment.” To violate this provision the impugned action or result must be a “treatment or punishment” and it must be “cruel or unusual.” [22] The term “treatment” is independent of “punishment.” Since either treatment or punishment will suffice to satisfy the first section12 requirement I will rest content with observing that a driving prohibition under section 259(1) is a “punishment,” a conclusion I haveanticipated in the earlier parts of this decision. In R. v. Jackpine 2006 SCC 15 , [2006] S.C.J.

No. 15 at paras. 62-63 theSupreme Court of Canada held that while not all potential consequences of a conviction are punishments, a punishment exists if it is oneof the arsenal of sanctions to which the accused may be liable upon conviction for a particular offence.” In R. v. Wilson 2011 ONSC 89Justice Durno applied this definition in finding that unlike a provincial licence suspension imposed as a civil consequence of alcoholdriving convictions, a Criminal Code of Canada driving prohibition is part of the arsenal of sanctions to which the accused may beliable.

This is because trial judge must impose a prohibition. It is not an automatic corollary legal consequence as a license suspensionis. Justice Durno also pointed out that the penal character of a driving prohibition is recognized in authorities permitting associatedsentences such as fines or jail to be varied having regard to the length of the prohibition: citing R. v. Ladouceur (1990), (SCC), 1 S.C.R. 1257 at para. 53 and R. v.

Goudreault (2004), (ON CA), 190 C.C.C. (3d) 19 (Ont.C.A.). [23] Imposing a new prohibition after a conviction on a retrial where the accused has already served a prohibition pursuant to anoverturned conviction after the first trial is not only a punishment. It is, in my view, a “cruel and unusual” punishment. [24] In R. v.

Nur 2013 ONCA 677 at para. 64 Doherty J.A. described the terms “cruel and unusual” as being used together “‘as acompendious expression of a norm’ to describe a punishment that is so beyond what would be proper or proportionate punishment as tobe grossly disproportionate.” This is a halting standard he explained, citing R. v. Ferguson 2008 SCC 6 , [2008] 1 S.C.R. 96 atpara. 14, requiring a sentence to be “so excessive as to outrage standards of decency” to the extent that Canadians ‘would find thepunishment abhorrent or intolerable’”: para. 66. [25] As helpful as it is, I do not read R. v.

Nur as offering an exhaustive definition of “cruel and unusual treatment or punishment.” AsSteele v. Mountain Institution (1990), (SCC), 80 C.R. (3d) 257 (S.C.C.) illustrates, not all

section 12 breaches arise frominherently overlong sentences. Steele was a dangerous offender sentenced to an indeterminate sentence, a result that is not per se aviolation of the Charter. What made the sentence grossly disproportionate in Steele’s case was that he was no longer a danger and wasbeing denied parole without good reason. Similarly the complaint here is not about the inherent length of the proposed prohibition. Thecomplaint is that it offends and outrages standards of decency because acceding to the Crown’s

interpretation punishes someone byadding at least a year to a served prohibition, regardless of whether doing so serves the principles of sentencing. [26] In R. v. Miller (1987), (SCC), 58 C.R. (3d) 193 (S.C.C.) Justice McIntyre for the majority examined cruel andunusual treatment or punishment by asking whether the character or duration of the sentence would outrage the public conscience, orwhether the punishment is imposed on an arbitrary or irrational basis.

I have no doubt that Canadians would consider the kind ofpunishment sought by the Crown in this case to be contrary to fundamental norms relating to fair punishment. This kind of pointless,mechanistic and irrational punishment would, in my view, outrange standards of decency, not by virtue of its duration per se, but becauseof the hopelessly unfair character of the outcome. [27] I am therefore persuaded that a reading that “does not offend the integrity of the criminal justice system” is to be preferred to theconstruction of the

section that is sought by the Crown. [28] Interpreted purposively, read harmoniously with the Criminal Code of Canada as a whole including its principles of sentencing,and read in a fashion that “does not offend the integrity of the criminal justice system,” section 259 (1) must be read to permit credit to begiven for “time served” under a previous prohibition order made on the same charge. The direction in the

section to “make an orderprohibiting the offender from operating a motor vehicle for … not less than a year” requires that the order the convicting judge makesmust ensure that an offender convicted of an alcohol driving offence will ultimately be prohibited from driving for not less than a year. Itdoes not require that trial judges blind themselves and sentence accused persons as if they had served no prior prohibition at all. [29] The one day driving prohibition I have ordered coupled with “time served” under the driving prohibition is an appropriateoutcome under section 259(1), properly interpreted.

Released: November 21, 2013 ___________________________________ The Honourable Justice David M. Paciocco