R. v. Davis Date:, 2013 BCPC 63

Citation: R. v. Davis Date: 20130304 2013 BCPC 0063 File No: 58195-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KAILEE MAE DAVIS EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. C. CHALLENGER Counsel for the Crown: A. V. Lee Counsel for the Defendant: J. Fung Place of Hearing: North Vancouver , B.C. Date of Judgment: March 4, 2013

[ 1 ] THE COURT: The accused, Ms. Kailee Mae Davis, pled guilty on February 5, 2013, to having the care or control of a motor vehicle with a blood-alcohol level of over .08 milligrams of alcohol in 100 millilitres of blood. The offence arose on April 4, 2012, in North Vancouver. She has a previous conviction for an impaired driving offence which was entered on June 17, 2009. The offence date was December 13, 2008. The Crown is not relying on a notice to seek greater punishment. [ 2 ] The police received a 9-1-1 call from a civilian, and the investigating officer located the accused's vehicle in motion.

She was travelling at approximately 25 kilometres an hour and made a left turn without signalling. The officer then noted her vehicle to be drifting within its lane, coming close to colliding with parked cars on one side and also crossing the centre line. [ 3 ] The vehicle was pulled over, and the accused driver was noted to have glassy eyes and a smell of liquor on her breath. An approved screening device demand was made and a sample provided which resulted in a failed reading.

A breath demand was then made, and she was returned to the detachment where she provided samples which resulted in readings of 170 milligrams in 100 millilitres of blood. [ 4 ] The issue is whether a conditional sentence is available for an offender with a previous conviction who has not been served with a notice of intention to seek greater punishment ("NGP").

This involves a consideration of the interplay between s. 255 which sets out graduating sentences for impaired driving offenders based on previous convictions, s. 727 which sets out the requirement for the Crown to serve a notice of greater punishment which then requires the court to impose the applicable greater punishment, and s. 742.1 which states that a conditional sentence is not available for an offence which carries a minimum period of incarceration. [ 5 ] For the purposes of clarity, I will set out the provisions here. Section 255(1): 255.

(1) Every one who commits an offence under

section 253 or 254 is guilty of an indictable offence or an offence punishable on

summary conviction and is liable, (

a) whether the offence is prosecuted by indictment or punishable on

summary conviction, to the following minimum punishment, namely, (

i) for a first offence, to a fine of not less than $1,000, (ii) for a second offence, to imprisonment for not less than 30 days, and (iii) for each subsequent offence, to imprisonment for not less than 120 days; (

b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and (

c) if the offence is punishable on

summary conviction, to imprisonment for a term of not more than 18 months. [ 6 ]

Section 727 states: 727.

(1) Subject to subsections (3) and (4), where an offender is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, no greater punishment shall be imposed on the offender by reason thereof unless the prosecutor satisfies the court that the offender, before making a plea, was notified that a greater punishment would be sought by reason thereof. [ 7 ]

Section 742.1 states: 742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under

section 742.3. [ 8 ] Based on a plain reading of the provisions of s. 255, a second conviction for an impaired driving offence carries a minimum punishment. A plain reading of s. 727 says that no greater punishment shall be imposed if the Crown is not relying on a notice to seek greater punishment. A plain reading of s. 742.1 says that a CSO is not available for an offence which carries a minimum term of imprisonment.

[9] There are a number of decisions where CSOs were granted to people with a previous relevant conviction or convictions. However, these cases do not contain an analysis of the reason why a CSO is available. The most detailed analysis is found in R. v.Friesen, [1997] B.C.J. No. 3063 (B.C.P.C.), which involved an offender who pleaded guilty to driving with more than twice the legallimit of alcohol in her blood. The offender had two previous convictions for drinking and driving.

The Crown had not served her with anotice to seek greater punishment. [10] My brother Judge de Villiers (as he then was) directly considered the issue at hand but as it applied to a third conviction. Aftersetting out ss. 255 and 727, the court said, at paragraph 7: 7 It follows that the 90 days minimum is not required to be imposed, simply because the offender has had two previous convictions,unless the prosecution has served the notice. Can it be said that in such circumstances the offence is an offence punishable by aminimum term of imprisonment? I do not think so.

It is only so punishable if a notice has been given. If no notice has been given it is noteven necessarily punishable by any term of imprisonment, let alone by a minimum term of imprisonment. 8 The rationale for excluding offences for which minimum sentences of imprisonment must be imposed from the application ofconditional sentences is, in my opinion, to avoid a conflict in a particular case between those provisions of the Criminal Code that requirean offender to be incarcerated in prison and those provisions that would enable the offender to be at large in the community under aconditional sentence.

The offender cannot be in both places at the same time. No such conflict can arise where the court is not required toimpose a minimum sentence of imprisonment. Conclusion: 9 I hold that a sentence of conditional imprisonment may be imposed upon an offender for a third conviction of a drinking anddriving offence under

section 253 where the Crown has elected not to serve notice under

section 727 or not to prove service of suchnotice. The court is therefore at liberty to impose an appropriate sentence of imprisonment and to order that it be served in thecommunity if the circumstances otherwise warrant it. [11] In R. v. Remillard, 1998 ABPC 42, a notice of greater punishment had been served. The court noted the apparent difficulty inreconciling s. 727, s. 742.1, and s. 255, and held that a CSO was not available because notice of greater punishment had been served. Atparagraph 31, the court stated: [31] The apparent legislative inconsistency which arises from an analysis of

Section 727,

Section 742.1 and Section 255(5) is not amatter which I have been requested to address, although I believe it should be addressed either by the Legislator or by the courts. [32] Consequently I can neither consider a conditional sentence nor a conditional discharge. I must give effect to the Notice(

s) to seekGreater Punishment. [12] R. v. Demchuk (2003), (ON CA), 68 O.R. (3d) 17 (ON CA), involves a Crown appeal from a conditionalsentence imposed on an offender convicted of drinking and driving with a total record of 14 convictions for drinking and driving andseven convictions for driving while disqualified. The Crown had not served a notice of greater punishment. [13] The Crown and defence made submissions for a custodial sentence. The judge, however, imposed a conditional sentence oftwo years less a day with stringent terms and imposed a lifetime driving prohibition.

There were some mitigating factors supporting sucha sentence, including a period of no criminal behaviour, support in the community, having been in pre-trial custody for 90 days, and theaccused's potential for overcoming alcoholism. [14] The Crown argued that although they were not able to rely on a notice of greater punishment, the accused had been convicted ofan offence punishable by a minimum term of imprisonment and therefore a CSO was improper. [15] Although the Court of Appeal allowed the appeal and replaced the conditional sentence order with a sentence of 12 months'imprisonment, the sentence variation was based on a finding that the conditional sentence order was inappropriate in the circumstances.

The court held that conditional sentence orders are not precluded for subsequent drinking and driving offences where the Crown is notrelying on a notice of greater punishment and stated: We cannot accept the Crown's submission, grounded in s. 255.1(a)(ii) and (iii) of the Criminal Code, that where an accused is convictedof a subsequent drinking and driving offence, but the Crown has not served the notice required by s. 727, the accused stands convicted"of an offence that is punishable by a minimum term of imprisonment" as described in s. 742.1 of the Code.

Absent the notice, theaccused is not subject to a minimum term of imprisonment and a conditional sentence is not foreclosed for that reason. It follows that wedo not reach the issue of the constitutionality of the minimum sentences set out in s. 255.1(a) (ii) and (iii). [16] That decision was not appealed. [17] R. v. Fuson, 2006 BCSC 1199, is a decision on a

summary conviction appeal. The respondent had been sentenced for twocounts of impaired driving. He had two previous convictions for impaired driving from 1995 and 1999. Crown had not served a noticeof greater punishment. The trial judge agreed with the parties' joint submission that a conditional sentence order would be a fit sentencebut considered that such a sentence would be illegal. She held that she was limited to imposing a sentence under s. 255(1)(a)(

i) in the

absence of a notice of greater punishment. In the result, she fined the respondent $1,000 on each count and suspended his drivingprivilege for three years. [18] At paragraph 5, Mr. Justice Goepel said: [5] I am satisfied that the learned trial judge erred in refusing to consider a conditional sentence. Such a sentence is clearly availablein these circumstances. The issue I must consider is whether the sentence is, in any event, appropriate. [19] The court went on to impose a six-month conditional sentence for one of the two convictions and left the other sentenceuntouched: see also R. v.

Hewlin, 2006 NLTD 56; R. v. Craigan, 2007 BCPC 184; R. v. Clyne, 2009 BCSC 312; R. v. Van Bibber, 2010YJ No. 63; R. v. Tom, 2012 YKTC 55. [20] A number of decisions deal with the effect of s. 727, and although they do not specifically state that a conditional sentence orderis available for repeat drinking and driving offenders where the Crown is not relying on a notice to seek greater punishment, these casesdo confirm that s. 727 and s. 255 act to set the minimum sentence available.

Where no notice of greater punishment has been served, allof these decisions confirm that the sentence for a first offence is available, although a more onerous sentence may be imposed takinginto account previous offences in all the circumstances: see R. v. Norris (1988), (NWT CA), 41 C.C.C. (3d) 441; R.v. Johnson (1994), 1994 NSCA 150 , 131 N.S.R. (2d) 45; R. v. Heintz (1990), 1990 ABCA 53 , 104 A.R. 346; R. v.Ryan, 2003 NBQB 116; R. v. Tabor, 2004 BCCA 191; R. v. Turner, 2010 NBQB 93; R. v.

Allen, 2012 YKTC 36. [21] Based on the foregoing, it is clear that the weight of authority supports the ability of the court to impose a conditional sentenceorder for any subsequent convictions for impaired driving offences where the Crown does not rely on a notice of greater punishment. Although not stated, I conclude that these decisions are founded on the principle of statutory construction set down in Tuck & Sons v.Priester, (1887) 19 Q.B.D. 629 at page 638, where Lord Esher said: If there is a reasonable

interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there aretwo reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections. [22] I find that on a plain reading of the applicable statutory provisions involved in this matter, there is an ambiguity, and as thisinvolves the

interpretation of a penal statute, any ambiguity must be resolved in the accused's favour. I therefore find that a conditionalsentence is available for an offender with a previous conviction or convictions where the Crown is not relying on a notice to seek greaterpunishment. [23] Ms. Davis is 34 years of age. She is of good character apart from her difficulties with alcohol. She is a power engineer and hasher steam ticket. She is in recovery from cancer surgery and is on medication and is currently supported by employment insurance. Shesold her car after the events and is not driving.

She also moved her residence to be closer to her work and to public transit. She hasfamily support. She advised that she has significantly reduced her consumption of alcohol. [24] The minimum penalty as set out in the Criminal Code for a second offence is a 30-day minimum jail term and a two-yeardriving prohibition. Pursuant to s. 255.1, I must consider the blood-alcohol content of the accused as an aggravating circumstance aseach sample exceeded 100 milligrams of alcohol in 100 millilitres of blood.

In the absence of a notice to seek greater punishment, I amnot bound to impose any greater punishment. [25] The Crown says that a period of incarceration is appropriate and suggests a sentence of 14 to 30 days and a driving prohibitionof two years.

They are not opposed to the accused serving any jail sentence by way of a conditional sentence order. [26] Defence counsel says that a fine of $2,000 or the minimum period of incarceration for a second offence served in thecommunity by way of a conditional sentence order is appropriate and agrees that a two-year driving prohibition is warranted. [27] The offence before the court arose three and a half years after a previous related matter. It is clear that Ms. Davis was notdeterred by her prior conviction and punishment and is still in need of rehabilitation. She continues to consume alcohol.

The court mustalso consider the safety of the public. [28] I find in all the circumstances that the minimum punishment set out in s. 255 for a second offence would be appropriate. However, I am satisfied that the prerequisites for a conditional sentence order under s. 742.1 are made out and, in particular, that thisaccused could safely serve any term of imprisonment in the community. I am therefore prepared to grant her a conditional sentenceorder. However, I will increase the term according to the principles set out in R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61. [29] Ms.

Davis, if you will stand. [30] I will be imposing a conditional sentence order of 60 days.

Pursuant to s. 259 of the Criminal Code, your ability to operate amotor vehicle is prohibited for a period of two years across Canada. [31] You can be seated again. [32] The terms of the conditional sentence will be that you are to keep the peace and be of good behaviour and appear before thecourt when required to do so. [33] You must remain within the Province of British Columbia unless written permission to go outside of the province is obtainedfrom the court or your supervisor. [34] You must notify the court or your supervisor in advance of any change of your name, address, or occupation. [35] You must report immediately after court today in person to a conditional sentence supervisor at 100 - 233 West 1st Street in

North Vancouver, B.C., and thereafter as and when directed by the conditional sentence supervisor. [ 36 ] You will be subject to a house arrest curfew. You must remain inside your residence at all times save and except for attending to any medical emergencies for yourself or any member of your immediate family or for reporting to your supervisor as your supervisor requires.

Your supervisor may give you written permission to be outside your residence during your curfew for the purpose of going directly to your place of employment and working and returning directly home thereafter, attending to any medical appointments, exercising for one and a half hours once per day, performing community work service, attending to any counselling or other programming as directed by your conditional sentence supervisor, and attending to your personal errands for three hours twice per week. [ 37 ] You must present yourself at the door of your residence upon the demand of any peace officer or your conditional sentence supervisor to determine compliance with the curfew condition of this order. [ 38 ] When outside your residence, you must not attend to any licensed premise such as a liquor store, bar, or pub. [ 39 ] You must abstain absolutely from the possession or consumption of alcohol. [ 40 ] You will attend for, accept, and complete any counselling or programming or assessments as directed by your conditional sentence supervisor. [ 41 ] You will perform 30 hours of community work service within the first 45 days of your sentence under the direction of and to the satisfaction of your conditional sentence supervisor or community work service officer. [ 42 ] Any other ancillary orders that need to be made? [ 43 ] MS.

LEE: No, Your Honour. [ 44 ] THE COURT: Any comments or concerns about the CSO, other terms that you would like to see? [ 45 ] MS. LEE: No, Your Honour. [ 46 ] THE COURT: Mr. Fung? [ 47 ] MR. FUNG: No, thank you. [ 48 ] THE COURT: All right. You will direct her downstairs, Mr. Fung? [ 49 ] THE CLERK: Your Honour, does the victim surcharge apply? [ 50 ] THE COURT: Oh, yes, I guess there is a $50 victim fine surcharge. Does she require time to pay that? Well, she is on EI; isn't she? [ 51 ] MR. FUNG: Yes, she is on EI. [ 52 ] THE COURT: I will waive the victim fine surcharge. [ 53 ] MR.

FUNG: Thank you. (REASONS CONCLUDED)