2016 MBPC 34, 2016 MBPC 34

Cite: 2016 MBPC 34 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen, ) Lianni Nair, ) for the Crown - and – ) ) J.A., ) Sheldon Pinx, Q.C., Young Person ) ) ) ) for the Young Person Judgment delivered: June 9, 2016 Restriction on publication : Subsection 110(1) of the Youth Criminal Justice Act , which prohibits the publication of any information that may identify a person as having been dealt with under the Act , applies to this judgment. R.L. POLLACK P.J. [ 1 ] Should a youth drunk driver be treated much differently than an adult?

The offender in this case (“the youth” or “J.A.”) is now eighteen years of age and, at the time of his offending, was sixteen and without a prior record of conflict with the law. Facts provided: [ 2 ] On August 7, 2014 at 10:13 P.M. a patrolling police officer observed a motor vehicle, without its rear lights on, swerving on the road. The officer stopped the vehicle and found the youth to be the driver. He observed a beer can behind the passenger seat of the vehicle (and I was given no further information about that).

The officer detected an odour of liquor on the youth’s breath and demanded a roadside screening sample. [ 3 ] The screening device recorded a “fail” and the youth was arrested and brought in for breath analysis. His blood/alcohol concentration was determined to be 140 milligrams per cent. Subsequently he was released with a promise to appear in court and charged accordingly.

Schedule of Proceedings: [ 4 ] Within two months of the August 29, 2014 first appearance, a trial date of July 15, 2015 was fixed but the case was brought forward on July 9, 2015 before Lord P.J. for an adjournment application. Mr. Jiang, a law graduate in Mr. Pinx’s office, spoke to the matter and Ms. Nair appeared for the prosecution. Mr. Jiang sought an adjournment to February 24, 2016, a trial date agreed upon in advance between Ms. Nair and Mr. Pinx; Mr. Jiang confirmed that the youth was prepared to waive any right to complain about the delay and that Mr. Pinx was available on the proposed date. [ 5 ] Ms.

Nair told the judge that she was “not particularly opposed” to the request but that she wanted to put some “concerns” on record. Those concerns received no comment either from counsel opposite or Lord P.J. and the new trial date was fixed. [ 6 ] On June 6, 2015, while on interim release, the youth was convicted of imprudent driving under The Highway Traffic Act , s. 95(3). I was given no particulars of the facts of the case or the amount of the fine imposed.

Therefore, although the offence is one with a specific safety focus (as opposed to those primarily regulating traffic flows), I can only conclude that it must have been a minor breach. [ 7 ] The youth’s instructions to Mr. Pinx changed in January and, on February 3, 2016, Ms. Nair was notified of his intention to plead guilty and witnesses were cancelled. Mr. Jiang appeared with the youth on the trial date and his plea of guilty to a charge of driving with a blood/alcohol concentration in excess of eighty milligrams per cent was accepted by Finlayson P.J. For reasons that were not provided, Mr.

Pinx sought a delay in sentencing and Ms. Nair consented without comment to a further adjournment to April 6, 2016; the matter was remanded accordingly.

Sentences sought: [8] I set out the chronology of events because it is now twenty months since the first court appearance and eighteen months sinceManitoba reinstated J.A.’s driving privileges without restriction after his ninety-day administrative suspension.

He is now an adult, not anewly licensed driver, and he will graduate next year from a business program at Red River College with plans to enter the accountingprofession. [9] Although there is no mandatory minimum sentence in cases like this, the prosecutor seeks a driving prohibition for one yearsuch that the operation of a motor vehicle would constitute a Criminal Code, s. 259(4) offence.

She also seeks an order of probation thatwould be typical of youth court first offenders, including reporting to a probation officer for a year, counselling, alcohol and drugabstention and community service without remuneration. [10] The defence accuse the prosecution of seeking what is tantamount to an adult sentence of a penalty and prohibition for oneyear. They say that probation requirements such as community service are not required to achieve any of the aims of the Youth CriminalJustice Act, S.C. 2002, c. 1 (“YCJA”) and that probation supervision is really an attempt at punishment.

They point out as well that theyouth served his administrative suspension - which all Manitobans serve while they are presumed innocent - and that he has had anunconditional license to drive for over a year. In compliance with the licensing authority’s requirement, he underwent an AddictionsFoundation of Manitoba analysis which determined that there was no evidence of alcoholism. [11] The YCJA was proclaimed effective on April 1, 2003.

Since that time it has undergone changes as a result of both experienceand political will, e.g. the pre-trial detention provisions of the Safe Streets and Communities Act, S.C. 2012, c.1, s.169. It is interestingthat, in thirteen years of YCJA history, neither a minimum sentence nor a minimum driving prohibition has been introduced for drinkingand driving cases.

When Parliament brought in the concepts of denunciation and deterrence, they were included as optional sentencingobjectives (S.C. 2012, c.1, s. 172) and the YCJA remained silent about convicted impaired drivers. [12] Against that background the defence say that J.A. should have the opportunity to separate himself from his youth justice courtrecord sooner, with a conditional discharge (pursuant to YCJA s. 42(2)(b)), to enable him and encourage him to continue pursuit of thepositive goals he has now.

While discharges cease to be discoverable three years after the finding of guilt, if probation is ordered thenthe three years does not begin to run until the sentence has been completed (YCJA, s.119(1)(f),(g)). Sentencing principles: [13] Driving with impaired ability is not a crime that is identified with specific age groups. Certainly the effects of people drivingwith impaired ability affect others indiscriminately, regardless of age, gender, health or any other characteristic of the impaired driver.

Cory J. said this about those effects over twenty years ago: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, ithas a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization,drunk driving is clearly the crime which causes the most significant social loss to the country. R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, para. 16.

After citing those words ten years later, my late colleague Linda Giesbrecht P.J. said this: I am just going to pause for a minute with respect to that quote and if you think of charges of murder and manslaughter and breakins tohouses and serious assaults – all of those have an impact, but as Justice Cory indicated, when you look at the numbers and the toll thatthis offence has, in terms of the loss for Canadian society, this has the greatest impact of all crimes. R. v. Shave, [2005] M.J.

No. 16, para. 8. [14] At 10:13 P.M. on August 7, 2014, at the age of sixteen, J.A. had no special status on the roadway; he had the same standing asany other driver. The police stopped his vehicle because its rear lights were not functioning and it was swerving. As a driver, J.A.presented the same menace as a motorist of any age whose ability to drive was impaired by alcohol. Three decades ago, in R. v.McVeigh, (ON CA), [1985] O.J.

No. 207 (C.A), MacKinnon C.J.O. wrote this about potential killers at the controls ofmotor vehicles: 13 Members of the public when they exercise their lawful right to use the highways of this province should not live in the fear that theymay meet with a driver whose faculties are impaired by alcohol. It is true that many of those convicted of these crimes have never beenconvicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence wouldbe in their best interests and be the most effective form of rehabilitation.

However, it is obvious that such an approach has not gone anylength towards solving the problem. In my opinion these are the very ones who could be deterred by the prospect of a substantialsentence for drinking and driving if caught . . . . [15] The YCJA, s. 38(2)(f)(

i) permits sentencing “to denounce unlawful conduct” but unlike, for example, the requirement to imposethe least restrictive sentence consistent with the aims of the YCJA, this is not a necessary component of sentencing. While it isreasonable to ask why denunciation was not made a mandatory requirement for any youth sentence involving drinking and driving, that isa question to be put to Parliament.

In my opinion, MacKinnon C.J.O.’s words are applicable without qualification to cases in whichyouths give cars the potential to be two-ton death machines and there must be a general deterrent in J.A.’s sentence. [16] In addition to determining the least restrictive sentence, it is necessary to put emphasis on rehabilitation and reintegration. Inthis context, reintegration would involve putting the offender back on the road safely thus “contributing to the long-term protection of thepublic” (YCJA, s. 38(1)).

The long-term protection of the public also requires a clear statement of denunciation of J.A.’s departure fromsafe motoring on the night he was stopped. In R. v. B.L., 2013 MBQB 89, Mainella J. (as he was then) wrote that youth sentences, evenin cases decided before deterrence and denunciation were introduced into the YCJA,

....should ensure that the youth criminal justice system commands the respect of society. (para. 82). [ 17 ] The YCJA , s. 38(2) prohibits sentences that result in a greater punishment than an adult would receive in similar circumstances. Although a prohibition against driving is not mandatory, the prosecution seek parity with the minimum for an adult first offender ( Criminal Code, s. 259(1)(a)). Parity aside, it is self-evident that taking away some driving privileges will serve as a meaningful consequence while addressing denunciation and deterrence.

Whether to Impose a Conditional Discharge: [ 18 ] The discoverability period of a conditional discharge is not its most important distinction. A more significant one lies in the criteria that will disqualify an offender from seeking a conditional discharge: Should a judge in his or her discretion consider it desirable that a young person be required by court to “keep the peace and be of good behaviour” and “appear before the Court when required”, a conditional discharge under the YCJA would not be appropriate. R. v. S(M.S.) , 2008 SKPC 5 per Whelan J. at para. 25. In applying those criteria in R. v.

L.(S.C.) , 2015 MBPC 26 , I discharged the offender on the ground: . . . . that a Court order is not required for him to be trusted to keep the peace and that there is no reason to require his appearance before a judge as part of his supervision; that can be accomplished by the Provincial Director through a probation officer or other youth worker. (para. 29) [ 19 ] It is my opinion that J.A. should be ordered to keep the peace and the option of bringing him back before the Court should be left open for the period suggested by the prosecutor – one year.

That said, I have no evidence of the need for the involvement of a probation officer in a reporting relationship nor do I see a need for probation programming. A breach of the peace might prompt a future presiding judge to think otherwise but there is no justification for a supervision order now.

This youth has been working on his plan of rehabilitation without supervision for some time and to order him to start reporting to a youth worker would be to try to use that requirement as a punishment when it is actually meant for rehabilitation. [ 20 ] The request for community service is not tantamount to an adult penalty.

If I was considering parity with an adult offender, I would apply Manitoba’s minimum wage to community service hours and would be contemplating well over 1,000 hours; YCJA , s. 54 limits community service orders to two hundred forty hours within one year and the maximum fine for a youth sentence is set in YCJA , s. 42(2)(

d) as $1000.00. In my opinion, to seek this sentencing alternative is not to equate community service with an adult penalty and the real issue is whether it is a meaningful consequence for driving with excess blood/alcohol concentration. For the reasons that follow, I feel that community service is not the most meaningful consequence for J.A.’s conduct. Whether to impose a driving prohibition: [ 21 ] Youth driving permits are issued by the same licensing authority as adults and, while the training and testing may be different, the essential licensing is the same – to operate motor vehicles on shared roadways.

Because the kinetic energy of a vehicle failing to remain in its lane of travel is not dependent upon the driver’s birth date, Canadians expect that youth and adult drivers will drive equally without alcohol-impaired ability. Regardless, Bala and Anand remind us that: The YCJA , however, provides that a youth should not receive a greater punishment than an adult convicted of the same offence in similar circumstances; in most cases a concern with rehabilitation and the principle of limited youth accountability will result in a less serious sanction.

Nicholas Bala and Sanjeeve Anand: Youth Criminal Justice Law , 2d ed, (Toronto: Irwin Law Inc., 2009) [ 22 ] So what is the effect of the application of a principle of limited youth accountability in a case of driving after consuming too much alcohol to be safe? Given the equality with which we treat adult and youth drivers, one might say that the starting point is parity. From that departure level, is there a reason to sanction J.A.’s driving with less than a one-year prohibition? It cannot be said that he committed a minimal offence because there are aggravating factors: 1.

The youth set his vehicle in motion with a blood/alcohol concentration that clearly affected his ability to keep his vehicle within a proper lane of travel; 2. He was driving without lights after 10:00 P.M.; 3. Notwithstanding Manitoba’s liquor transportation laws, he was simply too young to be driving around with beer in the car; 4.

His record includes a demerit for imprudent driving while on interim release . [ 23 ] In my opinion, absent exceptional circumstances, drinking and driving convictions for youth should carry with them the imposition of a driving prohibition as a minimum meaningful consequence to deter the offender, for general deterrence and to denounce the criminal decision to drive with impaired ability. In the circumstances of this case, parity with the minimum adult prohibition is not justified.

An appropriate sanction would be a prohibition of less than one year but one that is proportional in the circumstances of this case. [ 24 ] I wish to make it clear that the delay in bringing this case to its conclusion has influenced my determination of the period of prohibition. In her remarks to me and to Lord P.J., Ms. Nair expressed her displeasure with the delays in this matter that she attributed to defence counsel but the record demonstrates her acquiescence. She provided me with a detailed history of the out-of-court

correspondence between counsel about scheduling but this prosecution was never the subject of a contested adjournment application. As a result, YCJA sentencing principles are applied a long time after the offence complained of and with substantial evidence of rehabilitation. [ 25 ] Accordingly I am ordering these dispositions: 1. J.A. is prohibited from operating or having care or control of a motor vehicle for a period of ninety days. 2.

J.A. is placed on unsupervised probation for a period of one year, the mandatory terms of which include keeping the peace and being of good behaviour and attending before the Court when called upon to do so. One additional term of probation will be that J.A. must maintain a blood/alcohol concentration of zero while occupying the driver seat of a motor vehicle. “Original signed by” R.L. POLLACK P.J.