Her Majesty the Queen - v. -, 2012 SKPC 131

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 131 Date: October 22, 2012 Information: 24464760 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lindsay Boschman Appearing: A. Wyatt For the Crown S. Wagner For the Accused JUDGMENT B. M. KLAUSE , J I. INTRODUCTION [ 1 ] Mr. Boschman is charged that he on the 27 th day of September 2011, at the Sturgis District, in the Province of Saskatchewan, did drive a motor vehicle while over .08 and also with impaired operation of a motor vehicle.

[ 2 ] He was arrested, charged and served with Notice to Seek Greater Penalty pursuant to s. 727(1) of the Criminal Code of Canada and indicated that they were proceeding by way of Subsequent Conviction. [ 3 ] Mr. Boschman appeared in Court in Canora, Saskatchewan on November 3, 2011, at which time the Crown elected to proceed summarily. The matter was subsequently adjourned to January 5, 2012, at which time the accused pled guilty to the driving while over .08 charge and the Crown directed a stay on the impaired driving charge.

At that time a pre-sentence report was ordered and the matter adjourned to April 5, 2012, for a sentencing hearing. [ 4 ] The facts are not complicated. On the day in question the accused was operating a motor vehicle and was pulled over in Sturgis, Saskatchewan at 9:40 p.m. Sturgis is located approximately 80 kilometres north of Yorkton, Saskatchewan.

The accused advised he was driving from Hudson Bay, located approximately 208 kilometres north of Yorkton, to his residence in Yorkton. [ 5 ] He displayed the usual signs of significant impairment including: wandering in his lane; fumbling with his identification; his speech was deliberate and slow; his eyes were bloodshot and glassy; and he smelled of beverage alcohol. He initially denied drinking, but later changed that to drinking some four hours previous.

He failed the roadside test and subsequently provided two samples of his breath at the Canora Detachment with readings of 200 milligrams percent at 10:36 p.m. and 10:59 p.m. [ 6 ] He appeared as above described and entered an early guilty plea.

At the scene, he had asked the arresting officer what his punishment might be and the officer opined that given his dated record, he was likely looking at a significant fine. [ 7 ] His record was filed and consists of the following: April 10, 1980 Drive while Disqualified May 27, 1982 Refusal to supply breath samples September 29, 1982 Driving while over .08 May 2, 1988 Driving while over .08 April 26, 1990 Driving while over .08 [ 8 ] He has a further unrelated record for violence and breach of probation.

His most recent Criminal Code conviction prior to the predicate offence was a conviction for common assault in 2001 at Hudson Bay, Saskatchewan. The most severe sentence that he received for a drinking and driving offence was in 1990 when he was sentenced to 24 days, which generally indicates a stint at the treatment centre formerly known as St. Louis. In 1982 he had been sentenced to 14 days incarceration for a .08. [ 9 ] In

summary, the accused has four previous convictions for drinking and driving offences and one previous conviction for driving while disqualified. His last conviction for a drinking and driving offence was in 1990, some 21 years prior to the predicate offence. II. THE ISSUE

[ 10 ] As indicated above the Crown served Notice to Seek Greater Penalty which the accused acknowledges receiving. Prior to December 2009, in order for the Crown to proceed via subsequent convictions, an accused would have to have had two prior convictions within two years or three within four, in which case the Crown would seek 120 days incarceration. This was altered in 2009 to stretch the time frame. The Crown would proceed via Subsequent Conviction if an accused had two prior convictions within five years or three within ten years.

Please see Exhibit D1. [ 11 ] Both these policy decisions would not have affected a person in Mr. Boschman’s position, as although he has four previous convictions, the last one was over 20 years ago. [ 12 ] That policy was revisited and revised recently, and the current policy as exhibited in Exhibit P3 reads as follows: 4. In any case where an offender has four previous related convictions but falls outside the above categories, then no matter how dated they are the prosecutor shall proceed by way of Subsequent Conviction. [ 13 ] This policy directive is somewhat tempered by the following caveat: 6.

The prosecutor can proceed less strictly than set out above, but only after consulting with and obtaining the approval of Head Office. The decision must be informed by all of the circumstances surrounding the case. III. POSITION OF THE CROWN [ 14 ] The Crown takes the position that once it elects to proceed via second or Subsequent Conviction that the Court must impose the minimum sentence as proscribed by the Criminal Code and that this exercise of their discretion is not reviewable by the Court as it goes to critical Crown discretion. [ 15 ] The Crown’s argument raises the following three issues: 1.

Are constitutional exemptions available as a Charter remedy for an alleged cruel and unusual punishment when the law prescribes a minimum sentence? 2. Even if a constitutional exemption is available to the accused, has he shown that the mandatory minimum sentence is a cruel and unusual punishment? 3. Is a s. 727 decision part of the prosecution’s “core discretion”? [ 16 ] The Defence argument raises the following three issues: 1. What discretion does the Court have regarding the Notice to Seek Greater Punishment? 2. Should the Court exercise its discretion? 3.

Does an arresting officer’s verbal notice contradict the written notice?

IV. ANALYSIS & CONCLUSION [ 17 ] I have reviewed the two extensive briefs filed by both Crown and Defence. I have also read what I believe to be the two leading cases, one going each way, from the Ontario Superior Court of Justice: R. v. Gill, 2011 CarswellOnt 3830, 2011 ONSC 1145 , 15 M.V.R. (6th) 270, 273 C.C.C. (3d) 308, a decision of Kitely J. which is under appeal to the Ontario Court of Appeal and was argued in March 2012; and R. v. Mohla and Singh, 2012 CarswellOnt 761, 2012 ONSC 30 , a decision of Hill J. [ 18 ] Suffice it to say that the decision of Mr.

Justice Casey Hill at 71 pages and 207 paragraphs is an exhaustive review of the law in this area and little is to be gained by going over it again. [ 19 ] I therefore have reached the following conclusions: 1. I agree with the Crown that R. v. Ferguson , 2005 CarswellMan 292 (S.C.C.) , which held that constitutional exemptions from mandatory minimum sentences are not available under s. 24(1), is the applicable law. Clearly Parliament in enacting minimum sentences for dedicated offences was intending to remove judicial discretion.

It is clearly within the prerogative of the Parliament of Canada to do that and in my opinion they are responding to a majority of public opinion which wants impaired driving, and the damage it causes, to stop. 2 I have decided that this accused is not entitled to a constitutional exemption but further, in my opinion, the sentence asked for by the Crown in my opinion does not amount to cruel and unusual punishment. This is Mr. Boschman’s fifth conviction for a Criminal Code driving offence, or six if you count the initial Driving while Disqualified.

Clearly he has not benefited from the leniency extended to him in the past twenty plus years. There are in addition several aggravating factors in the instant case: (

a) he was attempting to drive approximately 200 kilometres from Hudson Bay, where he had been drinking, to Yorkton where he resided; (

b) he had driven approximately 100 kilometres or more before he was stopped by the RCMP travelling on a major paved highway in northeastern Saskatchewan, at a time when one could expect a reasonably high volume of traffic; (

c) he showed significant signs of impairment, had wandered in his lane three times at least, and subsequently supplied samples of his breath of 200 milligrams percent, over twice the legal limit and readings which the Parliament of Canada has already indicated mandate higher fines; (

d) he initially denied drinking but eventually admitted he had been drinking. [ 20 ] In my opinion, given these aggravating factors, and his five previous driving convictions, the accused could easily attract a significant sentence of incarceration without the Crown relying on the Notice at all. 3. In my opinion, once the Crown files the Notice pursuant to s. 727 that is the end of the matter and any discretion in regard to sentencing is effectively eliminated, barring a valid claim of prosecutorial misconduct, or improper motive, which is not alleged or suggested here.

This, in my opinion, relates to the core discretion of the Crown and I find myself in complete agreement with Mr. Justice Hill in the Queen vs. Mohla and Singh, supra . 4. In view of this finding, I have no discretion left to exercise despite my personal feelings of sympathy for the accused who seems to have managed 21 years of driving without attracting any convictions for Criminal Code driving.

5. In my opinion what a police officer opines to an accused at the scene of the incident does not prevent the Crown from taking a different position prior to plea or at trial. The accused was served with a valid written notice and no objection was taken to its wording or presentation in Court. The written notice was served properly on the defendant and very clearly spells out that it is the Crown’s intention to seek a greater penalty. It is unfortunate that this accused is caught in a position whereby the Crown has effectively changed its policy to include more individuals and seek harsher sentences.

But in my opinion, it validly reflects the public’s desire to stop repeat drinking and driving offenders from continuing to offend. Mr. Boschman has had several convictions, several times to completely rehabilitate himself, including stints at treatment centres. Yet he continues to put both himself and members of the travelling public at significant risk by his own misguided attempts to travel while impaired.

The Crown has changed its policy; and it is my understanding from reading it that it is to be applied across the province unilaterally, unless specific Head Office approval is sought and obtained to vary from it. 6. It follows therefore that I must impose the minimum sentence requested by the Crown and I do sentence Mr. Boschman to a term of 120 days. I also impose a one year driving suspension. [ 21 ] Dated at the City of Yorkton, in the Province of Saskatchewan, this 22 nd day of October, A.D. 2012. ___________________________________ B. M. Klause, J