2020 QCCQ 4199, 2020 QCCQ 4199

Khan c. R. 2020 QCCQ 4199 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU Criminal and Penal Division No: 550-01-107947-188 DATE: September 25, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE ALEXANDRA MARCIL, J.C.Q. ______________________________________________________________________ UMER INAM KHAN Applicant v.

HER MAJESTY THE QUEEN Respondent And THE ATTORNEY GENERAL OF QUEBEC Impleaded Party ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ [ 1 ] Mr. Umer Inam Khan pleaded guilty to the offence of operating a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood (s. 253(1) ( b )). He is a police officer.

He challenges the validity of the minimum fine, seeking a declaration from this Court that it violates s. 12 of the Canadian Charter of Rights and Freedoms (the “ Charter ”). Section 255(1) stipulates that, on a first offence, a fine of not less than $1,000.00 must be imposed. According to the applicant, the proportionate sentence is a conditional discharge. The Court will determine the fit and proportionate sentence in light of all of the relevant circumstances of this matter.

If the appropriate sentence is a lesser punishment than the mandatory minimum, a hearing will then be held on the applicant’s constitutional challenge. CONTEXT [ 2 ] On June 23, 2018, Sureté du Québec (SQ) officers Bélanger and Cousineau were conducting a speed trap on Highway 5. Khan’s vehicle was clocked at 123 km/h in a 70 km/h zone. The officers then turned on their cruiser lights and directed the applicant to stop. But his vehicle did not stop and proceeded to drive through the checkpoint. SQ officers began to pursue the applicant to Ottawa, where he finally turned into a parking lot of the university.

The pursuit of Khan’s vehicle involved speeding through residential areas, passing other vehicles in an unsafe manner, and running a red light. SQ officers approached Khan’s vehicle with firearms drawn and ordered the applicant to show his hands. He was handcuffed and arrested.

No one was injured, and no property was damaged as a result of the pursuit. [ 3 ] Breathalyzer tests showed that his blood alcohol concentration was 163 milligrams of alcohol in 100 milliliters of blood for the first test and 155 milligrams of alcohol for the second test. [ 4 ] Khan was charged with the following offences: the “over 80” offence pursuant to s. 253(1) (

b) of the Criminal Code of Canada , driving while impaired pursuant to s. 253(1) ( a ), dangerous driving pursuant to s. 249(1) ( a ), and flight while operating a motor vehicle pursuant to s. 249.1(1) . [ 5 ] On August 21, 2019, the applicant pleaded guilty to the dangerous driving and “over 80” charges. A stay of proceedings was entered for the two remaining charges. On the same date, the Court ordered a one-year prohibition from operating a motor vehicle. [ 6 ] On December 18, 2019, following a joint submission, the Court ordered a conditional discharge on the dangerous driving

charge. [ 7 ] On January 21, 2020, Khan served the respondent and the impleaded party with a notice challenging the validity of the minimum fine under s. 255(1)( a )(i). On April 6, 2020, he filed an amended notice replacing the first one. On May 15, 2020, the impleaded party filed his notes and authorities as well as supporting documentation. On the same date, the respondent filed its response and supporting documentation and, on August 6, 2020, it filed a second version of the said documentation. [ 8 ] The hearing proceeds in two parts, with the first

part consisting of submissions on what constitutes a fit and proportionate sentence for the applicant. If the Court determined that a fit and proportionate sentence was a punishment that was less than the mandatory minimum, the hearing would proceed to the second part, that is, the submissions on the constitutional challenge. [ 9 ] At the sentencing hearing of August 10, 2020, the Court heard three witnesses: • Mr. David Merkel, Staff Sergeant with the Ottawa Police Service; • Dr. Jonathan Gray, psychiatrist; • Mr.

Thayalan Elaguppillai, a former colleague and long-time friend of the applicant; The Court also heard the parties’ oral submissions regarding the fit and proportionate sentence. ANALYSIS I – LEGAL PRINCIPLES [ 10 ] At the time of the offences,

section 253 provided:

(1) Everyone commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (

a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or (

b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred milliliters of blood. [ 11 ] Section 255(1) provided:

(1) Everyone who commits an offence under subsection 253(1) , paragraph 253(3)(

a) or (

c) or

section 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;

A) CHALLENGING A mandatory minimum sentence [ 12 ] The Supreme Court has set a high bar for what constitutes “cruel and unusual punishment” pursuant to s. 12 of the Charter . The punishment must be “grossly disproportionate”, or in other words, “so excessive as to outrage standards of decency,” and be “abhorrent and intolerable to society”. [1] [ 13 ] It is very rare that a sentence violates

section 12 of the Charter because the test for establishing that it does is strict and exacting, and rightly so. In Lloyd , McLachlin C.J. defined the concept of a “grossly disproportionate sentence”. [2] [ 14 ] The test for “gross disproportionality” requires a two-stage analysis:

(1) First, the Court determines the appropriate sentence for the applicant and determines whether the mandatory minimum represents a grossly disproportionate sentence when applied to the circumstances of the specific applicant before the Court. If so, the mandatory minimum sentence violates s. 12 .

(2) Second, if the mandatory minimum sentence does not violate s. 12 on the facts of the case, the judge may consider whether the mandatory minimum sentence would be grossly disproportionate in other reasonably foreseeable cases.

B) PRINCIPLES AND OBJECTIVES SPECIFIC TO SENTENCING

As explained by Wagner, J. in Lacasse : Sentencing remains one of the most delicate stages of the criminal justice process in Canada. Although this task is governed by ss. 718 et seq . of the Criminal Code , R.S.C. 1985, c.

C- 46 , and although the objectives set out in those sections guide the courts and are clearly defined, it nonetheless involves, by definition, the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing. [3] The Court will give due consideration to the sentencing principles and objectives set out in articles 718 to 718.2 of the Criminal Code .

The process is summarized in Nur , by McLachlin, C.J. in the following terms: [40] In determining an appropriate sentence for purposes of the comparison demanded by this analysis, regard must be had to the sentencing objectives in s. 718 of the Criminal Code , which instructs the sentencing judge as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [41] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in s. 718.2( a )(

i) to (iv); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2( b ); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2( c )); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(

d) and ( e ). [42] In reconciling these different goals, the fundamental principle of sentencing under s. 718.1 of the Criminal Code is that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. [4]

C) CONDITIONAL DISCHARGE [ 15 ] As a result of the mandatory minimum under s. 255(1) ( a )(

i) of the Criminal Code , the applicant is not eligible to a discharge on the “over 80” charge. Under s. 730 of the Criminal Code , a discharge is not available to offenders who have been convicted of an offence for which a minimum punishment is prescribed by law. [ 16 ] There are two conditions precedent to granting a discharge: 1) it is in the best interest of the accused; 2) it is not contrary to the public interest. Discharges are not limited to cases where there are exceptional circumstances.

They should be considered as a sentencing option where the conditions of s. 730 are met and the criminal conviction would have a prejudicial impact on the offender that is disproportionate to the offence committed, taking into consideration many factors, including the nature and gravity of the offence, the age and character of the offender, etc.

II – APPLICATION TO KHAN’S CASE [ 17 ] The first step is to determine the appropriate sentence for the applicant according to the general principles of sentencing, his situation, and any relevant circumstances, in the absence of the mandatory minimum sentence. [ 18 ] The respondent requests that the Court impose a $1,500.00 fine, whereas Khan seeks a conditional discharge. Gravity of the Offence [ 19 ] The applicant pleads that the offence is less serious than the dangerous driving offence, for which he was conditionally discharged.

The respondent submits the opposite, arguing that the minimal sentence for the offence of driving “over 80” demonstrates its seriousness. The sentence in the case of a second offence also shows the seriousness of this offence. [5] [ 20 ] The Court notes that driving with a concentration of more than 80 mg of alcohol is a serious offence and has been consistently considered as such by Canadian courts for the last 25 years. [6] It is seen as a social evil with potentially devastating consequences.

Where charges of drinking and driving are laid against an individual, deterrence and denunciation are important factors. [ 21 ] In Bernshaw , Cory, J. stated the following: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has 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. [7] [ 22 ] Twenty years later, in Lacasse , the Supreme Court again concluded that “despite countless awareness campaigns conducted over the years, impaired driving offences still cause more deaths than any other offences in Canada”.

In Alex , the Supreme Court yet again emphasized the tremendous suffering caused by impaired driving and the substantial burden such offences place on the criminal justice system. [ 23 ] The Supreme Court observed that the increase in the minimum and maximum sentences for impaired driving offences demonstrated Parliaments’ intention to punish the offences more harshly. [8] [ 24 ] The recent amendments to the Criminal Code show that Parliament still considers drinking and driving offences to be very serious. For instance in

section 320.12( b ): [T]he protection of society is well served by deterring persons from operating conveyances dangerously or while their ability to operate them is impaired by alcohol or a drug because that conduct poses a threat to the life, health and safety of Canadians. [ 25 ] Since Khan’s offence, Parliament has increased the minimum fines according to the alcohol level found in a person’s body. [9] This also became a statutorily aggravating factor. [10] [ 26 ] These are indicators of the legislator’s intent to take active steps to prevent the commission of such offences.

The need to emphasize general deterrence and denunciation is present not only for drunk drivers who cause bodily harm or death, but for every driver who gets behind the wheel while impaired. [ 27 ] Concerning the subjective gravity of the offence, the Court notes that i t is by sheer good luck that there were no injuries or damages caused by the applicant ’s conduct. [ 28 ] Mr. Khan did not stop at the police's request. He drove through the checkpoint, and was pursued by police officers.

He drove from Gatineau to Ottawa, speeding at 123 km/h in a 70 km/h zone through residential areas, passing other vehicles in an unsafe manner, and running a red light. [ 29 ] Khan’s breathalyzer tests show very high results. For the first test, his alcohol concentration was 163 milligrams in 100 milliliters of blood. The second test showed a result of 155 milligrams. [ 30 ] The Court finds that his conduct falls towards the upper end of the spectrum of seriousness for driving “over 80” cases. Khan chose to drive dangerously while he was highly impaired, placing himself and members of the public in danger.

His offence is very serious, not only objectively but also subjectively.

a) The Particular Circumstances of the Offence and of the Applicant – Aggravating and Mitigating Factors [ 31 ] Both the applicant and the respondent agree on the following aggravating factors: • Alcohol-related driving offences have potentially devastating consequences; • Khan did not initially stop for police when prompted to do so; • He was travelling at the high speed of 123 km/h in a 70 km/h zone; • He was travelling on public roads in the presence of other drivers; • His breathalyzer readings are an aggravating factor. [ 32 ] The respondent also considers the fact that Khan is a police officer to be an aggravating factor.

In Johnston , the Newfoundland Court of Appeal considered being a police officer to be an aggravating factor. [11] [ 33 ] The applicant pleads that this last case should be distinguished from his own in that Johnston was a high-ranking officer and his offence was linked to his position of trust. According to Khan, the fact that he is a police officer should not be considered as an aggravating factor. [ 34 ] The fact that the applicant is a police officer will be taken into account as a relevant factor.

It is part of Khan’s personal situation and characteristics, and it is relevant to his mental health and substance use issues. However we recall that he was not on duty while committing the offence. [ 35 ] There are a number of mitigating factors : • Guilty plea; • Remorse; • Support from community; • Lack of criminal record; • Mental health and substance use issues;

• Steps taken to address mental health and substance use issues since the offence. [ 36 ] Although the guilty plea is a mitigating factor, the court notes that it is not an early plea. The applicant was charged on June 23, 2018, and pleaded guilty on August 21, 2019, over one year later. Consequently, the weight of this factor should not be overestimated. [ 37 ] Regarding Khan’s remorse and support, many letters of support were filed. Also Thayalan Elaguppillai, a former colleague and long-time friend of the applicant’s, testified. The evidence is compelling. [ 38 ] The applicant has no criminal record.

The presence of a criminal record would have been an aggravating factor. However the Court considers that the absence of a criminal record is a neutral factor. Even considered as mitigating, the weight of this factor should not be overestimated. Mental health and substance use issues [ 39 ] Khan submits that he suffers from untreated post-traumatic stress disorder (“PTSD”) and alcohol use disorder. He developed these psychological conditions after a traumatic, near-death experience that occurred in May 2005, while he was on duty.

Symptoms re- emerged in 2013, after the applicant returned from a one-year deployment to Afghanistan. [12] [ 40 ] The psychiatric assessment conducted by Dr. Jonathan Gray concludes that the applicant is suffering from symptoms related to untreated PTSD and alcohol use disorder. Khan suffered from PTSD and used alcohol to lower his stress and numb his emotions rather than seek treatment. According to Dr.

Gray, these conditions contributed to Khan committing the offences. [13] [ 41 ] The respondent argued that the applicant suffered from PTSD at the time of his assessment in March 2020, but not necessarily at the time of the offence in June 2018. He also challenges the link between the PTSD and the commission of the offences. [ 42 ] The Court is satisfied that the applicant developed PTSD as a result of the event that occurred in 2005 while he was on duty. The Court is also satisfied that he suffered from PTSD at the time of the offence.

After the 2005 event, his PTSD and alcohol use issues were untreated and lasted until the day of the offence. His background and alcohol use issues played a

part in bringing him before the Court. [ 43 ] However, the Court disagrees with the applicant’s statement that he broke the law as a result of the 2005 event. Most offenders have a history of tragic or traumatic events that are contributing factors to the commission of offences. Khan was not charged for his alcohol use issue but for his decision to take the wheel after drinking a large amount of alcohol. Of course, becoming an alcoholic may not have been his choice, but he is the one who chose to drive. Applicant’s Interest in a Conditional Discharge [ 44 ] The Court is satisfied that Khan is of good character.

Many letters of support [14] and certificates of achievement [15] were filed in this regard. At 40 years of age, he is a first-time offender and has otherwise been a law-abiding member of the community. Born in Pakistan, he is the son of an army officer. He completed high school in Saudi Arabia, immigrated to Canada in 1997, and now resides in Ottawa. He is a police officer. He completed his training at the Ontario Police College in 2002 and was employed by the York Regional Police Service for two years, after which he became a police officer with the Ottawa Police Service (OPS).

He was a use of force instructor and an emergency service unit member. He has the rank of first-class constable and is currently assigned to the Ottawa airport. [ 45 ] The applicant submits that it is not necessary to enter a conviction to deter future offences or to rehabilitate him.

He asks the Court to consider his actions, personal circumstances, and efforts to rehabilitate over the past two years. [16] He has addressed the underlying factors that led to the commission of the offence, seeking the assistance of his family physician [17] , a psychologist, [18] and an alcohol counselling. [19] [ 46 ] The applicant submits that his PTSD and alcohol use disorder symptoms are currently in remission. [20] He has not reoffended. He has complied with all probation conditions.

His probation officer recently concluded that Khan presents a minimal risk of reoffending. [21] His alcohol counsellor expresses the opinion that the applicant will successfully maintain his sobriety. [22] In Dr.

Gray’s opinion, the applicant appears to be in remission from PTSD and alcohol use disorder. [23] There is, however, one limitation to this point of view, which arises primarily from the applicant’s self-report. [ 47 ] The applicant submits that deterrence is not required because he was diligent in seeking treatment for his mental health and alcohol issues. [24] However, the Court does not share this point of view. Khan’s issues were left untreated between 2005 and 2018. The applicant did not take concrete steps to treat them.

Shortly after the 2005 event, the applicant began to drink three to four times per week to the point of drunkenness, and further described cravings to drink alcohol first thing in the morning.

He felt that alcohol was useful to numb the reoccurring symptoms and his generally higher level of anxiety. [25] In the months following the event, he developed symptoms of PTSD and began to use alcohol to self-medicate. [26] He began to rely on alcohol to deal with stress of even a general nature. [27] He experienced changes in his personality, mood, and behaviour, [28] became short-tempered, tense, agitated, withdrew from family and friends, and used alcohol heavily.

He became the subject of complaints from the public about his conduct both on and off duty and was charged with several counts of discreditable conduct under the Police Service Act . [29] He continued to use alcohol and, according to Dr. Klett, he was disabled by his PTSD in June 2018. [30] His long-lasting destructive pattern of behaviour culminated in criminal charges. [31]

[ 48 ] The Court does not characterize Khan’s treatments as “ diligent ”, or his moral culpability as low. The PTSD and alcohol use issues were untreated for years. Not only did the applicant make a mistake while committing the offence, but he entered into a pattern of behaviour as early as 2005 and, for years, did not take the appropriate steps to rectify this behaviour. He now claims to be sober since November 2019, [32] which is more than a year after the commission of the offence. [ 49 ] The applicant is still on a long-term disability and his level of stress is low.

However, considering all the relevant circumstances, including his difficulty to cope with stress and long-lasting untreated alcoholism, despite Khan doing a lot to rehabilitate, he still needs counselling and still poses a risk to society. Actual Effect of the Punishment on the Applicant [ 50 ] According to the applicant, a criminal record would have a disproportionate impact on him, since its existence could result in him losing his job as a result of a disciplinary hearing. Thus, it is not the minimal fine that is disproportionate.

It’s his collateral effect before his disciplinary authority: the criminal record that would result from imposing the fine may result in him losing his job. [33] [ 51 ] The applicant submits that a criminal record would adversely affect his ability to return to the OPS or seek gainful employment elsewhere, continue volunteering and doing community work, and travel freely. [ 52 ] We note that there is no evidence before the Court regarding Khan’s inability to continue volunteering and perform community work with a criminal record, nor is there any evidence adduced on his inability to travel freely. [ 53 ] According to the respondent, the applicant’s submission concerning his inability to return to work as a police officer is speculative. [34] [ 54 ] Dave Merkel, staff Sergeant at the Professional Standards

Section of the OPS, states that a criminal record for a conviction under section 253(1) (

b) of the Criminal Code will not necessarily lead to Khan’s dismissal: [I]f a police officer receives a criminal record after being found guilty of an offence, this does not necessarily mean he/she will be dismissed from a police service. The outcome of a disciplinary hearing is decided by a hearing officer who takes a number of factors into consideration regarding the final penalty (ie.: officer’s remorse, medical concerns, previous record and work performance, penalty ranges in previous decisions with similar facts, etc.).

If the Hearing Officer determines that the allegations of misconduct have been proven on clear and convincing evidence, the Hearing Officer can impose a range of penalties pursuant to section 85(1) of the Police Services Act, which include: dismissal, demotion, suspension without pay, forfeiture of pay or time off . [35] [ 55 ] Merkel testified that even if the applicant receives a discharge, whether it is conditional or absolute, it is still a finding of guilt and he will be subject to a disciplinary hearing. [36] The sentence before the criminal court is an indication of the seriousness of the offence.

However, a discharge is one of the factors the Hearing Officer would likely consider when assessing Khan’s penalty. [ 56 ] A criminal record does not constitute a punishment. It is not a sanction and does not serve the sentencing objectives, but ensures the protection of the public. A criminal record is the collateral consequence of a punishment. However, the Court considers that it may be considered in the analysis of the effect of a punishment. [ 57 ] The primary reason for keeping criminal records is to enhance community safety.

It is also important in order for the scaled minimum penalties for second and subsequent offences to be effective. It ensures that courts in the future will be able to take into account a prior offence should the applicant reoffend. [ 58 ] The impact of a criminal record on the applicant’s employment could be seen as a collateral but real effect of the punishment. Some professions will not admit persons who have criminal records.

The Court notes, however, that based on Merkel’s evidence, there are police officers who have kept their jobs after a disciplinary hearing under the Ontario Police Services Act . [37] [ 59 ] This Court is sympathetic to Khan’s concerns that a criminal record may undermine his aspirations of returning to work within the OPS. Based on Merkel’s evidence, this is not a case where a criminal conviction would have the automatic consequence of Khan losing his current employment.

However, the mere ‘possibility’ of negative impacts on employment opportunities may be sufficient to demonstrate an interest in a discharge [38] . Here, even if it does not lead to his dismissal, there is a clear possibility that a criminal record have consequences on the officer’s career. [ 60 ] A criminal record may not have a lifelong impact on Khan since he will be allowed to apply for a record suspension. In Sabattis , a judgment by the Ontario Court of Justice, the applicant submitted that s. 255(1) ( a )(

i) was grossly disproportionate in light of the facts of that case because it required the imposition of a mandatory minimum sentence, including a fine and a criminal conviction, in circumstances where a discharge would be a fit sentence. The applicant submitted that the minimum sentence, particularly having to impose a conviction, subjected the applicant to cruel and unusual punishment.

In that case, Justice Henschel stated: [133] … the distinction between a criminal record and a conditional discharge for the offence or impaired driving or “over 80” where the Crown has proceeded summarily is not so great that it can support a claim that the mandatory minimum is grossly disproportionate. Records of both convictions and discharges are kept on CPIC .

However, conditional discharges are automatically purged after three years, whereas a criminal conviction will remain unless and until an offender applies for and is granted a record suspension . [39] [ 61 ] The Court notes that the applicant is not ready to go back to work as a police officer for the OPS. He is still working on his health and recovery. He is eager to go back to work, but in a position less stressful than his earlier one. [40] He has been on intermittent sick leave since 2005 and is currently on long-term disability. The timeframe for his return to work is unknown.

Public Interest in a conditional discharge

[ 62 ] The applicant submits that a conditional discharge would not be contrary to public interest. Khan pleaded guilty and there are mitigating factors. No one was hurt, and there was no property damage. Khan has expressed remorse and taken positive steps to rehabilitate.

He has many professional accomplishments and is dedicated to public service. [ 63 ] According to the respondent, considering the gravity of the offence and the public’s confidence in the effective enforcement of criminal law, a discharge would be contrary to public interest. [ 64 ] The applicant submits that it was not against the public interest for Khan to receive a conditional discharge on the count of dangerous driving. In this regard, the Court recalls that the decision dated December 18, 2019, on the count of dangerous driving was based on a joint submission.

Indeed, the Court made much of this aspect in its oral decision : “On November 21st, the parties proposed a joint submission for a conditional discharge and a one-year probation with the following conditions (. . .) In 2016, the Supreme Court in R. v.

Anthony-Cook explained that: “Joint submissions on sentence—that is, when Crown and defence counsel agree to recommend a particular sentence to the trial judge … —are vitally important to the well-being of the criminal justice system”. “Crown and defence counsel are well placed to arrive at a joint submission that addresses the interests of both the public and the accused”. According to the Supreme Court: “Trial judges should not reject a joint submission lightly.

They should only do so where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system”. As explained by the Supreme Court, it is an accepted and entirely desirable practice for Crown and defence counsel to agree to a joint submission on sentence in exchange for a guilty plea, which makes joint submissions desirable. By agreeing to a joint submission, the Crown avoids the risk of an acquittal. This guilty plea indicates an accused’s acknowledgement of his responsibility and may amount to an expression of remorse.

Guilty pleas save the justice system precious time, resources and expenses, which can be channelled into other matters. When joint submissions—but for joint submissions to be possible, the parties must have a high degree of confidence. The trial judge would not (inaudible) from it. Hence, the importance of trial judges not to depart from them lightly. In order to depart from a joint submission, the trial judge must not only be convinced that a sentence is unfit, it must be demonstrably unfit.

The Trial judge may depart from a joint submission when the proposed sentence would bring the administration of justice into disrepute or is otherwise not in the public interest. The proposed sentence should not cause an informed and reasonable public to lose confidence in the institution of the courts. This is a very high threshold. Consequently, almost all of the joint submissions are approved by trial judges. (. . .) Here, with regards to Mr.

Khan, the Crown having considered the public interest, obviously felt that society would be adequately protected, and that public interest would be served with a conditional discharge and a probation order. Crown and Defence appear to have come to a practical decision achieving the public’s interest and insuring the public’s protection. The proposed sentence would not bring—would not be, sorry, would not be against the interest of the public. It would not bring the administration of justice into disrepute.

Consequently, I will not depart from the joint submission. [41] ” [ 65 ] Regarding the offence of dangerous driving, the parties filed precedents where police officers had received discharges for dangerous driving offences. The conditional discharge was not demonstrably unfit in those cases. [ 66 ] This Court did not address the sentence it would have ordered had there not been a joint submission on the count of dangerous driving. [ 67 ] On the “over 80” offence, a discharge would not be the appropriate sentence for Khan.

This is our finding considering the objective and subjective gravity of the offence, the results of 163 and 155 mg of alcohol in 100 ml of blood, and all relevant circumstances including the risk that the offender poses to the public. This is a case where the conduct falls towards the upper end of the spectrum of seriousness. Consequently, a criminal conviction would not have a disproportionate impact. [ 68 ] The Court recalls that driving a motor vehicle is a privilege. Driving while one’s ability to do so is that much impaired by alcohol places the public at risk of serious harm.

A fine, with the collateral effect of a criminal record, for taking such a serious risk while exercising that privilege is at the lower end of the range of fit and proportionate sentences. [ 69 ] Canadian courts have repeatedly affirmed that because of the prevalent and often severe consequences of drinking and driving offences, general deterrence and denunciation must be the predominant sentencing principles. Khan chose to drive. He was well aware of the potential consequences of his own decision to drive with this important quantity of alcohol in his blood. There is a deterrent value

that those driving while having 163 or 155 mg of alcohol in 100 ml of blood be convicted of the “over 80” offence and receive a criminalrecord, whether they are “normal citizens” or police officers. [70] A fine, a driving prohibition, and a criminal record for a person convicted of impaired driving does not outrage standards ofdecency. Parliament has expressed its intent by establishing a mandatory minimum sentence for impaired driving. The requirement thatthere be a conviction for impaired driving related offences is directly related to the nature of this specific offence.

It reflects the concernnot only of Parliament but also of the public. [71] In conclusion, in the case at issue, the appropriate sentence corresponds to the minimum mandatory sentence. Accordingly, inlight of the mitigating circumstances and the stage of the applicant’s rehabilitation, the Court will impose the minimum fine on Khan,and a one-year probation order, which will ensure that he continues to address his alcohol use issue in the long term. [72] This Court will not consider the constitutionality of the mandatory minimum provision since it has no impact on the sentence tobe imposed on Khan.

Once a court determines, as it does here, that the mandatory minimum does not materially exceed the lower limit ofthe sentencing range applicable to an applicant, it may decline to consider its constitutionality.[42] CONCLUSION ON THESE GROUNDS, THE COURT: IMPOSES the following sentence on Mr. Umer Inam Khan in relation to his plea on the count under section 253(1)(

b) of the CriminalCode: • a $1,000.00 fine; • a one-year probation order with supervision, with the following conditions: − Keep the peace and be of good behaviour; − Appear before the Court when required to do so; − Notify the Court of any change of address or name and quickly notify any change of employment or occupation; − Report to a probation officer within two working days after the coming into force of the probation order; and thereafter whenrequired by the probation officer and in the manner directed by the probation officer; − Follow the probation officer’s instructions concerning any therapy, including therapy for a substance use issue; − Undergo an assessment for his alcohol issue within 30 days as well as follow-up, in accordance with the terms determined by thetherapist, with the agreement of the probation officer; − Sign the probation order without delay. __________________________________ Alexandra Marcil, J.C.Q.

Simon Pelletier et Alex VallièreFor the Prosecution Charles-Étienne Bélanger For the Attorney general of Quebec Solomon FriedmanFor the Applicant Date of hearing: August 10, 2020 [42] R. v. Lloyd, 2016 SCC 13 , [2016] 1 S.C.R. 130 at para. 18 ; M. Vauclair & T. Desjardins, Traité général de preuve et procédure pénales, 26th ed., (Montreal: Yvon Blais, 2019) at para. 101. On judicial restraint in similar contexts, see: Y.P. c. R., 2019QCCA 1506 at paras. 7, 21, 29, 46, 50, 54 ; Ibrahim c. R., 2018 QCCA 1205 at paras. 56–58; Coll c. R., 2017 QCCA 1805 at para. 4 ; R.c. Stuerm, 2017 QCCA 1484 at para. 8 ; R. v.

Chambers, 2013 ONCA 680 at para. 46; R. v. Kinnear, at paras. 59, 81(Ont. C.A.) ; R. c. Dugbeh, 2020 QCCQ 944 at paras. 63–64 ; R. c. McKenzie, 2019 QCCQ 7250 at para. 53 ; R. c. G.G., 2019 QCCQ3883 at para. 53 ; R. c. Martel, 2019 QCCQ 2883 at paras. 105–108 ; R. c. S.H., 2019 QCCQ 600 at para. 4.