2015 QCCA 642, 2015 QCCA 642

R. c. Fleisher 2015 QCCA 642 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005737-141 (500-01-041363-109, 500-01-041364-107, 500-01-078012-124) DATE: APRIL 17, 2015 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. LORNE GIROUX, J.A. MARK SCHRAGER, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v. STEPHEN FLEISHER RESPONDENT – Accused JUDGMENT [ 1 ] The Crown seeks leave to appeal from a judgment on sentence of the Court of Quebec, District of Montreal (the Honourable Judge Claude Parent), rendered on October 3, 2014, following the Respondent’s guilty plea to one (1) count of driving while disqualified, contrary to Section 259(4)

a) of the Criminal Code (“ Cr.C. ”), two (2) counts of impaired driving, contrary to Sections 253(1)

a) and 255(1) Cr.C. , two (2) counts of refusing to comply with a breath sample demand, contrary to Sections 254(5) and 255(1) Cr.C. , and one (1) count of breaching a probation order by not keeping the peace and not being of good behaviour, contrary to

Section 733.1(1)

b) Cr.C. The judge sentenced the Respondent to a total term of imprisonment of 120 days, followed by three years probation and a lifetime driving ban. [ 2 ] For the reasons of Schrager, J.A., with which Chamberland and Giroux, JJ.A., concur, the Court: [ 3 ] GRANTS the motion for leave to appeal; [ 4 ] DISMISSES the appeal. JACQUES CHAMBERLAND, J.A. LORNE GIROUX, J.A. MARK SCHRAGER, J.A. Mtre Dionisios Galiatsatos Director of Criminal and Penal Prosecutions of Quebec For Appellant Mtre Dylan Jones Mtre Jeffrey K. Boro Boro, Polnicky, Lighter For Respondent

Date of hearing: March 27, 2015 REASONS OF SCHRAGER, J.A. INTRODUCTION [ 5 ] The Crown applies for leave to appeal from a judgment on sentence of the Court of Quebec, District of Montreal (the Honourable Judge Claude Parent), rendered on October 3, 2014, following the Respondent’s guilty plea to one (1) count of driving while disqualified, contrary to Section 259(4)

a) of the Criminal Code (“ Cr.C. ”), two (2) counts of impaired driving, contrary to Sections 253(1)

a) and 255(1) Cr.C. , two (2) counts of refusing to comply with a breath sample demand, contrary to Sections 254(5) and 255(1) Cr.C. , and one (1) count of breaching a probation order by not keeping the peace and not being of good behaviour, contrary to

Section 733.1(1)

b) Cr.C. The judge sentenced the Respondent to a total term of imprisonment of 120 days, followed by three years probation and a lifetime driving ban. [1] [ 6 ] The Petitioner seeks to have this Court increase the period of incarceration.

FACTS [ 7 ] The Respondent was, at the time of sentencing, a sixty-one year old businessman. [ 8 ] Between September 1975 and June 2007, he was convicted of fourteen offences involving motor vehicles, including one count of refusing to provide a breath sample, as well as six counts of driving under the influence with more than 80 mgs of blood alcohol or care or control of vehicle with more than 80 mgs of blood alcohol; five counts of impaired driving; and two counts of driving while disqualified.

These offences occurred in the Provinces of Ontario and Quebec. [ 9 ] On June 11, 2007, the Respondent was sentenced to a term of imprisonment of 18 months, three years probation and a driving prohibition of 6 years. [ 10 ] Approximately two and a half years later, the Respondent committed the offences for which he was sentenced in the present case. [ 11 ] On February 27, 2010, the Respondent’s car was stuck in the driveway of a cottage located near Sainte-Agathe-Des-Monts, Quebec.

Over a period of approximately 35 minutes, he drove his car back and forth in order to dislodge it, apparently generating enormous heat on the tires. Neighbours saw that his car was burning and urged him to exit it. They noticed a strong smell of alcohol on the Respondent’s breath and called the police. Upon their arrival, police officers observed that the Respondent had bloodshot eyes, was unsteady and had unbalanced posture and slurred speech. They requested that he provide a breath sample.

The Respondent refused to comply. [ 12 ] One month later, on March 27, 2010, near Decarie Boulevard, in Montreal, police officers saw the Respondent drive a mini-van over a sidewalk, cross two lanes, crash into the road’s cement divider, pass a red light, make sweeping turns, swerve, slow down to 30 km/h and fail to stop in spite of the patrol car’s lights and sirens. When the Respondent finally stopped his vehicle, police officers noticed that he had a strong smell of alcohol on his breath, bloodshot eyes and slurred speech. Unable to stand, he was carried to the police car and was taken to the police station.

At the station, the first Intoxilyzer result revealed a blood alcohol concentration of 283mg/100ml. The Respondent refused to provide a second breath sample. [ 13 ] Respondent was charged on September 28, 2010 for the February offence. The record is unclear as to the precise date he was charged with the March offence but since the two indictments were joined, all dates referred to below apply to both indictments.

HISTORY OF THE FILE IN FIRST INSTANCE [ 14 ] On April 8, 2010, the Petitioner served notice pursuant to

Section 727 Cr.C . (“notice for greater punishment”) to the Respondent with respect to the offences committed on March 27, 2010. [ 15 ] In the following months, the Respondent requested several pro forma adjournments and an adjournment of the trial with respect to the “February file”. In the “March file”, he also requested successive pro forma adjournments, as well as a preliminary inquiry, which he eventually waived on the day of the hearing. The matter was then adjourned to April 11, 2011. [ 16 ] During the same period, the Respondent enrolled in a rehabilitation program at the North York General Hospital.

It was the first time that the Respondent had entered an addiction treatment program. On March 16, 2011, he commenced the Abstinent-Based Program, described in one exhibit as, “a ten week outpatient group program for individuals who have chosen to remain abstinent from alcohol and all other mood altering substances”. [ 17 ] On April 11, 2011, the Respondent requested another pro forma adjournment in order to allow him to complete his rehabilitation program.

The matter was postponed to June 1, 2011. [ 18 ] In the interim, the Respondent successfully completed his rehabilitation program and began to attend a weekly After Care Addiction Group. [ 19 ] On June 1, 2011, a trial date was set for September 19, 2012 but did not proceed since the Respondent was detained in Ontario having received a sentence of 87 days imprisonment on September 11, 2012 for driving while disqualified. [ 20 ] On November 21, 2012, the Respondent pleaded guilty to all the charges laid against him in the present case.

Upon entering his guilty plea, he asked for the preparation of a pre-sentence report, which was completed on February 25, 2013. [ 21 ] The author of the pre-sentence report concluded that the Respondent “would appear as a suitable candidate for involvement with a structured long-term counselling program”.

He therefore recommended that, “[i]n addition to any other sanction that the Court may assign”, the following sanctions be imposed to the Respondent: 1) Not to be found in the driver’s seat of any vehicle; 2) Required to avoid the consumption or purchase of alcohol or any drugs not prescribed by a medical doctor; 3) Attend for assessment/counselling as directed by PPO (Parole and Probation Office) for substance abuse. [ 22 ] On February 28, 2013, defence counsel requested a postponement of the sentencing hearing in order to further study the file and consult with the Respondent.

The matter was adjourned to September 11, 2013. [ 23 ] In the interim, the Respondent began to attend the Addiction Outreach Program, described as “an outreach outpatient intensive treatment program that addresses the physical, emotional, and spiritual aspects of addictions and related problems”. [ 24 ] Respondent also began to take a series of steps to become involved as a volunteer in the community in programs aimed at preventing and deterring others from drinking and driving.

These steps included speaking at schools about the dangers of drinking and driving; establishing a service to provide shelter and alternate means of transport to individuals in downtown Montreal and Toronto to dissuade them from driving while inebriated; participating in a research program at the University of Montreal examining the connection between criminality and alcoholism; sponsoring the therapy of alcoholics unable to afford to pay for treatment.

[25] On September 11, 2013, defence counsel requested that the hearing be further postponed, as the Respondent’s lawyer wasabsent and his representative had “no knowledge of the file”. The sentence hearing was adjourned to December 5, 2013. The sentencingjudge refused Petitioner’s request that the Respondent be incarcerated immediately given the minimum mandatory 120 day sentence. [26] On December 5, 2013, defence counsel once again requested a postponement of the hearing, in order to allow the Respondentto complete his therapy. The Petitioner contested this postponement request, citing

Section 720 Cr.C., and insisting that the Respondenthad pleaded guilty over a year earlier, that the case had already been postponed several times at his request and that the file carried aminimum sentence of imprisonment. During the hearing, the Respondent’s therapist, Dr. Albert Saraga, testified that the Respondent wasnot ready to go to jail given the ongoing rehabilitation program, and that it would be better for him to complete his therapy first.

Thesentencing judge granted the adjournment until April 11, 2014, on the basis that the rehabilitation program was a step in the rightdirection. [27] At the sentencing hearing on April 11, 2014, the Petitioner sought a term of imprisonment of five to six years, stating that thenormal range in the circumstances would be eight to nine years but that it was giving credit for Respondent’s rehabilitation. ThePetitioner also sought a lifetime driving ban.

The defence sought the minimum 120 days incarceration. [28] The sentencing judge found that Respondent was rehabilitated and thus concluded that a federal sentence of incarceration wouldbe inappropriate and could even have a negative impact on the rehabilitation efforts of other offenders. GENERAL LEGAL PRINCIPLES [29] Sentencing is not an exact science.

It is primarily a matter of discretion: (…) [t]he language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to crafta sentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a “fit” sentence is,subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in amanner that best reflects the circumstances of the case (R. v.

Lyons, (SCC), [1987] 2 S.C.R. 309; M. (C.A.); R. v.Hamilton (2004), (ON CA), 72 O.R. (3d) 1 (C.A.)).[2] [30] Given the individualized nature of the sentencing process, trial judges “must have sufficient manoeuvrability to tailor sentencesto the circumstances of the particular offence and the particular offender”.[3] As a result: (…) [n]o one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives meritthe greatest weight, given the particulars of the case.

The relative importance of any mitigating or aggravating factors will then push thesentence up or down the scale of appropriate sentences for similar offences.

The judge’s discretion to decide on the particular blend ofsentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to theoverarching guidelines and principles in the Code and in the case law.[4] [31] Given the discretionary nature of the sentencing process, appellate courts must grant sentencing judges considerable deferencewhen examining the “fitness” of a sentence:[5] Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court ofappeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.[6] [32] Thus, an appellate court should not intervene merely because it might have weighed the relevant sentencing factorsdifferently.[7] [33] I am not suggesting an abdication of the appellate function of review to minimize disparity in sentences but there is no suchthing as a uniform sentence for a particular crime.[8] The ranges discerned from a review of the case law serve as guidelines and not“hard and fast rules”.[9]

[ 34 ] With these considerations in mind, I now turn to examine the grounds raised by the Petitioner. GROUND I: The judge erred in law by imposing sentence two years after the guilty plea. [ 35 ] The Respondent was charged on September 28, 2010. He pleaded guilty on November 21, 2012. The sentencing judgment was rendered on October 3, 2014. [ 36 ] The Petitioner submits that the letter and the spirit of

Section 720 Cr.C . were “completely discarded” by the sentencing judge, who repeatedly postponed the sentence hearing at the request of the Respondent. The Petitioner submits that the postponement of sentencing in order to “monitor the behaviour of an accused, or to allow him to complete rehab, detox, therapy or drug addiction programs” is firmly condemned by the jurisprudence of appellate courts . [10] In the instant case, the Petitioner submits that “all the necessary information for the imposition of sentence […] was available on February 28, 2013”. Therefore, sentence should have been rendered promptly after that date. [ 37 ]

Section 720 Cr.C . provides that “a court shall, as soon as practicable after an offender has been found guilty, conduct proceedings to determine the appropriate sentence to be imposed”.

However, Subparagraph 720(2) Cr.C. allows the court to delay sentencing to “enable the offender to attend a treatment program approved by the province under the supervision of the court, such as an addiction treatment program”, provided that the court obtains the consent of the Attorney General and the offender and that such a decision is consistent with the interests of justice and of any victim of the offence. [ 38 ] The discretionary power of a judge to adjourn sentencing proceedings, and hence to delay sentencing, may be exercised on legal grounds or for purposes contemplated by the law. [11] For example, a sentencing judge may postpone sentencing for the purposes of obtaining a pre-sentence report ( cf.

Section 721 Cr.C . ) or additional information concerning the offence or the offender . [12] A judge may also postpone the sentence hearing in order to allow the parties to prepare their submissions. While

Section 720 Cr.C. requires that the sentence proceedings be conducted as soon as practicable after the accused has been found guilty, the Criminal Code also provides that “before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed” ( Section 723(1) Cr.C. ). The court is legally required to “consider any relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or the offender” (

Section 726.1 Cr.C. ), and to “hear any relevant evidence presented by the prosecutor or the offender” ( Section 723(2) Cr.C. ). Finally, “[b]efore determining the sentence to be imposed, the court shall ask whether the offender, if present, has anything to say” (

Section 726 Cr.C. ). [ 39 ] However, in a number of cases, appellate courts have held that it is improper for the trial court to delay sentencing for a “lengthy period of time” for a “collateral” purpose, such as to see how the accused behaves or to allow the accused to attend a treatment centre for drug addiction (without the consent of the Attorney General). [13] [ 40 ] For instance, in R. v.

Fuller , the Manitoba Court of Appeal held that the trial judge erred in adjourning the sentencing proceedings for a period of six months following the receipt of a pre-sentence report and the hearing of submissions by counsel in order to determine how the accused would “conduct himself during that intervening period”. [14] [ 41 ] Similarly, in Nunner , the Ontario Court of Appeal held that adjournments made for the purposes of determining whether the accused makes restitution, or cooperates with the police in recovering stolen goods, or aids in the investigation of others, are beyond the scope of the power of adjournment and amount to a failure to exercise jurisdiction. [15] Yet, in Nunner , the court concluded that the trial judge did not exceed his jurisdiction in postponing sentencing for slightly less than five months from the date of conviction.

The court made it clear, however, that this delay could not be further extended: We are informed that in January, the learned Judge adjourned sentencing to March 2, 1976, a total postponement of slightly less than five months from the date of conviction. In all the circumstances of this case, including the youth of the offender and the objective sought to be achieved by the Judge, I am not prepared to hold that he has exercised his discretion to postpone sentencing for an illegal purpose in adjourning the sentencing to March 2nd.

Accordingly, I think the order of Labrosse, J., was premature and the appeal should be allowed and the order set aside.

However, if there is a further postponement beyond March 2nd, mandamus for an immediate sentencing should issue on the application of the Crown. [16] [ 42 ] Likewise, in Cardin , this Court held that the trial judge was not empowered to postpone sentencing for over three years for the purpose of permitting the accused, a drug addict convicted of robbery, to attend a treatment centre for drug addiction. [17] On the other hand, the court recognized that, in some circumstances, the trial judge may delay sentencing for a reasonable period of time in order to better understand the situation of the offender: De tout cela, je retiens que la méthode de retarder indûment ou dans un but inapproprié le prononcé de la sentence est généralement réprouvée.

Si le juge du procès a discrétion pour décider du moment où il se prononcera, il doit l'exercer pour des motifs légaux au risque de perdre sa compétence. Tout en reconnaissant que la conduite d'un accusé, après la commission du crime, soit un facteur à considérer, cela ne justifie pas pour autant le juge de retarder la sentence au-delà d'une période raisonnable.

Si certaines circonstances autorisent parfois que le délai pour décider de la peine puisse être allongé pour permettre une meilleure évaluation de la situation de l'accusé, il doit néanmoins rester à l'intérieur d'une norme acceptable: "a few weeks", écrit le Juge en chef MacKeigan dans Muise, un peu moins de cinq mois, peut-on lire dans Nunner [18] . [emphasis added; references omitted] [ 43 ] These cases were heard prior to the enactment of Subparagraph 720(2) Cr.C . , but, in my opinion, remain pertinent absent a treatment program approved by the province or in cases where the Attorney General does not consent to delay the sentencing proceedings to enable the offender to attend such a treatment program. [ 44 ] In the instant case, when the Respondent pleaded guilty on November 21, 2012, defence counsel asked for the preparation of a pre-sentence report.

As indicated above,

Section 721 Cr.C . specifically foresees the possibility of a postponement for such purpose. [ 45 ] The pre-sentence report was completed on February 25, 2013. Defence counsel received a copy of the report on February 27, 2013. On the next day, defence counsel requested to postpone the sentence hearing in order to further study the file and consult with the Respondent. The request does not appear unreasonable and perhaps for this reason, the Petitioner did not object to the request. The matter was adjourned to September 11, 2013.

The delay of seven months is not explained. [ 46 ] On September 11, 2013, the Respondent’s attorney was ill and could not be present in court. His representative asked for an adjournment. The Petitioner did not object to this request. Therefore, the sentence hearing was postponed to the next available date, i.e. December 5, 2013. [ 47 ] On December 5, 2013, defence counsel requested for the first time that the sentence hearing be delayed in order to allow the Respondent to complete his rehabilitation therapy. The Respondent’s therapist, Dr.

Albert Saraga, testified that the Respondent would complete his therapy within approximately three months. The Crown sought Respondent’s immediate incarceration given the minimum sentence. After hearing the parties’ submissions, the sentencing judge concluded: Déjà, si on me dit que c’est mieux qu’il la termine. On va attendre trois (3) mois avant de discuter de la sentence. [ 48 ] The exercise of the judge of his discretion to grant a postponement to allow the Respondent to complete therapy already under way on a voluntary basis hardly appears unreasonable.

The delay was not long and the fact of undergoing therapy and its outcome were potentially highly relevant to crafting an individualized sentence. [ 49 ] The hearing was postponed to April 11, 2014. On that date, the parties submitted their arguments and the sentencing judge took the matter under advisement. [ 50 ] Thus, sentencing proceedings were delayed just over four months to allow the Respondent to complete therapy.

The other delays were either based on legal grounds (e.g. to obtain a pre-sentence report) or for other reasons within the judge’s normal discretion in managing the case (e.g. illness of defence counsel).

[ 51 ] The duration of the postponement to allow the Respondent to complete therapy was less than the five months deemed reasonable in the Nunner case. [ 52 ] It should also be underlined that the postponement to allow the Respondent to complete therapy was granted at a time when he neared the completion of a program such that incarceration at that time would have potentially hindered his chances at successful rehabilitation. [ 53 ] As noted by the Respondent, courts have generally refused to modify a sentence on the ground that sentencing was delayed.

For example, in Cardin , this Court refused to modify the sentence imposed by the trial judge even though it concluded that the three-year postponement of sentencing was unreasonable. On this issue, the Court explained: En somme, dans Fagen comme dans l'affaire sous étude, la Cour était face à un fait accompli qui ne pouvait être reproché à l'accusé: le délai était écoulé et l'objectif poursuivi atteint; aussi, dans ces circonstances, la justice commande que soient préservés les acquis de l'individu et de la société.

C'est pourquoi, je proposerais le rejet du pourvoi [19] . [reference omitted] [ 54 ] The principle of

Section 720 Cr.C . recognized in the case law by this Court is clear. However, the circumstances of the present case, while hardly a model of judicial dispatch, are such that the Petitioner’s arguments on this ground do not give rise to any reason to intervene and modify the judgment on sentence. GROUND II: The imposition of the minimum sentence was inappropriate [ 55 ] The Petitioner argues that, in the circumstances of the case, the imposition of the minimum sentence was inappropriate. In R. v.

Morrisey , [20] Arbour J. stated that where a minimum sentence is provided by Parliament, “said minimum must act as an inflationary floor, setting a new minimum punishment applicable to the so-called ‘best’ offender whose conduct is caught by these provisions”. In the case at bar, the Petitioner submits that the Respondent, who had fourteen relevant convictions prior to his arrest, could not be considered as the “best offender” with respect to the offences committed.

In addition, the Crown contends that the aggravating factors of the case were “abundant, further removing him from consideration for the minimum sentence”. [ 56 ] The minimum 120 days of incarceration provided by Section 255(1)(a)(iii) Cr.C . and imposed in this case is the minimum sentence for repeat offenders. Therefore, a proper application of Morrisey would require asking whether the Respondent was the “best repeat offender”.

Evidently, the sentencing judge found on the facts that the Respondent fit that description. [ 57 ] In any event, the “best offender” consideration does not trump the principle of proportionality requiring that: “… a sentence not exceed what is just and appropriate given the moral blameworthiness of the offender and the grounds of the offence”. [21] [ 58 ] The sentence imposed by the judge in this case was the minimum incarceral period together with three years probation and a lifetime driving ban.

The real issue then as will be explained when addressing the Petitioner’s Ground IV, is whether the sentence is patently unfit. GROUND III: The misapprehension of the Respondent’s criminal record

[ 59 ] The Respondent’s record at the time sentence was imposed consisted of fourteen convictions for driving offences for which he received fines (some accompanied by probation), five jail terms [22] and one conditional sentence. [23] The lengthiest prison term he received was 18 months. [ 60 ] The judge incorrectly stated the accused’s record. Most significantly, he incorrectly stated that the most severe previous sentence was “one year imprisonment in 1993”.

The Respondent had received an 18 month sentence in 2007, a 12 month sentence in 1998 and an 18 month conditional sentence in 1997. [ 61 ] Thus, the Petitioner argues that applying the “step-up” principle, a proper proportionate sentence would have included a lengthier period of incarceration and that the Court of Appeal should intervene to impose such a sentence. [ 62 ] Despite misstating the Respondent’s previous convictions and sentences, the judge was clearly aware that the Respondent had a lengthy record of convictions for alcohol- related driving offences.

As will be discussed below, the judge chose to give considerable weight to rehabilitation as a factor in his sentencing judgment. The error on the details of the Respondent’s convictions and previous sentences were clearly not determinant factors in his judgment so that the error is without impact and this ground of appeal does not succeed. GROUND IV: The sentence imposed is patently and demonstratively unfit, or clearly unreasonable.

More specifically, the sentencing judge erred in principle by giving insufficient consideration to the principles of denunciation and general deterrence. [ 63 ] The Petitioner contests the fitness and the reasonableness of the particular sentence that was ordered by the trial judge. Citing numerous decisions from appellate courts across Canada, it suggests that in matters of impaired driving, the dominant considerations on sentencing should be deterrence and denunciation.

In the case at bar, it argues that the sentencing judge erred in principle by failing to take into account these paramount considerations and focusing solely on rehabilitation. According to the Petitioner, the sentence at bar does not adequately reflect the principles of deterrence and denunciation and “trivializes the crime of drunk driving”. [ 64 ] The Petitioner argues that the Respondent’s guilty plea should have nominal value, considering the fact that the Respondent “dragged on his files for 2 ½ years before pleading guilty”.

Furthermore, it contends that while the Respondent’s efforts to advance his rehabilitation are significant, they are “insufficient to depart from the abundant jurisprudence which places a heavy emphasis on lengthy custodial sentences for serial drunk drivers as a means of ensuring deterrence”. [ 65 ] The Petitioner submits that a “lengthy penitentiary sentence is inescapable in the case at bar”. It suggests that this Court should increase the quantum of the sentence to a total term of imprisonment of five to six years, even though the Respondent’s highest previous sentence was of 18 months.

The Petitioner argues that the principle of incremental sentencing (“jump principle”) cannot trump the principle of proportionality, “nor can it be used in a way that diminishes the seriousness of the offence or detracts from the need for the protection of the public”.

Furthermore, the fact that the Respondent was shown significant leniency in the past is not a basis to refuse to impose a fit sentence in this case. [24] [ 66 ] The Petitioner invokes numerous judgments (mainly from this province) which indicate a range of two to six years for impaired driving offences for individuals having three to eighteen prior convictions for such offences. However, not one of these cases deals with an accused who was rehabilited from his drinking problem at the time of sentencing. The judge clearly recognized this: Position de la poursuite. Maître Langlois suggère une peine fédérale.

À cet effet, elle cite des décisions de la Cour du Québec et de la Cour d’appel où des peines de pénitencier ont été prononcées ou confirmées à l’égard de multirécidivistes de l’alcool au volant, en application du principe de dissuasion. Les trames factuelles de ces affaires sont en

partie semblables au cas de monsieur Fleisher. En

partie seulement puisque, dans aucune de ces décisions, la question de la réhabilitation n’a été abordée. [emphasis added]

[ 67 ] Irrespective of the relative weight to the sentencing factors, when one looks at case law where rehabilitation of the accused was a factor, the sentence imposed by the judge in this case falls within an acceptable range. For example, in R. v. Sergerie , [25] this Court sentenced an accused to ninety days imprisonment (intermittent), two years probation and three years driving prohibition where there were four prior convictions for impaired driving, including one which attracted a four-year sentence. [ 68 ] In R. v.

Leibovitch , [26] this Court substituted a three years suspended sentence for a sentence of two years less a day for a rehabilitated drug trafficker. During the period between arrest and sentence, the accused successfully underwent therapy and while maintaining the principle that the time between arrest and sentence should not be delayed to see if an accused is of good behaviour, the Court of Appeal recognized the accused’s efforts at rehabilitating the addiction which was at the root of his criminality.

While Leibovitch is not an impaired driving case, it is an example of this Court recognizing rehabilitation achieved in parallel to the judicial process and considering the rehabilitation for purposes of sentence. [ 69 ] In view of the above, it appears to the undersigned that the sentencing suggested by the Petitioner is sufficiently severe and that the sentence imposed by the judge falls within a recognized range for an impaired driver who, although a repeat offender, has succeeded in rehabilitation since arrest. [ 70 ] Moreover, in examining the sentence imposed in this case, it cannot be said that the judge gave no consideration or weight to the factors of denunciation and deterrence.

Though as stated, the judge’s emphasis was on rehabilitation, with regard to general deterrence, he stated that a lengthy incarceration was not appropriate and could even have a negative impact on the rehabilitation of other offenders: […] la Cour en arrive à la conclusion qu’une peine fédérale n’est pas appropriée dans les circonstances et pourrait même empêcher des gens qui, comme l’accusé, voudraient se prendre en mains de le faire. [ 71 ] With regard to denunciation, specific deterrence and public protection, it must be underlined that the judge imposed a lifetime driving ban on the Respondent.

This is a severe sentence. Indeed, in cases where this Court has either intervened to increase the period of incarceration for a repeat impaired driving offender or has refused to intervene to reduce the sentence, the duration of the driving prohibition usually does not exceed three years [27] though ten years [28] has been imposed.

The imposition of a lifetime ban is rare. [ 72 ] It does not appear from the judgment that any weight was given to the guilty plea as a mitigating factor as it came late in the process as the Petitioner underlines. [ 73 ] A court of appeal should not interfere with a sentence for the mere reason that it would have weighed the relevant factors differently. As stated in Nasogaluak, [29] no one sentencing objective trumps the others. In the present case, the judge gave considerable weight to the element of rehabilitation but did not totally ignore other factors such as denunciation and deterrence.

Though I would not express agreement with the sentence because of its leniency that is not the issue before this Court.

We are tasked with deciding whether there is an error of principle requiring appellate intervention. [30] [ 74 ] The Supreme Court recognized specifically, in 1995, the “tragic effects and devastating consequences of drinking and driving”. [31] The undersigned does not make light of the seriousness of the offences to which the accused pleaded guilty nor is there any indication that the sentencing judge treated the situation with any lack of seriousness. [ 75 ] In the present case, the judge chose to place considerable weight in his sentencing judgment on the Respondent’s rehabilitation.

Therefore, the real issue is whether placing such weight on the Respondent’s rehabilitation constitutes an error justifying the intervention of this Court. [ 76 ] After a life of alcohol abuse and a lengthy record of driving offences related to that abuse, the Respondent, at the age of 61, took control of his life to struggle to overcome or at least control, with apparent success, his alcohol addiction.

He also recognized by community volunteerism the societal problem of drinking and driving and demonstrated his commitment to contributing to the eradication of that problem. [ 77 ] In the very exceptional circumstances of this case, it cannot be said, in my opinion, that there is an error in the weight that the sentencing judge chose to give to that aspect of the sentencing equation. The sentence is not unreasonable nor patently or demonstratively

unfit and as such, I would not have this Court intervene. GROUND V: The Court of Appeal should order the reincarceration of the Respondent. [78] Given the conclusion not to intervene into the sentencing judgment, it is not necessary to address this issue. CONCLUSION [79] For all of the foregoing reasons, I would propose that the motion for leave to appeal be granted but that the appeal be dismissed. MARK SCHRAGER, J.A. [6] R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, para. 90 [M.(C.A.)]. [13] See for instance : Fuller, supra, note 12; R. v. Brookes,(1970) (ON CA), 4 C.C.C. 377 (Ont. C.A.); R.v.

Urton, (1974) (SK CA), 5 W.W.R. 476(Ont.C.A.), 478; Nunner, supra, note 11; R. v. Shea, (1980) 55C.C.C. (2d) 474 (N.S.C.A.); R. v. Brouillette, (1988) 13 Q.A.C.;Brisson, supra, note 10; R. v. Bassendon, (1989) 23 Q.A.C. 306;Cardin, supra, note 10; R. v. A. (B.C.), (1991) 1991 ABCA 337, 120 A.R. 106 (Alta. C.A.); R. v. J.L.L., (N.S.C.A.).