R. v. Gamble, 2011 ONCJ 513

COURT FILE NO.: 998 10 10310 DATE: 2011-10-06 Citation: R. v. Gamble , 2011 ONCJ 513 ONTARIO COURT OF JUSTICE (Central East Region) B E T W E E N: ) ) Her Majesty The Queen ) ) ) Mr. Parke, for the Crown ) ) ) - and - ) ) ) Terrence Gamble ) ) ) Mr. Yeghoyan, for the Defendant ) ) ) ) ) HEARD: September 29, 2011 De Filippis, J [ 1 ] The defendant was charged with several offences on December 9, 2009. On June 26, 2011 he pled guilty to one of those offences; namely, impaired operation of a motor vehicle causing bodily harm.

In sentencing the offender I have the benefit of a pre- sentence report and victim impact statements. As part of the sentence, the Crown suggests a term of imprisonment in the range of six to nine months and urges me to consider the higher end of the range. The Defence submits that a period of three to six months is appropriate and recommends a sentence of 90 days in jail, to be served on weekends. One of the issues in this case is whether I can consider prior related convictions for which the offender had received a pardon. [ 2 ] On the day in question, the offender was driving a van in the City of Oshawa.

He did so in a manner that was erratic and dangerous; he traveled at a speed of 70-80 km/hr on a street with a posted speed limit of 50 km/hr and his motor vehicle struck three vehicles in rapid succession before coming to rest on the front lawn of a residence. The offender first collided with the rear left corner of a vehicle exiting Highway 401. He then hit the driver’s door of a courier van operated by the local police. These collisions were relatively minor and did not result in injuries. By this time the offender’s speed had decreased to about 50 km/hr.

However, the third vehicle was hit head on causing the airbags to deploy. This vehicle was driven by Ms Camille Smith.

[3] When emergency personnel arrived, the offender denied being the driver. Police noticed an immediate and strong odour ofalcohol. The offender was described as highly intoxicated. It was later determined that he had a blood alcohol level of 190, more thantwice the legal limit. [4] Ms Camille Smith suffered injuries - as much from the airbags as from the collision itself. She fractured her spine, shoulder andknee. She broke her collar bone, thumb toe, and two teeth. She also cracked several ribs.

I received statements from Ms Smith, herdaughter, Ms Danielle Smith, and her sister, Ms Mary Byberg-Smith; all highlight the physical, emotional, and financial impact of theinjuries suffered. For more than two years, Ms Camille Smith has regularly and frequently seen doctors and physiotherapists. Theinjuries and treatment meant she could no longer work and this caused her to sell her home and move to rented accommodation. It isreported that Ms Camille Smith is now noticeably subdued and this has worried her daughter and sister. It is clear that Mr.

Gamble’scrime has had a significant adverse impact on Ms Camille Smith and her family. [5] The offender is 49 years old. He lost both parents when he was a child and he and his siblings became wards of the state. At theage of 16 the offender began living on his own. He reported that this was a difficult time as he had little stability or structure in his life.He married at the age of 21 and has a son and daughter. His separation in 2009 has been hard on him. The offender works as a drywallerand has been so employed since his teenage years.

He described himself as a social drinker but admits his consumption of alcohol hasincreased with his marital problems. The offender expressed his remorse for the crime during the preparation of the pre-sentence reportand tearfully apologized to the victims during the sentence proceedings. [6] In determining the sentence in this matter, I must consider the fundamental purposes of all sentencing, as set out in the CriminalCode: 718.

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance 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; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender.... [7] I accept the Crown’s submission that deterrence is the primary consideration in sentencing for the offence ofimpaired driving causing bodily harm. Given the prominence of motor vehicles in our society and the carnage caused by those whodrink and drive, sentences must reflect the need to dissuade potential offenders.

In applying the aforementioned statutory provisions tothe individual offender, the presence or absence of a criminal record may also be important. [8] In 1987, Mr. Gamble was found guilty of driving with a blood alcohol level above the legal limit (“Over 80”) andsentenced to 14 days in jail. In 1996, he was fined $900.00 for impaired driving. He subsequently received a pardon pursuant to theCriminal Records Act.

Prior to the guilty plea, the Crown advised the Defence that in its view, a conviction in this matter means that thepardon ceases to have effect and that notice of greater penalty would be filed and relied upon. The notice means the minimum penalty isfour months in jail. The Defence objects to the Crown’s reliance on the prior convictions. [9] In my view, the Crown is justified in relying on the prior convictions and I should consider that criminal recordin these proceedings.

Having regard to the nature of the pardon granted to the offender, the present finding of guilt for the indictableoffence of impaired driving causing bodily harm means that he automatically and immediately loses the benefit of the pardon. Thisarises because

section 7.2 of the Criminal Records Act provides that “A pardon granted to a person ceases to have effect if the person issubsequently convicted of an indictable offence….”. [10] The Quebec Court of Appeal had occasion to consider pardons in R v Poupart 2010 QCCA. It held as follows; [23] In Therrien (Re), 2001 SCC 35 , [2001] 2 S.C.R. 3, 2001 SCC 35, the Supreme Court of Canada, per Gonthier J.A.,discusses at length pardons and the various forms they can take: the royal prerogative of mercy (recognized in

section 749 Cr. C.), thedifferent types of pardons provided in the Criminal Code (ordinary and partial pardons – subsections 748(1) and 748.1(1); conditionalpardon – subsection 748(2); free pardon – subsections 748(2) and 748(3); pardon granted after a referral for hearing or referral to a courtof appeal under

section 690 Cr. C. or

section 53 of the Supreme Court Act; and, lastly, the pardon under the CRA [Criminal RecordsAct].

[24] With regard to a pardon under the CRA, Gonthier J. writes that Parliament established a procedure for an administrative pardon, which may be granted, after inquiry, to any applicant who has been convicted of an offence under a federal law and who requests it.

He then describes the effects of such an administrative pardon (at paragraph 116): Sections 5 and 6(2) C.R.A. set out the effects of granting a pardon: (1) it is evidence that the National Parole Board, after making the inquiries specified in the Act, was satisfied that the applicant was of good conduct and that the conviction in respect of which it is granted should no longer reflect adversely on his character; (2) it vacates the conviction and removes any disqualification to which the person is subject by virtue of any federal Act or regulation made thereunder; and (3) it results in any record of the conviction being kept separate and apart: in other words, the criminal record is expunged.

In and of themselves, these provisions do not persuade me that the pardon can operate to retroactively wipe out the conviction. Rather, they are an expression of the fact that it still exists, combined with a desire to minimize its future consequences…. [25] As can clearly be seen, it is not, therefore, a free pardon within the meaning of subsection 748(2) Cr. C., whereby the person shall be deemed never to have committed the offence in respect of which it was granted ( subsection 748(3) Cr.C .). [26] In the case of an administrative pardon, unlike a free pardon, the conviction is not retroactively vacated.

It is possible that, depending on the circumstances, the consequences of the conviction may re-emerge. Sections 7 and 7.1 of the CRA deal with the revocation of an administrative pardon and

section 7.2 deals with its cessation of effect. [ 11 ] As already indicated, the notice of greater penalty engages the minimum penalty of four months in jail. The validity a notice of greater penalty in circumstances where there is a dated criminal record has recently been the subject of comment; see R v Gill 2011 ONSC 1145 . Having regard to the decision I have reached I need not consider that issue. That is, having regard to the facts of this case and the fundamental purposes of sentencing, I am of the view that a sentence beyond the statutory minimum is required.

The offender put the public at great risk by driving while his ability to do so was impaired by alcohol. His misconduct resulted in injuries to Ms Camille Smith that significantly impacted her and, to a lesser extent, members of her family. He has a dated and related criminal record. The offender pled guilty and, notwithstanding the delay in doing so, I am satisfied that his remorse is genuine and substantial. [ 12 ] In all the circumstances, a fit sentence is one of six months jail.

This will be followed by a period of probation for one year on terms that he keep the peace and be of good behaviour, report to a probation officer and take counseling for substance abuse. In addition, he must not associate or communicate with Ms Camille Smith, Ms Danielle Smith, and Ms Mary Byberg-Smith or any members of their immediate families. Mr. Gamble is also prohibited from operating a motor vehicle for a period of five years. ___________________________ Signed: “Justice J. De Filippis” Released: 6 October 2011