R. v. Patel, 2017 ONCJ 728

ONTARIO COURT OF JUSTICE CITATION: R. v. Patel, 2017 ONCJ 728 DATE: 2017 11 03 COURT FILE No.: Newmarket 15 09818 BETWEEN: HER MAJESTY THE QUEEN — AND — CHIRAG PATEL Before Justice David Rose Heard on November 3, 2017 Reasons for Judgment released on November 3, 2017 Mr. Hamilton........................................................................................ counsel for the Crown Mr. A. Sobcuff ..................................................... Counsel for the defendant Chirag Patel David Rose J.: [1] On August 30, 2017 I convicted Mr.

Patel of Impaired Care or Control and Over 80 Care or Control after a trial. These are myreasons for sentence. [2] The facts of the offence may be briefly stated. On December 18, 2015 Mr. Patel was driving to a restaurant with his elderlyparents when he passed out at the wheel, which brought the car to a stop in the roadway. His parents called a family friend, who arrivedbut could not wake him. EMS and then police arrived. The EMS attendants aroused him after repeatedly squeezing his shoulder. Hewas removed from the vehicle on a stretcher to a waiting ambulance. EMS personnel ruled out any medical issues.

He displayed grosssigns of impairment and was arrested by the police. He had difficulty walking from the ambulance to the police car. When the policecar arrived at the police station for breath testing he literally fell out of the car and had real difficulty walking into the booking area. Thebooking video shows him to have difficulty standing up on his own while the officers conducted a pat down search. [3] Mr. Patel provided two suitable samples of his breath.

Expert evidence from a toxicologist put his Blood Alcohol Content(BAC) at between 330 and 375 mg of alcohol in 100 ml. of blood. [4] The Pre-Sentence Report shows Mr. Patel to be 44 years old, separated for two years and with two children. He does notprovide child support but sees his children regularly. He has expertise in the Information Technology sector but has been unemployedsince this past June. He has supportive family. There seems to be no dispute that he is a severe alcoholic who has not yet received anytreatment. I was told in submissions that Mr.

Patel attended AA for a period of time in 2016. [5] I would identify the most significant aggravating factor being the gross signs of impairment and the BAC. To place this incontext, the BAC in R. v. Daviault, (SCC), [1994] 3 S.C.R. 63, was 400 – 600 mg of alcohol in 100 ml. of blood. Thatwas in the toxic range. At a level of 330 – 375, Mr. Patel’s BAC was just below that.

It is therefore not just a matter of exceeding thepoint at which Parliament deems a high BAC level aggravating in such cases under s. 255.1 of the Criminal Code, but rather one ofexceeding that level of 160 mg of alcohol in 100 ml. of blood by more than double. The gross signs of impairment insofar as Mr. Patelpassed out at the wheel in the roadway, fell out of the police car and had difficulty standing and walking are completely consistent with

the extraordinarily high BAC. [6] It is also aggravating that Mr. Patel had two elderly passengers in the car. They were not in a position to assist by taking overthe driving. While no one was harmed in this case, that is really just a matter of luck. Had the EMS not intervened, there was a veryhigh risk that bodily harm or worse would have resulted from Mr. Patel’s impaired driving. [7] It is mitigating that Mr. Patel has no prior criminal record, a supportive family and real prospects for good employment. Hisuntreated alcoholism requires a rehabilitative component in the sentence.

It also requires a sentence which will protect the public fromMr. Patel driving until his risk to re-offend is substantially lower. [8] In this case I would identify denunciation and deterrence as factors which stand out. The gross impairment and extraordinarilyhigh BAC make this clear. [9] Mr. Patel’s arrest was some 3 months after the tragedy which yielded R. v. Muzzo 2016 ONSC 2068 , 96 M.V.R. (6th)310 (S.C.). In that case a family was killed in late September 2015 by an impaired driver here in York Region. Publicity of that casewas high both locally and nationally, from the moment of the incident.

In the words of Fuerst RSJ, the case received “intense publicattention” see R. v. Muzzo, 2016 ONSC 2068 at par. 5. It could not have escaped anyone’s notice after September 27, 2015 that impaireddriving in York Region has tragic consequences for the community. I infer from this case that the extreme publicity surrounding R. v.Muzzo was of no moment in preventing Mr. Patel from driving his parents to a restaurant with a BAC more than four times the legallimit.

That, and my 3 years’ experience on the Bench here in Newmarket lead me to conclude that impaired driving in this community isnot on the wane, but rather on the rise. [10] In my review of statistics provided publically by the Ontario Court of Justice, it appears that the number of impaired drivingcases has risen noticeably in recent years. The figures for impaired driving cases received in the Newmarket Courthouse are: 2012: 833 2013: 819 2014: 875 2015: 1141 2016: 1100 [11] Counsel were given these figures at sentencing.

Therefore, there has been roughly a one-third increase in the number ofimpaired driving cases in Newmarket from 2012 to 2016. The Crown argues that there is an impaired driving problem in York Regionwhich is getting worse. I agree. As RSJ Fuerst said in R. v. Muzzo, (supra at par. 2), “the message that every drinking driver is apotential killer of innocent members of the community continues to go unheeded”. [12] The devastating consequences of impaired driving have been consistently noted from all levels of Courts, see R. v. Alex, 2017SCC 37, R. v. Bernshaw , (S.C.C.), R. v.

Ramage, 2010 ONCA 488, or more recently R. v. Sivandi, 2017 ONSC 5740. In Sivandi the offender had no prior criminal record, a high BAC and also had his family in the car. In upholding a jail sentence De Sa J.quoted from R. v. Proulx, 2000 SCC 5, to underscore the authority of a Court to impose a jail sentence where denunciation anddeterrence are particularly pressing, aggravating factors.

Summary Conviction Appeal cases on sentencing in impaired driving cases arerelatively rare. Sivandi is welcome guidance. [13] Mr. Sobcuff argues that if a custodial sentence is to be imposed then it should be a Conditional Sentence under s. 742. AConditional Sentence is an available sentence. That said, having reflected on the matter I find that it is not appropriate. This is one ofthose cases where a Conditional Sentence simply would not meet the fundamental principles of sentencing, notably deterrence anddenunciation objectives; see R. v. Chao, [2007] O.J. No. 1887 (Ont. S.C.J.), and R. v. Nguyen, [2005] O.J.

No. 6019 (Ont. S.C.J.). [14] The decision to incarcerate a first offender must not be taken lightly. That said, this case has a number of aggravating factorswhich elevate it to that range. Effect must be given to Mr. Patel’s rehabilitation. Sentencing is not an exercise in precision. Balancing allof the factors identified in evidence and submissions I would impose a 45-day jail sentence. There will be a two year drivingprohibition.

After Patel completes his sentence he will be placed on probation for two years with terms that he report, take counsellingfor alcohol abuse, and not occupy the driver seat of a motor vehicle unless he holds a valid licence. Released: November 3, 2017 Signed: Justice D.S. Rose