R. v. Bolender, 2010 ONCJ 622

COURT FILE No.: Region of Durham 998 09 10097 Citation: R. v. Bolender , 2010 ONCJ 622 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — John Bolender Before Justice J. De Filippis Heard on: December 7, 2010 Reasons for Ruling released on December 31, 2010 Mr. Newell ................................................................................................................. for the Crown Mr.

Isenstein ........................................................................................................ for the Defendant [ 1 ] The defendant was found guilty, after trial, of being in care and control of a motor vehicle while (1) his ability to do so was impaired by alcohol and (2) with a blood alcohol level that exceeded the legal limit. The conviction with respect to the charge of “over 80” was conditionally stayed by the Crown. The defendant will be sentenced for the offence of being in care and control of a motor vehicle while his ability to do so was impaired by alcohol.

In this regard, the Crown filed a Notice of Greater Penalty. The defendant moved to set aside that Notice. It is agreed that the Crown advised the Defence, early in the proceedings, that it would file the Notice upon a finding of guilt, whether or not that finding followed a trial or a plea of guilty. [ 2 ] I found the following facts: A truck, driven by the defendant, entered the McDonald’s drive-through in the Town of Beaverton on 10 December 2008. The defendant then drove to a nearby Subway Restaurant and parked. The police were called by an employee of McDonald’s to report the driver may be impaired.

The employee reported that the driver stuttered and slurred his words, his movements were slow and delayed and he was clumsy in handling coins. When the police arrived on scene, the defendant was seated in the driver’s seat. Officers detected an odour of alcohol from his breath and his speech was slurred and deliberate. When the defendant stepped outside, as requested, he fell backwards toward the truck and he straightened again. This happened several times.

Later, at the station, the defendant provided two breath samples which revealed (truncated) blood alcohol readings of 140 and 120. [ 3 ] The defendant is 55 years old and operates a landscaping company with four to six employees. The conviction in this matter is the 15 th one for the defendant since 1981. He has been found guilty of crimes of violence, firearms, drugs, and driving offences, with sentences ranging from probation to the penitentiary. Of particular relevance to this motion are two previous convictions for driving while his ability was impaired by alcohol.

The first was recorded in 1998 for which the defendant was sentenced to a $750.00 fine and a one year driving prohibition. On the same date he was also convicted of failing to stop at the scene of an accident. The second was recorded in 2001 for which he was sentenced to six months custody and a three year driving prohibition. On this date he was also convicted of flight while being pursued by police. [ 4 ] The filing of the Notice of Greater Penalty means the defendant faces a minimum sentence of 120 days in jail for this third drinking and driving offence.

The defendant concedes that jail may be appropriate in this case but asks that I set aside the Notice and not be bound by the minimum penalty prescribed by the Criminal Code . His principle argument is that the filing of this Notice is unreasonable and need not be recognized by the Court. In the alternative, he argues that the filing of it is inconsistent with Crown policies and, as such, is contrary to

section 7 of the Charter. [ 5 ] The following provisions of the Code are relevant to the motion in question: 255

(1) Every one who commits an offence under

section 253 or 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; (

b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and (

c) if the offence is punishable on

summary conviction, to imprisonment for a term of not more than 18 months. 727

(1) Subject to subsections (3) and (4), where an offender is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, no greater punishment shall be imposed on the offender by reason thereof unless the prosecutor satisfies the court that the offender, before making a plea, was notified that a greater punishment would be sought by reason thereof. [ 6 ] Also relevant are policies developed by the Ministry of the Attorney General with respect to certain offences, including impaired driving. The Crown Policy Manual , dated 21 March 2005, has a

section entitled, “Impaired Driving and Road Safety” that includes the following principles: “Impaired driving offences are matters of grave concern to the community and should be prosecuted as vigorously as any other criminal offence” and “Deterrence and denunciation are the primary sentencing principles in cases involving impaired driving offences”. A Practice Memorandum , dated 2 July 2008 “provides guidance to Crown counsel in the prosecution of impaired driving and other road safety related offences, including street racing”.

It states that Crown counsel “must file the Notice of Intention to seek the mandatory minimum jail sentence, as required by the Criminal Code , in all cases where an accused has a previous conviction for a drinking and driving offence within a five year period, absent exceptional circumstances” and “should consider seeking an increased penalty in cases where the offender’s previous conviction is beyond the five-year period”. In the latter cases, Crown counsel “should be mindful of the aggravating factors set out in

section 3”.

Those aggravating factors are as follows: Death, serious injuries and/or substantial property damage; A motor vehicle collision; Driving conduct that poses a high risk to other motorists, pedestrians and/or police, such as excessive speed, racing or flight from police; Whether the offence involves breach of a court order and frustrates the administration of justice, such as driving while prohibited; Whether the offence interferes with the enforcement of drinking and driving laws, such as failing to remain at the scene of the accident, flight from police or refusing to provide breath samples; The presence of vulnerable people, such as children (either in a motor vehicle or on foot); Any prior record for similar offences and/or fail to comply offences; Whether the accused’s provincial driving record indicates a history of unsafe driving and/or driving while suspended; High levels of blood alcohol concentration ( s. 255.1 of the Criminal Code deems a reading over 160 milligrams to be an aggravating factor on sentence); Effect of past convictions and sentences upon the accused, including whether or not he or she has participated in treatment programs for alcoholism and/or drug addiction; Whether there is other evidence of chronic alcoholism. [ 7 ] The sentencing regime for drinking and driving offences in Ontario was described as follows in R v Singh 2008 ONCJ 654 (CanLII) , [2008] O.J.

No. 5122 (C.J.): 5 The escalating minimum sentencing scheme in

section 255 is one based solely on recidivism….On its own the

section would require its minimums to be imposed no matter how old the previous conviction or convictions…… The Crown's exercise of discretion operates therefore in the direction of forbearance or exception from, rather than inclusion within, a fixed sentencing scheme. 6 The Ontario Crown's office has established policy in an attempt to achieve some uniformity in approach to the exercise of discretion under the section….The basic rule is that notice shall be given if there is a conviction within the previous five years. Exceptions shall be considered in consultation with the Crown Attorney or Regional Director.

Further, notice may be given in cases falling outside of the five year rule at the discretion of prosecuting counsel (without the requirement of consultation). A number of relevant factors to the exercise of that discretion are listed….They include not only the age and number of past convictions but also consideration of the circumstances of the present offence and the offender. [ 8 ] While I accept the aforementioned comments, I do not arrive at the conclusion reached in Singh and other cases relied upon by the defendant, such as R v Molha [2008] O.J.

No. 5440 (C.J.) and R v Gill 2008 ONCJ 502 (CanLII) , [2008] O.J. No. 4104 (C.J.). These rulings were made by other judges of my court; I am not aware of appellate authority and none was brought to my attention. Judgments of coordinate courts are persuasive and should be given considerable weight unless there are very cogent reasons to depart from such decision. [1] Since the defendant’s primary argument closely follows those decisions, I will set out the relevant rulings and explain why I cannot agree with them.

However, before doing so, I will deal with the defendant’s alternative argument that the filing of Notice in this case is not in accord with Crown policy. [ 9 ] The defendant’s prior two convictions for impaired driving are beyond the five year period referred to in the Crown policy and most of the aggravating factors listed therein do not apply to him. However, some aggravating factors are present: The defendant posed a high risk to others because he exhibited significant signs of impairment in an area frequented by the public, in motor

vehicles and on foot. In addition his blood alcohol readings were 50% above the legal limit and this offence shows that his prior convictions have had little impact upon him. In these circumstances, it cannot be said that the filing of the Notice is inconsistent with Crown policy. In any event, as the Practice Memorandum makes clear, it provides “guidelines” for prosecutors to consider in arriving at decisions; it is not meant to be a rigid or comprehensive policy. [ 10 ] The main thrust of the defendant’s motion is that the filing of the Notice is unreasonable and should be given no effect.

In Gill , the Court stated as follows: 29 What began as a provision intended to ensure that an accused was provided with fair notice of the Crown's intention, has evolved into a sentencing scheme which has the effect of empowering the Crown to dictate when a minimum jail sentence will be imposed.

In real terms, the Crown is now empowered to broaden or narrow Parliament's sentencing range in a way that binds the sentencing Judge. 30 A sentencing regime that does not allow Parliament, or even the Court, to determine whether a minimum sentence will apply but, in effect, vests that decision entirely in the hands of the Prosecution, one of the two litigants in the case, raises concerns about the fairness of such a scheme.

Where that decision can be made without requiring any reasons to be given for that decision, and where that decision is beyond any review by the Court short of an abuse of process , such a sentencing scheme would be contrary to

section 7 of the Charter…. 32 Discretionary decisions made by Crown counsel in relation to their core prosecutorial functions are not reviewable by a Court except where there is an abuse of the court's process. In those cases, the Courts will intervene and grant a remedy only in the clearest of cases…. 34 In my view, the decision to file notice is not a core prosecutorial function. In my view, any other

interpretation would result in a sentencing scheme that would be contrary to

section 7 of the Charter….. 64 Given the absence of any reasonable explanation offered by the Crown in this case, I conclude that the Crown's decision to file the notice was an unreasonable exercise of its discretion. Accordingly, I will set aside the filing of the notice and proceed to sentence Mr. Gill, with full knowledge of his record, but not bound by the minimum as though notice were provided.

The Crown can still argue for a custodial sentence in view of the record. [ 11 ] Gill was adopted in Molha , where the Court held as follows: 21 A practice or custom has developed in the context of the joint operation of sections 255(1) (a)(ii) and 727(1) of the Criminal Code that has the practical effect of empowering the Crown to dictate when a minimum jail sentence will be imposed. As Borenstein J. notes in R. v. Gill , [2008] O.J. No. 4104 , 2008 ONCJ 502 : "In real terms, the Crown is now empowered to broaden or narrow Parliament's sentencing range in a way that binds the sentencing Judge." 25 In R. v.

Gill , referenced above, Justice Borenstein ruled that a constitutional exemption was not an available or appropriate remedy. He found that the exercise of discretion in the filing of the Notice which was not subject to Court review except on demonstration of bad faith or flagrant impropriety would offend

section 7 of the Charter. He then examined the nature of the discretion involved and ruled that it was not a "core" prosecutorial function and therefore the exercise of the discretion to file the Notice of Increased Penalty was subject to review on a "reasonableness" standard….. 28 The discretionary power over the filing of a Notice exercised by the Crown where the prior conviction is more than five years old is therefore a power that the Crown has appropriated to itself without statutory justification.

The custom or practice developed by the Crown has been implicitly endorsed in the jurisprudence as a responsible and acceptable method of interpreting the statutory provisions in a manner that makes them constitutionally tolerable. ( See R. v. Kumar (1993), 1993 CanLII 1445 (BC CA) , 85 CCC (3rd) 417 (BCCA) ) Nevertheless, in these circumstances, I find that the practice cannot be reasonably characterized as a "core" Crown function…..

The exercise of the discretion is therefore reviewable on a standard of reasonableness... [ 12 ] The Court in Singh followed Gill , in part: 3 ….More narrowly, counsel argues that the Crown's discretion with respect to invoking statutory minimums, not being a core prosecutorial discretion, is reviewable by the court on a standard of reasonableness: R. v. Gill supra paras. 46-50 .

Counsel submits that if the court concludes that the Crown's exercise of discretion in this case is unreasonable, the giving of Notice and the minimum term of imprisonment can be ignored…. 8 In this case there is a single conviction well outside the 5 year guideline. It was not for an aggravated form of the offence, such as cause bodily harm or death, and by the penalty imposed it would appear to have been a usual case of its kind. In short, there is nothing about the nature, number or date of the prior conviction that would favour the giving of notice.

On the other side of the ledger, tolerably uniform application of the discretion is highly desirable. In my experience, at least in this jurisdiction, notice is rarely if ever given based on a record of this type and vintage. Finally, even adding circumstances of the present offence into the mix, those circumstances are not so egregious as to make this case highly exceptional. It is my view that the exceptional exercise of discretion in this case, markedly out of step with similar cases, renders it unreasonable.

The Notice and the minimum sentence should be disregarded. [ 13 ] Singh, Molha, and Gill emphasize that the decision by the Crown to file the Notice of Greater Penalty is not a core prosecutorial function and that this permits the Court to review the decision on a standard of reasonableness. In my respectful view, this approach is wrong. The filing of the Notice is a classic example of the exercise of Crown discretion and, as such, the reviewing power of the Court is an important, but limited, one.

Specifically, I do not agree that the Crown Policy Manual and/or Practice Memorandum expands the scope of judicial review of Crown discretion as set out in R v Power 1994 CanLII 126 (SCC) , [1994] 1 S.C.R. 601. [ 14 ] In Power the Supreme Court of Canada examined the role of Crown discretion and the authority of the court to review it:

34 That courts have been extremely reluctant to interfere with prosecutorial discretion is clear from the case law. They have been so as a matter of principle based on the doctrine of separation of powers as well as a matter of policy founded on the efficiency of the system of criminal justice and the fact that prosecutorial discretion is especially ill-suited to judicial review…. 36 La Forest J. stated in R. v. Beare, 1988 CanLII 126 (SCC) , [1988] 2 S.C.R. 387 , at pp. 410-11 : “Discretion is an essential feature of the criminal justice system.

A system that attempted to eliminate discretion would be unworkably complex and rigid. Police necessarily exercise discretion in deciding when to lay charges, to arrest and to conduct incidental searches, as prosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way of indictment or

summary conviction, launch an appeal and so on…. 40 Moreover, should judicial review of prosecutorial discretion be allowed, courts would also be asked to consider the validity of various rationales advanced for each and every decision, involving the analysis of policies, practices and procedure of the Attorney General. The court would then have to "second-guess" the prosecutor's judgment in a variety of cases to determine whether the reasons advanced for the exercise of his or her judgment are a subterfuge.

This method of judicial review is not only improper and technically impracticable, but, as Kozinski J. observed in United States v. Redondo-Lemos, 955 F.2d 1296 (9th Cir. 1992), at p. 1299: “Such decisions [to charge, to prosecute and to plea-bargain] are normally made as a result of a careful professional judgment as to the strength of the evidence, the availability of resources, the visibility of the crime and the likely deterrent effect on the particular defendant and others similarly situated.

Even were it able to collect, understand and balance all of these factors, a court would find it nearly impossible to lay down guidelines to be followed by prosecutors in future cases. We would be left with prosecutors not knowing when to prosecute and judges not having time to judge. Such a situation would be conducive to a very inefficient administration of justice. Furthermore, the Crown cannot function as a prosecutor before the court while also serving under its general supervision.

The court, in turn, cannot both supervise the exercise of prosecutorial discretion and act as an impartial arbitrator of the case presented to it. Judicial review of prosecutorial discretion, which would enable courts to evaluate whether or not a prosecutor's discretion was correctly exercised, would destroy the very system of justice it was intended to protect (United States v. Redondo-Lemos, supra, at p. 1300).” [ 15 ] Power underscores the importance of discretion to the functioning of the criminal justice system and that the reviewing power of the court is a limited one.

The Court of Appeal for Ontario highlighted this in R v L.E. 1994 CanLII 1785 (ON CA) , [1994] O.J. No. 2641 (C.A.): 27 … While I do not believe that the Crown has an unfettered right to withhold consent to a re-election under s. 561(1)(c), the court cannot review this exercise of statutory discretion relating to the mode of trial unless it has been demonstrated on the record that there has been an abuse of the court's process through oppressive proceedings on the part of the Crown.

I would think that there would have to be some showing before the trial judge that the Crown had exercised its discretion arbitrarily, capriciously or for some improper motive so as to invite an examination as to whether there was an abuse of process under s. 7 of the Charter. …. 28 The standard for establishing an abuse of process is very onerous. L'Heureux-Dube J. examined this concept at length in R. v. Power (1994), 1994 CanLII 126 (SCC) , 89 C.C.C. (3d) 1 (S.C.C.) .

She stated at p. 10: “I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court's process but only in the "clearest of cases", which in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention.” [ 16 ] The defendant does not claim that he is the victim of an abuse of process.

Rather, he argues that the Crown should not have the power to bind the Court with respect to sentence and that this non-core prosecutorial function is unreasonable in this case. This puts the cart before the horse. What binds the Court is the Criminal Code; the filing of the Notice engages the statutory provision. In any event, many of the discretionary powers of the Crown, as recognized in Power , bind the Court. These include the deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way of indictment or

summary conviction, and launch an appeal. The fact that the Crown has developed policies for the exercise of a discretionary power does not change its essential character. [ 17 ] The position advanced by the defendant is detrimental to the proper functioning of the criminal justice system. Crown decisions, such as launching and maintaining prosecutions, plea bargaining, and appealing can be based on a myriad of factors and courts are ill-suited to evaluate those decisions properly.

To suggest otherwise, on a theory of “core prosecution functions” is to place the court in the untenable position of second-guessing prosecutors in the making of decisions properly falling within their powers. The filing of the Notice of Greater Penalty can be set aside if it is shown that the Crown exercised its discretion arbitrarily, capriciously or for some improper motive. No such claim has been established in this case – indeed, none has been suggested. Accordingly, the motion must fail. [ 18 ] The Notice of Greater Penalty is a valid exercise of Crown discretion.

The defendant will be sentenced in accordance with minimum penalty of 120 days in jail as set out in s. 255 of the Code. Released: December 31, 2010 Signed: “Justice J. De Filippis”

[1] Stockwood, D. Stare Decisis: The Heart of the System, Rarely Visited, ( Winter 2003) 22 Advocates' Soc. J. No. 3, 1 - 6