R v Todoruk, 2019 MBCA 100

Citation: R v Todoruk, 2019 MBCA 100 Date: 20191008 Docket: AR19-30-09325 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : Her majesty the queen ) G. R. Clay ) for the Applicant (Respondent) Respondent ) ) R. N. Malaviya - and - ) for the Respondent ) ) Chambers motion heard: HARRISON TODORUK ) September 19, 2019 ) (Accused) (Appellant) Applicant ) Decision pronounced: ) October 8, 2019 cameron JA [ 1 ] The accused brought a motion for an extension of time to file an application for leave to appeal a four-month conditional sentence imposed on him in response to his guilty plea to

summary conviction proceedings taken against him for the offence of flight from a peace officer in pursuit (section 249.1(1) (now

section 320.17) of the Criminal Code (the Code )). The motion to extend was filed two days past the deadline for his application for leave to appeal his sentence. All parties agreed that the reason the deadline was missed was that his counsel inadvertently attempted to file an appeal of his sentence on the final date for filing rather than an application for leave to appeal. The Crown opposed the motion for an extension solely on the basis that the appeal lacked merit.

In light of this, the Court advised the parties to be prepared to argue the application for leave to appeal sentence at the same time as the motion for an extension of time to file the application. [ 2 ] At the hearing of the matter, the Crown, appropriately in my view, consented to the extension of time, and the application for leave to appeal proceeded on its merits. [ 3 ] The accused pled guilty to the offence in Provincial Court, where he received the four-month conditional sentence. The

summary conviction appeal judge (the SCA judge) dismissed his appeal of that sentence. He now applies for leave to appeal to this Court, asserting that the sentence imposed was demonstrably unfit. He maintains he should have been sentenced to a conditional discharge (see section 730(1) of the Code ). [ 4 ] The accused lists four potential grounds of appeal. In essence, these grounds involve two issues.

First, that the SCA judge erred in dismissing the accused’s argument that the sentencing judge did not consider the five-year driving suspension that would be automatically imposed on the accused by operation of sections 264(1)(a.3)(vi) and 264(1.1) of The Highway Traffic Act , CCSM c H60 (the HTA ).

Next, he argues that both the sentencing judge and the SCA judge overemphasised deterrence and denunciation, thereby causing each of them to fail to consider the criteria for a conditional discharge and whether one should be imposed. [ 5 ] An appeal from the decision of the SCA judge constitutes a second-level appeal. The criteria normally considered were recently restated in R v Rule , 2017 MBCA 86 (at para 3 ): 1. The ground(

s) raised must involve a question of law alone. 2. Even if a question of law does arise, leave should only be granted if the matter raises an arguable case of substance. 3. There must be something exceptional about the arguable case warranting a second appeal hearing (see R v M (RW) , 2011 MBCA 74 at paras 26 , 32 and 34). [ 6 ] As stated by Chartier JA (as he then was) in R v Forsythe (JR) , 2009 MBCA 62 (at para 3 ):

[A]n application for leave under s. 839 [of the Code ] should be granted sparingly and with good reason. This case has already been reviewed by a judge of the Court of Queen’s Bench, which is the primary appellate court to review such matters ( see R. v. Suberu , 2007 ONCA 60 , 85 O.R. (3d) 127 , and R. v. Langlois (D.J.) , 2008 MBCA 72 , 228 Man.R. (2d) 256 ). Here, the granting of leave would bring about a second-level appeal. As was recently stated by Freedman J.A. in R. v.

Denys (C.D.) , 2009 MBCA 39 , when considering a s. 839 chambers leave application, “[t]he policy of the law is clearly to discourage second-level appeals in the absence of some compelling reason to conclude otherwise” (at para. 32). [ 7 ] The facts underlying the offence are that, at approximately 2:30 a.m. on September 2, 2017, the accused was driving on a main street in a small town in Manitoba. He had four passengers in his vehicle and had just left a social gathering. A lone RCMP officer attempted to pull the vehicle over by activating his cruiser car lights and turning his vehicle to follow the accused.

The accused refused to stop. Instead, he drove over the grass beside a motel apartment and through a yard, where he hit a tree and scuffed a truck that he owned. He then turned onto a road where he briefly travelled before driving through a field and passing a nearby business. He drove back onto the main street where he started, onto another road and into an adjacent yard where his vehicle became stuck. He fled his vehicle with one of the passengers. The remaining three passengers waited in the vehicle until the RCMP arrived.

The accused was arrested at his workplace on September 8, 2017. [ 8 ] At his sentencing hearing, the accused provided a number of letters of reference, as well as a favourable pre-sentence report. His explanation for the offence was that, at the time, his vehicle was not registered and he did not want to receive a ticket.

His counsel advised the sentencing judge that the accused had already served a one-year driving suspension pursuant to the HTA and that he would be receiving a further five-year suspension by way of operation of the HTA (the automatic suspension). [ 9 ] Regarding the automatic suspension, the SCA judge referred to the reasons of the sentencing judge in finding that, contrary to the accused’s assertion, she did consider it. He referred to her comment that she would leave it to the accused to “convince Manitoba Public Insurance that [he] should get [his] licence back” in support of his analysis of her reasons.

In his view, that comment was directly related to the automatic suspension. He found that it was for this reason that the sentencing judge declined to impose a discretionary driving prohibition as provided for in section 259(2) (now

section 320.24(4)) of the Code . [ 10 ] The assertion that the SCA judge erred in his consideration of this issue does not raise a question of law or a case of arguable substance. The reasons of the sentencing judge clearly demonstrate that she considered the automatic suspension. Furthermore, as stated by the Crown, the sentencing judge’s comments regarding the accused having the opportunity to convince Manitoba Public Insurance that he should get his licence back simply reflect that the accused is entitled to a “comprehensive procedure allowing a suspended driver to seek a reconsideration of the automatic suspension” pursuant to

section 279 of the HTA . [ 11 ] Similarly, the position of the accused, that the sentence was unfit on the basis that the sentencing judge and the SCA judge failed to consider whether a conditional discharge would be appropriate, does not raise a question of law or a case of arguable substance. [ 12 ] In oral argument, the accused asserted that the fact that the sentencing judge did not specifically analyse whether a conditional discharge would be in his best interests and not contrary to the public interest pursuant to section 730(1) of the Code constituted an error in law resulting in an unfit sentence.

He submits that he has significant mitigating factors that would support the imposition of a conditional discharge and that, to the extent that denunciation and deterrence were factors to be considered, they were addressed by the automatic suspension. As I earlier indicated, the reasons of the sentencing judge clearly show that she considered the effect of the automatic suspension and I would not consider this argument further. [ 13 ] In his reasons, the SCA judge specifically stated that the two points in issue before him were:

(1) Did the learned sentencing judge err in principle or was the sentence demonstrably unfit?

(2) Did the learned sentencing judge fail to properly address whether a discharge would be in the best interest of the [accused] and whether a discharge would be contrary to the public interest and fail to consider that deterrence and denunciation could be adequately addressed through a conditional discharge? [emphasis added] [ 14 ] As is evidenced above, contrary to the argument of the accused, the SCA judge was clearly alive to the criteria to be applied in consideration of whether or not a court should impose a conditional discharge and he was entitled to assume that the sentencing judge was aware of them as well. [ 15 ] In his reasons, the SCA judge correctly stated that, absent an error in principle or the imposition of a sentence that is demonstrably unfit, deference is to be applied to the decision of the sentencing judge (see R v PES , 2018 MBCA 124 at paras 13-15 ).

He noted, and I agree, that the sentencing judge made many references to the accused’s personal circumstances and mitigating factors in her reasons, including his youthful age, that the offence was “out of character”, his ability to rehabilitate and his remorse.

She was aware of his lack of prior criminal record, his positive pre-sentence report and letters of support. [ 16 ] On the other hand, the SCA judge cited case law which provides that, for the offence in question, the principles of deterrence and denunciation are of paramount concern (see R v Sturge , 2001 CarswellOnt 3691 at paras 8-9 (CA) ; R v Prymak , 2005

ABCA 377 at para 7 ; and R v Hiebert , 2015 MBPC 34 at para 20 ). He observed that the sentencing judge properly recognised that, in general, conditional discharges are not appropriate when deterrence and denunciation are the primary sentencing principles (see R v Foianesi , 2011 MBCA 33 at para 10 ). He referred to the case of R v Brackenreed , 2010 MBQB 24 , wherein the Court reviewed a number of flight-from-police decisions concluding that there was a wide range of sentences imposed, ranging from fines and discharges to lengthy periods of incarceration.

He concluded that the sentencing judge properly addressed all of the appropriate principles of sentencing and that the sentence she imposed was within the acceptable range for like offences. [ 17 ] In my view, the issues raised by the accused concern the manner in which the sentencing judge weighed the various factors to be considered in imposing sentence. In this regard, they do not amount to questions of law, nor are they of arguable substance.

I would also add that the re is nothing exceptional about them which would warrant a second appeal hearing. [ 18 ] Therefore, for all of the above reasons, I would grant the accused an extension of time to file his application for leave to appeal to September 19, 2019. I would dismiss his application for leave to appeal. JA