) ) HIS MAJESTY THE KING – v. –, 2023 ONSC 1609

CITATION : R. v. Ruznisky, 2023 ONSC 1609 COURT FILE NO.: 15753/22 DATE: 20230310 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HIS MAJESTY THE KING – and – RYAN JAMES RUZNISKY Defendant ) ) ) ) ) ) ) ) David Parke for the Crown Jeremy Naresh for Mr. Ruznisky ) ) HEARD: January 19, 2023 reasons for sentence c. boswell j. [ 1 ] Mr. Ruznisky entered a guilty plea to one count of operating a motor vehicle while his ability to do so was impaired by alcohol, contrary to s. 253(1) (

a) of the Criminal Code of Canada . [ 2 ] I heard counsel’s sentencing submissions on January 19, 2023. The following are my reasons for the sentence imposed today. The Circumstances of the Offence [ 3 ] Durham Region police received a service call at roughly 10:16 p.m. on February 26, 2018 to attend 177 Wilson Road South in Oshawa. A 4-door Mazda vehicle driven by Mr. Ruznisky had left the roadway and collided with a residence at that location. The vehicle had been eastbound on Eulalie Avenue, which ends in a “T” intersection at Wilson Road.

Instead of turning at the intersection, the Mazda went straight across the road and collided with the house at 177 Wilson. An eyewitness described the vehicle as travelling at a “high rate of speed”. [ 4 ] When the police arrived, they found the Mazda had crashed through a wall of the home and was located in the living room. Fortunately, the home was vacant at the time of the collision. [ 5 ] Mr. Ruznisky was found in the driver’s seat of the Mazda, unconscious. He was extracted from the vehicle with the assistance of the fire department and he was transported to hospital.

An empty Polar Ice vodka bottle was located in the vehicle. [ 6 ] A sample of Mr. Ruznisky’s blood was taken at the hospital. The police obtained a warrant to seize it. It was determined that his blood alcohol content at the time of the collision was in a range between 207 mg per 100 mL of blood and 242 mg per 100 mL of blood. The Circumstances of the Offender [ 7 ] Mr. Ruznisky was born in March 1978. He was just shy of 40 years old at the time of the offence. [ 8 ] As a youth he was very active in sports and excelled in baseball and hockey.

He was living what he described as a “phenomenal” childhood until about age 17 when his parents separated. He was not prepared for the separation and it took a toll on him. He began to party with friends and by age 20 was living on his own. He had hoped for a career in professional sports and elected not to pursue post-secondary education. His dream career did not pan out however and instead he took a job at a warehouse that distributes alcoholic beverages. He has maintained the same job for 25 years. [ 9 ] Two years ago Mr. Ruznisky disclosed to his family that he had been sexually abused by a coach at age 13.

He had been supressing that information for some 30 years. He made his disclosure to his father after seeing on the news that the coach had been charged in relation to another complainant. [ 10 ] Mr. Ruznisky has struggled with substance abuse and addictions for many years. Whether those struggles are causally linked to the sexual abuse he experienced as a child is somewhat speculative on the limited record before me. That said, social awareness of the

long-term traumatic effects of childhood sexual abuse has increased dramatically over the last couple of decades. Recently the Supreme Court recognized that children who have suffered sexual abuse are “more likely to s truggle with substance abuse, mental illness, post- traumatic stress disorder, eating disorders, suicidal ideation, self-harming behaviour, anxiety, depression, sleep disturbances, anger, hostility, and poor self-esteem as adults.” See R. v. Friesen , 2020 SCC 9 at para. 81 . [ 11 ] Mr. Ruznisky first tried alcohol at age 14. By his 30s he was drinking 6-12 beers per day.

On top of his addiction to alcohol, he developed an addiction to Oxycodone in the early 2000s, which continued for about a decade. He entered a methadone treatment program in 2017, which was completed by 2018. He reports being opioid-free since then. [ 12 ] In 2018 he attended and completed a 30-day inpatient treatment program for alcohol addiction. A subsequent relapse led to a second 30-day inpatient treatment program in 2021. Again, he relapsed. He entered a third 30-day inpatient treatment program in February 2022 and reports that he has been clean and sober since completing that program. [ 13 ] Mr.

Ruznisky’s substance abuse issues have led to serious health and relationship problems. In October 2020, he experienced heart failure and his liver, kidney and lungs were shutting down. He fell into a coma which lasted five days. He was in intensive care a further ten days. He has experienced mental health issues as well, which have landed him in hospital. [ 14 ] This is not Mr. Ruznisky’s first conviction for a drunk driving offence. It is his fourth.

He has the following prior convictions: • November 8, 2000, driving while impaired; • November 25, 2014, driving with over 80 mg of alcohol in his blood; and, • March 26, 2021, another “over 80”. I note that this third conviction was entered after the index offence was committed. [ 15 ] Mr. Ruznisky currently resides in Guelph with his father. He has a strong support network of family and friends. He is remorseful about the offence and thankful nobody, besides him, was hurt. The Impact of the Offence [ 16 ] The offence caused extensive damage to the home at 177 Wilson Road South.

The damage was repaired through insurance. No Victim Impact Statement was filed. No restitution has been sought by the insurer.

The Principles and Purposes of Sentencing [ 17 ] The objectives of sentencing are codified in s. 718 of the Criminal Code and include: the denunciation of unlawful conduct; general and specific deterrence; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims and the community; and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done. [ 18 ] The importance of these individual objectives, and how they interact, varies from case to case.

There is little debate that the objectives of denunciation and deterrence are the most prominent given the nature of the offence, the prevalence of drunk driving in the community and the fact that Mr. Ruznisky is a repeat offender. [ 19 ] In pursuit of the recognized objectives, the court is guided by the overarching principle of proportionality. Indeed, the starting point for any sentencing is the requirement that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 Cr.

C . [ 20 ] Proportionality engages two concepts: censure and restraint. As Lebel J. explained in R. v. Ipeelee , 2012 SCC 13 , at para. 37 : Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system…Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender.

In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [ 21 ] The concept of proportionality compels courts to treat like cases alike and to recognize where there are material differences between different offenders and different offences. Section 718(2)(

b) Cr. C. specifically provides that “ a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. [ 22 ] Having said that, proportionality, as a guiding sentencing principle, must be considered through an individualized lens. As former Chief Justice McLachlin described it in R. v.

Nur , as above, at para. 43, …[I]mposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime… [ 23 ] It is necessary that the court carefully consider the particular circumstances of the offence and of the offender and take account of any aggravating and mitigating circumstances. The Legal Parameters [ 24 ] Pursuant to s. 255(1) (

a) of the Criminal Code , as at February 26, 2018, a person convicted of an offence under s. 253(1) of the Code is liable to a maximum penalty of five years in prison. Where the conviction is for a third offence, a minimum sentence of 120 days applies, together with a driving prohibition of no less than three years, pursuant to what was then s. 259(1)(c).

[25] It is common ground that the index offence is Mr. Ruznisky’s third, for sentencing purposes. It is also common ground thatthe Crown served the notice seeking the enhanced minimum penalty required by s. 727(1) of the Code. The Parties’ Positions [26] The Crown seeks a sentence of six months imprisonment, a driving prohibition of three years and a term of probation with arequirement that Mr. Ruznisky engage in counselling for his alcohol addiction. [27] The Crown points to the fact that Mr.

Ruznisky is a repeat offender and stresses the need for clear denunciation anddeterrence. [28] Crown counsel accepts that Mr. Ruznisky is an alcoholic and is not unsympathetic to the factors that may well have led to Mr.Ruznisky’s history of substance abuse. But, the Crown says, alcoholism does not inexorably lead to drinking and driving. [29] The Crown contends that the mandatory minimum of 120 days imprisonment would be grossly insufficient in this case, inlight of the aggravating circumstances. The fact that a third party was not seriously injured by Mr.

Ruznisky’s decision to drive whileseverely intoxicated is a matter of pure luck. [30] The position of the defence does not differ substantially from that posed by the Crown. There is agreement on the three-yeardriving prohibition and an 18-month term of probation with a counselling requirement. Where the parties differ is with respect to theappropriate custodial term. The position of the defence is that the 120-day minimum is sufficient to achieve all of the pertinentobjectives of sentencing, while at the same time recognizing the principle of restraint and reflecting a just and proportionate sentence.

Discussion [31] The problem of drinking and driving has proven to be a very stubborn one. In R. v. McVeigh, (1985), (ONCA), 22 C.C.C. (3d) 145 – a ruling released almost forty years ago – then Associate Chief Justice MacKinnon made the followingremarks about the need for significant sentences in drunk driving offences: …The variations in the penalties imposed for drinking and driving are great and increasing sentences for offences at the "lower end"would emphasize that it is the conduct of the accused, not just the consequences, that is the criminality punished.

If such an approachacts as a general deterrent then the possibilities of serious and tragic results from such driving are reduced. No one takes to the road afterdrinking with the thought that someone may be killed as a result of his drinking. The sentences should be such as to make it very muchless attractive for the drinker to get behind the wheel of a car after drinking. The public should not have to wait until members of thepublic are killed before the courts' repudiation of the conduct that led to the killing is made clear. It is trite to say that every drinkingdriver is a potential killer.

Members of the public when they exercise their lawful right to use the highways of this province should not live in the fear that they maymeet with a driver whose faculties are impaired by alcohol. It is true that many of those convicted of these crimes have never beenconvicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence wouldbe in their best interests and be the most effective form of rehabilitation. However, it is obvious that such an approach has not gone anylength towards solving the problem.

In my opinion these are the very ones who could be deterred by the prospect of a substantialsentence for drinking and driving if caught… [32] Sentences generally have increased for this type of offence since 1985. Yet the problem persists. Not long after the indexoffence was committed, Parliament increased the maximum penalty for this offence, when pursued by indictment, from five years to ten. The increase signals the gravity that Parliament assigns to the offence, as do the minimum sentences imposed on repeat offenders. [33] There is no question that the court must impose at least a 120-day minimum sentence.

The only real live issue between theparties is whether an additional two month period of custody should be imposed to reflect what the Crown considers to be seriouslyaggravating factors. [34] There certainly are aggravating circumstances present here. They include the following: (

a) This is Mr. Ruznisky’s fourth conviction for a drunk driving offence – though at the time the offence was committed he had onlytwo prior convictions; (

b) Mr. Ruznisky was driving at a high rate of speed, while seriously impaired, in a residential neighbourhood; (

c) He crashed his vehicle into a residence, causing substantial damage. The fact that no one apart from Mr. Ruznisky was seriouslyinjured is a matter of genuine fortune; and, (

d) Mr. Ruznisky’s blood-alcohol content was between 207 and 242 mg/100 mL, which is roughly 2 ½ to 3 times the legal limit.Pursuant to s. 255.1, as it existed in February 2018, the court is directed to consider, as an aggravating factor on sentence, a blood alcoholcontent of greater than 160 mg/100 mL of blood. [35] There are also mitigating circumstances that must be taken account of. For instance: (

a) Mr. Ruznisky has, for most of his adult life, suffered from substance abuse, addictions and mental health issues. While I do nothave any case-specific evidence linking these issues to the sexual abuse he suffered at the hands of a coach as a 13-year old, I note that heis displaying many of the long-term symptoms of sexual abuse identified by the Supreme Court in Friesen; (

b) He has taken responsibility for the offence, entered a guilty plea, and expressed what I consider to be genuine remorse; and, (

c) He has completed a number of in-treatment addiction programs. He has been clean and sober for a year. And he has a strong

support network of family and friends. The road ahead will not be easy but there is reason for optimism. [ 36 ] Crown counsel provided the court with two authorities from the Ontario Court of Justice, where the overwhelming majority of impaired driving cases are heard. The cases referred to are R. v. Schwartz , 2010 ONCJ 504 and R. v. Bolender , 2010 ONCJ 622 . They speak to the contours of the Crown’s discretion to seek an enhanced penalty by serving notice under s. 727(1) of the Code . In the case at bar, there is no assertion that the Crown’s exercise of discretion was in any way improper.

Schwartz and Bolender are otherwise not of significant assistance in terms of the length of sentence to be imposed in circumstances similar to the ones now before the court. [ 37 ] I do note that in both cases, the mandatory minimum of 120 days was imposed. [ 38 ] The Schwartz decision does not include a review of the circumstances of the offence, other than to note that the offender had a blood alcohol concentration of 120 mg/100mL. [ 39 ] In Bolender , the facts were described in a little more detail by the sentencing judge.

The offender, he said, exhibited significant signs of impairment in an area frequented by the public in other motor vehicles and on foot. He was reported as possibly impaired by a server in a McDonald’s drive-thru and was arrested while parked in a nearby parking lot. His blood alcohol content was between 120 and 140 mg/100mL. He had two prior convictions for impaired driving. In addition, he had 13 other prior convictions for offences including violence, firearms and drugs. [ 40 ] The circumstances present in the case at bar are, in my view, significantly more aggravating than those in Bolender . Here, Mr.

Ruznisky was travelling at a high rate of speed in a residential neighbourhood. He had an extraordinarily high blood alcohol content. And he caused extensive damage to a residence. It is readily apparent that Mr.

Ruznisky’s prior convictions and the sentences imposed for them have had little impact on him. [ 41 ] With respect to the first conviction, in November 2000, he was fined $800 and a one year driving prohibition was imposed. [ 42 ] With respect to the second conviction, in November 2014, he was fined $2,000 and again prohibited from driving for a period of one year. [ 43 ] The circumstances present here are sufficiently aggravating to support the imposition of the sentence sought by the Crown.

Having said that, I am reluctant to impose that sentence for a number of reasons. [ 44 ] First, this is the first occasion when Mr. Ruznisky will be sentenced to a custodial term. The principle of restraint requires me to impose the least onerous sentence capable of meeting the relevant objectives. In my view, a four-month jail sentence, together with an 18-month period of probation and a three-year driving prohibition are sufficient to denounce Mr.

Ruznisky’s conduct and to send a strong message of deterrence. [ 45 ] Second, the graduated sentencing regime established in former s. 255(1) of the Criminal Code , and carried forward in what is now s. 320.19(1) , accounts for the fact that Mr. Ruznisky had two prior convictions for drinking and driving offences. [ 46 ] Third, the offence occurred five years ago. I am not able to say, on the record before me, why the case took so long to reach a conclusion. But it is apparent that, in the interim period, Mr. Ruznisky has made significant efforts to address his alcohol addiction.

In that time period he has attended three in-patient rehabilitation programs. He is now one-year clean and sober. He has a full-time job that he has maintained for 25 years and is living in a stable and supportive environment. [ 47 ] In my view, no meaningful purpose would be served by imposing a six-month jail term over a four-month jail term. It may, in fact, be counter-productive to Mr. Ruznisky’s significant efforts towards rehabilitation. [ 48 ] In the result, I sentence Mr. Ruznisky to the following: (

a) A custodial sentence of 120 days; (

b) A driving prohibition of three years; and, (

c) Probation for a period of 18 months on the following terms: (

i) Keep the peace and be of good behaviour; (ii) Appear before the court when required to do so; (iii) Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation; (iv) Report in person to a probation officer with 2 working days of your release from custody and thereafter at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision; and, (

v) Attend and actively participate in all assessment, counseling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer. C. Boswell J.

Released: March 10, 2023.