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SENTENCING-DRIVING WHILE DISQUALIFIED-SECTION 320.18(1) OF THE CRIMINAL CODE

R. v. SIMEUNOVICH, 2023 ONCA 562, AUGUST 28, 2023.

FACTS: The accused pleaded guilty to five counts of driving while disqualified, contrary to s. 320.18(1) of the Criminal Code. The sentencing judge imposed a period of 8.5 years of imprisonment, consecutive to a sentence being served for another offence.  The circumstances were described by the Ontario Court of Appeal in the following manner (at paragraphs 4 and 5):

[W]hile still living in a halfway house on parole, the appellant was observed by police operating a pick‑up truck for over an hour. When arrested, the police found the appellant in possession of a fraudulent, forged driver’s licence.

At the time of his arrest in 2021, the appellant was subject to 22 driving prohibitions – 14 under the Criminal Code and 8 under provincial legislation – which stemmed from eight previous convictions. He was also subject to a lifetime prohibition from driving.

HELD:  The appeal was dismissed. The Ontario Court of Appeal held that the “sentencing judge properly instructed himself that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As the Supreme Court of Canada instructed in R. v. Parranto, 2021 SCC 46, 411 C.C.C. (3d) 1, at para. 10, proportionality is the organizing principle in reaching the goal of a fair, fit, and principled sanction for a specific case; the principles of parity and individualization, while important, are secondary principles” (at paragraph 16).  The Court of Appeal concluded as follows (at paragraphs 19 to 21):

 Although the appellant’s driving on December 8, 2021 did not display the elements of dangerous driving causing injury to another that led to his 2018 convictions, the sentencing judge properly observed that when a person who has been prohibited from driving on multiple occasions continues to drive while disqualified, they present a risk to public safety: R. v. Lavergne, 2018 ONCJ 901, at para. 86.

The gravity of this risk to public safety was reflected in Parliament’s 2018 amendment that increased the maximum penalty for the offence of driving while disqualified from five years to ten years. The cases most heavily relied upon by the appellant to support his argument about the disproportionality and lack of parity of the sentence imposed were decided at a time when the maximum sentence for the offence was five years and, consequently, provide little guidance. For, as the Supreme Court has directed, courts should depart from prior sentencing precedents when they no longer reflect society’s current understanding and awareness of the gravity of a particular offence and blameworthiness of particular offenders: Friesen, at paras. 35, 108, and 110; Parrantoper Moldaver J. (concurring), at para. 86.

When the sentence imposed is viewed through those legal lenses, the appellant’s lengthy criminal record, and his evident intention to ignore the driving prohibitions repeatedly imposed upon him over the years, I am not persuaded that the sentencing judge arrived at a sentence that did not reflect the gravity of the offence or the appellant’s blameworthiness.