Impaired Driving Convictions In Alberta
The following document outlines the The Crown’s case against Kevin Wayne Gomes for impaired driving in Alberta. The case illustrates The Crown’s will to impose tough sentences on those who are multiple offenders for drunk driving.
R. v. Gomes, 2003 ABCA 149
IN THE COURT OF APPEAL OF ALBERTA
THE HONOURABLE MADAM JUSTICE FRUMAN
THE HONOURABLE MR. JUSTICE HART
THE HONOURABLE MR. JUSTICE BURROWS
HER MAJESTY THE QUEEN
- and -
KEVIN WAYNE GOMES
Appeal from the Sentence of
THE HONOURABLE JUDGE H.R. CHISHOLM
Dated the 19th day of August, 2002
MEMORANDUM OF JUDGMENT
DELIVERED FROM THE BENCH
Steven M. Bilodeau
For the Appellants
R. Kent Haryett
For the Respondent
MEMORANDUM OF JUDGMENT
DELIVERED FROM THE BENCH
FRUMAN, J.A. (for the Court):
 The respondent, Kevin Wayne Gomes, was convicted of impaired driving causing bodily harm pursuant to s. 125(2) of the Criminal Code. Gomes had a prior conviction for failing to provide a breath sample contrary to s. 124(5). Prior to sentencing, the crown served a notice of intention under s. 727, seeking a minimum term of imprisonment under s. 125(1)(a)(ii).
 At trial, the crown sought a period of incarceration, while the defence sought a conditional sentence. The crown took the position that the mandatory minimum penalties imposed by s. 125(1)(a) apply to impaired driving causing bodily harm. It argued that a conditional sentence was illegal because s. 742.1 is not applicable to offences punishable by a minimum term of imprisonment.
 The sentencing judge concluded s. 125(1)(a) did not apply to impaired driving causing bodily harm. He sentenced Gomes to a 9-month conditional sentence with a number of stringent conditions, including house arrest for the first four months. In addition, Gomes was required to perform 100 hours of community service and was prohibited from driving for 2 years.
 The crown appeals the sentence, arguing that the mandatory minimum sentencing provisions in s. 125(1)(a) apply to impaired driving causing bodily harm. If the crown is correct, a conditional sentence is not available to Gomes. The crown takes issue with the legality of the conditional sentence, but not the fitness of the sentence.
 Courts are to use a purposive and contextual approach in interpreting legislation. The words are to be read in their entire context and in their ordinary sense, harmoniously with the scheme and object of the act and the intention of parliament: Bell ExpressVu Limited Partnership v. Rex 2002 SCC 42 (CanLII), (2002), 212 D.L.R. (4th) 1 at 19 (S.C.C.), citing E.A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at 87. This is the first step of a multi-stage process. If, on completion of this preliminary step, the provision is found to be unambiguous and in harmony with the object of the act, as well as the general body of the law, no further analysis is necessary: R v. McIntosh, 1995 CanLII 124 (SCC),  1 S.C.R. 686 at 698, citing Driedger, supra at 105. Other principles of interpretation are applied only if ambiguity persists: Bell ExpressVu at 20.
 The relevant portions of s. 125 read as follows:
125. (1) Every one who commits an offence under section 123 or 124 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 six hundred dollars,
(ii) for a second offence, to imprisonment for not less than fourteen days, and
(iii) for each subsequent offence, to imprisonment for not less than ninety days;
(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and
(c) where the offence is punishable on summary conviction, to imprisonment for a term not exceeding six months.
(2) Every one who commits an offence under paragraph 123(a) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
(3) Every one who commits an offence under paragraph 123(a) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for life.
(4) Where a person is convicted of an offence committed under paragraph 123(a) or (b) or subsection 124(5), that person shall, for the purposes of this Act, be deemed to be convicted for a second or subsequent offence, as the case may be, if the person has previously been convicted of
(a) an offence committed under any of those provisions;
(b) an offence under subsection (2) or (3); or
(c) an offence under section 120, 121, 122, 123, 129 or 260 or subsection 128(4) of this Act as this Act read immediately before the coming into force of this subsection.
 After reading s. 125 in the context of the impaired driving and sentencing provisions of the Criminal Code, it is clear that the mandatory minimum sentencing requirements do not apply to impaired driving causing bodily harm. Section 125(1) provides that the minimum sentencing provisions apply to an offence “under section 123 or 124”. Section 123 creates the offence of driving while impaired. Impaired driving causing bodily harm is defined in s. 125(2). It consists of an offence under s. 123(a) with the consequence of causing bodily harm. The crown argues that because s. 123(a) contains the operative elements for all impaired driving offences, the minimum sentencing provisions in s. 125(1) apply not only to impaired driving, but also to impaired driving causing bodily harm and impaired driving causing death.
 Although all impaired driving offences have common elements and breath demand procedures, s. 125(2) creates a separate sentencing regime for impaired driving causing bodily harm, imposing a maximum sentence of 10 years and no minimum sentence. The distinction for sentencing and other purposes between impaired driving simpliciter and impaired driving causing bodily harm is recognized in the surrounding sections, for example, sections 125(4), 128(1) and (3), and 129(1) and (2).
 Further, the crown’s proposed interpretation results in a serious internal inconsistency in s. 125. If the minimum sentence set out in s. 125(1)(a) were to apply to impaired driving causing bodily harm, then the maximum sentence set out in s. 125(1)(b), a term of imprisonment of five years, must also apply. However, s. 125(2) imposes a maximum term of imprisonment of 10 years for this offence. The crown’s interpretation therefore creates an ambiguity, resulting in two different maximum sentences for the same offence. A similar ambiguity arises in respect of driving prohibitions under sections 129(1) and (2).
 The unique characteristics of the sentencing regime for impaired driving causing bodily harm contained in s. 125(2), the distinctions between sentences for the impaired driving simpliciter and impaired driving causing bodily harm made in the surrounding sections, and the inconsistencies that would result if s. 125(1)(a) were applied to impaired driving causing bodily harm lead us to conclude that the mandatory minimum sentencing provisions in s. 125(1)(a) do not apply to impaired driving causing bodily harm. While this issue has not been the subject of extensive judicial consideration, we note that neither existing case law nor text books support the crown’s interpretation. See, for example, R v. Poole (2001), 23 M.V.R. (4th) 27 (O.C.J.); R. v. Middlebrook,  O.J. No. 666 (O.C.J.) (QL); R. v. Melanson,  N.J. No. 38 (Nfld. Prov. Ct.) (QL); Allan D. Gold, Defending Drinking and Driving Cases 2002 (Toronto: Carswell, 2002) at 117; Roderick M. McLeod, John D. Takach & Murray D. Segal, Breathalyzer Law in Canada, vol. 2, 3rd edition (Toronto: Carswell, 1986) at 23-8; Clayton C. Ruby, Sentencing, 5th ed. (Toronto: Butterworths, 1999) at 844.
 Nevertheless, the crown argues that any other interpretation creates absurd and illogical results because s. 125(1)(a) would impose a mandatory minimum gaol sentence on an impaired driver who reoffends, while a similar penalty would not be imposed on an impaired driver who reoffends and injures or kills someone, a more serious crime.
 In our view, the possibility a repeat impaired driving offender who causes bodily harm will not go to gaol does not create an absurd result or necessitate a strained interpretation of s. 125(1). By law, sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1). In imposing a sentence a court must take into consideration a number of principles, including the requirement that the sentence “should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances” (s. 718.2(b)). A proper application of the sentencing principles and case law should result in a fit sentence for impaired driving causing bodily harm. The fact a judge has greater flexibility in sentencing does not mean that confining s. 125(1)(a) to impaired driving simpliciter is illogical or creates absurd results.
 Having found s. 125(1)(a) unambiguous, it is not necessary to consider the other interpretative arguments advanced by the crown.
 We therefore conclude that the minimum sentencing provisions in s. 125(1)(a) do not apply to impaired driving causing bodily harm. Accordingly, the trial judge was entitled to impose a conditional sentence.
 The appeal is dismissed.
APPEAL HEARD on April 22, 2003
MEMORANDUM FILED at EDMONTON, Alberta,
this 6th day of May, 2003
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Posted on May 27th, 2010