A lower court ruling that sentenced a 61-year old Montreal alcoholic and repeat offender of impaired driving offenses to only 120 days of imprisonment and a lifetime driving ban was upheld by the Quebec Court of Appeal in a ruling that reaffirms the discretionary sentencing powers of trial judges, highlights the merits of individualized sentencing, and reiterates the weight that can be given to rehabilitation when sentencing.
“The ruling is important because it shows there is still a place for individualized sentencing, that people who may not be cookie cutter examples of a sentence can actually get something that is outside of the norm because obviously the sentence he got was quite lenient,” said Dylan Jones, a Montreal criminal lawyer with Boro, Polnicky, Lighter. “It’s also important because it at least shows that if people are willing make efforts to change their lives for the better they can be rewarded for that.”
Stephen Fleisher, a Montreal businessman, was convicted between September 1975 and June 2007 of 14 offences involving motor vehicles, including six counts of driving under the influence, five counts of impaired driving, two counts of driving while disqualified, and one count of refusing to provide a breath sample. On June 2007, he was sentenced to 18 months of incarceration, three year’s probation and prohibited from driving for five years. On February 2010 and March 2010, Fleisher was again charged, with two counts of impaired driving, two counts of refusing to comply with a breath sample demand, and one count of driving while disqualified.
Nearly a year after being charged, Fleisher entered and eventually successfully completed a 10-week addiction treatment program. He also began to attend weekly meetings at an addiction outreach program. Moreover, Fleisher became involved as a volunteer in programs aimed at preventing and deterring others from drinking and driving. Besides speaking at schools about the dangers of drinking and driving, Fleisher established a service to provide shelter and alternate means of transport to individuals in downtown Montreal and Toronto to dissuade them from driving while inebriated. He also participated in a research program at the Université de Montréal examining the connection between criminality and alcoholism. As well, Fleisher sponsored the therapy of alcoholics unable to afford to pay for treatment.
In the meantime, Fleisher plead guilty to the charges on November 2012 but his sentence hearing was postponed a couple of times. A pre-sentence report completed on February 2013 concluded that Fleisher would appear to be a suitable candidate for a structured long-term counselling program. On December 2013, defence once again requested a postponement of the hearing to complete his therapy. The Crown contested the postponement request, citing section 720 of the Criminal Code of Canada, and insisting that Fleisher had pleaded guilty over a year earlier, that the case had already been postponed several times at his request, and that the charges carried a minimum sentence of imprisonment. Fleisher’s therapist testified that Fleisher was not ready to go to jail since he was going through a rehabilitation program and that it would “better for him to complete his therapy first.” The sentencing judge granted the adjournment, and on April 2014 found Fleisher to be rehabilitated, handed him the minimum sentence of 120 days, and concluded that a federal sentence of incarceration would be inappropriate and “could even have a negative impact on the rehabilitation efforts of other offenders.”
The Crown appealed the sentence. The Crown argued that the postponement of sentencing in order to monitor the behaviour of an accused or to allow him to complete rehab, detox, therapy or drug addiction programs is firmly condemned by the jurisprudence of appellate courts. The Crown also argued that the principle of incremental sentencing cannot trump the principle of proportionality nor can it be used in a way that diminishes the seriousness of the offence or detracts from the need for the protection of the public.
The appeal was dismissed, even though “I would not express agreement with the sentence because of its leniency,” said Quebec Court of Appeal Justice Mark Schrager in a 14-page ruling in Her Majesty the Queen v. Stephen Fleisher 2015 QCCA 642. “The real issue is whether placing such weight on the Fleisher’s rehabilitation constitutes an error justifying the intervention of the Court,” said Justice Schrager. “In the very exceptional circumstances of this case, it cannot be said, in my opinion, that there is an error in the weight that the sentencing judge chose to give to that aspect of the sentencing equation. The sentence is not unreasonable nor patently or demonstratively unfit.”
The appeal court held that that the sentence imposed by the sentencing judge falls within a recognized range for an impaired driver who, though a repeat offender, has succeeded in rehabilitation since arrest. While the judge’s emphasis was on rehabilitation, the appeal court said that it cannot be said that the judge gave no consideration or weight to denunciation and deterrence. The imposition of a lifetime driving ban is rare, and falls within the realm of deterrence and public protection, found the appeal court.
“The Criminal Code says that rehabilitation must be considered,” said Mia Manocchio, a Sherbrooke criminal defence lawyer. “It doesn’t say that it should be considered more or less than denunciation. Now the trial judge decided to give rehabilitation a lot of importance. That’s his prerogative. That’s why the Court of Appeal said who are we to get involved in the case and say that he is wrong. However, if the sentence hearing was held before another judge, it could have been a completely different sentence.”
The sentence was lenient by most standards because Fleisher succeeded in completing his addiction treatment program and because he has volunteered extensively in programs aimed at preventing and deterring others from drinking and driving – an exceptionally rare case, noted Montreal criminal defence lawyer Jean-Philippe Marcoux, an expert in defending accused facing impaired driving charges. Many complete rehabilitation programs but very few then become involved in community efforts to dissuade others from driving under the influence. That an expert testified on behalf of Fleisher certainly helped his case, added Marcoux. “Whether we like or not, unless there is clear evidence to the contrary, judges are likely to think that it’s only a matter of time before they repeat the offence because that’s what they did in the past,” said Marcoux. “In this case there was an expert who testified that it was important that Fleisher complete his therapy before his prison sentence because otherwise there could serious consequences for him.”
The reach of the ruling remains to be seen, given the “exceptional circumstances” of the case, said criminal defence lawyers. While the ruling does not create jurisprudence, it does underline that rehabilitation and individualized sentences do have a place in the Canadian justice system, added the criminal defence lawyers. “It’s good to see that in Canada, where there has been a lot of talk by the Conservative government to impose minimum sentences, that this judgment helps to show that there are other options than simply locking the person up. Sentencing is not a mathematical formula. There are individual factors at play and that should vary the sentence, so it is important to give judges the power to do that.”
This story was originally published in The Lawyers Weekly.