



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Patriquin, 2012
    ONCA 67

DATE: 20120201

DOCKET: C53800

Feldman and Watt JJ.A. and Dambrot J. (
Ad Hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Wilfred Patriquin

Appellant

David W. Russell, for the appellant

Matthew Asma, for the respondent

Heard and released orally: January 24, 2012

On appeal from the sentence imposed on January 10, 2010,
    by Justice Faith M. Finnestad of the Ontario Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant contends that the sentencing judge committed three errors
    in principle in imposing a global sentence of five years on convictions of
    operating a motor vehicle with a prohibited blood alcohol concentration and
    leaving the scene of an accident.

[2]

The errors in principle advanced by the appellant are

i.

that the trial judge erred in failing to give appropriate weight to the gap
    principle in light of the substantial time that had elapsed between these
    offences and the appellants last related conviction;

ii.

that the trial judge erred in failing to accord appropriate weight to
    the appellants unstable health, a claim reinforced by fresh evidence of his
    current condition; and

iii.

that the trial judge relied in sentencing the appellant on a finding of
    fact that she had rejected in acquitting the appellant of impaired operation.

[3]

We would not give effect to any of the claims there.

[4]

The trial judge was well aware of the gap principle and its underlying
    rationale. The gap between related convictions in this case was considerable,
    but there was evidence, which the trial judge accepted, that, during the
    conviction free period, the appellant continued to consume excessive amounts of
    alcohol on a regular basis. In addition, there was evidence that the appellant
    was observed driving, or at least in charge of a motor vehicle, with open
    alcohol in the vehicle during the gap period.

[5]

By his own admission, the appellant had drunk six beers in an hour
    before getting into his uninsured truck and driving away. It was open to the
    trial judge to accord less weight to the gap principle in these circumstances
    and we see no error in her having done so.

[6]

The trial judge was well aware, as are we, of the appellants expressed
    health concerns. It does not follow from the length of sentence imposed that
    the trial judge failed to give adequate weight to this factor.

[7]

This was an extremely serious offence. The blood alcohol concentration
    was significantly in excess of the prohibited concentration and the appellant
    has nearly three dozen prior convictions for related offences involving excess
    alcohol consumption, as well as disqualified and dangerous driving.

[8]

Nor do we agree that a comparison of the reasons for judgment and
    reasons for sentence reveals an inconsistency in the trial judges findings
    about appellants role in an accident that occurred while he was driving his
    motor vehicle. The trial judge made no determinative finding on factual
    causation in her reasons finding the appellant not guilty of impaired
    operation.  It was open to her to consider, as she did, that the appellants
    driving involved an accident.

[9]

In the result, we see no error in principle in the sentence imposed by
    the trial judge. Leave to appeal sentence is granted, but the appeal is
    dismissed.

K. Feldman J.A.

David Watt J.A.

M. Dambrot J. (ad  hoc)


