Ontario Court of Justice

Date: 2022 03 04 Court File No.: Hamilton 20-8512

Between:

HER MAJESTY THE QUEEN

— AND —

CARA MORTENSEN

Before: Justice M.K. WENDL

Heard on: March 4, 2022 Reasons for Sentence released on: March 4, 2022

Counsel: S. Doherty........................................................................ Counsel for the Provincial Crown I. Bingham.….……………………...………………….………….Counsel for the accused

WENDL J.:

[1] After trial, Cara Mortensen was found guilty of operating her vehicle, in Hamilton, while impaired. The date of the offence was July 22nd, 2020. At the time she was operating her vehicle she was subject to a driving prohibition. As a result, she was also found guilty of driving while prohibited. The prohibition stemmed from a previous conviction for impaired in February 2020, only 5 months prior to this second incident. Significantly, Ms. Mortenson was involved in an accident. She smashed into a pole on Main Street, and, after being involved in the accident, she attempted to flee the scene. She was stopped by a bystander. The Crown is requesting a sentence of 90 days. The defence is proffering a position of 30-45 days to be served intermittently.

Background

[2] Cara Mortenson is 39 years old. She has three children aged 21, 17 and 12 years old. As with most persons who come before the court, she had a difficult upbringing. Her mother had substance abuse issues. As a result, she was taken away from her care and placed with her father at the age of 11. Unfortunately, her father also had substance problems. He had an alcohol issue. She indicates they lived a transient lifestyle until she left home at 16. She reports a history of abusive relationships.

[3] Ms. Mortensen is a trained millwright. It does not seem that she has worked in the recent past. She is receiving social assistance according to the pre-sentence report. However, she indicates in her letter to the Court that she has a job starting on March 14th, 2022.

[4] The pre-sentence report indicates that she consumes alcohol on a regular basis and has experimented with other drugs. Her father expressed concerns about her drinking in the pre-sentence report as well. At sentencing, Ms. Mortensen indicates she stopped drinking after this second incident, I accept this assertion.

[5] Significantly, the pre-sentence report reveals a lack of insight into her behaviour, which was consistent with my assessment of her at trial:

In regard to the current offence before the Court, subject did not take responsibility for her actions and externalize blame to third parties and circumstances. She disputed the contents of the Police Occurrence Report and adamantly protested her innocence in the matters. The previous charge from February 2020 was likewise denied with the subject not taking responsibility for her actions. Additionally, the subject did not identify the potential harm that could have fallen on others in the community as a result of her actions and choices.

[6] However, at sentencing, reversing herself from her testimony at trial that she was not the driver of the vehicle, she now accepts that she was the driver of the vehicle and showed remorse for her behaviour.

Sentence

[6] In my view, balancing the factors, including, her background, the fact that convictions were entered on both an impaired and drive disqualified, her admission and acceptance of responsibility at sentencing, although this factor is significantly attenuated by the fact that she misled the court at trial, the accident, the short time between her prior conviction and this incident, the fact she tried to flee the scene, the appropriate sentence is one of 75 days. Denunciation and deterrence, both specific and general, are the primary sentencing principles at bar. [1]

Intermittent Sentences

[7] As stated above, the defence is requesting an intermittent sentence. A 75-day sentence still allows for that request.

[8] Section 732 of the Criminal Code requires the sentencing judge to consider the availability of appropriate accommodations when considering the imposition of an intermittent sentence.

732 (1) Where the court imposes a sentence of imprisonment of ninety days or less on an offender convicted of an offence, whether in default of payment of a fine or otherwise, the court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence

[9] Currently, according to the information provided by defence counsel, if Ms. Mortensen were sentenced to an intermittent sentence, she would be issued a temporary absence pass (TAP). Effectively, there is no accommodation for Ms. Mortensen to serve an intermittent sentence at this point in time.

[10] I agree with Justice Campbell’s analysis in Moldovan, the insertion of the words “availability of appropriate accommodation” was to instruct Courts not to impose intermittent sentences when they could not be carried out.

It appears clear to me that the purpose of inserting the words "...and the availability of appropriate accommodation to ensure compliance with the sentence..." was to instruct courts not to order intermittent sentences in circumstances where the sentence could not be properly carried out. The added provision serves as a condition precedent. Before an intermittent sentence can be imposed, there must be available appropriate accommodations to ensure that the sentence can be complied with. In other words, there must be a prison available that is prepared to confine the person to custody on an intermittent basis. If I were to order an intermittent sentence for Mr. Nancoo and Ms. Moldovan, not only would there be nothing intermittent about their sentences, beyond a brief check-in or telephone call to report, neither offender will serve any time following their sentence actually in custody. [2]

[11] Furthermore, again relying on Justice Campbell’s analysis, the wholesale substitution of an intermittent sentence with TAP’s moves beyond the authority of correctional services in determining how long an offender might remain in custody, after assessing their suitability for release on parole, and replaces a custodial sentence with a sentence to be served in the community. [3]

[12] As Justice Fish stated in Middleton, specifically dealing with intermittent sentences, a sentence served in the community is not a sentence of imprisonment under section 732 (1).

It is apparent from the words "confinement" and "prison" that s. 732(1) contemplates custodial sentences of imprisonment and not conditional sentences of imprisonment, which are served in the community. In my view, this textual consideration is alone sufficient to warrant the conclusion that conditional sentences are not "sentences of imprisonment" within the meaning of s. 732(1). [4]

[13] Regarding Ms. Mortensen, she faces a mandatory minimum sentence of 30 days imprisonment on the impaired charge. This is her second impaired offence. A notice of increased penalty was filed. Parliament deemed a custodial sentence to be necessary and appropriate in these circumstances. In imposing an intermittent sentence where the Court knows it cannot be served, this Court would be circumventing the will of Parliament.

[14] I impose 75 days concurrently on each charge, a 3-year driving prohibition and 18 months’ probation.

Released: March 4th, 2022 Signed: Justice M.K. Wendl

[1] R. v. Effting, 2019 ONCJ 14 at para. 14 [2] R v Moldovan, [2017] OJ No 4927 at para. 47 [3] Ibid at para. 35 [4] R v Middleton, 2009 SCC 21, [2009] 1 SCR 674 at para. 10