Her Majesty the Queen v. Clouthier

[See Note 1 below]

[Indexed as: R. v. Clouthier]

Ontario Reports

Court of Appeal for Ontario,

Gillese, Watt and Tulloch JJ.A.

March 9, 2016

129 O.R. (3d) 481 | 2016 ONCA 197

Case Summary

Criminal law — Intermittent sentence — Accused pleading guilty to impaired driving causing bodily harm, dangerous driving causing bodily harm and two counts of failing to remain at scene of accident — Trial judge sentencing accused to 90 days' imprisonment for impaired driving causing bodily harm, to be served intermittently, and adjourning sentencing on other counts until accused had served that sentence — Trial judge then sentencing accused to 60 days intermittent on each of remaining counts — Crown's appeal allowed — Trial judge exercising her discretion improperly and for illegal purpose by bifurcating sentencing process in order to effectively impose intermittent sentence which exceeded 90-day limit imposed by s. 732(1) of Code — Criminal Code, R.S.C. 1985, c. C-46, s. 732(1).

Criminal law — Sentencing — Fitness of sentence — Accused convicted of impaired driving causing bodily harm, dangerous driving causing bodily harm and two counts of failing to remain at scene of accident — Trial judge effectively sentencing accused to total of five months' imprisonment — Sentence unfit given predominant sentencing objectives for these offences being general deterrence, denunciation and protection of the public — Accused pleading guilty, entering treatment, expressing genuine remorse and having excellent work history — Accused having served sentence imposed at trial — Appropriate range given mitigating factors would have been 15 to 18 months — Accused sentenced to 11 months for impaired driving causing bodily harm and four months consecutive for failing to remain (other sentences concurrent), and accused given six months' credit for time served.

The accused, a 21-year-old first offender, pleaded guilty to impaired driving causing bodily harm, dangerous driving causing bodily harm and two counts of failing to remain at the scene of an accident. Over a period of about 15 minutes, he rear-ended two vehicles, fled from the scenes and then rear-ended a third vehicle, seriously injuring one of its occupants. His blood-alcohol concentration was between 100 and 150 milligrams of alcohol per 100 millilitres of blood, and he drove at speeds between of 100 and 130 kilometres per hour in a residential area. The trial judge sentenced the accused to 90 days' imprisonment for impaired driving causing bodily harm, to be served intermittently, and adjourned the sentencing on the other counts until the accused had served that sentence. She subsequently sentenced him to 60 days' imprisonment on each of the remaining counts, to be served intermittently. The Crown appealed, arguing that the trial judge's imposition of two intermittent sentences totalling five months was illegal because it circumvented the 90-day limitation [page482] on intermittent sentences prescribed in s. 732(1) of the Criminal Code and that the sentence was demonstrably unfit.

Held, the appeal should be allowed.

While the 60-day intermittent sentence imposed by the trial judge was not illegal, she exercised her discretion improperly and for an illegal purpose by adjourning the sentencing in order to circumvent the restrictions imposed on the length of an intermittent sentence by s. 732(1). She did indirectly what she could not have done directly, and the result was an effective sentence that defeated the object of s. 732(1) and disregarded the correctional principles that it was meant to serve.

The sentence imposed was also demonstrably unfit. The offences of dangerous or impaired driving and failing to stop at the scene of an accident protect different social interests. Subject to the principle of totality, consecutive sentences are generally warranted in those circumstances. The sentence imposed in this case failed to reflect in any meaningful way the predominant sentencing objectives of general deterrence, denunciation and protection of the public. The offender had undertaken treatment for addiction and depression, was genuinely remorseful and had an excellent employment record. Given these significantly mitigating factors, the appropriate sentence would have been a sentence in the range of 15 to 18 months' imprisonment, followed by 12 months' probation, which required that the accused be reincarcerated. The accused was sentenced to 11 months' imprisonment for impaired driving causing bodily harm, 11 months concurrent for dangerous driving causing bodily harm, and four months on each count of failing to stop, concurrent to each other but consecutive to the 11-month sentence, less a credit of six months for time served, followed by 12 months' probation.

R. v. Middleton, [2009] 1 S.C.R. 674, [2009] S.C.J. No. 21, 2009 SCC 21, 306 D.L.R. (4th) 628, 244 C.C.C. (3d) 52, EYB 2009-159092, J.E. 2009-1027, 388 N.R. 89, 66 C.R. (6th) 157, 251 O.A.C. 349, consd

Other cases referred to

R. v. Biancofiore (1997), 1997 CanLII 3420 (ON CA), 35 O.R. (3d) 782, [1997] O.J. No. 3865, 103 O.A.C. 292, 119 C.C.C. (3d) 344, 10 C.R. (5th) 200, 29 M.V.R. (3d) 90, 36 W.C.B. (2d) 68 (C.A.); R. v. Gummer, 1983 CanLII 5286 (ON CA), [1983] O.J. No. 181, 1 O.A.C. 141, 38 C.R. (3d) 46, 25 M.V.R. 282, 11 W.C.B. 19 (C.A.); R. v. Junkert (2010), 103 O.R. (3d) 284, [2010] O.J. No. 3387, 2010 ONCA 549, 267 O.A.C. 7, 259 C.C.C. (3d) 14, 98 M.V.R. (5th) 14, 90 W.C.B. (2d) 331; R. v. Nunner, 1976 CanLII 1349 (ON CA), [1976] O.J. No. 177, 30 C.C.C. (2d) 199 (C.A.); R. v. Van Puyenbroek, [2007] O.J. No. 4689, 226 C.C.C. (3d) 289, 2007 ONCA 824, 231 O.A.C. 146, 165 C.R.R. (2d) 307, 54 M.V.R. (5th) 166, 54 C.R. (6th) 374, 76 W.C.B. (2d) 119

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 718.1, 718.3(4) [as am.], 719(1), 732(1), (b), (3)

APPEAL by the Crown from the sentences imposed on April 7, 2015 and on August 13, 2015 by Alder J. of the Ontario Court of Justice.

Hannah Freeman, for appellant.

Sean J. May, for respondent. [page483]

The judgment of the court was delivered by

[1] WATT J.A.: — Some drinks. Three accidents. Flight from the scene. A first intermittent sentence, imposed and served. A few months later, a second intermittent sentence, imposed and served.

[2] The Crown seeks leave to appeal the sentences imposed. The Crown submits that the trial judge's imposition of two intermittent sentences totalling five months are illegal because they circumvent the limitation on the length of sentences served intermittently prescribed in s. 732(1) of the Criminal Code, R.S.C. 1985, c. C-46. Further, the Crown says that the sentence imposed by the trial judge is demonstrably unfit. If leave is granted, the Crown invites us to increase the sentence to a mid- to upper-range reformatory sentence, less credit for time spent in service of the intermittent sentences, to be followed by a period of probation for 12 months. To give effect to the Crown's submissions would require the reincarceration of Clouthier.

[3] As I will explain, I would grant leave to appeal, allow the appeal and order the respondent to serve a further nine months in custody followed by a period of probation for 12 months.

The Background Facts

[4] On June 27, 2013, Clouthier had a few drinks. He decided to get into his truck and drive home. His blood-alcohol concentration was between 100 and 150 milligrams of alcohol in 100 millilitres of blood.

[5] Shortly before 11:00 p.m., Clouthier rear-ended another vehicle as he approached an intersection. Rather than remaining at the scene of the accident he caused, Clouthier reversed his vehicle, drove over a median and fled into a residential area.

[6] A few minutes later, and a short distance away, Clouthier rear-ended a second vehicle. He did not remain at the scene of this accident either. He turned, accelerated his truck to speeds ranging from 100 to 130 kilometres per hour in a residential area and collided head-on with another vehicle.

[7] In addition to the driver, several passengers were riding in the third vehicle Clouthier struck. A rear-seat passenger suffered serious internal injuries which required emergency surgery.

[8] Clouthier climbed out of the window of his significantly damaged truck and tried to run away. Third time unlucky. He was apprehended by witnesses and detained at the scene until police arrived and arrested him. [page484]

The trial proceedings

[9] Clouthier pleaded guilty to counts of impaired operation causing bodily harm, dangerous operation causing bodily harm and two counts of failure to stop at the scene of an accident.

[10] The pleas of guilty appear to have been entered and a pre-sentence report ordered on June 9, 2014. For reasons that are not readily apparent, the trial Crown did not read into the record a summary of the circumstances surrounding the offences to which the pleas of guilty were entered.

The sentencing hearing

[11] About nine months after the guilty pleas were entered, the trial Crown read into the record the summary of the circumstances of the offences to which Clouthier had pleaded guilty. Counsel then made submissions on sentence on all of the convictions.

[12] Trial counsel for Clouthier, who is also counsel on the appeal, urged the trial judge to suspend the passing of sentence and impose a lengthy period of probation or impose a jail sentence that could be served intermittently.

[13] The trial Crown proposed a sentence of imprisonment for 12 months to be followed by a term of probation with some credit being awarded for attendance at a treatment program prior to sentence.

The imposition of sentence

[14] On April 7, 2015, Clouthier appeared for sentencing. His counsel advised the trial judge that Clouthier had recently obtained full-time employment.

[15] The trial judge expressed her conclusion about the sentence she considered appropriate in these terms:

The numerous aggravating factors in this case, as well as the need for denunciation and general deterrence, require a custodial sentence. In all of the circumstances, I am satisfied that a total sentence of six months is appropriate. I am prepared to give Mr. Clouthier credit equivalent to one month for his time in treatment. Therefore, the total sentence is a sentence of five months, and that will be followed by 12 months' probation. There will also be a five-year driving prohibition.

[16] The trial judge offered Clouthier an option to serve his sentence intermittently in two installments, neither of which would exceed 90 days. The judge said:

Now, given that I just said he started working, the total sentence is to be a sentence of five months. Today, prior to arriving here, it would have been straight time. However, now that Mr. Clouthier has started work, given the [page485] mitigating factors, I would be prepared, Mr. May, if your client wants to do it this way, to sentence him on one count right now for 90 days intermittent, to have him complete that, and to come back and be sentenced to another further 60 days intermittent. It's up to your client.

[17] Clouthier accepted the trial judge's proposal. The judge imposed a sentence of 90 days in custody on the conviction of impaired operation causing bodily harm and directed that the sentence be served intermittently. She adjourned the sentencing on the other counts until August 13, 2015.

[18] On August 13, 2015, the trial judge imposed sentences of 60 days on each of the remaining counts. She directed that the sentences be served concurrently and intermittently. She did not impose a term of probation to commence at the conclusion of the service of the intermittent sentence.

The Grounds of Appeal

[19] The Crown appeals the sentences imposed by the trial judge on two grounds:

(i) that the trial judge erred in law by sentencing the respondent in a manner that effectively imposed a six-month intermittent sentence contrary to s. 732(1) of the Criminal Code; and

(ii) that the sentences imposed were demonstrably unfit because they failed adequately to address the sentencing objectives of denunciation and general deterrence.

Ground #1: The legality of the sentences imposed

[20] The first ground of appeal questions the legality of the sentences imposed on Clouthier (the respondent). The argument focuses on the effect of imposing discrete sentences, each to be served intermittently, which, considered together, exceed the length the Criminal Code permits for sentences that may be served intermittently.

The additional background

[21] The respondent entered his guilty pleas to various counts in the information at the same time. The trial Crown read in the facts in support of the pleas a few months later. Counsel on both sides made their submissions as to sentence at the same hearing. The trial judge scheduled a date for the imposition of sentence.

[22] The passages excerpted in para. 15 demonstrate that it was the trial judge who proposed to bifurcate the sentencing process to permit the entire sentence to be served intermittently. [page486] Counsel for the respondent accepted the trial judge's proposal. The trial Crown said nothing.

The arguments on appeal

[23] In this court, Crown counsel says that, by "chaining" 90-day and 60-day intermittent sentences, the trial judge imposed what was effectively an illegal five-month intermittent sentence. Consecutive intermittent sentences, which cumulatively exceed the 90-day limit prescribed by s. 732(1), are illegal.

[24] Crown counsel invokes the decision in R. v. Middleton, [2009] 1 S.C.R. 674, [2009] S.C.J. No. 21, 2009 SCC 21 in support of her submission that "chaining" intermittent sentences beyond the 90-day limit in s. 732(1) defeats the very object of this subsection and disregards the correctional principles it was meant to serve. This staggered approach to sentencing to avoid the 90-day limit for intermittent sentences and, thereby, to circumvent the will of Parliament is an error of law that results in an illegal sentence.

[25] The respondent disagrees. The important consideration is when the intermittent sentences begin to run. Where two or more sentences of imprisonment are imposed at the same time and are to be served intermittently and consecutively to each other, the sentences must not exceed 90 days in their total length.

[26] In this case, the respondent argues, the sentences were imposed on different days. The first sentence had expired before the second began. The second sentence was not and, indeed, could not be ordered to be served consecutively to the first. Neither sentence on its own exceeded 90 days. No "chaining" occurred. The decision in Middleton has no application.

The governing principles

[27] Section 732(1) of the Criminal Code describes the circumstances in which a sentence of imprisonment may be served intermittently. The subsection provides:

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, order

(a) that the sentence be served intermittently at such

times as are specified in the order; and

(b) that the offender comply with the conditions prescribed in a probation order when not in confinement during the period that the [page487] sentence is being served and, if the court so orders, on release from prison after completing the intermittent sentence.

(Emphasis added)

[28] Under s. 719(1) of the Criminal Code, a sentence commences when it is imposed, except where a relevant statute provides otherwise.

[29] Section 718.3(4) describes the circumstances in which a sentencing court has the authority to order that the sentences be served consecutively:

718.3(4) The court or youth justice court that sentences an accused may direct that the terms of imprisonment that are imposed by the court or the youth justice court or that result from the operation of subsection 734(4) or 743.5(1) or (2) shall be served consecutively, when

(a) the accused is sentenced while under sentence for an offence, and a term of imprisonment, whether in default of payment of a fine or otherwise, is imposed;

(b) the accused is found guilty or convicted of an offence punishable with both a fine and imprisonment and both are imposed;

(c) the accused is found guilty or convicted of more than one offence, and

(i) more than one fine is imposed,

(ii) terms of imprisonment for the respective offences are imposed, or

(iii) a term of imprisonment is imposed in respect of one offence and a fine is imposed in respect of another offence; or

(d) subsection 743.5(1) or (2) applies.[^2]

[30] In Middleton, the appellant had been sentenced at the same time to a term of 90 days' imprisonment to be served intermittently and to two concurrent 18-month sentences to be served conditionally. On appeal, this court held that

(i) both the intermittent and conditional sentences were legal; but

(ii) the 90-day prison sentence had to be served on consecutive days, not intermittently.

[31] The Supreme Court of Canada allowed the appeal and affirmed the sentences imposed by the trial judge. The majority [page488] concluded that "chaining" intermittent sentences beyond the 90-day limit established by Parliament in s. 732(1) defeats the very object of the subsection and disregards the correctional principles it was meant to serve: Middleton, at paras. 45-46. The conditional sentences imposed at the same time were not "a sentence of imprisonment" within the meaning of s. 732(3) and thus did not extend the intermittent sentence beyond the 90-day limit in s. 732(1). It followed, according to the majority, that the sentences imposed by the trial judge -- a 90-day sentence of imprisonment to be served intermittently and concurrent sentences of 18 months to be served conditionally -- were lawful.

[32] In R. v. Nunner, 1976 CanLII 1349 (ON CA), [1976] O.J. No. 177, 30 C.C.C. (2d) 199 (C.A.), the appellant was charged with and pleaded guilty to several offences, including a count of robbery. The trial judge suspended the passing of sentence and put the appellant on probation on all of the offences except robbery. A term of the probation order was that the appellant was to return before the sentencing judge in three months, and again five months thereafter, with reports from his school and his probation officer. The trial judge adjourned the robbery sentencing for three months, and then for another two months, explaining to the appellant that he would be watching his conduct and would impose a substantial term of imprisonment if the appellant were in any further trouble.

[33] The Crown sought mandamus to compel the trial judge to proceed with the sentencing on the robbery conviction. The order was granted. Nunner appealed. This court set aside the order in lieu of mandamus on the ground of prematurity.

[34] A majority of the court was of the view that a sentencing judge had the discretion to postpone sentencing provided the discretion was not exercised for an illegal purpose, for example, to see whether the offender would make restitution, aid in the investigation of others or help police recover stolen property: Nunner, at p. 207 C.C.C. The majority regarded any postponement of sentencing beyond a month or two as prima facie evidence of the exercise of judicial discretion for an improper purpose: Nunner, at p. 207 C.C.C.

The principles applied

[35] As I will explain, I would give effect to this ground of appeal although I would not characterize the sentences imposed as "illegal".

[36] Each sentence of imprisonment imposed by the trial judge did not exceed 90 days, thus each could be served intermittently [page489] without offending s. 732(1). The first intermittent sentence had been completed before the second sentence to be served intermittently was imposed. The trial judge could not in those circumstances have ordered the second sentence to be served consecutively to the first: Criminal Code, s. 718.3(4). At the risk of semantic quibble, I would not characterize the sentences imposed -- more accurately, the 60-day intermittent sentence imposed on August 13, 2015 -- as "illegal" in the sense described by the majority in Middleton.

[37] In Middleton, the sentences under consideration were imposed by the same judge at the same time. One sentence was to be served intermittently, the others conditionally. The sentences were to be served concurrently with one another. Since the sentences to be served conditionally were not "a sentence of imprisonment" within the meaning of s. 732(1), the combination did not defeat the object of s. 732(1).

[38] What happened here was that, by imposing intermittent sentences at different times, the trial judge did indirectly what she could not have done directly without breaching the 90-day limit in s. 732(1) of the Criminal Code. The result is an effective sentence that defeated the very object of s. 732(1) and disregarded the correctional principles that it was meant to serve.

[39] Pleas were entered to several counts in the same information and a pre-sentence report ordered in respect of those admissions of guilt. Counsel made submissions, victim impact statements were received and another date fixed for the imposition of sentence. No one suggested bifurcation of the sentencing process.

[40] A trial judge has an undoubted discretion to postpone sentencing. But the postponement must be for a proper purpose: Nunner, at p. 204. The singular purpose of the postponement here -- to circumvent the restrictions imposed on the length of an intermittent sentence by s. 732(1) -- was improper and amounted to the exercise of judicial discretion for an illegal purpose: Nunner, at pp. 205 and 207 C.C.C.

Ground #2: The demonstrable unfitness of the sentence

[41] The second ground of appeal challenges the fitness of the sentence imposed -- five months -- without regard to its functional defiance of s. 732(1).

[42] It is helpful to begin consideration of this ground of appeal with a brief reference to some of the circumstances of the respondent and his offences. [page490]

The essential background

[43] In 15 minutes one summer night, the respondent was involved in three motor vehicle accidents. He rear-ended two vehicles. He smashed head-on into a third. His blood-alcohol concentration was between 100 and 150 milligrams of alcohol in 100 millilitres of blood. He fled the first two accident scenes in his truck. He drove at speeds between 100 and 130 kilometres per hour in a residential area. He was captured by witnesses when he attempted to flee on foot from the third accident scene. A passenger in the last vehicle the respondent struck was seriously injured and required emergency surgery. The occupants of this vehicle suffered both physical and psychological harm as a result of the accident.

[44] The respondent pleaded guilty. He expressed sincere remorse for his conduct. He was a 21-year-old first-time offender who had a job. The pre-sentence report was very favourable. Since sentencing, he has made and continues to pursue rehabilitative efforts.

[45] At the time he committed the offences, the respondent was suffering from a major depression. He was abusing both alcohol and drugs. He had poor impulse control and difficulty managing his anger. He self-medicated with drugs and alcohol.

[46] Prior to sentencing, the respondent participated in a drug and alcohol addiction program at the Royal Ottawa Hospital. Since sentencing, he has continued to participate in rehabilitative programs for drug and alcohol addiction. He has undertaken psychotherapy with a psychiatrist. He has also done volunteer work in his community. He remains employed.

The positions of the parties at trial

[47] The trial Crown sought a sentence of imprisonment of 12 months followed by a period of probation of equivalent length and several ancillary orders.

[48] Counsel for the respondent invited the trial judge to suspend the passing of sentence and order the respondent to comply with the terms of a probation order for a period of three years. In the alternative, counsel contended that a short sentence of imprisonment to be served intermittently, and followed by a period of probation, would meet the ends of justice if a period of incarceration was thought to be warranted.

The arguments on appeal

[49] In this court, Crown counsel says that the sentence imposed is demonstrably unfit. The predominant sentencing [page491] objectives -- general deterrence, denunciation and protection of the public -- require the imposition of a significant custodial sentence in the mid- to upper-reformatory range. Further, the sentence imposed on the fail to stop counts should be made consecutive to the sentences for the impaired and dangerous operation counts.

[50] The respondent does not dispute the predominant role of denunciation and general deterrence in determining the sentence to be imposed. That said, the respondent says the sentence was not demonstrably unfit as the Crown contends.

[51] The respondent submits that sentencing decisions are notoriously case-specific. They are subject to significant deference on appeal. The trial judge's choice of a sentencing range and her location of a sentence within that range are matters of judicial discretion and do not amount to reviewable error. Indeed, even if the sentence imposed falls outside the applicable range, it does not mean that the sentence is demonstrably unfit and warrants appellate intervention.

[52] In this case, the respondent contends, the sentence imposed is not demonstrably unfit for a youthful first offender who is sincerely remorseful, has undertaken significant rehabilitative steps and is a contributing member of his community. Reincarceration will derail these rehabilitative efforts and impede his reintegration into his community.

The governing principles

[53] The fundamental principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1.

[54] The predominant sentencing objectives in determining a fit sentence for alcohol-driving offences, especially those in which bodily harm is caused to a fellow human being, are general deterrence and denunciation: R. v. Junkert (2010), 103 O.R. (3d) 284, [2010] O.J. No. 3387, 2010 ONCA 549, at paras. 42 and 47; R. v. Biancofiore (1997), 1997 CanLII 3420 (ON CA), 35 O.R. (3d) 782, [1997] O.J. No. 3865 (C.A.), at pp. 790-92 O.R. As a general rule, custodial sentences are required where bodily harm is caused: Biancofiore, at p. 791 O.R.

[55] The offences of dangerous or impaired operation of a motor vehicle and failing to stop at the scene of an accident protect different social interests. It follows that the rule or principle of sentencing -- that sentences for offences arising out of the same transaction or incident should normally be concurrent -- does not necessarily apply when the offences constitute [page492] invasions of different legally protected interests. Subject to the principle of totality, consecutive sentences are warranted: R. v. Gummer, 1983 CanLII 5286 (ON CA), [1983] O.J. No. 181, 1 O.A.C. 141 (C.A.), at para. 13; R. v. Van Puyenbroek, [2007] O.J. No. 4689, 2007 ONCA 824, 226 C.C.C. (3d) 289, at para. 63.

[56] The range of sentence for the offences of which the respondent was convicted varies significantly. For our purposes, it is enough to say that within that range are sentences in the mid to upper reformatory and lower-end penitentiary range.

The principles applied

[57] For the brief reasons that follow, I would give effect to this ground of appeal.

[58] First, the sentence imposed, essentially five months, fails to reflect in any meaningful way the predominant sentencing objectives of general deterrence, denunciation and protection of the public.

[59] With a blood-alcohol concentration in excess of that prohibited by law, the respondent got into his truck and caused three accidents within 15 minutes. Without any regard for the health or safety of the occupants of any of the vehicles he struck, he fled each scene, accelerating away in one instance to speeds at least twice the posted limit in residential areas.

[60] Second, the trial judge erred in failing to impose consecutive sentences for the failure to stop offences. While the sentences for failure to stop could properly be made concurrent to each other for reasons of totality, they should have been made consecutive to the sentences for the dangerous and impaired operation offences.

[61] The respondent pleaded guilty and was genuinely remorseful for the havoc he wrought. He has taken and continues to pursue programs and individual therapy to leave behind his addictions and ameliorate his underlying condition of depression. He has an excellent work history and is committed to volunteer work in his community. Were it not for these positive attributes, a fit sentence would involve a more lengthy period of incarceration.

[62] In my view, an appropriate sentence in this case would have been a sentence in the range of 15 to 18 months in a provincial reformatory, followed by a period of probation for 12 months including both mandatory and optional conditions.

[63] In deciding whether to reincarcerate the respondent, who has served the full sentences imposed at trial and complied with the terms of probation required by s. 732(1)(b) when not in custody, I have taken into account[page493]

(i) the time that has elapsed from the imposition and completion of the sentences at trial;

(ii) the rehabilitative steps taken by the respondent, both before and after sentencing, and the degree to which those steps may be adversely affected by reincarceration;

(iii) the seriousness of the offences of which the respondent has been convicted; and

(iv) responsibility for any delay in the appellate process.

[64] These were serious offences that demonstrated a complete disregard for the lives and safety of others lawfully using the streets of an urban area on a summer evening. Repeated flights from the scenes of the accidents displayed a callous indifference to fellow motorists. No undue delay has occurred between service of the sentence and the hearing and determination of the sentence appeal. Despite the respondent's remorse and significant rehabilitative steps, I see no reason to stay the operation of the sentence I consider appropriate in this case.

[65] As for precedent, too much significance should not be attached to the actual sentence I have concluded should remain to be served in this case. That sentence is a function of myriad factors, including but not limited to

(i) the sentence sought by the trial Crown and by appellate counsel for the Crown;

(ii) the fact that the respondent pleaded guilty, is genuinely remorseful, and has undertaken and continues to pursue group programs and individual therapy with mental health professionals to identify and treat the conditions that, in combination, contributed to the offences of which the respondent has been convicted;

(iii) the respondent has already served the carceral portion of the sentence imposed by the trial judge and has complied with the terms of a probation order during the non-custodial periods of his intermittent sentences; and

(iv) the appellant seeks to have the respondent, a first-time offender, recommitted to prison to serve a further period of incarceration that exceeds the sentence already served.

A variation of sentence in these circumstances, an ex post facto correction of an unfit sentence imposed at first instance, is not [page494] determinative of where within or outside the range comparable sentencing decisions should settle.

Conclusion

[66] In the result, I would grant leave to appeal sentence, allow the appeal from sentence, and vary the sentence to a term of imprisonment of 15 months to be followed by probation for a further period of 12 months. I would apportion the carceral components of the sentence as follows:

(i) impaired operation causing bodily harm: 11 months;

(ii) dangerous operation causing bodily harm: 11 months concurrent;

(iii) fail to stop: four months consecutive to (i); and

(iv) fail to stop: four months concurrent to (iii).

[67] In light of the time already spent in custody on the intermittent sentences and the one month of pre-sentence credit awarded by the trial judge for time spent in a pre-sentence treatment program, I would reduce the total sentence to a remanet of nine months, to be followed by probation for 12 months on the statutory conditions and the following optional conditions:

(i) refrain absolutely from the consumption of alcohol and other intoxicating substances and refrain from the consumption of drugs except for those prescribed by a duly qualified medical practitioner;

(ii) if agreeable, participate or continue to participate actively in any treatment program or counselling approved by your probation officer;

(iii) make reasonable efforts to seek and maintain gainful employment or continue your education; and

(iv) report to a probation officer within two working days of your release from custody and thereafter in the manner directed and when required by the probation officer.

[68] The respondent shall surrender into custody at the place in which he served his intermittent sentences within 72 hours of release of these reasons. Failing surrender, a warrant may issue for his apprehension.

Appeal allowed.

[page495]

Notes

[^1]: The information contains the name "Thomas D. Clouthier". Counsel for the respondent, his employer and others refer to him as David Clouthier. In these reasons, he will be described as "Clouthier" or the "respondent".

[^2]: This version of s. 718.3(4) was in force at the time of the offences and the imposition of the first intermittent sentence. A new s. 718.3(4) came into effect on July 17, 2015.

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