R. v. Nickerson

Court: Ontario Court of Justice Date: October 17, 2019 Region: Durham Region Before: Justice B. Green

Heard: May 14, 2019 and September 16, 2019

Counsel:

• Ms. K. Pollock, for the Crown
• Mr. P. Affleck, for the Defendant

A. Introduction

[1] Mr. Nickerson plead guilty to one count of operating a motor vehicle on August 31st, 2018 with more than 80 mg of alcohol in 100 ml of blood. He also plead guilty to offences that occurred 2 weeks later while he was on release for the first charge and while bound by an ADLS suspension of his driving privileges. Once again, Mr. Nickerson was drinking and driving and his offending behaviour escalated to more serious crimes. He plead guilty to impaired driving, dangerous operation and failing to stop for police for offences that occurred on September 8th, 2018.

[2] The Crown and counsel jointly submitted that a 5-year driving prohibition was appropriate. Following the findings of guilt, I ordered the 5-year driving prohibition. Although it was agreed that a sentence of incarceration is warranted, the Crown and counsel could not arrive at a joint submission so we proceeded with a sentencing hearing. The sentencing was adjourned for the Crown to obtain victim impact statements and for the preparation of a presentence report. Counsel also needed time to obtain psychiatric reports.

[3] During the sentencing hearing, the Crown sought a global sentence of 9 months incarceration in addition to any time served to be followed by a period of 3 years of probation. Counsel sought a period of custody of 90 days to be served intermittently as well as a period of probation for 3 years. I invited the Crown and counsel to make submissions about whether a period of intermittent custody on one count and a conditional sentence on another count would balance the different sentencing positions in this case.

[4] The Crown submitted that a conditional sentence and/or an intermittent would not adequately reflect the paramount principles of sentencing. Counsel submitted that, if I am not satisfied that 90 days intermittent is acceptable in light of the aggravating factors, then a conditional sentence of 6 months on one of the other counts may be appropriate.

[5] It is essential to review the unique circumstances of this case and the applicable guiding legal principles that I relied on to arrive at a sentence that balances the competing considerations of the circumstances of this offender and the circumstances of these offences.

B. Facts

[6] The plea proceeded by way of an agreed statement of facts including photographs of the dramatic crash on September 8th that totalled Mr. Nickerson's car and caused some damage to the rear of the victim's vehicle.

i. Circumstances of the Offences

[7] On August 31st, 2018, the police were called when Mr. Nickerson's driving attracted the attention of a number of people in a parking lot where car enthusiasts were gathered to admire each other's vehicles. At 10:16 p.m., police interacted with Mr. Nickerson and formed a reasonable suspicion that he was operating a motor vehicle with alcohol in his system. Following an investigation, Mr. Nickerson was required to provide two samples of his breath into an approved instrument that was operated by a qualified technician. The lowest truncated reading was 190 mg of alcohol in 100 ml of blood. Mr. Nickerson was described as "very cooperative" with the police. He received notice that his licence was suspended for the next 90 days and he was released from the station.

[8] Two weeks later, on September 8th, 2018, Mr. Nickerson called police to report that he was driving his vehicle and he was suicidal. He said that he was going to kill himself. He was impaired by alcohol at the time.

[9] Police responded immediately and located Mr. Nickerson driving the wrong way on the road. He drove directly towards the officers. The police had to pull into a ditch to avoid a head on collision. The officers turned around and began to pursue Mr. Nickerson with their lights and sirens fully activated. Mr. Nickerson failed to stop for police and continue to flee while driving at speeds in excess of 140 km an hour. While speeding, Mr. Nickerson was driving erratically. He was weaving, drifting over the centre line and he ran a red light. The police set up a spike strip to stop Mr. Nickerson. He drove over the strip and immediately lost control of his vehicle.

[10] When Mr. Nickerson lost control, he struck the back of a mini-van that was being driven by Mr. Ankomah. The passengers in the van were Mr. Ankomah's wife and their 4 children (10, 8, 2.5 years old and a 5 months old baby). Fortunately, there were no serious injuries to Mr. Ankomah or his family other than minor injuries of "bruising and soreness". The agreed statement of facts that was read in and acknowledged by Mr. Nickerson stated that "Mr. Ankomah has indicated some continued soreness in his back but has been able to continue working. His family has physically recovered."

[11] After hitting the back of Mr. Ankomah's vehicle, Mr. Nickerson's vehicle crashed into a ditch and sustained significant front-end damage. He had to climb out of the driver's window of his vehicle. Once he exited, he was not compliant with police directions. Officers used a taser to gain compliance. He smelled strongly of alcohol and an empty "tall can" of an alcoholic beverage was recovered from his vehicle. He was literally drinking while driving.

[12] As a result of this collision, Mr. Nickerson suffered a severe laceration to his forehead. He was taken to the hospital to treat his wounds and his mental health crisis. He received 36 staples to close the gash in his head. In addition, the attending Doctor placed Mr. Nickerson on a form 1 hold due to concerns for his psychiatric state.

ii. Victim Impact

[13] The Crown was sensitive to the fact that the extent of a victim's injuries may not be immediately apparent after an accident. Mr. Ankomah was contacted prior to the guilty plea and the proposed agreed statement of facts was canvassed with him including the transient nature of his injuries. As a result, the Crown made an informed decision before agreeing to this set of facts. Mr. Nickerson acknowledged that his conduct caused minor injuries to a whole family including small children and some lasting soreness to Mr. Ankomah's back. The Crown did not allege that this injury amounted to bodily harm.

[14] The Crown obtained a victim impact statement and filed it as the first exhibit during the sentencing. The contents of the victim impact statement are dramatically different than the agreed statement of facts. Mr. Ankomah claimed that he suffered significant physical injuries and lasting debilitating psychological issues. Notably, he did not mention any lasting impact to anyone other than himself or any harm to any of his children or his wife.

[15] It is important to emphasize that Mr. Nickerson did not plead guilty to impaired driving causing bodily harm. Of course, I can take into account the impact of Mr. Nickerson's offences on the victims as an aggravating factor on sentencing. However, the contents of the victim impact statement were inconsistent with the agreed statement of facts and the information obtained by the Crown in advance of the plea of guilty.

[16] The Crown is required to prove any disputed aggravating facts beyond a reasonable doubt. Mr. Nickerson has not been convicted of impaired bodily harm or dangerous driving causing bodily harm nor did he accept the aggravating factors contained in the victim impact statement. As the Supreme Court of Canada noted in R. v. Suter, 2018 SCC 34, at para 35:

As a general rule, courts cannot sentence an offender in respect of a crime for which he or she has not been convicted: see R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728, at paras. 23 and 32; R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762, at para. 1. To do so would run counter to the presumption of innocence.

[17] The Crown had the option of calling the victim as a witness and seeking to prove these additional aggravating facts during the sentencing hearing. However, the Crown decided not to proceed further with this issue. In addition, counsel cited my decision of R. v. C.C., [2018] O.J. No. 4240 at para. 24 (Ont.C.J.) and urged me not to consider the unproven and disputed aggravating facts alleged in the victim impact statement. In particular, he referred to a passage in R. v. C.C., supra, at para. 24 wherein I found that "I am presumed to be able to disabuse my mind of the inadmissible or irrelevant parts of the victim impact statements. Absent inflammatory language or highly prejudicial statements that may invite judicial vetting, the process contemplated by section 722(8) of the Criminal Code preserves the fair trial rights of Mr. C.C. by allowing me to disregard the contents that Counsel is objecting to in this Application."

[18] Accordingly, I have not considered the injuries alleged in the victim impact statement other than the fact that Mr. Ankomah is struggling with some ongoing anxiety issues as a result of the collision that have adversely impacted his quality of life.

iii. Circumstances of the Offender

[19] Mr. Nickerson was held in custody for 9 days before he was released on a surety bail. He was released on conditions to reside with his grandmother, observe a curfew daily from 9 p.m. to 6 a.m. except while in the presence of his sureties or while in in-patient treatment as well as terms that prohibited him from driving or even occupying the driver's seat of a motor vehicle. Accordingly, he has been unable to drive since September of 2018. In total, between the bail conditions and the joint submission of 5 years driving prohibition, he has lost the privilege to drive for 5 years and 8 months.

[20] Mr. Nickerson is 28 years old. Despite a very troubled upbringing and significant mental health issues, he has no prior criminal record. The Crown did not tender any evidence of a driving record. He plead guilty at the earliest opportunity after retaining counsel and conducting a series of pre-trials that focussed entirely on resolution.

[21] Counsel tendered two detailed psychiatric assessments and a pre-sentence report that were filed as exhibits. Mr. Nickerson has had a difficult life. He was abandoned by his parents. His grandparents adopted him and raised him as his parents. Mr. Nickerson shared a close relationship with his grandfather. Unfortunately, he died when Mr. Nickerson was 17 years old. He has struggled throughout his life with feelings of abandonment, worthlessness and hopelessness and it has impacted his ability to form relationships. He has anger management issues and depression. Throughout his life, he has been plagued by suicidal thoughts and he engages in significant acts of self-harm.

[22] The loss of Mr. Nickerson's grandfather exacerbated his pre-existing mental health issues and he spiralled out of control. Mr. Nickerson began abusing drugs and alcohol. He was diagnosed with borderline personality disorder, persistent depressive disorder (moderate to severe), alcohol induced depressive disorder, alcohol use disorder and cocaine use disorder.

[23] In 2018, Mr. Nickerson was consuming substantial amounts of alcohol daily. He also abused cocaine and smoked marijuana. Immediately prior to the offences on September 8th, Mr. Nickerson was involved in an emotional break up with a female friend. He felt "abandoned, hurt and alone" and he became suicidal. He carved words into his arm with a razor blade that resulted in multiple deep wounds and lasting scarring. He hit rock bottom and wanted to kill himself. Unfortunately, he chose a manner of self harm that put other innocent people's lives and safety at risk.

[24] Since these offences, Mr. Nickerson has been committed to getting treatment to get his life back on track and address any concerns about his prospects for rehabilitation. Mr. Nickerson has abided by the terms of his bail. He has also made a sustained effort to address his alcohol and substance abuse issues as well as his mental health issues. He has been sober for almost a year. He attends AA meetings. He is taking medications for his mental health issues and he is participating in the "dialectical behavioural therapy program" at Ontario Shores that was "highly" recommended by his psychiatrist. Counsel submitted that incarcerating Mr. Nickerson will be counterproductive because it will interfere with his ongoing treatment and the positive steps that he has take towards rehabilitation.

[25] Mr. Nickerson is not currently employed. He is attempting to get disability benefits because of his mental health issues. He helps his grandmother around the house by cutting the grass and cleaning their home. He enjoys the ongoing support of his grandmother and his neighbour who is a friend of the family and his surety.

[26] As a part of Mr. Nickerson's personal circumstances, I have also considered that he caused a serious injury to himself that night that required hospitalization. In R. v. Suter, supra, at paras. 47 to 50 the Supreme Court addressed the appropriateness of considering the collateral consequences of an offender's conduct:

In my view, a collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender.

Though collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2 (a) of the Criminal Code -- as they do not relate to the gravity of the offence or the level of responsibility of the offender -- they nevertheless speak to the "personal circumstances of the offender" (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code. The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the others, rendering a given sentence unfit.

Collateral consequences do not need to be foreseeable, nor must they flow naturally from the conviction, sentence, or commission of the offence. In fact, "[w]here the consequence is so directly linked to the nature of an offence as to be almost inevitable, its role as a mitigating factor is greatly diminished" (Manson, at p. 137). Nevertheless, in order to be considered at sentencing, collateral consequences must relate to the offence and the circumstances of the offender.

Professor Manson writes: "When an offender suffers physical injury as a result of an offence, this may be relevant for sentencing purposes especially if there will be long-lasting effects" (p. 136). Though Professor Manson had in mind a scenario where an offender is injured while committing a driving offence, in my view, his comments apply to any offender who suffers injury as a result of an offence. In fact, the attenuating effect of an injury on the sentence imposed will likely be lessened where the injury is so directly linked to the offence as to be almost inevitable (see para. 49). For instance, an injury resulting from an impaired driving offence (a foreseeable consequence of driving while impaired) may have less of an attenuating impact on the sentence imposed than if that same injury resulted from an unforeseeable event arising out of the offence.

[27] The permanent scar on Mr. Nickerson's head is a constant reminder of the dangers of drinking and driving and the lasting harm that he could have caused to someone else. This injury was a foreseeable consequence of his conduct that night, but it is nevertheless a relevant consideration.

C. Legal Analysis

[28] Almost inevitably, determining the appropriate sentence in impaired driving cases is challenging because otherwise good, law-abiding citizens have made a very poor choice that can have extremely serious consequences. Courts are faced with the difficult task of balancing competing, almost diametrically opposing, considerations while trying to get the message across to the community that, no matter who you are, drinking and driving will be treated as a very serious crime that must be discouraged by the imposition of significant penalties.

[29] While significant penalties are warranted whenever any kind of harm is caused by a drunk driver, that does not inexorably lead to the same sentences. In R. v. Suter, supra, at para. 4 Justice Moldaver acknowledged that:

Sentencing is a highly individualized process. A delicate balancing of the various sentencing principles and objectives is called for, in line with the overriding principle that a "sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender" (s. 718.1 of the Criminal Code). Accordingly, there will be cases where the particular circumstances of the offence and/or the offender call for a sentence that falls outside of the normal sentencing range.

[30] Counsel did not provide me with any decisions with similar offenders in similar circumstances to guide my judgement. There is however, a plethora of binding legal authorities that make it clear that a custodial sentence is necessary in drinking and driving cases where the circumstances of the offence involved causing harm to innocent victims. Sadly, despite this consistent message, people continue to drink and drive or drive while impaired knowing the risks that they are taking with the safety of the community and their own liberty interests.

i. Guiding Sentencing Principles

[31] Section 718 of the Criminal Code sets out the guiding the principles and purposes of sentencing:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(i) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(ii) to deter the offender and other persons from committing offences;

(iii) to separate offenders from society, where necessary;

(iv) to assist in rehabilitating offenders;

(v) to provide reparations for harm done to victims or to the community; and

(vi) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[32] There is also a long line of binding appellate authority that mandates a sentencing Judge to consider the most important objectives when sentencing offenders in these types of case are general deterrence and denunciation. The only way to discourage people from making the choice to drink and drive is to consistently impose punitive sentences to get the message to the public loud and clear that drunk driving is a serious crime and the sentences will reflect the gravity of the offence.

[33] Undoubtedly, one of the most effective means of communicating this denunciatory message is through the imposition of jail sentences. In R. v. Lacasse, 2015 SCC 54, at paras 6 and 7, the Supreme Court of Canada emphasized that Parliament wants Judges to impose harsher punishments in drinking and driving cases:

While it is normal for trial judges to consider sentences other than imprisonment in appropriate cases, in the instant case, as in all cases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society.

The increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wanted such offences to be punished more harshly. Despite countless awareness campaigns conducted over the years, impaired driving offences still cause more deaths than any other offences in Canada: House of Commons Standing Committee on Justice and Human Rights, Ending Alcohol-Impaired Driving: A Common Approach (2009), at p. 5.

[34] While the primary focus in this sentencing is denunciation and deterrence, rehabilitation remains an important consideration. There is no "one size fits all" sentence for any offence including impaired driving. In R. v. Lacasse, supra at paras. 54 and 55 the Court provided the following guidance:

The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the fundamental principle of proportionality. This Court explained this as follows in M. (C.A.):

It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [para. 92]

[35] Ensuring that Mr. Nickerson stays on his current path of sobriety and commitment to mental health treatment is not only beneficial to him but it will protect the public by hopefully preventing further offences. In R. v. Brown, [2019] O.J. No. 3675 at para 30 (Ont.S.C.J.), Justice Schreck observed that:

Courts should be careful about treating the objective of rehabilitation as somehow beneficial only to the offender. Regardless of what sentence I impose, Ms. Brown will one day be released. If she continues to abuse drugs at that time, she will be a danger to the public. If she is rehabilitated by then, she will likely be a contributing member of society. The primary objective of sentencing is to protect the public. That protection is best accomplished if Ms. Brown is rehabilitated.

[36] Ultimately, within this framework of the guiding sentencing objectives, the sentence must be fair and balanced. The sentence in this matter must reflect both the gravity of the offences and the degree of this offender's responsibility. Section 718.1 of the Criminal Code identifies that one of the fundamental principles of sentencing is proportionality.

ii. Moral Blameworthiness and the Impact of Mental Health Issues on the Sentence

[37] The moral blameworthiness of the offender in impaired driving cases is not exacerbated by the harm caused unless the accused deliberately intended to harm another person. Every drunk driver makes the same dangerous and selfish decision to risk the lives and safety of other users of the roadway. Sometimes, they get home safely and sometimes their conduct has devastating consequences. R. v. Brown, supra, at para. 34 and 35 Justice Schreck considered the degree of responsibility of these offenders:

The number of victims is not relevant to the moral blameworthiness of the offender. Had Ms. Brown been stopped by the police before the collision, she would be no less morally blameworthy. Her moral blameworthiness arises from her decision to drive while intoxicated and thereby create a risk to the public, regardless of whether that risk was actualized. The countless individuals who are found guilty of impaired driving in the Ontario Court of Justice with depressing regularity usually receive fines and not penitentiary sentences. This is not because they are less morally culpable. They are simply more fortunate.

That said, the number of victims is a relevant factor, not because it relates to the moral blameworthiness of the offender, but because it relates to the gravity of the offence. The term "gravity of the offence" describes not only the seriousness of an offence in generic terms as reflected in the maximum available penalty, but also to the extent of the harm caused by the commission of the offence: R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at para. 90. A sentence must be proportionate to both the degree of the offender's responsibility and the gravity of the offence: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 39. That is why s. 463 of the Criminal Code provides that an attempt to commit an offence is punished less severely than the commission of the offence. In sentencing, consequences matter.

[38] There may be facts that influence the determination or perception of the moral blameworthiness of an offender. I must consider whether Nickerson's mental health issues attenuate his responsibility for these offences. On September 8th, Mr. Nickerson mentally hit rock bottom. He was not thinking clearly, and he made an incredibly selfish decision to try and kill himself while drinking and driving. He had absolutely no regard for how his choices that night could impact the lives and safety of other users of the roadway or the police officers who pursued him. Nevertheless, his choices may have been impacted by his compromised mental state.

[39] In addition to his depression, Mr. Nickerson is an alcoholic and he abused narcotics. Alcoholism is a recognized mental illness. An alcoholic is unable to resist the compulsion to drink. They are not however, compelled to drive in that state. Every drunk driver, whether an alcoholic or not, is making the same informed choice to take a significant risk by assuming control of a vehicle. As a result, I do not believe that an alcohol dependency is a mitigating factor in this type of case. An accused's willingness and investment in treatment and commitment to sobriety does however, speak to his or her potential for rehabilitation and remorse.

[40] Mr. Nickerson was impaired and severely depressed. He was focussed on killing himself. His judgement that night was impacted by depression, anxiety and bi-polar disorder. Nevertheless, there were many other ways that he could have chosen to act on his impulses that did not involve putting other people's lives and safety in jeopardy. In R. v. Prioriello, 2012 ONCA 63, [2012] O.J. No. 650 (Ont.C.A.), the Court held that:

In order for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is, the illness is an underlying reason for his aberrant conduct: R. v. Robinson, [1974] O.J. No. 545 (C.A.).

Further, there must be evidence that a lengthy sentence would have a severe negative effect on the offender such that it should be reduced on compassionate grounds.

[41] I am not persuaded that there is enough evidence to conclude that there was a "causal link" between Mr. Nickerson's mental illnesses and this particular criminal conduct or that a custodial sentence would have a "severe negative effect" on him. Mr. Nickerson may only have meant to hurt himself as opposed to anyone else that night, but drunk drivers don't generally intend to hurt anyone. They make a choice to take a risk that they may harm themselves or someone else and Mr. Nickerson made that same choice. However, I am persuaded that I can consider the adverse impact on Mr. Nickerson's mental health from a lengthy period of incarceration and the genuine progress he has made when addressing his potential for rehabilitation and the ongoing protection of the public.

iii. Exploring Sentencing Alternatives in Addition to Incarceration

[42] As with any offence, I must consider the principle of restraint and whether any alternatives to incarceration will adequately address the predominant principles of sentencing. As noted above, because drinking and driving is most often committed by otherwise law-abiding citizens, there is ample binding legal authority that the most effective way to discourage drunk driving is to mete out severe penalties. In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras 6 to 8 (S.C.C.), the Supreme Court explained that:

While it is normal for trial judges to consider sentences other than imprisonment in appropriate cases, in the instant case, as in all cases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society.

The increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wanted such offences to be punished more harshly. Despite countless awareness campaigns conducted over the years, impaired driving offences still cause more deaths than any other offences in Canada: House of Commons Standing Committee on Justice and Human Rights, Ending Alcohol-Impaired Driving: A Common Approach (2009), at p. 5.

This sad situation, which unfortunately continues to prevail today, was denounced by Cory J. more than 20 years ago:

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, [page1102] drunk driving is clearly the crime which causes the most significant social loss to the country.

[43] Lengthy jail sentences are not the only means to accomplish general deterrence and denunciation. Driving is a privilege that provides substantial convenience in our daily lives. Depending on where a person resides, it may be a necessity in order to get to and from work or other commitments. The loss of that privilege for an extended period of time can be a very significant punishment. In R. v. Frickey, [2017] O.J. No 6887 at paras 4 and 10, the Ontario Court of Appeal recognized that it is important to consider the propriety of a sentence as a whole:

The principles of denunciation and deterrence are particularly relevant to dangerous driving offences that are often committed by first-time offenders and otherwise law-abiding citizens. In these circumstances, the driving prohibition serves as the most practical means to ensure the protection of the public.

In considering whether the sentence is manifestly unfit, the sentence must be considered as a whole. While the driving prohibition may have been longer than in the precedents provided by the parties, the custodial sentence was shorter. In reducing the custodial sentence and lengthening the driving prohibition, the trial judge exercised the principle of restraint and took into consideration "all available sanctions, other than imprisonment, that are reasonable in the circumstances", in accordance with s. 718.2 (e) of the Criminal Code. The longer driving prohibition was necessary for the protection of the public. We see no error in the trial judge's decision.

[44] I am cognizant that Mr. Nickerson was bound by a licence suspension at the time of the second offence and he needs to be specifically deterred from violating this court order. Nevertheless, when Mr. Nickerson was found guilty, I imposed a 5-year driving prohibition. In addition, prior to the prohibition, he abided by the terms of his bail that prohibited him from driving for 8 months. Over the past year, he has demonstrated his commitment to abiding by the prohibition and this lengthy driving prohibition is a means to ensure the ongoing protection of the public.

[45] In addition to the driving prohibition, the determination of the appropriateness of the other penalties has been challenging. While making submissions, I found that the Crown focussed almost entirely on the aggravating circumstances of the offences and urged me to find that the only way to address the principles of sentencing is to incarcerate Mr. Nickerson for a period of 9 months. However, in this unique situation, Mr. Nickerson's sobriety and mental stability may be negatively impacted by preventing him from continuing the treatment that he is receiving from professionals. While there may be very few options other than incarceration for drunk drivers who cause harm, there are alternative forms of incarceration.

[46] In contrast, I found that counsel over-emphasized the mitigating circumstances of this offender and urged me to consider a 90-day intermittent sentence so that his client can serve his sentence on weekends. With an intermittent sentence, Mr. Nickerson will continue to receive treatment and take his medications regularly during the week. A 90-day intermittent sentence however, will not adequately reflect the aggravating facts of committing back to back offences, the harm that Mr. Nickerson caused or the danger that he posed to the community while he was already on release for the same offence and while he wasn't supposed to be driving.

[47] I find that there is an alterative sentence that balances these competing considerations. A custodial sentence is warranted for the impaired driving but that sentence can be combined with a concurrent but lengthier conditional sentence on the dangerous operation and fail to stop for police counts.

[48] Section 742.1 of the Criminal Code lists four criteria a judge must consider before imposing a conditional sentence:

1. The offence must not be punishable by a minimum term of imprisonment;

2. The court must impose a sentence of imprisonment of less than two years;

3. The safety of the community must not be endangered by the offender serving his or her sentence in the community;

4. A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[49] There are no minimum terms of imprisonment for either the dangerous driving or the fail to stop for police. The Crown and counsel have agreed that the appropriate sentence is less than two years. I must be consider the risk of the Mr. Nickerson re-offending and the potential gravity of the damage should he re-offend. I am satisfied that a s long as Mr. Nickerson continues with his counseling, which can be a term of a conditional sentence, serving the sentence in the community would not endanger the safety of the community. The more significant question is whether a conditional sentence would be consistent with the fundamental purposes and principles of sentencing.

[50] A conditional sentence would not adequately address the principles of general deterrence and denunciation on the impaired driving count considering that there was a car accident and some injuries and psychological harm to the victims. Nevertheless, if an intermittent sentence of incarceration is coupled with a conditional sentence, the combined sentence will balance the competing considerations of the circumstances of the offences and the circumstances of the offender. This type of blended sentence achieves the objectives of deterring this offender, general deterrence and denounces this type of conduct while still encouraging and acknowledging the demonstrated remorse and ongoing rehabilitation of this offender.

[51] It is legally impermissible to combine a jail sentence of any length and a conditional sentence on the same count. In R. v. Fisher, [2000] O.J. No. 344 at paras 5 and 6 (Ont.C.A.), the Trial Judge sentenced the accused to a conditional sentence with a term of the conditional sentence that required him to serve an intermittent sentence on weekends. The Court of Appeal found that:

It is clear that s. 732(1) provides for the imposition of an intermittent sentence only where the court imposes a sentence of imprisonment of "ninety days or less". Since the sentence of imprisonment imposed by the trial judge exceeded 90 days, this option was not available.

The imposition of a custodial sentence as part of a conditional sentence is also contrary both to the wording of s. 742.1 and to the underlying purpose of the conditional sentence regime.

Section 742.1 provides that, where the two prerequisites are met, the court may order that the offender "serve the sentence in the community". It does not provide that the offender may be ordered to serve a portion of his sentence in the community. A useful comparison may be made with the wording under s. 742.6(9) which does make that provision. Under s. 742.6(9), where the court is satisfied that the offender has breached a condition of the conditional sentence order, the court may direct "that the offender serve in custody a portion of the unexpired sentence". Hence a conditional sentence order can only be made with respect to the total sentence.

[52] Arguably, this decision could be interpreted as prohibiting the combination of a conditional sentence on one count with a jail sentence on another count since the offender would not be serving at least part of his/her conditional sentence in the community. However, the same year that R. v. Fisher was decided, the Court of Appeal also released the decision of R. v. Ploumis, [2000] O.J. No. 4731 (Ont.C.A.) leave to appeal refused, [2001] S.C.C.A. No. 69. The Court of Appeal found that as long as the total sentence does not exceed two years, it is not an error in principle to blend a custodial sentence on one count with a conditional sentence on another count (at paras 25 and 26):

In R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.), released together with R. (R.A.), Lamer C.J.C., on behalf of the unanimous court, enunciated the principles and policy considerations that govern the interpretation and application of s. 742.1(b). It is apparent to me that the majority in R. (R.A.) must have concluded that in a proper case, it would be consistent with those principles to impose a custodial sentence for one offence followed by a conditional sentence for another without offending the spirit or letter of s. 742.1 (b).

It follows, in my view, that when an accused is being sentenced for more than one offence, it is legally permissible to blend a custodial sentence with a conditional sentence so long as the sentences, in total, do not exceed two years less one day and the court is also satisfied that the preconditions in s. 742.1 (b) have been met in respect of one or more but not all of the offenses.

[53] While a conditional sentence can be blended with a custodial sentence of straight time on separate counts, the Ontario Court of Appeal did not address whether an intermittent sentence can be blended with a conditional sentence without collapsing the intermittent sentence into straight time. Section 732 of the Criminal Code states that:

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 sentence is being served and, if the court so orders, on release from prison after completing the intermittent sentence.

And further:

Section 732(3) provides:

Where a court imposes a sentence of imprisonment on a person who is subject to an intermittent sentence in respect of another offence, the unexpired portion of the intermittent sentence shall be served on consecutive days unless the court otherwise orders.

[54] If a conditional sentence is viewed as a term of "imprisonment" and the conditional sentence is longer than 90 days on one count, arguably, blending these two sentences is not possible because the total period of "imprisonment" would be longer than 90 days. In that event, the intermittent sentence would collapse into straight time. For example, a Court cannot impose consecutive intermittent sentences on separate counts because the total period of "imprisonment" would be longer than 90 days. Please see R. v. Clouthier, 2016 ONCA 197, [2016] O.J. No. 1232 (Ont.C.A.)

[55] The Supreme Court of Canada addressed the statutory interpretation of section 732 of the Criminal Code in R. v. Middleton, 2009 SCC 21, [2009] S.C.J. No. 21 (S.C.C.). The majority found that an intermittent sentence and a conditional sentence of longer than 90 days can be blended on different counts without collapsing the intermittent sentence:

To hold that a conditional sentence is a sentence of imprisonment within the meaning of s. 732(1) of the Criminal Code and s. 139 of the CCRA is to disregard the plain wording of the provisions, their legislative purposes, and the nature and object of conditional sentences. It would disregard as well the valid sentencing objectives of the trial judge in this case and would unnecessarily, in the future, deprive judges of their ability to render similarly fit sentences where they conclude that a custodial sentence is required.

For the reasons that follow, I have concluded that conditional sentences are not contemplated by either s. 732(1) of the Code or s. 139 of the CCRA, and that s. 139 has no application to the intermittent sentence imposed in this case.

And further at paragraph 53:

I conclude by emphasizing that conditional and intermittent sentences have overlapping but distinct purposes. I have already dealt with the sentencing and correctional purposes of intermittent sentences. With respect to conditional sentences, I am content simply to reiterate here this important passage from Proulx (at para. 41):

A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.

This case illustrates how intermittent and conditional sentences can be effectively combined to take appropriate advantage of their complementary purposes - in full compliance with the statutory conditions by which they are respectively governed.

[56] The facts in Middleton involved unrelated offences that occurred on different dates which could be seen as factually distinguishable from this case. However, the Ontario Court of Appeal in the decisions of Ploumis, supra, and R. v. T.A.P., 2014 ONCA 141, [2014] O.J. No. 857 favourably contemplated the imposition of blended sentences of a custodial sentence and a conditional sentence for offences that occurred on the same date. To the extent that the Manitoba Queen Bench's decision in R. v. Dhaliwal, [2012] M.J. No. 194 suggested that these two sentences cannot be combined for offences that occur on the same date, I respectfully decline to follow it. I find that the ratio in Middleton applies equally to offences that were committed on the same or different dates.

[57] The Crown urged me to look at the facts and consider a global sentence of 9 months incarceration. From my perspective, Mr. Nickerson's choice to drink and drive and the manner of the driving are separate delicts that may merit emphasising different considerations. In R. v. T.A.P., 2014 ONCA 141, [2014] O.J. No. 857 at paras. 14 to 17 (Ont.C.A.), the Ontario Court of Appeal considered an appeal from a sentence. The trial judge declined to order an otherwise appropriate conditional sentence on some counts because a jail sentence was mandated on one count. The Court of Appeal encouraged jurists to consider individual counts when determining the overall appropriate sentence:

Furthermore, the Criminal Code makes clear that, if it is possible and appropriate, sentencing judges ought to impose a sentence on each count as opposed to simply imposing one global sentence. Section 725(1) (a) of the Criminal Code states that a court "shall consider, if it is possible and appropriate to do so, any other offences of which the offender was found guilty by the same court, and shall determine the sentence to be imposed for each of those offences."

When a sentencing judge does nevertheless impose one global sentence for two or more counts, s. 728 of the Criminal Code applies. Section 728 states:

Where one sentence is passed on a verdict of guilty on two or more counts of an indictment, the sentence is good if any of the counts would have justified the sentence.

Considered together, these two sections mean that sentence should be passed on each count on which an accused has been found guilty but a single global sentence on one or more counts will not be invalidated provided the sentence may be justified by any of the counts.

In this case, however, the sentencing judge gave reasons why a conditional sentence of two years less a day would have been appropriate. The sentence she imposed was due to the limited and erroneous view she took of her options as to sentence. Having regard to the reasons of the sentencing judge, the submissions of the Crown, the circumstances of this case and the fresh evidence filed by defence counsel, I would therefore allow the appeal.

I would set aside the global sentence imposed by the sentencing judge and in its place substitute the following: on count 1 for the offence under s. 95(1), Ms. T.A.P. is sentenced to 90 days' imprisonment to be served intermittently, plus 3 years' probation; on count 2 for the offence under s. 108, Ms. T.A.P. is sentenced to a conditional sentence of 21 months less a day, to be served consecutive to count 1. As to the terms of the conditional sentence, I would adopt the terms set forth in the Appendix to Ms. T.A.P.'s counsel's factum. The remaining period of probation is frozen until the conditional sentence has been served. The result is a global sentence of two years less a day, plus three years' probation.

[58] It is both appropriate and possible to address the sentencing on individuals counts while still ensuring that the global sentence is not excessive.

D. Conclusion

[59] I have carefully considered the circumstances of the offence, the circumstances of the offender, the guiding legal principles and sentencing objectives. Mr. Nickerson will be sentenced to a total combined sentence of pre-trial custody of 9 days to be the equivalent of 14 days, an intermittent sentence of 90 days, a conditional sentence of 9 months and a period of probation for two years. While this is undoubtedly an unusual sentence, it reflects the unique considerations in this case.

[60] For the first offence of driving with more than 80 mg of alcohol in 100 ml of blood, the lower truncated reading of 190 mg of alcohol in 100 ml of blood is a statutorily aggravating factor. Normally, the appropriate sentence would be a higher fine and the mandatory minimum sentence is a fine of $1000. However, in the context of the global sentence, I will attribute 6 days of pretrial custody to this count to be the equivalent of 9 days on a 1 for 1.5 basis. In addition, there will be a suspended sentence and a period of probation for two years (please see Schedule B for the terms of probation) and a one-year driving prohibition.

[61] I will deal with the offences that occurred on September 8th separately. For the impaired driving, I have determined that a conditional sentence would not adequately reflect the principles of denunciation and deterrence. Moreover, Mr. Nickerson plead guilty to two impaired driving related offences at the same time. Even though the notice of increased penalty was not filed, the offence on September 8th was his second offence of drinking and driving. The appropriate sentence for the impaired driving is 3 days of PTC to be the equivalent of 5 days consecutive to the over 80 (there was a total of 9 days PTC to be the equivalent of 14 days) and 90 days incarceration to be served on an intermittent basis from Saturday mornings at 9 a.m. to Sunday evenings at 8 p.m. (to enable his grandmother and neighbour to assist with transportation) and a period of two years of probation and a five-year driving prohibition.

[62] With respect to the dangerous operation and the fail to stop for police, in spite of the danger Mr. Nickerson posed to our community on that night, I find that a significant conditional sentence will balance the competing sentencing considerations. A strict conditional sentence can accomplish sending a message to the community that this type of driving will result in a significant punishment while acknowledging the strides that Mr. Nickerson has taken to address his mental health and addiction issues, his potential for rehabilitation and his expressed remorse. In arriving at this conclusion, I was particularly influenced by the fact that Mr. Nickerson has abided by a curfew of 9 p.m. to 6 a.m. with very limited exceptions for over a year now. In addition, despite his struggles with alcohol, he has also abided a term that restricted him from being "outside your residence with alcohol in your body". He has proven that he is both willing and able to comply with terms of a court order that restrict his liberty. He is also entitled to credit for a year of these restrictions on his liberty.

[63] For the offences of dangerous operation and fail to stop for police, each offence could separately merit the imposition of a sentence of 6 months conditional sentence consecutive to each other. Bearing in mind the time that Mr. Nickerson has been on bail and credit for the restrictions on his liberty, the most appropriate way to address the sentences for these two offences are concurrent sentences of 9 months conditional sentence (please see Schedule A for the terms of the conditional sentence) to be followed by a period of two years of probation and a five-year driving prohibition.

[64] I believe that the intermittent sentence and the conditional sentence will work more effectively hand in hand to support Mr. Nickerson's ongoing compliance with treatment and his commitment to sobriety while serving as a constant reminder of the seriousness of his offences. As a result, the intermittent sentence for the impaired driving will be concurrent to the conditional sentence. The combination of these sentences will provide consistent supervision 7 days a week.

[65] To be clear, it would be inappropriate to require an offender to comply with a term of the conditional sentence that orders him to serve time on the weekends. To do so would be contrary to the ratio of the Ontario Court of Appeal's decision in Fisher, supra. Instead, the way to accomplish these sentences working together is to have a term on the conditional sentence that allows for an exception to the terms of his house arrest to be outside of his place of residence while complying with the terms of any other Court Order including the intermittent sentence.

Schedule A: Terms of the 9 Months Conditional Sentence

Keep the peace and be of good behavior

Appear before the court when required to do so

Notify the Court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation

Reporting

• Report in person to a conditional sentence supervisor:

  • Within 5 working days of your release from custody;
  • and thereafter at all times and places as directed by the conditional sentence supervisor or any person authorized by a conditional sentence supervisor to assist in your supervision

• You must cooperate with your conditional sentence supervisor. You must sign any releases necessary to permit the conditional sentence supervisor to monitor your compliance and you must provide proof of compliance with any condition of this Order to your conditional sentence supervisor upon request

Residence

• You must live at a place approved of by your conditional sentence supervisor and not change that address without obtaining the prior approval of the conditional sentence supervisor;

• You must not reside in a home where any unlawful drugs or substances as defined by the Controlled Drugs and Substances Act are stored except if those drugs were obtained in accordance with a valid prescription in the name of the occupants of the home;

Travel Restrictions

• Remain in the province of Ontario unless you have the prior written permission of your conditional sentence supervisor;

Curfew

• Remain in your residence or on the property of your residence at all times except:

  • On Mondays between the hours of 1 p.m. to 4 p.m. in order to acquire the necessities of life
  • For any medical emergency involving you or any member of your immediate family (spouse, child, parent or sibling) if written justification is provided to your conditional sentence supervisor within 72 hours of any such absence during curfew hours;
  • While travelling directly to, directly from and while attending at your pre-scheduled legal, medical or dental appointments;
    • You will confirm your schedule for any of these exceptions in advance with the conditional sentence supervisor setting out the times for these activities;
  • While travelling directly to, directly from and while attending at any pre-scheduled assessments, counselling sessions or treatment programs;
    • You will confirm your schedule for any of these exceptions in advance with the conditional sentence supervisor setting out the times for these activities;
  • With the prior dated written approval of your conditional sentence supervisor to be carried on you at all times while out of your residence during curfew hours;
  • For carrying out any legal obligations regarding compliance with this conditional sentence order or any other concurrent sentence which includes travelling directly to, directly from and while attending at a custodial facility to serve your intermittent sentence;

• You must present yourself at your doorway upon the request of your conditional sentence supervisor or his/her designate or a peace officer for the purpose of verifying your compliance with your home confinement conditions;

Compliance with Other Court Orders

• While complying with other concurrent court orders, you must attend at the jail to serve your intermittent sentence on time, in a sober condition, with a blood alcohol concentration of zero, and not be under the influence of or in possession of any controlled substances unless you are taking that controlled substance pursuant to a lawfully obtained prescription.

• Upon arrival at the jail, you must immediately notify the correctional officers if you are in possession of any prescribed medications.

Letter of Apology

• You shall write a letter of apology to Mr. Ankomah and his family detailing the remorse that you feel for the harm you caused and reassuring them that you will not drink and drive in future; and

• This letter of apology must be written to the satisfaction of your conditional sentence supervisor

No Contact and Remain Away

• Do not contact or communicate in any way, directly or indirectly, by any physical or electronic or other means with Mr. Eric Ankomah or any member of his immediate family except:

  • In the presence of or through legal counsel; and/or
  • For a letter of apology that has been approved of in advance by your conditional sentence supervisor and delivered by your conditional sentence supervisor;

• Do not be within 100 meters of any place where you know Mr. Eric Ankomah or any of his immediate family to live, work, go to school, frequent or any place that you know the person(s) to be except:

  • While attending at required court appearances;

Drugs

• Do not purchase, possess or consume any unlawful drugs or substances as defined by the Controlled Drugs and Substances Act except in accordance with a valid prescription in your name;

Counselling and Treatment

• Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your conditional sentence supervisor and complete them to the satisfaction of your conditional sentence supervisor including but not limited to:

  • Substance abuse;
  • Alcohol abuse;
  • Grief; and/or
  • Psychological or psychiatric issues

• You shall sign any release of information forms as will enable your conditional sentence supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed;

• You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed

Additional Terms

• You are not to occupy the driver's seat of a motor vehicle or operate a motor vehicle;

• You shall not possess any car keys or car key fobs

Schedule B: Terms of the Two-Year Probation Order

Statutory Conditions

• Keep the peace and be of good behavior;

• Appear before the court when required to do so;

• Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation

Terms to Accompany the Intermittent Sentences

• You must attend at the jail to serve your intermittent sentence on time, in a sober condition, with a blood alcohol concentration of zero, and not be under the influence of or in possession of any controlled substances unless you are taking that controlled substance pursuant to a lawfully obtained prescription.

• Upon arrival at the jail, you must immediately notify the correctional officers if you are in possession of any prescribed medications.

Reporting

• Report in person to a probation officer:

  • Within 5 working days of the completion of your conditional sentence;
  • and thereafter at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision

• You must cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer upon request

No Contact and Remain Away

• Do not contact or communicate in any way, directly or indirectly, by any physical or electronic or other means with Mr. Eric Ankomah or any member of his immediate family except:

  • In the presence of or through legal counsel;

• Do not be within 100 meters of any place where you know Mr. Eric Ankomah or any of his immediate family to live, work, go to school, frequent or any place that you know the person(s) to be except:

  • While attending at required court appearances;

Counselling and Treatment

• Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your probation officer and complete them to the satisfaction of your conditional sentence supervisor including but not limited to:

  • Substance abuse;
  • Alcohol abuse;
  • Grief; and/or
  • Psychological or psychiatric issues

• You shall sign any release of information forms as will enable your conditional sentence supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed;

• You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed

Additional Terms

• You are not to occupy the driver's seat of a motor vehicle or operate a motor vehicle;

• You shall not possess any car keys or car key fobs

Released: October 17, 2019

Signed: Justice B. Green