Ontario Court of Justice

Date: 2021 11 22 Court File No.: Halton 20 - 2718

Between:

HER MAJESTY THE QUEEN

— AND —

BRANDON PARNELL WILLIAM CLARK

Before: Justice D. A. Harris

Heard on: May 17, 2021 and September 2, 2021. Reasons for Sentence released on: November 22, 2021

Counsel: Amy Stevenson and Maureen McGuigan .............................. counsel for the Crown Christoph Preobrazenski ............................. counsel for the accused Brandon Clark

Harris J.:

[1] Brandon Clark pled guilty to impaired operation of a conveyance and to failing to remain at the scene of an accident. Crown counsel had elected to proceed summarily.

[2] Mr. Clark is before me today to be sentenced.

[3] Crown counsel suggested that I should sentence him to imprisonment for nine months followed by probation for two years. She asked that I prohibit him from driving for two years. Finally, she requested a DNA order.

[4] Counsel for Mr. Clark suggested that I impose a conditional sentence of imprisonment for four to five months followed by probation for two years. He also asked that I prohibit him from driving for two years. He did not address the issue of a DNA order.

[5] I find that a blended sentence combining 30 days imprisonment on an intermittent basis with a conditional sentence of imprisonment for nine months is the appropriate sentence. That will be accompanied by a driving prohibition for two years.

[6] My reasons for this are set out under the following headings:

(1) The law regarding conditional sentences of imprisonment, (2) The fundamental purpose and principles of sentencing, (3) The law regarding blended sentences, (4) The facts underlying the offences, (5) The impact on the victims, (6) The background of Mr. Clark, and (7) Analysis.

Conditional Sentence of Imprisonment

[7] The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.

[8] The Supreme Court of Canada subsequently stated in R. v. Proulx, 2000 SCC 5 that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community." [1]

[9] The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. His liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order him to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence. [2]

[10] Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:

1. the offender must be convicted of an offence that is not specifically excluded by the legislation;
2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
3. the court must impose a term of imprisonment of less than two years;
4. the safety of the community must not be endangered by the offender serving the sentence in the community; and
5. a conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[11] The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[12] In Mr. Clark’s case, the first four prerequisite criteria have been satisfied.

[13] His offences were not excluded pursuant to section 742.1.

[14] Nor are they punishable by a minimum term of imprisonment.

[15] Crown counsel agreed, as do I, that I should impose a sentence of imprisonment for much less than two years.

[16] Finally, I find that Mr. Clark serving his sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. He had no prior criminal record. He has not been in any further trouble since being charged. He will be prohibited from driving a motor vehicle. I am satisfied that there is no danger that he would return to crime following the imposition of a conditional sentence.

[17] That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

Fundamental Purpose and Principles of Sentencing

[18] The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[19] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender. [3]

[20] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence. [4]

[21] Doherty J.A. stated in R. v. Hamilton, 2004 ONCA 5549 that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. [5]

[22] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime. [6]

[23] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest, 1996 ONCA 1381:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good. [7]

[24] On this point, Doherty J.A. concluded by stating that:

Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account. [8]

[25] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[26] Section 718.2(a)(iii.1) provides that it is an aggravating circumstance if the offence had a significant impact on the victim, considering his age and other personal circumstances, including his health and financial situation.

[27] Section 718.2(d) provides that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances”.

[28] Section 718.2(e) provides that “... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.”

[29] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen, 1999 SCC 679 and said that section 718.2 (e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender. [9]

[30] In R. v. Priest, 1996 ONCA 1381, supra the Ontario Court of Appeal made it clear that much of this is simply a codification of the existing law, especially with respect to youthful first offenders. That case also made it clear however that this principle is of less importance in cases involving very serious offences and offences involving violence. [10] The case before me is certainly one of those cases.

[31] More recently, the Ontario Court of Appeal stated the following in R. v. Disher, 2020 ONCA 706:

The principle of restraint, as reflected in ss. 718.2 (d) and (e) of the Criminal Code, directs that a first period of incarceration imposed on a young first offender should be as short as possible, while giving adequate weight to the principles of general deterrence and denunciation: R. v. Rocchetta, 2016 ONCA 577, [2016] O.J. No. 3871, at para. 35. As s. 718.2(e) specifically directs, while the restraint principle should be considered for all offenders, particular attention should be given to the circumstances of Aboriginal offenders, a class of offenders to which Ms. Weaver belongs. Sentencing judges are to give effect to the principles in s. 718.2(e) even where the offence is serious and the sentence involves imprisonment: R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452, at para. 36. [11]

[32] The Supreme Court of Canada noted in Gladue v. The Queen that section 718 requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. [12] As a general matter restorative justice involves some form of restitution and reintegration into the community.

[33] In R. v. Muzzo, 2016 ONSC 2068 [13], Justice Fuerst of the Superior Court of Justice wrote:

In cases of drinking and driving, particularly where death is involved, denunciation and general deterrence are the paramount sentencing objectives. Denunciation refers to the communication of society's condemnation of the conduct. 4 General deterrence refers to the sending of a message to discourage others who might be inclined to engage in similar conduct in the future. General deterrence is particularly important in cases of impaired driving. Drinking and driving offences are often committed by otherwise law-abiding people. Such persons are the ones who are most likely to be deterred by the threat of substantial penalties. [14]

[34] These principles are also applicable here.

[35] The Supreme Court of Canada said in R. v. Proulx, supra that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence" [15] although it is not as effective as a sentence of real imprisonment.

[36] The Supreme Court also said:

there need not be any equivalence between the duration of the conditional sentence and the jail term that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence. [16]

[37] I can therefore impose a conditional sentence that is longer in duration than the jail term that I might otherwise have imposed.

Blended Sentences

[38] It is settled law that it is improper to blend a custodial sentence with a conditional sentence in the context of a single offence.

[39] However, "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 section 742.1 (b) have been met in respect of one or more but not all of the offences." [17]

[40] The Supreme Court of Canada stated in R. v. Middleton, 2009 SCC 21 that "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." [18]

[41] Fish J. elaborated on this stating:

45. Intermittent sentences strike a legislative balance between the denunciatory and deterrent functions of "real jail time" and the rehabilitative functions of preserving the offender's employment, family relationships and responsibilities, and obligations to the community.

46. That balance cannot be sustained indefinitely. Parliament has therefore fixed its duration at a reasonable limit of 90 days. Beyond that limit, intermittent sentences lose their purpose: the recurring "taste of jail" becomes disproportionately punitive as a deterrent and counter-productive as a rehabilitative and correctional alternative to continuous terms of imprisonment.

47. It has not been suggested, on the other hand, that the combination of an intermittent and a conditional sentence -- even when their aggregate duration exceeds 90 days -- is similarly objectionable on any ground of correctional policy, or inconsistent with the sentencing principles enacted by Parliament in the governing sections of the Criminal Code.

48. On the contrary, it is conceded that their combination in this case served the purposes of both intermittent and conditional sentences. This fit combination of sentences harmonizes the differing correctional advantages of conditional and intermittent sentences, while respecting the letter and the spirit of the provisions of the Criminal Code dealing with both. [19]

[42] Before I can apply the applicable principles of sentencing, however, I must look at the facts underlying the offence here, the impact that it had on its victim, and the background of Mr. Clark.

The Offence

[43] On July 26, 2020, at 9:10 am, Mr. Clark was driving his motor vehicle on the ramp from Highway 403 onto the QEW. He was speeding and swerving as he drove. He struck another vehicle causing it to roll into a ditch.

[44] That vehicle was driven by AM and also contained her two-year-old daughter and the family dog.

[45] Mr. Clark did not stop. He continued driving.

[46] Halton Police ran a query on the plate and attended at the residence of the registered owner. They found the Clark vehicle which had extensive front end damage. Mr. Clark’s mother was by the vehicle and was visibly upset. She informed police that that her son had been in a motor vehicle collision and that he was in his room crying. She allowed police into the house.

[47] Mr. Clark came to them. He had poor balance while walking and had to steady himself. He had red glossy eyes.

[48] When asked what he knew, he denied being in a collision.

[49] Police smelled the odour of an alcoholic beverage coming from his breath.

[50] He was arrested and read his right to counsel and a caution. A demand was made for samples of his breath. These were subsequently provided after he spoke to counsel. The results showed that he would have had a blood alcohol concentration of 140 milligrams of alcohol in 100 millilitres of blood at the time that he was driving.

Victim Impact

[51] I was provided with Victim Impact Statements from both AM and her husband TM.

[52] These made it clear that this motor vehicle collision has had a severe impact on this family.

[53] I have broken this down into the following subcategories:

(i) Impact on TM, (ii) Impact on the daughter, (iii) Impact on AM, and (iv) Financial impact.

Impact on AM

[54] She was physically injured.

[55] She had significant bruising and soft tissue damage. She had a large bruise on the right side of her forehead from the steering wheel, bruising on her neck and chest from the seatbelt, abrasions on her upper left arm from the airbag, bruising down her right forearm from the airbag, in addition to neck, shoulder, left wrist and back pain. She was taken to the hospital where they did several x-rays and blood work. She had no broken bones and was released that same afternoon.

[56] She experienced a lot of pain and discomfort over the next month. She could not sleep. It hurt to breathe. She could not do many simple things to care for herself. She could not carry or hold her daughter.

[57] Her doctor prescribed pain medication, but it did not help and made her feel quite nauseous and dizzy. She quickly stopped taking that and took Tylenol 3 instead for a couple of weeks, then switched to Tylenol which she still takes.

[58] She was eventually able to start physiotherapy, attending regularly

[59] Before, she was extremely active and would exercise four to five times per week, a combination of weight training and cardio.

[60] Since the collision, the only exercise she has been able to do is light walking.

[61] Exercise was her passion, her hobby and something she did to ensure that she could always keep up and active with her child. The weight she is gaining and knowing that all of the fitness she had performed leading up to the collision has been dissolved has had a negative impact on her self-esteem and mood. Exercise had always been an outlet for her to manage stress and she finds that without it, her mood has been impacted. She is shorter tempered, gets frustrated more easily and feels helpless when it comes to daily tasks she used to do.

[62] She has started Cognitive Behavioural Therapy for Post Traumatic Stress Disorder in hopes that she can find some relief from the emotional pain of this accident and can find a way to move forward. She still has trouble sleeping as a result of this collision, waking up in the middle of the night thinking about it.

[63] She wrote the following in her Victim Impact Statement with respect to the emotional toll that the collision has had on her life:

The events of this accident play over and over in my head to this day. Every time a hear a loud noise, I jump, remembering how loud the initial impact of his car on ours was and being pushed into the guardrail. We have not replaced my vehicle that was written off because I try to avoid driving at all costs, especially if it's on the highway. Every time a car comes up from behind me quickly, my heart starts to race, anytime I see someone speeding, I get nervous. I find myself checking the side-view mirrors of cars I am approaching to determine whether or not they have blind spot detection, in hopes that they do because it increases the chances they'll see me and not swerve into my lane and hit me. I get nervous every time a car merges into the lane beside me, hoping that they see me and won't hit me. Anytime a car in front of us hits their breaks to slow down or stop, I find myself breaking immediately and checking my rear-view mirror hoping the person behind me sees I am slowing down too. For all of these reasons, several months later, my husband does most of the driving. The only time I find myself driving alone is when I have to go to physiotherapy for my physical injuries, because I can't take my daughter with me, so my husband has to stay home and watch her, while I go alone.

For weeks after the accident, every time I closed my eyes the accident would replay in my head, the bang of his car hitting ours, my daughter screaming and the realization that myself and my babies were almost killed by someone that decided to drink and drive. My husband could have been left a widow at the age of 34 and the person that hit us didn't have the courage to stay on scene to check if we were ok, see who he hit, or apologize for causing us so much trauma. My dreams are still haunted by this nightmare and what could have been a much worse outcome for myself and my family., what I could have done to prevent it, reliving the events and how that could have been our last day on earth. Prior to the accident, I never had any trouble sleeping. My Doctor prescribed me with medication to help me sleep (Baclofen) and I took that for a month after the accident but have not refilled as they leave me feeling more tired during the day than without them.

Impact on Daughter

[64] Her daughter had lacerations to her neck and shoulders from the car seat. It took several weeks for the abrasions to heal. She still has scars.

[65] The mental impact has been more significant.

[66] In the month or so immediately following, she was terrified to get into the car. To show her that she could get back into a car without getting into an accident they would entice her into the car with the promise of a treat and drive to the closest Starbucks only five minutes away for her very favourite thing – a cake pop and drive straight home.

[67] Six months later, every time she got in the car, she would tell whoever was driving that she did not want to get into another accident and required someone to sit in the backseat with her and hold her hand the entire time. She asks them to drive slow and to not go on the highway. She remembers the scene of the collision and cries and gets upset every time they drive by it.

[68] She gets very upset every time her mother leaves the house and has trouble falling asleep when mother is not there to tuck her in. She has become incredibly attached to her mother, always wanting to be near her and never wanting her out of her sight.

[69] The family dog, who was also in the car, has been affected in a similar manner. As soon as she realizes they are taking her in the car, she begins shaking uncontrollably and needs someone to hold her while driving. She pants, shakes and whimpers the entire drive. Prior to the accident, she would sit or lay quietly in the backseat without a peep.

Impact on TM

[70] The impact on him has been primarily mental and emotional.

[71] He wrote in his Victim Impact Statement that:

At about 9:00am I received a phone call from My wife and the first words that came out of her mouth were "Babe, we were in an accident and its really bad" in that moment my whole body went numb. The thought of my entire family and everyone I care about could be severely injured or even dead made me sick to my stomach.

[72] Since then he lives with the idea that as a father and husband his job was to keep his family safe and that day he failed. He blames himself for what happened, thinking that he should have been there.

[73] The collision also impacted their lives in other more practical ways.

[74] They had sold their house back in June and the closing date was the end of August. Due to her injuries AM was unable to help with much of the packing or heavy lifting and this fell heavily on TM’s shoulders. They finally moved into the new house on October 31, 2020 after renovations where again she could not help with moving any boxes or furniture. He did the majority of the unpacking, with her helping where she could.

Financial Impact

[75] Their brand new vehicle, leased in March 2020 was a write-off. They had made a down payment of $2500 in an effort to keep the monthly payments as low as possible. They lost that $2,500 down payment, as insurance only covered the value of the car at the time of the accident.

[76] In addition, AM is spending a lot on gas getting to and from physiotherapy, 37 kilometers one way from the house.

[77] She has not lost any salary as of yet thanks to her company offering paid sick time and vacation time. She took a week off work, but used sick and vacation time to maintain her salary.

Background of Brandon Clark

[78] I was provided with a Pre-Sentence Report and a copy of Mr. Clark’s Resume. From these, I learned the following.

[79] Brandon Clark was born in 1995, in Toronto and raised primarily in Oakville.

[80] His mother worked for a major telecommunications company in Canada, while his father worked "odd-jobs" for most of his life. His mother is now a recipient of social assistance while his father is a manager at a restaurant.

[81] His parents divorced when he was two-years old. Mr. Clark has resided primarily with his mother since.

[82] Mr. Clark did not have any contact with his father from the ages of five to eight. He began asking about his father then and arrangements were made for them to meet. Mr. Clark was also introduced to his half sister and his stepmother at the time. Mr. Clark has had a positive relationship with all of them since.

[83] Mr. Clark states he has a positive relationship with his mother. He acknowledges she was his primary support growing up and is grateful for her commitment to him. He described his mother as a "laid-back" parent and reported he was never really punished for any of his wrong doings. Ms. Clark advised that she never had a problem with Mr. Clark getting into trouble. Ms. Clark advised that she also had the support of her parents in raising Mr. Clark and that Mr. Clark had a very good relationship with his maternal grandparents. She advised that Mr. Clark was an active child playing competitive 'AAA' hockey.

[84] Mr. Clark reported he is not in a dating relationship at this time. He has never been married or engaged. Mr. Clark advised his longest relationship was a three-year relationship of which ended when he was twenty-one years old.

[85] Mr. Clark has three half siblings, all from his father. They are 18, 17 and 12 years old. He has positive relationships with all three. One half-sister is battling depression, which resulted in a brief hospitalization. Mr. Clark is described her biggest support. She is most comfortable speaking with him regarding her depression and he has been able to show her that she is not alone. She has had limited contact with her father over the past six years and that Mr. Clark not only acts as an older brother but has also taken on a father figure role.

[86] Mr. Clark did not finish secondary school. He failed many classes and was expelled from school in 2014, in what was scheduled to be his final year. He was suspended on four occasions for being disruptive in class, disrespectful towards teachers and for truancy, which ultimately led to his expulsion.

[87] When he was in grade six, he was diagnosed with Attention Deficit Hyperactivity Disorder.

[88] Mr. Clark does not have any plans to go back to school.

[89] His employment history consists mainly of working in various restaurant in Mississauga, Oakville and Toronto. He has been working primarily as a server since he was 19 years old. He often switched restaurants for better opportunities. Mr. Clark advised he made "good money" working as a server, citing the large tips received.

[90] Mr. Clark disclosed that in 2018, while working at a restaurant in Mississauga, he began using cocaine and was abusing alcohol while on shift. He credited this as being part of the culture in working at restaurants, however advised his use did not impact his performance at work.

[91] He also does modeling. His casting agent reported that Mr. Clark has been working for her for approximately three years and she stated he is one of her regular clients. She advised she hires him to appear in various music videos and video shoots. On average, she reports she hires him for approximately two video shoots per month. She does not have any concerns pertaining to his work ethic and that he is professional during their shoots.

[92] Mr. Clark is currently employed with a catering business.

[93] Mr. Clark first began consuming alcohol while in high school and would do so at parties or with friends on social occasions.

[94] It was not until he began working at a restaurant in Mississauga in 2018 that he began abusing substances. Mr. Clark advised that consuming alcohol with coworkers in the restaurant industry is normal and part of the restaurant culture, however acknowledged that his use was becoming too routine. He reported, shortly after commencing employment at this restaurant, he was consuming about 7 to 10 alcoholic beverages daily, consuming both beer and cocktails. Mr. Clark reported he was consuming alcohol while at work, however, did not view his consumption as problematic. He did not drink to the point of intoxication, and would do most of his drinking after work hours.

[95] It was not until after the offence that he acknowledged his use was problematic. He has not consumed any alcohol since then. Mr. Clark stated that prior to the offence, he never attended counselling or inquired about support with alcohol abuse.

[96] Mr. Clark recognizes he was intoxicated during the offence.

[97] He also began experimenting with drug use, when he started working at the Mississauga restaurant in 2018. He tried cocaine shortly after starting and about 6 to 7 months into his employment, he was using approximately one gram of cocaine, daily, primarily to party and feel uplifted. This regular use lasted a few years, and it was not until around the time of the offence, that his consumption decreased. He stated his use did not impact his work performance, or relationship with his friends and family. He believes that he was functional when he was abusing both drugs and alcohol.

[98] After the offence, he used cocaine as a coping mechanism to deal with the stresses associated with his offence. Although, he reports his use was less frequent, he was using about half a gram about once per week. He reports his current use is much less frequent, noting that he may use once every few weeks, as a coping mechanism. He states he has anxiety with court proceedings and cocaine use helps numb this feeling.

[99] Mr. Clark's mother was very surprised when she was made aware Mr. Clark was charged with impaired related offences.

[100] She does not believe Mr. Clark has a major problem or concerns with alcohol abuse.

[101] With regards to cocaine use, she was not aware of his use until relatively recently.

[102] A Physician Assistant at the RAAM Clinic confirmed that Mr. Clark reconnected with the clinic on January 26, 2021 and had two follow up sessions since. His most recent was June 29, 2021 when he was prescribed medication for daily substance cravings. Mr. Clark has not had any contact with RAAM since his last appointment in June despite text messages sent asking him to re-engage with the clinic. He is at risk of having his file closed for inactivity.

[103] Mr. Clark completed his screening with ADAPT on July 21, 2021. He remains on a waitlist for Phase One, a six-week psycho-educational group. He was also scheduled to participate in individual counselling commencing August 9, 2021, and will likely have individual appointments once every two to three weeks.

[104] Mr. Clarks neighbour of six years advised the community in which they live in, is a tight knit community. She reported Mr. Clark is respectful towards others that live there and is well received. He is a very kind person and that he has helped her eldest son, by donating clothing to him, noting their finances are limited.

[105] Mr. Clark reports having much remorse for his actions. He admits his wrongdoing and does not minimize the severity of his offence. He reported having much anxiety about his court proceedings and is looking forward to having this put behind him. He will attend counselling services to address any ongoing substance abuse concerns.

[106] Mr. Clark did not report any current physical health concerns. His mother reported he had a history of Crohn's disease. An operation was performed within the same year of his diagnosis and he rarely reports symptoms.

[107] The arresting office, Constable Jamie Bona of the Ontario Provincial Police advised Mr. Clark was cooperative during the arrest.

[108] Mr. Clark has no criminal history and therefore no previous period of community supervision.

Analysis

[109] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, 2004 ONCA 5549, supra by stating, “The imposition of a fit sentence can be as difficult a task as any faced by a trial judge”. [20]

[110] Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation." [21]

[111] The primary objectives in sentencing Mr. Clark are deterrence and denunciation, but I cannot ignore the other principles of sentencing.

[112] I must craft a sentence that is proportionate to the gravity of the offences committed and the degree of responsibility of Mr. Clark and yet, at the same time, one that is responsive to his unique circumstances.

[113] I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.

[114] The aggravating factors can be found in the facts of the offences.

[115] He chose to drive a motor vehicle on a busy highway at 9:00 am while his ability to drive was very impaired by alcohol.

[116] As someone who had worked as a bartender and server, he would have received Smart Serve training and therefore would have had full knowledge of the risks of drinking and driving.

[117] He drove at a high rate of speed and struck another vehicle causing that vehicle to roll over and end up in a ditch.

[118] This collision caused significant physical injuries to the mother and child who were in the vehicle. They are still experiencing the physical repercussions to this day. I do not know when, if ever, they will get over the emotional trauma.

[119] Mr. Clark did not stick around to see the damage that he had done to these people. He drove home instead.

[120] Even then, he did not contact police to report the collision. They had to track him down.

[121] When first confronted by police, he denied being involved in a collision.

[122] There are a number of mitigating factors in this case.

[123] He pled guilty. I take this to be an acceptance of responsibility as well as an expression of remorse. Most importantly, it made it unnecessary for his victims to relive their trauma while testifying in a courtroom.

[124] He has repeatedly expressed remorse for what he has done.

[125] He had no prior criminal record.

[126] He has otherwise led a very good life and been of good character.

[127] I note however that drinking and driving offences are often committed by otherwise law-abiding people. I note also that such persons are the ones who are most likely to be deterred by the threat of substantial penalties.

[128] He has not offended further since this happened 16 months ago.

[129] I am advised that he has not driven a motor vehicle during that time.

[130] He has strong support from friends and family, which speaks well for his prospects of rehabilitation.

[131] I do note however that his mother is one of his biggest supporters. She was not aware of the fact that his alcohol consumption had become problematic. Further, she was completely unaware of the fact that he was using cocaine at all, let alone to the extent that he has since admitted. Her support for him is of little assistance if she is blind to things like this.

[132] Mr. Clark has begun working with counsellors and has expressed a willingness to follow through with further counselling in the future.

[133] I am concerned however by his apparent lack of follow through with RAAM and by his relatively slow progress in becoming fully involved with ADAPT.

[134] I am also concerned by the fact that he is still using cocaine albeit to a lesser degree than he was before. I do note that he says that he has not consumed alcohol since the collision.

[135] All of this leaves me with questions as to how serious he is about dealing with his substance abuse issues.

[136] I am satisfied that I can address this to a certain extent by making it a term of a conditional sentence that he not consume alcohol or illegal drugs during that time period. He will also have to follow through with counselling.

[137] In addition, he will be prohibited from driving at all for the next two years. For another two years after that, the Ministry of Transportation will only allow him to drive a vehicle that is equipped with an ignition interlock device.

[138] Even so, I am satisfied that in light of the particulars of the offences and the significant impact on the victims, the principles of denunciation and deterrence call for a period of actual jail. Nothing less will deliver the message to Mr. Clark and to other like-minded individuals that such behaviour will not be tolerated.

[139] That period of jail need not be as long as Crown counsel has suggested. For first offenders like Mr. Clark who have never been to jail before, any time behind bars will have a significant impact on him.

[140] Allowing him to serve this portion of his sentence on an intermittent basis should satisfy the denunciatory and deterrent functions while allowing for the rehabilitative functions of preserving Mr. Clark’s employment, family relationships and responsibilities, and obligations to the community.

[141] Hopefully, every time he returns to the jail, he will reflect on why he is there.

[142] Finally, the conditional sentence component should complement this, also addressing all of the principles of sentencing, including denunciation and deterrence.

[143] In that regard, the blended sentence should be viewed as a whole. One should not break it down into separate components.

[144] Viewing this in that light, I am satisfied that this blend of intermittent sentence and conditional sentence and driving prohibition is appropriate here.

Sentence

[145] For all of the above reasons, I sentence Mr. Clark as follows:

[146] With respect to the impaired driving offence, I sentence him to imprisonment for 30 days to be served on an intermittent basis. The precise details of this will be settled shortly. This will be accompanied by probation for two years commencing today.

[147] With respect to the fail to remain offence, I sentence him to a concurrent conditional sentence of imprisonment for nine months, to be served in the community.

[148] The terms of the probation will require that Mr. Clark:

(1) keep the peace and be of good behaviour; (2) appear before the court when required to do so by the court; (3) notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation; (4) appear at the jail to serve his intermittent sentence on time, in a sober condition, with a blood alcohol concentration of zero, and not under the influence of or in possession of any controlled substance unless he is taking that controlled substance pursuant to a lawfully obtained prescription; (5) report to a probation officer within four working days and after that, at all times and places as directed by the probation officer or any person authorized by the probation officer to assist in his supervision; (6) cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request; (7) attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer, and complete them to the satisfaction of the probation officer, for substance abuse and any other program directed by the probation officer. (8) Not operate a motor vehicle unless he is the holder of a valid Ontario driver’s licence.

[149] The terms of the conditional sentence of imprisonment will require that Mr. Clark:

(1) keep the peace and be of good behaviour; (2) appear before the court when required to do so by the court; (3) report to a supervisor within four working days and thereafter report when required by the supervisor and in the manner directed by the supervisor; (4) notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation; (5) remain within the Province of Ontario unless written permission to go outside the Province is obtained from the court or the supervisor; (6) cooperate with his supervisor. He must sign any releases necessary to permit the supervisor to monitor his compliance and he must provide proof of compliance with any condition of this order to his supervisor on request; (7) live at 1180 Dorval Drive, Unit 404, Oakville, Ontario, or a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance; (8) a home confinement condition will be in effect for the full duration of the sentence (9) during that time he will remain in his residence or on the property of his residence at all times except (a) between 1 pm and 5 pm on Saturdays in order to acquire the necessities of life, (b) for any medical emergency involving him or any member of his immediate family (spouse, child, parent, sibling), (c) for going directly to and from or being at school, employment, court attendance, religious services and legal or medical or dental appointments, or looking for work, or while serving the custodial portion of his intermittent sentence; (d) for going directly to and from or being at assessment, treatment or counselling sessions; (e) he will confirm his schedule in advance with his supervisor setting out the times for these activities (f) with the prior written approval of the supervisor. The written permission of the supervisor is to be carried with him during these times. (10) During the period of home confinement, he must present himself at his doorway upon the request of his supervisor or a peace officer for the purpose of verifying his compliance with his home confinement condition. (11) not buy possess or consume alcohol or any unlawful drugs or substances. (12) attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the supervisor, and complete them to the satisfaction of the supervisor, for alcohol abuse or substance abuse; and any other program directed by the supervisor. (13) make reasonable efforts to seek and maintain suitable work. (14) not operate a motor vehicle.

[150] I also make the following ancillary orders.

[151] Mr. Clark is prohibited from operating a motor vehicle on any street, road, highway or other public place for a period of two years, concurrently for both offences.

[152] Failing to remain is a secondary designated offence and I make an order pursuant to s. 487.051 of the Criminal Code, authorizing the taking from Mr. Clark of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[153] Mr. Clark will have eight months to pay the victim fine surcharges.

Released: November 22, 2021 Signed: Justice D. A. Harris