



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Clouthier, 2016 ONCA 197

DATE: 20160309

DOCKET: C60410 & C60970

Gillese, Watt and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Thomas Clouthier
[1]

Respondent

Hannah Freeman, for the appellant

Sean J. May, for the respondent

Heard:  February 3, 2016

On appeal from the sentences imposed on April 7, 2015 and
    on August 13, 2015 by Justice Ann Alder of the Ontario Court of Justice.

Watt J.A.:

[1]

Some drinks. Three accidents. Flight from the scene. A first
    intermittent sentence, imposed and served. A few months later, a second
    intermittent sentence, imposed and served.

[2]

The Crown seeks leave to appeal the sentences imposed. The Crown submits
    that the trial judges imposition of two intermittent sentences totalling five
    months are illegal because they circumvent the limitation on the length of 
    sentences served intermittently prescribed in s. 732(1) of the
Criminal
    Code
, R.S.C. 1895, c. C-46. Further, the Crown says that the sentence
    imposed by the trial judge is demonstrably unfit. If leave is granted, the
    Crown invites us to increase the sentence to a mid-to upper-range reformatory
    sentence, less credit for time spent in service of the intermittent sentences,
    to be followed by a period of probation for 12 months. To give effect to the
    Crowns submissions would require the re-incarceration of Clouthier.

[3]

As I will explain, I would grant leave to appeal, allow the appeal and
    order the respondent to serve a further 9 months in custody followed by a
    period of probation for 12 months.

The Background Facts

[4]

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

[5]

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

[6]

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

[7]

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

[8]

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

The Trial Proceedings

[9]

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

[10]

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

The Sentencing Hearing

[11]

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

[12]

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

[13]

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

The Imposition
    of Sentence

[14]

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

[15]

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

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

[16]

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

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

[17]

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

[18]

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

The Grounds of Appeal

[19]

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


i.

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


ii.

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

Ground #1: The Legality of the Sentences Imposed

[20]

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

The Additional
    Background

[21]

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

[22]

The
    passages excerpted in paragraph 15 demonstrate that it was the trial judge who
    proposed to bifurcate the sentencing process to permit the entire sentence to
    be served intermittently. Counsel for the respondent accepted the trial judges
    proposal. The trial Crown said nothing.

The Arguments on Appeal

[23]

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

[24]

Crown
    counsel invokes the decision in
R. v. Middleton
, 2009 SCC 21, [2009] 1
    S.C.R. 674, in support of her submission that chaining intermittent sentences
    beyond the 90-day limit in s. 732(1) defeats the very object of this subsection
    and disregards the correctional principles it was meant to serve. This
    staggered approach to sentencing to avoid the 90-day limit for intermittent
    sentences and, thereby, to circumvent the will of Parliament is an error of law
    that results in an illegal sentence.

[25]

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

[26]

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

The Governing Principles

[27]

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

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

(a) that the sentence be served intermittently at
    such times as are specified in the order; and

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

[28]

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

[29]

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

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

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

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

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

(i) more than one fine is imposed,

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

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

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

[30]

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


i.

both the intermittent and conditional sentences were legal; but


ii.

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

[31]

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

[32]

In
R. v. Nunner
(1976), 30 C.C.C. (2d) 199 (Ont. C.A.), the appellant was
    charged with and pleaded guilty to several offences, including a count of
    robbery. The trial judge suspended the passing of sentence and put the
    appellant on probation on all of the offences except robbery. A term of the
    probation order was that the appellant was to return before the sentencing
    judge in three months, and again five months thereafter, with reports from his
    school and his probation officer. The trial judge adjourned the robbery
    sentencing for three months, and then for another two months, explaining to the
    appellant that he would be watching his conduct and would impose a substantial
    term of imprisonment if the appellant were in any further trouble.

[33]

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

[34]

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

The Principles Applied

[35]

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

[36]

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

[37]

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

[38]

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

[39]

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

[40]

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

Ground #2: The Demonstrable Unfitness of the Sentence

[41]

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

[42]

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

The Essential Background

[43]

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

[44]

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

[45]

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

[46]

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

The Positions of the Parties at Trial

[47]

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

[48]

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

The Arguments on Appeal

[49]

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

[50]

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

[51]

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

[52]

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

The Governing Principles

[53]

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

[54]

The
    predominant sentencing objectives in determining a fit sentence for
    alcohol-driving offences, especially those in which bodily harm is caused to a
    fellow human being, are general deterrence and denunciation:
R. v. Junkert
,
    2010 ONCA 549, 103 O.R. (3d) 284, at paras. 42 and 47;
R. v. Biancofiore
(1997), 35 O.R. (3d) 782 (C.A.), at pp. 790-92. As a general rule, custodial
    sentences are required where bodily harm is caused:
Biancofiore
, at p.
    791.

[55]

The
    offences of dangerous or impaired operation of a motor vehicle and failing to
    stop at the scene of an accident protect different social interests. It follows
    that the rule or principle of sentencing  that sentences for offences arising
    out of the same transaction or incident should normally be concurrent  does
    not necessarily apply when the offences constitute invasions of different
    legally protected interests. Subject to the principle of totality, consecutive
    sentences are warranted:
R. v. Gummer
(1983), 1 O.A.C. 141, at para.
    13;
R. v. Van Puyenbroek
, 2007 ONCA 824, 226 C.C.C. (3d) 289, at para.
    63.

[56]

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

The Principles Applied

[57]

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

[58]

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

[59]

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

[60]

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

[61]

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

[62]

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

[63]

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


i.

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


ii.

the rehabilitative steps taken by the respondent, both before and after
    sentencing, and the degree to which those steps may be adversely affected by
    re-incarceration;


iii.

the seriousness of the offences of which the respondent has been
    convicted; and


iv.

responsibility for any delay in the appellate process.

[64]

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

[65]

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


i.

the sentence sought by the trial Crown and by appellate counsel for the
    Crown;


ii.

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


iii.

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


iv.

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

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

Conclusion

[66]

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


i.

Impaired Operation causing Bodily Harm: 11 months;


ii.

Dangerous Operation causing Bodily Harm: 11 months concurrent;


iii.

Fail to Stop: 4 months consecutive to i; and


iv.

Fail to Stop: 4 months concurrent to iii.

[67]

In
    light of the time already spent in custody on the intermittent sentences and
    the one month of pre-sentence credit awarded by the trial judge for time spent
    in a pre-sentence treatment program, I would reduce the total sentence to a
remanet
of 9 months, to be followed by probation for 12 months on the statutory
    conditions and the following optional conditions:


i.

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


ii.

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


iii.

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


iv.

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

[68]

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

Released: March 9, 2016 (EEG)

David
    Watt J.A.

I
    agree Eileen E. Gillese J.A.

I
    agree M. Tulloch J.A.





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



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


