R. v. Clouthier (T.) (2016), 346 O.A.C. 162 (CA)
MLB headnote and full text
Temp. Cite: [2016] O.A.C. TBEd. MR.017
Her Majesty the Queen (applicant/appellant) v. Thomas Clouthier [see footnote 1] (respondent)
(C60410; C60970; 2016 ONCA 197)
Indexed As: R. v. Clouthier (T.)
Ontario Court of Appeal
Gillese, Watt and Tulloch, JJ.A.
March 9, 2016.
Summary:
The accused pleaded guilty to impaired driving causing bodily harm, dangerous driving causing bodily harm, and two counts of failure to stop at the scene of an accident. The trial judge found that an appropriate sentence was six months’ imprisonment, less one month as credit for the time that the accused spent in a treatment program prior to sentencing. In April 2015, the trial judge imposed a 90 day intermittent sentence for impaired driving causing bodily harm, which the accused served. Afterward, in August 2015, the trial judge imposed concurrent 60 day intermittent sentences on the remaining counts. The Crown appealed the sentence.
The Ontario Court of Appeal allowed the appeal and ordered the accused to serve a further nine months’ imprisonment followed by 12 months’ probation.
Criminal Law – Topic 5664
Punishments (sentence) – Imprisonment and parole – Intermittent imprisonment – Clouthier pleaded guilty to impaired driving causing bodily harm, dangerous driving causing bodily harm, and two counts of leaving the scene of an accident – The sentencing judge held that an appropriate sentence was six months’ imprisonment, less one month as credit for the time Clouthier spent in a treatment program prior to sentencing – In order to permit the sentence to be served intermittently, the sentencing judge proposed to bifurcate the sentencing process – Accordingly, in April 2015, she imposed a 90 day intermittent sentence for impaired driving causing bodily harm, which Clouthier served – Afterward, in August 2015, the judge imposed concurrent 60 day intermittent sentences on the remaining counts – The Ontario Court of Appeal allowed the Crown’s sentence appeal – 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 for intermittent sentences in s. 732(1) of the Criminal Code – The result was an effective sentence that defeated the object of s. 732(1) and disregarded the correctional principles that it was meant to serve – See paragraphs 35 to 40.
Criminal Law – Topic 5803
Sentencing – General – Consecutive sentences – [See
Criminal Law – Topic 5886.1
].
Criminal Law – Topic 5849.13
Sentencing – Considerations on imposing sentence – Drinking and driving offences – [See
Criminal Law – Topic 5886.1
].
Criminal Law – Topic 5865.1
Sentence – Dangerous driving causing death or bodily harm – [See
Criminal Law – Topic 5886.1
].
Criminal Law – Topic 5866
Sentence – Leaving scene of an accident – [See
Criminal Law – Topic 5886.1
].
Criminal Law – Topic 5886.1
Sentence – Impaired driving causing bodily harm – Clouthier drove his truck while his blood-alcohol content exceeded the legal limit – He rear-ended another vehicle at an intersection, reversed his truck, drove over a median and fled into a residential area where he rear-ended a second vehicle a few minutes later – He fled again, drove from 100 to 130 km/h, and collided head-on with a third vehicle – He was apprehended as he tried to run away – A passenger in the third vehicle was seriously injured – Clouthier pleaded guilty to impaired driving causing bodily harm (count 1), dangerous driving causing bodily harm (count 2), and leaving the scene of an accident (counts 3 and 4) – The sentencing judge held that an appropriate sentence was six months’ imprisonment, less one month as credit for the time Clouthier spent in a treatment program prior to sentencing – Clouthier was sentenced to three months’ imprisonment for impaired driving causing bodily harm and concurrent two month sentences for the remaining counts – The Ontario Court of Appeal allowed the Crown’s sentence appeal – First, the sentence failed to reflect in any meaningful way the predominant sentencing objectives of general deterrence, denunciation and protection of the public – Second, the sentences for counts 3 and 4 should have been consecutive to the other offences – An appropriate sentence was 11 months for count 1, 11 months concurrent for count 2, and four months for each of counts 3 and 4 (concurrent to each other but consecutive to count 1), for a total of 15 months – Clouthier was ordered to serve a further nine months’ imprisonment followed by 12 months’ probation – See paragraphs 57 to 68.
Criminal Law – Topic 6203
Sentencing – Appeals – Variation of sentence – Grounds for varying sentence imposed by trial judge – [See
Criminal Law – Topic 5886.1
].
Criminal Law – Topic 6214
Sentencing – Appeals – Variation of sentence – Considerations – Where sentence of trial court has been fully or partially served – [See
Criminal Law – Topic 5886.1
].
Cases Noticed:
R. v. Middleton (T.), [2009] 1 S.C.R. 674; 388 N.R. 89; 251 O.A.C. 349; 2009 SCC 21, refd to. [para. 24].
R. v. Nunner (1976), 30 C.C.C.(2d) 199 (Ont. C.A.), refd to. [para. 32].
R. v. Junkert (M.) (2010), 267 O.A.C. 7; 103 O.R.(3d) 284; 2010 ONCA 549, refd to. [para. 54].
R. v. Biancofiore (N.F.) (1997), 103 O.A.C. 292; 35 O.R.(3d) 782 (C.A.), refd to. [para. 54].
R. v. Gummer (1983), 1 O.A.C. 141 (C.A.), refd to. [para. 55].
R. v. Van Puyenbroek (Y.) (2007), 231 O.A.C. 146; 226 C.C.C.(3d) 289; 2007 ONCA 824, refd to. [para. 55].
Counsel:
Hannah Freeman, for the appellant;
Sean J. May, for the respondent.
This appeal was heard on February 3, 2016, before Gillese, Watt and Tulloch, JJ.A., of the Ontario Court of Appeal. Watt, J.A., delivered the following judgment for the court on March 9, 2016.
