The sentence of Ontario Court Justice Ann Alder was improper and illegal
An Ottawa judge whose creative sentence allowed a drunk driver to save his job by serving his jail time on weekends has had her decision overturned by the Ontario Court of Appeal.
The sentence of Ontario Court Justice Ann Alder was not only improper, it was also too short, according to the panel of three appeal court judges. They tripled the length of the sentence for 21-year-old David Clouthier from five months to 15 and ordered him to surrender within three days to begin serving what’s left of his sentence.
Clouthier caused three crashes in less than 15 minutes and raced through residential neighbourhoods at up to 130 km/ h after a night of drinking in June 2013. Clouthier was driving home when he rear-ended one vehicle, backed up and fled from the crash by driving over a median.
He then rear-ended a second vehicle before again fleeing, this time stepping on the gas pedal and hitting speeds of between 100 and 130 km/ h before smashing headon into a third vehicle, leaving a back seat passenger with injuries so severe that emergency surgery was required.
Clouthier tried to climb out the window of his damaged truck and run away following the third crash, but witnesses grabbed and held him until police arrived. His blood alcohol level was later determined to be between 100 and 150 milligrams of alcohol per 100 millilitres of blood. The legal limit to drive is 80.
Clouthier pleaded guilty to impaired driving and dangerous driving causing bodily harm and two counts of failing to stop at the scene of an accident.
When it came time to sentence Clouthier, Alder offered him the choice of serving his five-month sentence all at once or on weekends.
Clouthier chose weekends, which typically involves an offender showing up at the jail on a Friday evening and being released early on Monday morning.
Alder sentenced him last April first to 90 days in jail that he could serve on weekends. After he served that sentence, he reappeared before the judge in August to receive a further 60 days he could serve on weekends.
The two separate sentencing dates were necessary since the section of the Criminal Code governing weekend jail sentences says they can’t exceed 90 days.
Alder had a reason to consider the weekend sentence — Clouthier was a first-time offender with a drug and alcohol problem and poor impulse control, but he was remorseful, had completed a rehabilitation program at the Royal Ottawa Mental Health Centre, volunteered in the community and landed a full-time job.
Despite Clouthier’s effort to rehabilitate himself, the Court of Appeal found that Alder’s sentence circumvented the rules.
“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,” the appeal court found.
The sentence was also too lenient, according to the appeal court judges.
The original five-month sentence “fails to reflect in any meaningful way the predominant sentencing objectives of general deterrence, denunciation and protection of the public,” the appeal court found.
“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.”
Andrew Murie, chief executive of Mothers Against Drunk Driving, said a short, intermittent sentence that can be served on weekends “is totally wrong in these kind of cases.”
Murie said he’s never seen a judge try to extend an intermittent sentence by splitting it into two parts.
Murie thinks the initial sentence sent the wrong message.
“It just says impaired driving is a mistake, it’s not a crime,” he said.
The appeal court found that Clouthier should serve a further nine months in jail. Following the completion of his sentence, Clouthier will remain on probation for a year.
His driver’s licence has been suspended for five years.