Courts can impose various types of sentences when an accused pleads guilty or is found guilty at trial. Depending on the circumstances and type of offence, sentences can range from a suspended sentence and probation, to a fine or imprisonment.
Imprisonment is the most serious sentence available under the Canadian legal system as an individual must spend a specific amount of time in jail. However, sometimes it may be possible to provide an offender with flexibility when serving a sentence of imprisonment.
This article considers the concept of an intermittent sentence, where the sentence is served intermittently, or in blocks of time. It also looks at a recent decision from the Ontario Court of Justice in which an accused sought an intermittent sentence to enable him to attend work while serving his sentence.
An intermittent sentence can be ordered where the sentence is ninety days or less
According to section 732(1) of the Criminal Code (the “Code”), a court is able to order an intermittent sentence if it imposes a sentence of ninety days or less. The order will specify the times the sentence will be served.
In considering whether an intermittent sentence is appropriate, the court needs to have 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.
If the court orders an intermittent sentence, the offender must comply with the conditions set out in the probation order, which applies when they are not serving time in prison.
The benefits of an intermittent sentence
The ability to serve a sentence of imprisonment in blocks of time, such as on weekends, gives the offender greater flexibility with their sentence. While still serving a prison sentence, the offender is released into the community for periods of time, allowing them to do things like attend work or care for their children.
Offender was found guilty of driving offences
The offender in the recent case of R. v Thanabalasingam sought an intermittent sentence. He was found guilty of two driving offences, namely impaired driving by operating a motor vehicle with a blood alcohol concentration of at least 80 mg of alcohol in 100 mL of blood, and driving while prohibited.
The event in question happened in May 2020 when the offender, a young G2 driver, was driving his sister’s car under the influence when it swerved and crashed into a pole.
In November 2019, the offender was convicted of another impaired driving offence. For this earlier offence, he was fined $1000 and received a driving prohibition of 12 months.
Offender sought an intermittent sentence, rather than consecutive days of imprisonment
Due to this earlier conviction, the minimum sentence under the Code for the May 2020 impaired driving offence was imprisonment for 30 days. The Crown sought a sentence of 60 consecutive days imprisonment, 12 months of probation and a 30-month driving prohibition.
The offender asked for an intermittent sentence of 45 days, to be served on dates which allowed him to continue to attend work. He had a variable work schedule and often needed to work on weekends.
Court considers aggravating and mitigating circumstances
In relation to aggravating circumstances, the sentencing judge said:
“The willingness of the defendant to not only drive on a highway with alcohol in his system, contrary to the conditions of his license, but to drive while prohibited, shortly after having been convicted of a previous drinking and driving Criminal Code offence, with a blood alcohol content (“BAC”) later found to be over 80, raises serious issues of specific deterrence, along with denunciation and general deterrence which must be given prominence in any sentence for drinking and driving offences.”
However, the judge also noted several mitigating circumstances, including the offender’s young age, employment and supportive family environment.
Appropriate accommodation was available at the detention centre
The sentencing judge decided that the relevant detention centre where the offender would serve his sentence had appropriate accommodations in place for the imposition of an intermittent sentence.
Specifically, the centre had a temporary absence program in place. In this program, offenders sentenced to an intermittent sentence could apply to the Superintendent to serve days stipulated for incarceration at home, subject to electronic monitoring. This was a rehabilitative program under which the offender needed to complete rehabilitative assignments.
The sentencing judge found that the presence of the temporary absence program did not mean that the centre was inappropriate for administering an intermittent sentence. The program did not alter the sentence imposed; it simply affected how it was administered.
Intermittent sentence imposed to give effect to the principle of restraint
The sentencing judge decided an appropriate sentence was 60 days incarceration, representing 30 days for each offence.
However, the judge referred to the principle of restraint, under which young offenders that have never served jail time should be given the shortest sentence possible. The sentencing judge decided that this principle justified serving a sentence intermittently. It was determined that an intermittent sentence would better facilitate rehabilitation and allow the offender to work to support his family, but still provide deterrence due to the presence of aggravating circumstances.
The judge also imposed a period of 12 months probation, the completion of community service and counselling and rehabilitation programs, and a 30-month driving prohibition.
Contact the Criminal Defence Lawyers at Barrison Law in Oshawa for Representation for Driving Charges
The criminal defence lawyers at Barrison Law provide effective defence representation for their clients that have been accused of driving offences in the Durham and Central East Regions of Ontario. We understand the importance of being able to drive and are fully aware of the impacts of being convicted of driving offences. We work with our clients to obtain the best possible outcome.
We offer several payment options, including Legal Aid, as well as a 24-hour phone service for when you need us most. To arrange a free initial consultation with a member of our team, call us at 905-404-1947 or reach out to us online.