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ONCA Puts an End to Sentence Splitting

Section 732(1) of the Criminal Code allows an offender to serve an intermittent sentence if the sentence imposed is 90 days or less and the Judge deems it appropriate. In determining if an intermittent sentence is appropriate, the court looks at 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. The courts commonly impose intermittent sentences, to be served on weekends, when an offender is gainfully employed during the week.

In R v Clouthier, 2016 ONCA 197, the Ontario Court of Appeal (ONCA) overturned two sentences imposed by Justice Alder of the Ontario Court of Justice. Mr. Clouthier plead guilty to 4 counts; impaired operation causing bodily harm, dangerous operation causing bodily harm, and two counts of failure to stop at the scene of an accident. Justice Alder determined that Mr. Clouthier's appropriate sentence for these offences were 6 months (less 1 month credited for his time spent in treatment). Mr. Clouthier was recently employed on a full time basis and wanted to serve his sentence on weekends. On April 7th, 2015, Justice Alder sentenced Mr. Clouthier to serve 90 days intermittently on one count and reserved sentence of the remaining counts. On August 13th, 2015, once Mr. Clouthier completed his 90 day intermittent sentence, Justice Alder sentenced him to 60 days on the remaining counts.

The Crown appealed the decision and the sentences were overturned. The crown argued that the sentences imposed were effectively "chained" into an illegal five-month intermittent sentence. The ONCA would not go as far as to say the sentence imposed was "illegal". However, the Appeal court stated that the Judge "did indirectly what she could not have done directly without breaching the 90-day limit of s. 732(1) of the Criminal Code." The Court went on to say that the postponement of the sentence was an improper exercise of judicial discretion for an illegal purpose.

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