Jail Sentences for First-Time Impaired Driving Convictions

Something is rotten in the Province of Ontario.

And if I weren’t so upset by it, I would be inserting jokes at Ontario’s expense here.

Ever since the Newmarket region of Ontario set Canada’s record for the highest sentence ever handed down in an impaired driving case, after the Marco Muzzo sentencing, Ontario has developed a disturbing trend of issuing jail sentences to first time impaired drivers.

This is incredibly problematic and serves only to harm the administration of justice in the long term. And this blog post explains why.

Jail sentences are a huge toll on the community. By and large, first-time impaired driving offenders are people who have otherwise had no contact with the justice system. They are people who are otherwise of good character and generally people with jobs, families, and good standing in the community.

They are ordinary people who made an extraordinary mistake.

Removing those from society who are guilty of making one very bad decision, and instead subjecting them to jail prevents them from contributing meaningfully to society. The purposes and goals of sentencing are not served by jail sentences for first-time impaired drivers.

In sentencing, judges are supposed to consider the following principles:

• Denunciation of the offence;
• Deterrence of further offences, both specific to that person and to the public generally;
• Rehabilitation of the offender; and
• Reintegration of the offender into society.

Denunciation is obviously achieved by a jail sentence. But that is where the principles of sentencing and a jail term part ways in these types of cases. Deterring further conduct is of little use. This is due to the simple fact that alcohol reduces inhibition and contributes to poor decision-making. You cannot send a person to jail for forty five days on a first offence and expect the next person who is half a dozen beers in to think through that. Alcohol, by its very nature, impedes the ability of that person to do so.

Moreover, specific deterrence is by and large addressed through the stigma of being charged with a serious criminal offence and having to answer for your conduct in court. In my experience as a defence lawyer, most people who face criminal charges for impaired driving do not come back before the court. The rates of recidivism are generally low.

Those with alcohol addiction issues that contribute to their offence are deterred by the rehabilitation aspect of sentencing. Because the range of penalties is broad, conditions for alcohol counselling and ignition interlock devices in vehicles are available to judges. They are also, in British Columbia, consequences that naturally follow from conviction such that the conviction necessarily incorporates those deterrent factors.

The Criminal Code also directs that a person who is sentenced should have all available alternatives other than jail considered before a period of incarceration is imposed. And this is a real sticking point when it comes to jail sentences for first time offenders. It fails to consider all other available alternatives. Instead, it jumps right to the harshest punishment known to our legal system, regardless of the underlying circumstances or issues that contributed to the offence.

Because of this, a jail sentence for a first time impaired driving conviction tends to undermine the fundamental principles of sentencing.

In addition, a jail sentence removes an otherwise contributing member of society from their community. There is a social stigma that comes with being jailed, and social science research tends to suggest that that type of labelling will ultimately lead to further criminal behaviour, as opposed to the opposite.

A person serving a jail sentence for a first-time impaired driving offence may not have the chance to retain their employment or volunteer position. The role that they play and the contribution they make to society overall can be completely halted by virtue of a single incident on a single occasion, that is unlikely to be repeated.

Rather than remove people from their community as a result of driving while under the influence, would it not be better to make them give back to the community they put at risk? This seems more in line with the fundamental principles of sentencing and also protects the positive aspects of these individuals’ lives. After all, first-time impaired drivers who do not injure or kill anyone are generally non-violent, remorseful, and otherwise law-abiding citizens. They should be rewarded for those tendencies, not punished because of what someone else did, in some other case, and for which that person was sentenced.

A jail sentence for a first-time impaired driving offence is simply not in line with the goals and purpose of our justice system.