Ontario Provincial Police in Pikangikum will not have to house a man from the remote community in their cells on the weekend.

The Ontario Superior Court of Justice overturned a decision from a lower court, that a sentence for impaired driving could be carried out on the weekends at the local police detachment.

The case started in February, 2016 when Christopher Black was charged with two counts of operation of a motor vehicle with a blood alcohol level over 80 milligrams. Black was also charged with impaired driving on May 19, 2016, and had a previous conviction from August 2014.

Black plead guilty to the charges in October 2017, and a visiting judge, presiding in Pikangikum, imposed a sentence of 30 days for each count, to be served consecutively, but intermittently. Black was to be at the Pikangikum OPP detachment on Friday at 6 p.m. until Sunday at 6 p.m.

However, the judge noted, "If the Pikangikum OPP are not in a position to house you, they are free to release you and you are to return the following weekend."

The presiding judge read the decision differently than his written copy, with the transcript reading, "If the Pikangikum police are not in a position to house you or do not have the means to get to a place where you can serve your intermittent sentence they are free to release you to return the following Friday."

Policing in the community is provided by the Pikangikum Police Service, along with support from the OPP. There are no more than four OPP officers on duty at any given time in Pikangikum.

There are nine cells in the detachment, which also serves as an employee residence. Court documents state the majority of the cells are used daily, with double and triple occupation being the norm.

The court decision also states the detachment is a temporary lock-up facility meant for temporary and short-term custody only. The detachment does not house sentenced inmates, and is not designed, resourced or staffed to do so. For example, there are no showers for prisoners.

The OPP argued that intermittent sentences can only be imposed where there is appropriate accommodation available, and that the lower court exceeded its jurisdiction by imposing a condition where the appropriate accommodation was not available.

Counsel for Black, said the lower court was able to determine what is an "appropriate accommodation," and there was no jurisdictional error, allowing him to serve his sentence in Pikangikum. The other argument is an intermittent sentence does not need to be served in a "correctional institution."

Part of the discussion in the case, presided by Justice Fregeau, dealt with the "absurd results" that could arise from sentencing a person to serve out their time at a detachment, or or other place of confinement, as well as if this case could open the door to inmates who would usually serve their time in a federal penitentiary, being able to service time in a provincial jail.

Black's counsel argued that a sentencing judge may sentence a person to imprisonment in a space other than a correctional institution.

There is no debate on the fact that the OPP Detachment is not a correctional institution, while section 16(1) of the Ministry of Correctional Services Act (MSC) is specific in that a sentence of imprisonment must be served in a correctional institution.

The Criminal Code also states that when an intermittent sentence is to take place, "the availability of appropriate accommodation to ensure compliance with the sentence" needs to be available.

In a recent Ontario court case, it was stated that an intermittent sentence should not to be handed down, if the sentence cannot be properly carried out. "There must be a prison available that is prepared to confine the person to custody on an intermittent basis," wrote Justice Campbell in Moldovan, supra.

"It was clear from the beginning that the Detachment was not appropriate accommodation to ensure compliance with the sentence," Justice Fregeau wrote. He found the lower court issued an order inconsistent with the governing law, and erred in law.

Black is remanded until the next available sitting of the Ontario court of Justice in Pikangikum, for sentencing.