R. v. Proulx

R. v. Proulx
Collection
Supreme Court Judgments
Date
2000-01-31
Neutral citation
2000 SCC 5
Report
[2000] 1 SCR 61
Case number
26376
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
Manitoba
Subjects
Criminal law
Notes
SCC Case Information: 26376
Decision Content
R. v. Proulx, [2000] 1 S.C.R. 61
Her Majesty The Queen Appellant
v.
Jeromie Keith D. Proulx Respondent
and
The Attorney General of Canada and
the Attorney General for Ontario Interveners
Indexed as: R. v. Proulx
Neutral citation: 2000 SCC 5.
File No.: 26376.
1999: May 25, 26; 2000: January 31.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory,* McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for manitoba
Criminal law – Sentencing – Conditional sentences – Accused pleading guilty to dangerous driving causing death and dangerous driving causing bodily harm and receiving sentence of 18 months of incarceration – Whether Court of Appeal erred in substituting conditional custodial sentence for jail term – Proper interpretation and application of conditional sentencing regime – Distinction between conditional sentence of imprisonment and suspended sentence with probation – Meaning of “safety of the community” – Criminal Code, R.S.C., 1985, c. C-46, ss. 742.1 , 742.3 .
After a night of partying involving consumption of some alcohol, the accused decided to drive his friends home even though he knew that his vehicle was not mechanically sound. For a period of 10 to 20 minutes, the accused, who had only seven weeks of experience as a licensed driver, drove erratically, weaving in and out of traffic, tailgating and trying to pass other vehicles without signalling, despite steady oncoming traffic and slippery roads. As the accused was trying to pass another vehicle, he drove his car into an oncoming lane of traffic, side-swiped a first car and crashed into a second one. The driver of that second vehicle was seriously injured. The accident also claimed the life of a passenger in the accused’s car. The accused was in a near-death coma for some time, but ultimately recovered from his injuries. The accused entered guilty pleas to one count of dangerous driving causing death and one count of dangerous driving causing bodily harm. He was sentenced to 18 months of incarceration, to be served concurrently on both charges. The sentencing judge concluded that a conditional sentence pursuant to s. 742.1 of the Criminal Code , which would allow the accused to serve his sentence in the community, would not be appropriate because it would be inconsistent with the objectives of denunciation and general deterrence. The Court of Appeal allowed the appeal and substituted a conditional custodial sentence for the jail term.
Held: The appeal should be allowed.
The 1996 sentencing reforms (“Bill C-41") substantially reformed Part XXIII of the Code, and introduced, inter alia, an express statement of the purposes and principles of sentencing, provisions for alternative measures for adult offenders and a new type of sanction, the conditional sentence of imprisonment. Bill C-41 in general and the conditional sentence in particular were enacted both to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing.
A conditional sentence should be distinguished from probationary measures. Probation is primarily a rehabilitative sentencing tool. By contrast, Parliament intended conditional sentences to include both punitive and rehabilitative aspects. Therefore, conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty. Conditions such as house arrest should be the norm, not the exception.
No offences are excluded from the conditional sentencing regime except those with a minimum term of imprisonment, nor should there be presumptions in favour of or against a conditional sentence for specific offences.
Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.
The requirement in s. 742.1(a) that the judge impose a sentence of imprisonment of less than two years does not require the judge to first impose a sentence of imprisonment of a fixed duration before considering whether that sentence can be served in the community. Although this approach is suggested by the text of s. 742.1(a), it is unrealistic and could lead to unfit sentences in some cases. Instead, a purposive interpretation of s. 742.1(a) should be adopted. In a preliminary determination, the sentencing judge should reject a penitentiary term and probationary measures as inappropriate. Having determined that the appropriate range of sentence is a term of imprisonment of less than two years, the judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community. As a corollary of the purposive interpretation of s. 742.1(a), a conditional sentence need not be of equivalent duration to the sentence of incarceration that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.
The requirement in s. 742.1(b) that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence, and not the primary consideration in determining whether a conditional sentence is appropriate. In making this determination, the judge should consider the risk posed by the specific offender, not the broader risk of whether the imposition of a conditional sentence would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law. Two factors should be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. A consideration of the risk posed by the offender should include the risk of any criminal activity, and not be limited solely to the risk of physical or psychological harm to individuals.
Once the prerequisites of s. 742.1 are satisfied, the judge should give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. This follows from Parliament’s clear message to the judiciary to reduce the use of incarceration as a sanction.
A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.
Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community.
Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved. However, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served. A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances.
No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances. The judge should consider all relevant evidence, no matter by whom it is adduced. However, it would be in the offender’s best interests to establish elements militating in favour of a conditional sentence.
Sentencing judges have a wide discretion in the choice of the appropriate sentence. They are entitled to considerable deference from appellate courts. Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.
In this case the sentencing judge considered that a term of imprisonment of 18 months was appropriate and declined to permit the accused to serve his term in the community. She found that, while the accused would not endanger the safety of the community by serving a conditional sentence, such a sentence would not be in conformity with the objectives of s. 718. In her view, even if incarceration was not necessary to deter the accused from similar future conduct or necessary for his rehabilitation, incarceration was necessary to send a strong message to denounce the accused’s conduct and to deter others from engaging in similar conduct. While the sentencing judge seems to have proceeded according to a rigid two-step process, in deviation from the approach set out in these reasons, an 18-month sentence of incarceration was not demonstrably unfit for these offences and this offender. The offences here were very serious, and had resulted in a death and in severe bodily harm. Moreover, dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. The Court of Appeal erred in holding that the sentencing judge had given undue weight to the objective of denunciation. Absent evidence that the sentence was demonstrably unfit, the Court of Appeal should not have interfered to substitute its own opinion for that of the sentencing judge. The sentencing judge did not commit a reversible error in principle and she appropriately considered all the relevant factors. Accordingly, the 18-month sentence of incarceration imposed by her should be restored. Since the accused has already served the conditional sentence imposed by the Court of Appeal in its entirety, and the Crown stated in oral argument that it was not seeking any further punishment, the service of the sentence of incarceration should be stayed.
Cases Cited
Considered: R. v. Gladue, [1999] 1 S.C.R. 688; referred to: R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Chaisson, [1995] 2 S.C.R. 1118; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Taylor (1997), 122 C.C.C. (3d) 376; R. v. Ziatas (1973), 13 C.C.C. (2d) 287; R. v. Caja (1977), 36 C.C.C. (2d) 401; R. v. Lavender (1981), 59 C.C.C. (2d) 551; R. v. L. (1986), 50 C.R. (3d) 398; R. v. McDonald (1997), 113 C.C.C. (3d) 418; R. v. Brady (1998), 121 C.C.C. (3d) 504; R. v. Shropshire, [1995] 4 S.C.R. 227; Cunningham v. Canada, [1993] 2 S.C.R. 143; R. v. Wismayer (1997), 115 C.C.C. (3d) 18; Gagnon v. La Reine, [1998] R.J.Q. 2636; R. v. Pierce (1997), 114 C.C.C. 23; R. v. Ursel (1997), 96 B.C.A.C. 241; R. v. O’Keefe (1968), 53 Cr. App. R. 91; R. v. Maheu, [1997] R.J.Q. 410, 116 C.C.C. (3d) 361; R. v. Parker (1997), 116 C.C.C. (3d) 236; R. v. Horvath, [1997] 8 W.W.R. 357; R. v. McDonnell, [1997] 1 S.C.R. 948; Kwiatkowsky v. Minister of Employment and Immigration, [1982] 2 S.C.R. 856; Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660; Pfizer Co. v. Deputy Minister of National Revenue for Customs and Excise, [1977] 1 S.C.R. 456; Tupper v. The Queen, [1967] S.C.R. 589; Goodyear Tire and Rubber Co. of Canada v. T. Eaton Co., [1956] S.C.R. 610; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Fleet (1997), 120 C.C.C. (3d) 457; R. v. W. (G.), [1999] 3 S.C.R. 597; R. v. McVeigh (1985), 22 C.C.C. (3d) 145; R. v. Biancofiore (1997), 119 C.C.C. (3d) 344; R. v. Blakeley (1998), 40 O.R. (3d) 541; R. v. Hollinsky (1995), 103 C.C.C. (3d) 472; R. v. R.A.R., [2000] 1 S.C.R. 163, 2000 SCC 8.
Statutes and Regulations Cited
Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22.
Corrections and Conditional Release Act , S.C. 1992, c. 20 , ss. 112(1) , 133 .
Corrections and Conditional Release Regulations, SOR/92-620, s. 161.
Criminal Code , R.S.C., 1985, c. C-46 , ss. 259(2) , Part XXIII [repl. 1995, c. 22, s. 6], 718, 718.1, 718.2 [am. 1997, c. 23, s. 17], 718.3, 722, 723, 732.1(2), (3)(g.1) [ad. 1999, c. 32, s. 6], (g.2) [idem], (h), 732.2(5), 733.1(1), 734(2), 742.1(a), (b) [repl. 1997, c. 18, s. 107.1], 742.3(1), (2)(f), 742.6(9).
Authors Cited
Canada. Canadian Sentencing Commission. Sentencing Reform: A Canadian Approach: Report of the Canadian Sentencing Commission. Ottawa: The Commission, 1987.
Canada. Commission of Inquiry into the Non-Medical Use of Drugs. Final Report. Ottawa: Information Canada, 1973.
Canada. Committee on Corrections. Report. Toward Unity: Criminal Justice and Corrections. Ottawa: Queen’s Printer, 1969.
Canada. Correctional Service Canada. A Summary of Analysis of Some Major Inquiries on Corrections -- 1938 to 1977. Ottawa: Correctional Service Canada, May 1977 (reprinted August 1982).
Canada. House of Commons. Standing Committee on Justice and Solicitor General. Report of the Standing Committee on Justice and Solicitor General on its Review of Sentencing, Conditional Release and Related Aspects of Corrections. Taking Responsibility, August 1988.
Canada. House of Commons Debates, vol. IV, 1st Sess., 35th Parl., September 20, 1994, p. 5873.
Côté, Pierre-André. Interprétation des lois, 3e éd. Montréal: Thémis, 1999.
Gemmell, Jack. “The New Conditional Sentencing Regime” (1997), 39 Crim. L.Q. 334.
Roberts, Julian V. “Conditional Sentencing: Sword of Damocles or Pandora’s Box?” (1997), 2 Can. Crim. L. Rev. 183.
Roberts, Julian V. “The Hunt for the Paper Tiger: Conditional Sentencing after Brady” (1999), 42 Crim. L.Q. 38.
Rosenberg, Marc. “Recent Developments in Sentencing”, a paper prepared for the National Judicial Institute’s Supreme Court of Nova Scotia Education Seminar in Halifax, February 25-26, 1999.
APPEAL from a judgment of the Manitoba Court of Appeal (1997), 123 Man. R. (2d) 107, 159 W.A.C. 107, 121 C.C.C. (3d) 68, [1998] 5 W.W.R. 1, [1997] M.J. No. 563 (QL), allowing the accused’s appeal from a sentence of 18 months of incarceration imposed by Keyser J. Appeal allowed.
Matthew Britton, for the appellant.
Sandra L. Chapman and Wanda Garreck, for the respondent.
S. Ronald Fainstein, Q.C., for the intervener the Attorney General of Canada.
Kenneth L. Campbell and Gregory J. Tweney, for the intervener the Attorney General for Ontario.
The judgment of the Court was delivered by
1 The Chief Justice – By passing the Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 (“Bill C-41”), Parliament has sent a clear message to all Canadian judges that too many people are being sent to prison. In an attempt to remedy the problem of overincarceration, Parliament has introduced a new form of sentence, the conditional sentence of imprisonment.
2 As a matter of established practice and sound policy, this Court rarely hears appeals relating to sentences: see R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 404, R. v. Chaisson, [1995] 2 S.C.R. 1118, at para. 7, and R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 33. However, we have decided to hear this case and four related cases because they afford the Court the opportunity to set out for the first time the principles that govern the new and innovative conditional sentencing regime. Given the inevitable length of these reasons, I have summarized the essentials at para. 127.
I. Factual Background
3 On the morning of November 1, 1995, after a night of partying involving consumption of some alcohol, the respondent decided to drive his friends home even though he knew that his vehicle was not mechanically sound. For a period of 10 to 20 minutes, the respondent, who had only seven weeks of experience as a licensed driver, drove erratically, weaving in and out of traffic, tailgating and trying to pass other vehicles without signalling, despite steady oncoming traffic and slippery roads. As the respondent was trying to pass another vehicle, he drove his car into an oncoming lane of traffic, side-swiped a first car and crashed into a second one. The driver of the second vehicle was seriously injured. The accident also claimed the life of a passenger in the respondent’s car. The respondent was in a near-death coma for some time, but ultimately recovered from his injuries. The respondent entered guilty pleas to one count of dangerous driving causing death and one count of dangerous driving causing bodily harm.
II. Judgments Below
A. Manitoba Court of Queen’s Bench
4 On June 5, 1997, Keyser J. sentenced the respondent to 18 months of incarceration, to be served concurrently on both charges. In her reasons for sentence, the judge explained that she was not prepared to order a penitentiary term because the respondent was only 18 years old at the time of the accident, he had no prior record and he himself was seriously injured in the accident. She also noted that the respondent was now employed and expecting a first child with his girlfriend. She conceded that the amount of alcohol involved -- one and a half to two beers -- was probably not a major factor in the accident. However, she found that the respondent’s knowledge that he was operating an unsafe vehicle, the fact that, prior to the accident, he had just barely avoided rear-ending another vehicle and his egregious driving in general that morning warranted such a sentence.
5 Keyser J. then turned her attention to the question of whether it was appropriate to allow the respondent to serve his sentence in the community, pursuant to s. 742.1 of the Criminal Code , R.S.C., 1985, c. C-46 . She took notice of the May 2, 1997 amendment to s. 742.1, which added to that section an express reference to the fundamental purpose and principles of sentencing listed in ss. 718 to 718.2 of the Code. She concluded that this amendment meant that she had to refer to the fundamental purpose and principles of sentencing in deciding whether to impose a conditional sentence. In the case at hand, she found that even though the respondent would not endanger the community and a jail sentence would not be necessary to deter him from similar conduct in the future or to rehabilitate him, a conditional sentence would not be appropriate because it would be inconsistent with the objectives of denunciation and general deterrence.
6 Keyser J. sentenced the respondent to 18 months of incarceration and, pursuant to s. 259(2) of the Code, she made an order prohibiting the respondent from driving for a period of five years.
B. Manitoba Court of Appeal (1997), 123 Man. R. (2d) 107
7 The Court of Appeal allowed the appeal and substituted a conditional custodial sentence for the jail term. Helper J.A., writing for the court, contended that the sentencing judge had erred in her application of s. 742.1 by giving undue weight to the objective of denunciation. She explained that the recent amendment to s. 742.1 had not changed the fact that Parliament had identified the safety of the community as the primary consideration when deciding whether to impose a conditional sentence. Helper J.A. added that the principles of sentencing played a different role in the determination of whether to impose a conditional sentence than they did in determining the length of the sentence. At pp. 111-12, she stated:
However, in s. 742.1(b), Parliament has directed the sentencing judge to look to the principles of sentencing only for the purpose of satisfying herself that there is consistency between those principles and a conditional sentence for a particular offender. The amendment does not direct the sentencing judge to consider individually each of the principles of sentencing and determine that each is consistent with the offender’s serving his sentence in the community. The sentencing judge must consider the principles of sentencing globally. It would be contrary to Parliament’s intent for the sentencing judge to single out any one factor and to give it substantial weight to the exclusion of the other listed factors when she is making a decision under s. 742.1(b).
8 According to Helper J.A., the sentencing judge’s comments implied that a conditional sentence would never be appropriate for the offence of dangerous driving, even when the offender did not potentially endanger the community, because that offence required a large component of general deterrence. Helper J.A. found this to be an error, as it would have rendered s. 742.1 inoperable in the case of particular offences, contrary to Parliament’s intention. She found that, in the instant appeal, the sentencing judge had failed to recognize that a conditional sentence had some denunciatory effect.
9 Helper J.A. concluded that generally, after the judge has attributed the appropriate weight to each relevant principle of sentencing, determined that a fit sentence would be less than two years and found that the offender would not be a danger to the community, a conditional sentence would be consistent with ss. 718 to 718.2.
III. Relevant Statutory Provisions
10 Criminal Code , R.S.C., 1985, c. C-46
718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender's spouse or child,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, or
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
732.1 . . .
(2) The court shall prescribe, as conditions of a probation order, that the offender do all of the following:
(a) keep the peace and be of good behaviour;
(b) appear before the court when required to do so by the court; and
(c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.
(3) The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following:
(a) report to a probation officer
(i) within two working days, or such longer period as the court directs, after the making of the probation order, and
(ii) thereafter, when required by the probation officer and in the manner directed by the probation officer;
(b) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;
(c) abstain from
(i) the consumption of alcohol or other intoxicating substances, or
(ii) the consumption of drugs except in accordance with a medical prescription;
(d) abstain from owning, possessing or carrying a weapon;
(e) provide for the support or care of dependants;
(f) perform up to 240 hours of community service over a period not exceeding eighteen months;
(g) if the offender agrees, and subject to the program director's acceptance of the offender, participate actively in a treatment program approved by the province;
(g.1) where the lieutenant governor in council of the province in which the probation order is made has established a program for curative treatment in relation to the consumption of alcohol or drugs, attend at a treatment facility, designated by the lieutenant governor in council of the province, for assessment and curative treatment in relation to the consumption by the offender of alcohol or drugs that is recommended pursuant to the program;
(g.2) where the lieutenant governor in council of the province in which the probation order is made has established a program governing the use of an alcohol ignition interlock device by an offender and if the offender agrees to participate in the program, comply with the program; and
(h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender's successful reintegration into the community.
732.2 . . .
(5) Where an offender who is bound by a probation order is convicted of an offence, including an offence under section 733.1, and
(a) the time within which an appeal may be taken against that conviction has expired and the offender has not taken an appeal,
(b) the offender has taken an appeal against that conviction and the appeal has been dismissed, or
(c) the offender has given written notice to the court that convicted the offender that the offender elects not to appeal the conviction or has abandoned the appeal, as the case may be,
in addition to any punishment that may be imposed for that offence, the court that made the probation order may, on application by the prosecutor, require the offender to appear before it and, after hearing the prosecutor and the offender,
(d) where the probation order was made under paragraph 731(1)(a), revoke the order and impose any sentence that could have been imposed if the passing of sentence had not been suspended, or
(e) make such changes to the optional conditions as the court deems desirable, or extend the period for which the order is to remain in force for such period, not exceeding one year, as the court deems desirable,
and the court shall thereupon endorse the probation order accordingly and, if it changes the optional conditions or extends the period for which the order is to remain in force, inform the offender of its action and give the offender a copy of the order so endorsed.
733.1 (1) An offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding eighteen months, or to a fine not exceeding two thousand dollars, or both.
742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court
(a) imposes a sentence of imprisonment of less than two years, and
(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,
the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3.
742.3 (1) The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following:
(a) keep the peace and be of good behaviour;
(b) appear before the court when required to do so by the court;
(c) report to a supervisor
(i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and
(ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;
(d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and
(e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.
(2) The court may prescribe, as additional conditions of a conditional sentence order, that the offender do one or more of the following:
(a) abstain from
(i) the consumption of alcohol or other intoxicating substances, or
(ii) the consumption of drugs except in accordance with a medical prescription;
(b) abstain from owning, possessing or carrying a weapon;
(c) provide for the support or care of dependants;
(d) perform up to 240 hours of community service over a period not exceeding eighteen months;
(e) attend a treatment program approved by the province; and
(f) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.
742.6 . . .
(9) Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may
(a) take no action;
(b) change the optional conditions;
(c) suspend the conditional sentence order and direct
(i) that the offender serve in custody a portion of the unexpired sentence, and
(ii) that the conditional sentence order resume on the offender's release from custody, either with or without changes to the optional conditions; or
(d) terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence.
IV. Issues
11 This appeal concerns the proper interpretation and application of the conditional sentencing regime set out in s. 742.1 and subsequent sections of the Criminal Code .
12 Since it came into force on September 3, 1996, the conditional sentence has generated considerable debate. With the advent of s. 742.1, Parliament has clearly mandated that certain offenders who used to go to prison should now serve their sentences in the community. Section 742.1 makes a conditional sentence available to a subclass of non-dangerous offenders who, prior to the introduction of this new regime, would have been sentenced to a term of incarceration of less than two years for offences with no minimum term of imprisonment.
13 In my view, to address meaningfully the complex interpretive issues raised by this appeal, it is important to situate this new sentencing tool in the broader context of the comprehensive sentencing reforms enacted by Parliament in Bill C-41. I will also consider the nature of the conditional sentence, contrasting it with probationary measures and incarceration. Next, I will address particular interpretive issues posed by s. 742.1. I will first discuss the statutory prerequisites to the imposition of a conditional sentence. Thereafter, I will consider how courts should determine whether a conditional sentence is appropriate, assuming the prerequisites are satisfied. I conclude with some general comments on the deference to which trial judges are entitled in matters of sentencing and dispose of the case at hand in conformity with the principles outlined in these reasons.
V. Analysis
A. The 1996 Sentencing Reforms (Bill C-41)
14 In September 1996, Bill C-41 came into effect. It substantially reformed Part XXIII of the Code, and introduced, inter alia, an express statement of the purposes and principles of sentencing, provisions for alternative measures for adult offenders and a new type of sanction, the conditional sentence of imprisonment.
15 As my colleagues Cory and Iacobucci JJ. explained in R. v. Gladue, [1999] 1 S.C.R. 688, at para. 39, “[t]he enactment of the new Part XXIII was a watershed, marking the first codification and significant reform of sentencing principles in the history of Canadian criminal law”. They noted two of Parliament’s principal objectives in enacting this new legislation: (i) reducing the use of prison as a sanction, and (ii) expanding the use of restorative justice principles in sentencing (at para. 48).
(1) Reducing the Use of Prison as a Sanction
16 Bill C-41 is in large part a response to the problem of overincarceration in Canada. It was noted in Gladue, at para. 52, that Canada’s incarceration rate of approximately 130 inmates per 100,000 population places it second or third highest among industrialized democracies. In their reasons, Cory and Iacobucci JJ. reviewed numerous studies that uniformly concluded that incarceration is costly, frequently unduly harsh and “ineffective, not only in relation to its purported rehabilitative goals, but also in relation to its broader public goals” (para. 54). See also Report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections (1969); Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (1987), at pp. xxiii‑xxiv; Standing Committee on Justice and Solicitor General, Taking Responsibility (1988), at p. 75. Prison has been characterized by some as a finishing school for criminals and as ill-preparing them for reintegration into society: see generally Canadian Committee on Corrections, supra, at p. 314; Correctional Service of Canada, A Summary of Analysis of Some Major Inquiries on Corrections – 1938 to 1977 (1982), at p. iv. In Gladue, at para. 57, Cory and Iacobucci JJ. held:
Thus, it may be seen that although imprisonment is intended to serve the traditional sentencing goals of separation, deterrence, denunciation, and rehabilitation, there is widespread consensus that imprisonment has not been successful in achieving some of these goals. Overincarceration is a long‑standing problem that has been many times publicly acknowledged but never addressed in a systematic manner by Parliament. In recent years, compared to other countries, sentences of imprisonment in Canada have increased at an alarming rate. The 1996 sentencing reforms embodied in Part XXIII, and s. 718.2(e) in particular, must be understood as a reaction to the overuse of prison as a sanction, and must accordingly be given appropriate force as remedial provisions. [Emphasis added.]
17 Parliament has sought to give increased prominence to the principle of restraint in the use of prison as a sanction through the enactment of s. 718.2(d) and (e). Section 718.2(d) provides that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”, while s. 718.2(e) provides that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”. Further evidence of Parliament’s desire to lower the rate of incarceration comes from other provisions of Bill C-41: s. 718(c) qualifies the sentencing objective of separating offenders from society with the words “where necessary”, thereby indicating that caution be exercised in sentencing offenders to prison; s. 734(2) imposes a duty on judges to undertake a means inquiry before imposing a fine, so as to decrease the number of offenders who are incarcerated for defaulting on payment of their fines; and of course, s. 742.1, which introduces the conditional sentence. In Gladue, at para. 40, the Court held that “[t]he creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration”.
(2) Expanding the Use of Restorative Justice Principles in Sentencing
18 Restorative justice is concerned with the restoration of the parties that are affected by the commission of an offence. Crime generally affects at least three parties: the victim, the community, and the offender. A restorative justice approach seeks to remedy the adverse effects of crime in a manner that addresses the needs of all parties involved. This is accomplished, in part, through the rehabilitation of the offender, reparations to the victim and to the community, and the promotion of a sense of responsibility in the offender and acknowledgment of the harm done to victims and to the community.
19 Canadian sentencing jurisprudence has traditionally focussed on the aims of denunciation, deterrence, separation, and rehabilitation, with rehabilitation a relative late-comer to the sentencing analysis: see Gladue, at para. 42. With the introduction of Bill C-41, however, Parliament has placed new emphasis upon the goals of restorative justice. Section 718 sets out the fundamental purpose of sentencing, as well as the various sentencing objectives that should be vindicated when sanctions are imposed. In Gladue, supra, Cory and Iacobucci JJ. stated (at para. 43):
Clearly, s. 718 is, in part, a restatement of the basic sentencing aims, which are listed in paras. (a) through (d). What are new, though, are paras. (e) and (f), which along with para. (d) focus upon the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. The concept of restorative justice which underpins paras. (d), (e), and (f) is briefly discussed below, but as a general matter restorative justice involves some form of restitution and reintegration into the community. The need for offenders to t