R. v. Knoblauch

R. v. Knoblauch
Collection
Supreme Court Judgments
Date
2000-11-16
Neutral citation
2000 SCC 58
Report
[2000] 2 SCR 780
Case number
27238
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Alberta
Subjects
Criminal law
Notes
SCC Case Information: 27238
Decision Content
R. v. Knoblauch, [2000] 2 S.C.R. 780
Warren Laverne Knoblauch Appellant
v.
Her Majesty The Queen Respondent
and
Alberta Mental Health Board Intervener
Indexed as: R. v. Knoblauch
Neutral citation: 2000 SCC 58.
File No.: 27238.
2000: April 17; 2000: November 16.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for alberta
Criminal law — Sentencing — Conditional sentences — Accused pleading guilty to unlawful possession of an explosive substance and possession of a weapon for a purpose dangerous to the public peace and receiving conditional sentence plus probation — Conditions of sentence and probation order requiring accused to reside in a psychiatric treatment unit — Whether conditional sentence could be imposed on facts of this case — Whether court can require that a conditional sentence be served in a secure mental health institution — Criminal Code, R.S.C., 1985, c. C‑46, s. 742.1 .
The accused has a lengthy history of mental illness and of dangerous handling of explosives. He also has a long history of treatment, and received out‑patient psychiatric treatment as a requirement of a probation order in force against him between 1993 and 1996 because of an incident where he had taken a firearm to work with the intent of shooting a co‑worker, for which he received a conditional discharge, three years’ probation, and a 10‑year firearms prohibition. In 1998 the accused pleaded guilty to unlawful possession of an explosive substance and to possession of a weapon for a purpose dangerous to the public peace, contrary to ss. 100(12) and 87 of the Criminal Code . The police had found in the accused’s vehicle and in his apartment an arsenal capable of causing mass destruction to property, death and serious injury to persons in the area. At the sentencing hearing the defence called two forensic psychiatrists in support of its request that a conditional sentence be imposed, under the terms of which the accused would reside in a secure mental health institution, under the care and supervision of psychiatrists. After hearing the submissions of the parties, the trial judge imposed a conditional sentence of two years less a day followed by three years of probation. Both the sentence and the probation order required the accused to reside in a locked psychiatric treatment unit at the hospital where he was receiving treatment, until a consensus of psychiatric professionals made a decision to transfer him from that locked unit. It was further stipulated that if he were transferred from the locked unit, the accused was to reside at such treatment facility as directed by his attending physician or her successor or designate. The Court of Appeal set aside the conditional sentence and substituted a period of incarceration of two years less a day, to be followed by a three‑year period of probation on substantially the same terms as those imposed by the trial judge.
Held (L’Heureux‑Dubé, Gonthier, Iacobucci and Bastarache JJ. dissenting): The appeal should be allowed.
Per McLachlin C.J. and Major, Binnie, Arbour and LeBel JJ.: The sentence imposed by the trial judge should be restored. The trial judge was entitled to conclude 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”, in accordance with s. 742.1 (b) of the Criminal Code . That provision does not exclude “dangerous offenders” from access to conditional sentences. Rather the focus of the analysis at this point should be on the risk posed by the individual offender while serving his sentence in the community. The danger to the community is evaluated by reference to: (1) the risk of re‑offence; and (2) the gravity of the damage in the event of re‑offence. In the present case the gravity of the damage in the event of re‑offence could be extreme. Although the accused did not set off any explosive substance, he was in possession, in extremely dangerous circumstances, of substances that could easily ignite and even accidentally explode, thereby causing extremely serious personal injury and death. If the conditions imposed by the trial judge are taken into account, however, the risk that the accused would re‑offend while serving his conditional sentence is reduced to a point that it is no greater than the risk that he would re‑offend while incarcerated in a penal institution. The sentence fashioned by the trial judge provided that the accused would be in a locked, secure psychiatric facility, in the care and custody of forensic psychiatrists who were well aware of his history, and who by no means minimized his dangerousness. They would have been vested with the authority to determine the pace and method of his gradual release and reintegration into society, ultimately through the probation order. In contrast, the accused’s incarceration in a penal institution, subject as it is to the provisions of the Corrections and Conditional Release Act , could require his earlier release, or, in any event, would most likely leave him considerably less well prepared for facing his renewed liberty. Assuming that the conditions imposed by the trial judge were available to him as a matter of law, it was open to him to conclude that the condition precedent expressed in s. 742.1 (b) was met.
The order that the accused serve his conditional sentence in a secure residential setting, not only with his consent but at his request, is not precluded under ss. 742.1 and 742.3 of the Code. Conditional sentences were designed by Parliament as a desirable alternative to incarceration. A distinction must be made between incarceration or imprisonment in either prisons or penitentiaries and other custodial or residential arrangements which may form an acceptable alternative to incarceration. The conditions that may be attached to a conditional sentence under the Code are not exhaustively enumerated and call for a large measure of discretion. Assuming that the conditions precedent to the imposition of a conditional sentence are met, nothing in s. 742.3 precludes resorting to community‑based facilities, even residential ones, simply because they have a custodial aspect, as long as they can be seen as a genuine alternative to incarceration. The alternative to incarceration that Parliament contemplates is the alternative not to a particular place or building, but to a regime of detention, program and release governed by legislation such as the Corrections and Conditional Release Act . In the case of a conditional sentence, a regime uniquely suited to the offender is put in place by the terms of the order under which the conditional sentence is imposed. It is tailored to take into account the needs of the offender and those of the community into which he will need to be reintegrated. This includes taking full advantage of all community‑based services, including residential programs, and including residential programs that may have a compulsory residential element, as long as the programs serve the ends expressed in s. 718 of the Code. The sentence imposed by the trial judge in this case was legal and fit and was the one that best served the objectives of sentencing expressed in s. 718 of the Code. Moreover, it was the sentence that best ensured that the dangerousness of the accused would be curtailed for the longest period of time, with both short‑term and long‑term benefits to the community at large.
Per Iacobucci J. (dissenting): There is agreement with the majority’s view that, generally speaking, a conditional sentencing order can be made under the Criminal Code requiring an offender to undergo treatment in a closed psychiatric facility, provided that such an order is reasonable in the circumstances, and consistent with the purpose and principles of sentencing. In such a situation, the discretion afforded to sentencing judges under s. 742.3(2)(f) of the Code is wide enough to include sentences that require psychiatric care in a hospital setting. As found by the minority, however, a conditional sentence was not an appropriate order in this case since the accused did not satisfy the test for dangerousness set out in Proulx.
Per L’Heureux‑Dubé, Gonthier and Bastarache JJ. (dissenting): The Court of Appeal was correct in overturning the conditional sentence in this case. The sentence was inappropriate both because the precondition that the accused not endanger the safety of the community was not satisfied and because the conditional sentencing regime does not contemplate serving a sentence in a locked psychiatric unit of a hospital.
In assessing whether the accused is a danger to the community, the court must consider the following two factors: (1) the risk of the offender re‑offending; and (2) the gravity of the damage that could ensue in the event of re‑offence. In assessing the risk of re‑offence in this case, the accused’s history of weapons offences must be considered. The record demonstrates that the accused was already subject to a prohibition from possessing firearms, ammunition and explosives at the time that he committed the offences in question. Nevertheless, by the time the accused was apprehended, he had amassed a large arsenal of highly volatile explosives capable of injuring many people and leading to substantial property damage. The medical evidence also establishes that the accused has been engaged in dangerous activity in the past even while undergoing treatment. Unfortunately, whether the accused is sentenced to a prison term or treated at a psychiatric hospital, he will likely remain a danger even when his sentence is complete. While the accused would be subject to supervision during the term of his conditional sentence, the evidence points to a risk of re‑offending despite such supervision and the availability of programs. Moreover, the sentence order did not ensure that the accused remained under maximum security at the hospital throughout the entire period of his sentence. The accused was to reside in a locked psychiatric treatment unit of the hospital until a consensus was reached among psychiatrists that he could be transferred into other treatment facilities. Since no evidence was tendered regarding the level of security at those other facilities, there is no way of ensuring that there would not be a risk of re‑offence once the accused was released. Further, even if it were accepted that the risk of re‑offence is only minimal, the gravity of the potential harm that would ensue if the accused were to re‑offend precludes a conditional sentence in and of itself.
While persons in psychiatric hospitals continue to be members of the community, “community” in s. 742.1 of the Code must be interpreted as also including the general public. The community with which a sentencing judge must be concerned consists of all persons who could be at risk of being harmed by the offender. If there is a danger to any person by the offender serving the sentence in the community, whether that person be a resident of the psychiatric hospital or in the public at large, then a conditional sentence should not be imposed.
Even if it were to be concluded that the accused does not represent a danger to the community, the conditional sentencing regime does not contemplate serving a sentence in a locked psychiatric unit as a condition of the sentence. A conditional sentence which confines an offender to a psychiatric institution is distinct from a treatment order envisioned in s. 742.3(2)(e). Nor can s. 742.3(2)(f), under which the court may impose “such other reasonable conditions as the court considers desirable”, be used to confine an individual to a psychiatric hospital. While the conditional sentence may incorporate some restrictive conditions such as house arrest and curfews with non‑custodial measures, offenders serving a conditional sentence are not confined to an institution but are meant to continue working, attending school, and participating in treatment programs. This Court’s decision in Proulx makes it evident that conditional sentences are meant as an alternative to incarceration and not as a sentence to any type of locked institution subsequent to which the offender would have to be reintegrated into the community. This view of the philosophy behind the conditional sentencing regime is buttressed by the recent appellate decisions which hold that “blended” sentences, where the first part of the sentence is served in custody and the latter part is a conditional sentence under supervision in the community, are illegal and contrary to the underlying purpose of the conditional sentencing regime. A review of the legislative history of the conditional sentencing provisions also suggests that Parliament intended that conditional sentences be non‑institutional in nature and that supervision in the community was not meant to be equivalent to confinement in an institution. The usual methods of confining a person to a hospital in the criminal context are as a condition of parole, or through a ruling that the person is not criminally responsible on account of mental disorder. Unlike a person held not criminally responsible on account of mental disorder, a person with a mental disability who is being sentenced is criminally responsible for his or her actions. The principle of “proportionality”, codified in s. 718.1 of the Code, dictates that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Here the accused possessed a culpable state of mind, and his sentence should reflect this.
Cases Cited
By Arbour J.
Considered: R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; referred to: R. v. Gladue, [1999] 1 S.C.R 688; R. v. Degan (1985), 20 C.C.C. (3d) 293.
By Iacobucci J. (dissenting)
R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5.
By Bastarache J. (dissenting)
R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v. Brady (1998), 121 C.C.C. (3d) 504; R. v. Maheu (1997), 116 C.C.C. (3d) 361; R. v. Fisher (2000), 47 O.R. (3d) 397; R. v. Hirtle (1999), 136 C.C.C. (3d) 419; R. v. Wey (1999), 142 C.C.C. (3d) 556; R. v. Monkman (1998), 132 C.C.C. (3d) 89; R. v. Maynard, [1999] M.J. No. 8 (QL); R. v. Kopf (1997), 6 C.R. (5th) 305; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Wells, [2000] 1 S.C.R. 207, 2000 SCC 10; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625.
Statutes and Regulations Cited
Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22.
Correctional Institution Regulations, Alta. Reg. 138/77, ss. 14‑19.
Corrections Act, R.S.A. 1980, c. C‑26, s. 9.
Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 2(1) “penitentiary”, 17, 30.
Criminal Code, R.S.C., 1985, c. C‑46, ss. 16 [rep. & sub. 1991, c. 43, s. 2], 87, 100(12), Part XX.1, 672.54 [ad. 1991, c. 43, s. 4], Part XXIII [repl. 1995, c. 22, s. 6], 718, 718.1, 718.2 [am. 1997, c. 23, s. 17], 732.1(3)(h), 742.1 [am. 1997, c. 18, s. 107.1], 742.3(1), (2), 742.6(9), 747 to 747.8 [not in force], 753.
Mental Health Act, S.A. 1988, c. M‑13.1.
Authors Cited
Canada. House of Commons. House of Commons Debates, vol. 133, 1st Sess., 35th Parl., September 20, 1994, pp. 5871, 5873.
Nouveau Petit Robert: Dictionnaire alphabétique et analogique de la langue française. Paris: Le Robert, 1996, “collectivité”.
Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.
Tollefson, Edwin A., and Bernard Starkman. Mental Disorder in Criminal Proceedings. Scarborough, Ont.: Carswell, 1993.
APPEAL from a judgment of the Alberta Court of Appeal (1999), 232 A.R. 289, 195 W.A.C. 289, [1999] A.J. No. 377 (QL), allowing the Crown’s appeal from the conditional sentence imposed by Chrumka Prov. Ct. J. Appeal allowed and sentence restored, L’Heureux‑Dubé, Gonthier, Iacobucci and Bastarache JJ. dissenting.
Mona T. Duckett, Q.C., for the appellant.
Arnold Schlayer, for the respondent.
Mary A. Marshall, for the intervener.
The judgment of McLachlin C.J. and Major, Binnie, Arbour and LeBel JJ.
was delivered by
Arbour J. —
I. Introduction
1 This appeal lies at the often ambiguous crossroads between the criminal justice and the mental health care systems.
2 On November 3, 1998, the appellant pleaded guilty to having in his possession an explosive substance while prohibited from doing so, contrary to then s. 100(12) of the Criminal Code, R.S.C., 1985, c. C-46 . The matter was remanded to December 15, when the accused pleaded guilty to the further offence of having in his possession a weapon for a purpose dangerous to the public peace, contrary to then s. 87 of the Criminal Code . A detailed agreed statement of facts was read into the record, and the matter proceeded to a sentencing hearing in which the defence called two forensic psychiatrists in support of its request that a conditional sentence be imposed, under the terms of which the appellant would reside in a secure mental health institution, under the care and supervision of psychiatrists. After hearing the submissions of the parties, the trial judge imposed a conditional sentence followed by three years of probation. The conditions of both the two-year sentence and the probation order required the appellant to reside in a psychiatric treatment unit at the Alberta Hospital Edmonton.
3 On March 2, 1999, upon appeal by the Crown, the Court of Appeal ((1999), 232 A.R. 289) set aside the conditional sentence and substituted a period of incarceration of two years less a day, to be followed by a three-year period of probation on substantially the same terms as those imposed by the trial judge. On October 21, 1999, the appellant was granted full parole also with similar conditions. He was moved to the Alberta Hospital Edmonton where he is required, as a resident of the Hospital, to attend its rehabilitation program. The appellant currently resides at the Hospital.
4 The issue before us is to determine whether the seven months’ hiatus, during which the continued residential psychiatric treatment of the appellant at the Alberta Hospital Edmonton was interrupted, is required by law. The legality of the conditional sentence originally imposed by the trial judge must therefore be examined. That, in turn, rests on two issues. First, whether a conditional sentence could be imposed on the facts of this case, and second, whether the court can require that a conditional sentence be served in a secure mental health institution.
5 In my view, both questions must be answered in the affirmative. As a result, I would allow the appeal and restore the sentence imposed by the trial judge.
II. Chronology of Events
6 The accused has a long history of mental illness, as well as a lengthy history of dangerous handling of explosives. The combination of both makes him potentially extremely dangerous to himself and to others. As a matter of fact, the psychiatrists were unanimous that the appellant’s criminal conduct was causally linked to his mental disorder. The appellant’s illness goes back to his early childhood. He received some psychiatric attention as a child and continued to experience mental distress throughout his adolescence and adult life. Dr. Tweddle, a forensic psychiatrist at the Alberta Hospital Edmonton, testified that the appellant presents an unusual case of longstanding deeply ingrained personality difficulties with features of obsessive compulsiveness and depression. He has fantasies about violent matters. He has had an interest in weapons, and his preoccupation with explosives is related to his wanting to overcome his feelings of being overwhelmed, rejected and belittled. Moreover, he obviously does not just keep these ideas to fantasies, but has operationalized them and as a result was diagnosed by Dr. Tweddle as potentially extremely dangerous. Dr. Tweddle concluded that he would be best treated in a hospital setting, where he can be both medicated and involved in long term psychotherapy, as well as in occupational and social skills training, with a view to enhancing his self-awareness and self-control and laying the groundwork for his eventual reintegration into the community.
7 The appellant also has a long history of treatment. In recent years, he received out-patient psychiatric treatment as a requirement of a probation order in force against him between 1993 and 1996 as a result of his conditional discharge for the offence of possession of a weapon for a purpose dangerous to the public peace, contrary to then s. 87 of the Criminal Code . His treating psychiatrist, Dr. Otakar Cadsky, testified that his attendance, in compliance with that order, was not perfect, but was “for mentally ill patients about as good as you can expect”. He missed five appointments and attended 45 sessions. Dr. Cadsky testified that his attendance for treatment is considerably more satisfactory when it is the result of a compulsory court order. Dr. Cadsky was treating the appellant, on an out-patient basis, at Forensic Assessment and Community Services, the out-patient department of the Alberta Hospital Edmonton’s Forensic Service. In the course of that therapy, the appellant was certified by Dr. Cadsky and admitted to the hospital for a six-week period in 1994. Once again, in June of 1996, the appellant was certified and hospitalized, with a diagnosis of major depression. After the expiration of the probation order, Dr. Cadsky continued to see the appellant on an out-patient basis until June of 1997, at which time the appellant ceased his treatment. In February 1998, following an accident with a detonator device, in which the appellant injured his finger, the appellant sought treatment again from Dr. Cadsky, whom he saw twice as an out-patient before again ceasing treatment.
8 The appellant was arrested on the current charges on July 22, 1998. He was immediately admitted to the Alberta Hospital Edmonton pursuant to an assessment order directing an evaluation of his fitness to stand trial. With his consent, his “remand status” was extended at the request of the attending psychiatrist, Dr. Vijay Singh. A further extension was requested on September 16 and finally, on October 22, 1998, the appellant was certified under the Alberta Mental Health Act, S.A. 1988, c. M-13.1.
9 The appellant overtly supported the proposed course of treatment. Overall, he remained at the Alberta Hospital Edmonton under residential psychiatric care for the five months prior to his appearance before Chrumka Prov. Ct. J. for sentencing.
10 At the sentencing hearing, the two forensic psychiatrists called to testify advocated a continued psychiatric residential treatment program under court order. The trial judge sentenced the appellant to a conditional sentence of two years less a day followed by a three-year probation period. The salient condition of his conditional sentence was that the appellant was to reside at the Alberta Hospital Edmonton in a locked secure psychiatric treatment unit where he was currently receiving treatment, until a consensus of psychiatric professionals made a decision to transfer him from that locked unit. The condition further stipulated that if he were transferred from that locked unit, the appellant was to reside at such treatment facility as directed by Dr. Tweddle or her successor or designate.
11 The terms of his probation for three years also required that the appellant reside at such treatment facility as directed by Dr. Tweddle, and that he enter into and diligently pursue any treatment, counselling or therapy as directed by his probation officer, including attendance at Forensic Assessment.
12 The appellant remained under residential psychiatric care at the Alberta Hospital Edmonton until the Court of Appeal reversed the conditional sentence imposed by the trial judge and ordered his incarceration for two years less a day with the recommendation that it be served at Fort Saskatchewan Provincial Correctional Institute, where the court felt that the appellant would be able to access treatment opportunities and facilities similar to the ones that he had already experienced. That decision was made on March 2, 1999. Seven months later, the appellant was granted full parole by the National Parole Board. As a condition of his parole, he was moved to the Alberta Hospital Edmonton where he resumed his residential treatment. The National Parole Board’s pre-release decision indicates that he is eligible for leave with the permission of the ward psychiatrist or delegate, in consultation with the community parole officer.
13 It is argued that the conditional sentence imposed by the trial judge is not permissible under the Criminal Code because of the appellant’s dangerousness, and because it requires that the appellant be kept in the custody of an institution.
14 In order to examine these issues, I now turn to the factual elements that illustrate the conceded dangerousness of this offender.
III. Factual Background
15 In support of the guilty plea, a lengthy agreed statement of facts was introduced at trial and was summarized as follows by the Court of Appeal, at pp. 290-91:
The [appellant Knoblauch] was employed by the City of Edmonton, Department of Transportation. On July 21, 1998 the [appellant] approached a co‑worker and apologized for a remark that he had made the previous day. He stated that he thought about getting a dog and blowing it up because it might calm him down. He pulled a gym bag from his car and opened it. Inside was a litre size jar with wires extending from it, that appeared, to the co‑worker, to be a bomb. The jar contained a fluid and was three‑quarters full. The following day, when the [appellant] did not appear for work, the police were notified. The police responded to his residence and noted that the apartment was in state of disarray with PVC pipes, electrical components, wires and transistors on the livingroom floor and kitchen table. A search warrant was obtained. The apartment contained numerous electrical component systems, parts, and an electronic technician‑type workbench complete with tools and diagnostic equipment. In addition, there was literature relating to the construction and preparation of explosive devices and literature on the Oklahoma City bombing and Waco, Texas armed standoff.
In the [appellant]'s vehicle was a suicide bomb. The only requirement for the device to deploy was the movement of the switch by the operator or victim. In the car were explosive substances, including two 500 ml bottles containing nitro‑methane and picric acid, chemicals, which are extremely unstable in nature. Also located in the vehicle was a duffle bag with a container of 37% formaldehyde; 500 ml of sodium nitrate; 500 grams of sulphuric acid; 500 ml of lead nitrate; and 500 ml of picric acid; and 150 ml of glycerine and various other chemicals. The chemicals found in the vehicle have capability on their own, or in combination, to form highly explosive substances and could have been used to create an arsenal of devices.
Similar chemicals were located inside the residence, including two 80 lb bags of ammonia nitrate and two pipe bombs. Three detonators were seized including one that had been exploded.
The bomb inside the vehicle, if detonated, would have destroyed the vehicle and killed the person activating the device. The debris would have caused damage to cars, buildings and injured anyone within a 75 metre radius. The two 80 lb bags of ammonia nitrate, if mixed with fuel oil and detonated in the [appellant]'s suite, would have damaged the suites two to three floors above and two to three on either side, as well as cars parked along the street and houses across the street. Anyone in the area would be killed or seriously injured.
The [appellant] had in his vehicle and in his apartment an arsenal capable of causing mass destruction to property, death and serious injury to persons in the area indiscriminately. After viewing the contents of the vehicle and the apartment, the police requested the assistance of the Edmonton Emergency Response Department Dangerous Goods team and a private chemical disposal firm. The firm declined to assist with some of the chemicals due to the unstable explosive nature and toxicity of the chemicals.
The [appellant], at the time of the offences, was prohibited from being in possession of weapons and explosives. [He] received a conditional discharge and three years’ probation plus a firearms prohibition for ten years on November 29, 1993 for a charge under [then] s. 87 of the Criminal Code . This charge arose when [the appellant] brought a gun to work intending to shoot a co‑worker.
16 Before turning to an examination of the applicable law, I wish to stress two important aspects of this case. The first one is that it is beyond dispute that the appellant is potentially extremely dangerous. The second is that it is equally beyond dispute that the appropriate sentence for this appellant, in all of the circumstances, is a sentence of two years less a day, whether it is served in a penal institution or in a mental health hospital. These are critical facts to keep in mind. There is no mechanism in criminal law to remove dangerous people from society merely in anticipation of the harm that they may cause. The limit of the reach of the criminal sanction is to address what offenders have done. At that stage, dangerousness is but one factor to be considered in the assessment of the appropriate sentence. Even extreme dangerousness cannot, in and of itself, justify imposing the maximum punishment in order to elevate the protection of society above all other considerations. That explains why in this case both the trial judge and the Court of Appeal were of the view, which has not been disputed before us, that considering all the circumstances, the appropriate punishment for this offender would have been a sentence of three years of incarceration which was properly reduced to two years less a day to take into account the period spent in pre-trial custody.
17 It is in this context that we must embark upon an analysis of the framework contemplated by the Criminal Code to fashion an appropriate, just, fair and intelligent sentence for the appellant.
IV. The Conditional Sentence Regime
18 For ease of reference, I have attached as an appendix to these reasons the relevant Criminal Code provisions, including the unproclaimed sections dealing with hospital orders.
19 The principles governing the imposition of conditional sentences are set out in R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5. Neither the trial judge nor the Court of Appeal had the benefit of that decision. Lamer C.J. introduced his extensive reasons in Proulx, at para. 1, by the following:
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.
20 Before that, in R. v. Gladue, [1999] 1 S.C.R. 688, Cory and Iacobucci JJ. underlined the significance of the enactment of the major reform of sentencing principles which included the novel mechanism of conditional sentences. They also underlined, at para. 48, the two principal objectives pursued by Parliament in this important sentencing reform: to reduce the use of imprisonment and to increase recourse to restorative justice principles in sentencing.
21 Section 742.1 of the Code, which provides for the imposition of conditional sentences, is therefore a core provision to the sentencing reform of 1995 and is linked to other provisions which command restraint in the use of incarceration, such as s. 718.2(d) and (e), as well as to the fundamental purpose of sentencing expressed in s. 718 of the Code, which is to contribute to respect for the law and the maintenance of a just, peaceful and safe society.
22 Section 742.1 of the Criminal Code provides as follows:
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.
23 Expanding on the nature of conditional sentences, Lamer C.J. in Proulx, supra, said the following, at paras. 21 and 22:
The conditional sentence was specifically enacted as a new sanction designed to achieve both of Parliament’s objectives. The conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders. The offenders who meet the criteria of s. 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. These offenders’ liberty will be constrained by conditions to be attached to the sentence, as set out in s. 742.3 of the Code. In case of breach of conditions, the offender will be brought back before a judge, pursuant to s. 742.6. If an offender cannot provide a reasonable excuse for breaching the conditions of his or her sentence, the judge may order him or her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.
The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn. [Emphasis in original.]
24 Having distinguished conditional sentences from probation, Lamer C.J. then turned to the differences between conditional sentences and incarceration. He said, at para. 41:
This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration. As this Court stated in Gladue, supra, at para. 72:
... in our view a sentence focussed on restorative justice is not necessarily a “lighter” punishment. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.
A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.
25 It is against this background that we must now turn to the availability of a conditional sentence in the present case. There is no dispute, as I indicated earlier, that a sentence of two years less a day was a fit and appropriate sentence in all the circumstances. The first criterion in s. 742.1 of the Code having been satisfied, it remains only to be decided whether the trial judge was entitled to conclude 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”, in accordance with s. 742.1 (b).
26 This condition was also examined in some detail in Proulx, albeit without this particular factual scenario in mind. The Court held that s. 742.1 (b) was a prerequisite to any conditional sentence, in the sense that alternatives to incarceration must be abandoned if the judge is not satisfied that the safety of the community can otherwise be preserved. The criterion of the safety to the community is therefore a condition precedent to the determination of whether a conditional sentence serves the general purposes of sentencing expressed in ss. 718 to 718.2. On this point, I think it is important to stress that the section does not exclude “dangerous offenders” from access to conditional sentences. Rather, as expressed by Lamer C.J. in Proulx, at para. 68, “the focus of the analysis at this point should clearly be on the risk posed by the individual offender while serving his sentence in the community” (emphasis added). The danger to the community is then evaluated by reference to: (1) the risk of re-offence; and (2) the gravity of the damage in the event of re-offence. See Proulx, at para. 69.
27 I think it is fair to say that in the present case the gravity of the damage in the case of re-offence could be extreme. Although the appellant did not set off any explosive substance, he was in possession, in extremely dangerous circumstances, including in his car, of substances that could easily ignite and even accidentally explode, thereby causing extremely serious personal injury and death. In such a case, I am of the view that the risk of re-offending while under conditional sentence should be no greater than if the appellant was incarcerated in a penal institution before the two branches of the test could safely be met. I now turn to the risk of re-offence. Here I believe the decision in Proulx is again of great assistance. At para. 72, Lamer C.J. said:
The risk of re-offence should also be assessed in light of the conditions attached to the sentence. Where an offender might pose some risk of endangering the safety of the community, it is possible that this risk be reduced to a minimal one by the imposition of appropriate conditions to the sentence: see Wismayer, supra, at p. 32; Brady, supra, at para. 62; Maheu, supra, at p. 374 C.C.C. Indeed, this is contemplated by s. 742.3(2)(f), which allows the court to include as optional conditions “such other reasonable conditions as the court considers desirable... 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”. For example, a judge may wish to impose a conditional sentence with a treatment order on an offender with a drug addiction, notwithstanding the fact that the offender has a lengthy criminal record linked to this addiction, provided the judge is confident that there is a good chance of rehabilitation and that the level of supervision will be sufficient to ensure that the offender complies with the sentence.
28 In my view, if the conditions contemplated by the trial judge are taken into account in evaluating the risk that the appellant would re-offend while serving his conditional sentence, that risk is reduced to a point that it is no greater than the risk that the appell