R. v. Lacasse

R. v. Lacasse
Collection
Supreme Court Judgments
Date
2015-12-17
Neutral citation
2015 SCC 64
Report
[2015] 3 SCR 1089
Case number
36001
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne
On appeal from
Quebec
Subjects
Criminal law
Notes
SCC Case Information: 36001
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089
Date: 20151217
Docket: 36001
Between:
Her Majesty The Queen
Appellant
and
Tommy Lacasse
Respondent
- and -
Attorney General of Alberta
Intervener
Official English Translation
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ.
Reasons for Judgment:
(paras. 1 to 121)
Wagner J. (Abella, Moldaver, Karakatsanis and Côté JJ. concurring)
Dissenting Reasons:
(paras. 122 to 183)
Gascon J. (McLachlin C.J. concurring)
R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089
Her Majesty The Queen Appellant
v.
Tommy Lacasse Respondent
and
Attorney General of Alberta Intervener
Indexed as: R. v. Lacasse
2015 SCC 64
File No.: 36001.
2015: May 15; 2015: December 17.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ.
on appeal from the court of appeal for quebec
Criminal law — Sentencing — Appeals — Powers of Court of Appeal — Court of Appeal reducing sentence of imprisonment from six and a half to four years — Whether Court of Appeal erred in substituting sentence it considered appropriate for one imposed by trial judge, primarily on basis that trial judge had deviated from sentencing range established by courts for impaired driving offences — Criminal Code, R.S.C. 1985, c. C‑46, s. 687 .
Criminal law — Sentencing — Considerations — Impaired driving causing death — Whether it was open to trial judge to consider frequency of impaired driving in region where offence was committed as relevant sentencing factor — Whether length and other terms of driving prohibition imposed by trial judge were appropriate — Criminal Code, R.S.C. 1985, c. C‑46, ss. 259(2) (a.1 ), 718 to 718.2.
On June 17, 2011, at about 4:00 a.m., L lost control of his vehicle while entering a curve on a country road in the Beauce region. He was speeding, and his ability to drive was impaired by alcohol. Two passengers sitting in the back seat of the vehicle died instantly. Neither the vehicle’s mechanical condition nor the weather contributed to the accident. L is entirely responsible for it, and he pleaded guilty to two counts of impaired driving causing death.
The trial judge sentenced L, on each count, to six years and six months’ imprisonment; the two sentences were to be served concurrently. He also prohibited L from operating a vehicle for a period of 11 years starting from the sentencing date. The Court of Appeal replaced the sentence imposed by the trial judge with one of four years’ imprisonment. It also reduced the length of the driving prohibition to four years commencing at the end of L’s incarceration.
Held (McLachlin C.J. and Gascon J. dissenting): The appeal should be allowed and the sentence imposed by the trial judge restored except as regards the driving prohibition, which should be reduced to two years and four months commencing at the end of L’s incarceration.
Per Abella, Moldaver, Karakatsanis, Wagner and Côté JJ.: Sentencing remains one of the most delicate stages of the criminal justice process in Canada. Although this task is governed by ss. 718 et seq. of the Criminal Code , and although the objectives set out in those sections guide the courts and are clearly defined, it nonetheless involves, by definition, the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing.
The Court has on many occasions noted the importance of giving wide latitude to sentencing judges. Since they have, inter alia, the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives of the Criminal Code . Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.
Proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. Both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice. Moreover, if appellate courts intervene without deference to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of the system and the authority of trial courts.
Although sentencing ranges are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case.
There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case. Thus, the fact that a judge deviates from a sentencing range established by the courts does not in itself justify appellate intervention.
In this sense, the Court of Appeal erred in this case in basing its intervention on the fact that the sentence fell outside the sentencing range established by the courts, while disregarding the criteria that are normally applied in the determination of a just and appropriate sentence. Any other conclusion would have the effect of authorizing appellate courts to create categories of offences with no real justification and accordingly intervene without deference to substitute a sentence on appeal. But the power to create categories of offences lies with Parliament, not the courts.
The Court of Appeal also erred in failing to address the factor relating to the local situation, that is, to the frequency of impaired driving in the Beauce region, on which the trial judge had relied. Although the fact that a type of crime occurs frequently in a particular region is not in itself an aggravating factor, there may be circumstances in which a judge might nonetheless consider such a fact in balancing the various sentencing objectives, including the need to denounce the unlawful conduct in question in that place and at the same time to deter anyone else from doing the same thing. In this case, the mere fact that the trial judge found that impaired driving is a scourge in the Beauce district was in itself sufficient for him to consider this factor in determining what would be a just and appropriate sentence. It was inappropriate for the Court of Appeal to disregard this factor in assessing the fitness of the sentence, as that meant that its analysis was incomplete. In the context of offences such as the ones at issue, courts from various parts of the country have in fact held that the objectives of deterrence and denunciation must be emphasized in order to convey society’s condemnation, as such offences are ones that might be committed by ordinarily law‑abiding people.
The Court of Appeal was therefore wrong to reduce the sentence imposed by the trial judge. Even though the trial judge had made an error in principle by considering an element of the offence as an aggravating factor (the fact that L was intoxicated), that error had clearly had no impact on the sentence. The sentence of six years and six months’ imprisonment imposed by the trial judge, although severe, falls within the overall range of sentences normally imposed in Quebec and elsewhere in the country and is not demonstrably unfit. It must therefore be restored.
As to the term of the driving prohibition, the length of the presentence driving prohibition should be subtracted from that of the prohibition imposed in the context of the sentence. In this case, the driving prohibition of four years and seven months is demonstrably unfit and must be reduced to two years and four months to take account of the recognizance entered into by L under which he was to refrain from driving from his release date until his sentencing date (two years and three months).
Finally, the Court of Appeal erred in not admitting the fresh evidence of L’s breaches of his recognizances. That evidence was relevant. It could have affected the weight given to the favourable presentence report and could therefore have affected the final sentencing decision. In particular, the Court of Appeal might have reached a different conclusion if it had admitted that evidence, which would have helped it in assessing the fitness of the sentence that had been imposed at trial.
Per McLachlin C.J. and Gascon J. (dissenting): Sentencing judges must take into consideration, inter alia, the objectives of deterrence and rehabilitation, any relevant aggravating and mitigating circumstances relating to the offence or the offender, and the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. If a judge fails to individualize a sentence and to consider the relevant mitigating factors while placing undue emphasis on the circumstances of the offence and the objectives of denunciation and deterrence, all that is done is to punish the crime. The reconciliation of the different factors requires that the sentence be consistent with the fundamental principle of proportionality. This principle requires that full consideration be given to each of the factors. Proportionality is a limiting principle that requires that a sentence not exceed what is just and appropriate in light of the moral blameworthiness of the offender and the gravity of the offence. Deterrence can thus work through conditions tailored to fit the offender. This is even more important in the case of a young person with no criminal record.
The standard of intervention to be applied by appellate courts in sentencing matters is well known: a sentence can only be interfered with if it is demonstrably unfit or if it results from an error in principle, the failure to consider a relevant factor or the overemphasis of a relevant factor. If a party shows that the trial judge made an error in principle, failed to consider a relevant factor or overemphasized appropriate factors, there is no requirement that the sentence also be shown to be demonstrably unfit before an appellate court can intervene. Even if none of these three situations exists, however, intervention may be necessary if the sentence is demonstrably unfit.
Where a reviewable error is shown in the reasoning on which a sentence is based, it is appropriate for an appellate court to be able to intervene and assess the fitness of the sentence. The error that is identified thus opens the door to intervention and permits an appellate court to reopen the sentencing analysis. However, the court of appeal’s role in ensuring consistency in sentencing requires it before intervening to ascertain, among other things, that the sentence represents a substantial and marked departure from the sentences customarily imposed for similar offenders who have committed similar crimes. There is no such thing as a uniform sentence for a particular crime, and sentencing is an inherently individualized process. A sentence must reflect a consideration of all the relevant factors, and it is in this sense that the “process” of sentencing is important. It is by correctly repeating the analytical exercise that the court can determine whether the sanction imposed on the offender is just and appropriate or whether it should be varied, and the court need not show deference in such a case.
The sentencing ranges established by appellate courts are only guidelines, and not hard and fast rules. A judge can therefore order a sentence outside the established range as long as it is in accordance with the principles and objectives of sentencing. As a corollary, the mere fact that a sentence falls within the range applicable to a certain type of crime does not necessarily make it fit. It is by analyzing the trial judge’s reasoning or thought process that an appellate court can determine whether a sentence that falls within the proper range is tailored to fit the circumstances of the offender and is therefore individualized and proportionate.
The Court of Appeal properly justified its intervention in this case. The trial judge committed a number of errors, and the sentence that resulted from his analysis was thus neither proportionate nor individualized; it also represented a substantial and marked departure from the sentences customarily imposed on similar offenders who have committed similar crimes in similar circumstances. In his analysis, the trial judge began by identifying some aggravating factors that were not really aggravating factors, namely an element of the offence — the fact that L was intoxicated — and the impact on those close to L. Next, he discounted some relevant factors that are normally characterized as mitigating factors and that must be considered in determining the appropriate sentence — namely the youth of the accused and the facts that he had expressed remorse, that he had no criminal record and that the presentence report was favourable to him. Indeed, the trial judge failed to discuss the presentence report and its positive findings, which represented a mitigating factor that was relevant to and important for the determination of the appropriate sentence. Finally, his failure to consider certain mitigating factors that favoured L’s potential for rehabilitation and the emphasis he placed on exemplarity led him to impose an excessive sentence that departed from the principle of proportionality.
The local situation factor clearly magnified the exemplary focus of the sentence with which the Court of Appeal took issue. When considered in the sentencing context, the frequency of a crime in a given region does not help paint a portrait of the accused, but instead reflects external factors. The degree of censure required to express society’s condemnation of the offence is limited by the principle that an offender’s sentence must be equivalent to his or her moral culpability. Even though courts of appeal have noted that a trial judge can sometimes consider the local situation when imposing a sentence, the judicial notice that judges can take of their communities is not without limits, and caution must be exercised in establishing its scope. Being familiar with the local situation in one’s region is one thing, but claiming to compare that situation with what happens elsewhere in order to draw conclusions or inferences from it is something else. Although a court has wide latitude as to the sources and types of evidence upon which to base the sentence to be imposed, it must never lose sight of the importance of procedural fairness and must bear in mind the importance of the facts in question and the impact on the offender of how they are dealt with. In this case, there is no indication that the trial judge was in a position to take judicial notice of the fact that impaired driving is trivialized in the Beauce region more than elsewhere. Knowing the impact on sentencing of that factor, which he considered to be aggravating, and the particular weight he was going to attach to it in imposing a more severe sanction, he should, in the interest of procedural fairness, have informed L of his concerns on this point and requested submissions from him. But he did not do so, even though the importance he attached to that aggravating factor ultimately led him to impose a sentence that favoured exemplarity at the expense of proportionality.
Given that the trial judge overemphasized the objectives of exemplarity and deterrence while at the same time overlooking the principles of similarity of sentences and individualization in sentencing, the Court of Appeal was justified in intervening and reopening the analytical process in order to determine whether the sentence was just and appropriate. In the name of deterrence and exemplarity, the trial judge focused on the perceived prevalence of the crime in the community and disregarded the individual and contextual factors, which led him to impose a sentence that was excessive in L’s case. In so doing, he disregarded the principle that sentences should be similar to other sentences imposed in similar circumstances, which is the corollary of the principle of proportionality. He provided little if any explanation for the sentence of 78 months’ imprisonment that he ultimately imposed on L, despite the fact that the severity of that sentence is not in any doubt. Although it would also have been preferable for the Court of Appeal to provide a more thorough explanation, the 48‑month sentence it imposed is much more consistent with what can be seen in comparable decisions. Unlike the one imposed by the trial judge, this sentence does not represent a substantial and marked departure from the sentences imposed on similar offenders who committed similar crimes in similar circumstances. Rather, it is consistent with the sentences imposed on offenders with characteristics similar to those of L. Insofar as the Court of Appeal correctly stated the law before intervening, it is not open to the Court to substitute its view for that of the Court of Appeal on the sentence.
On the issue of the driving prohibition, the length of the presentence prohibition is a factor to be considered in analyzing the reasonableness and appropriateness of the prohibition to be imposed under s. 259(3.3) (b) of the Criminal Code . In light of the length of the presentence prohibition in this case, it is appropriate to reduce the length of L’s driving prohibition to one year and nine months, plus the period of 48 months to which he was sentenced to imprisonment.
Finally, the Court of Appeal did not make an error warranting intervention when it declined to admit the fresh evidence of two breaches by L of his recognizances. Absent an error of law or a palpable and overriding error of fact, the Court should not reconsider the weight attached by the Court of Appeal to those breaches and substitute its view of what would have been relevant.
Cases Cited
By Wagner J.
Referred to: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Lépine, 2007 QCCA 70; R. v. Brutus, 2009 QCCA 1382; R. v. Stimson, 2011 ABCA 59, 499 A.R. 185; R. v. McIlwrick, 2008 ABQB 724, 461 A.R. 16; R. v. Junkert, 2010 ONCA 549, 103 O.R. (3d) 284; R. v. Ruizfuentes, 2010 MBCA 90, 258 Man. R. (2d) 220; R. v. Bernshaw, [1995] 1 S.C.R. 254; R. v. Comeau, 2008 QCCQ 4804; R. v. Paré, 2011 QCCA 2047; R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163; R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Lévesque‑Chaput, 2010 QCCA 640; R. v. Gavin, 2009 QCCA 1; R. v. Sidhu, 2009 QCCA 2441; R. v. Flight, 2014 ABCA 380, 584 A.R. 392; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261; R. v. McKnight (1999), 135 C.C.C. (3d) 41; R. v. Rezaie (1996), 31 O.R. (3d) 713; R. v. McDonnell, [1997] 1 S.C.R. 948; R. v. Keepness, 2010 SKCA 69, 359 Sask. R. 34; R. v. Verreault, 2008 QCCA 2284; R. v. Morneau, 2009 QCCA 1496; R. v. Bear, 2008 SKCA 172, 320 Sask. R. 12; R. v. Berner, 2013 BCCA 188, 297 C.C.C. (3d) 69; R. v. Smith, 2013 BCCA 173, 296 C.C.C. (3d) 386; R. v. Kummer, 2011 ONCA 39, 103 O.R. (3d) 641; R. v. Wood (2005), 196 C.C.C. (3d) 155; R. v. O. (C.), 2008 ONCA 518, 91 O.R. (3d) 528; R. v. Wright, 2013 ABCA 428, 566 A.R. 192; R. v. J.B., 2015 QCCQ 1884; R. v. Tang, 2010 QCCS 5009; R. v. Valiquette, 2004 CanLII 20126; R. v. Nguyen, 2007 QCCA 1500; R. v. Morrissette (1970), 1 C.C.C. (2d) 307; R. v. Laurila, 2010 BCCA 535, 296 B.C.A.C. 139; R. v. Woghiren, 2004 CanLII 46649; R. v. Z.Z., 2013 QCCA 1498; R. v. Hernandez, 2009 BCCA 546, 277 B.C.A.C. 120; R. v. MacDougall, [1998] 3 S.C.R. 45; R. v. Dumais, 2010 QCCA 1030; R. v. St‑Germain, 2015 QCCA 1108; R. v. Pelletier, 2008 QCCA 1616; R. v. Laycock (1989), 51 C.C.C. (3d) 65; R. v. Bilodeau, 2013 QCCA 980; R. v. Williams, 2009 NBPC 16, 346 N.B.R. (2d) 164; R. v. Downes (2006), 79 O.R. (3d) 321; R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81; R. v. Panday, 2007 ONCA 598, 87 O.R. (3d) 1; R. v. Sharma, [1992] 1 S.C.R. 814; Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487; R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728; Lees v. The Queen, [1979] 2 S.C.R. 749.
By Gascon J. (dissenting)
R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Priest (1996), 30 O.R. (3d) 538; R. v. Paré, 2011 QCCA 2047; R. v. R. (M.), 2010 QCCA 16, 73 C.R. (6th) 136; R. v. J.L.M.A., 2010 ABCA 363, 499 A.R. 1; R. v. Hamilton (2004), 72 O.R. (3d) 1; R. v. Hawkins, 2011 NSCA 7, 298 N.S.R. (2d) 53; R. v. Wismayer (1997), 33 O.R. (3d) 225; R. v. Coffin, 2006 QCCA 471, 210 C.C.C. (3d) 227; R. v. Leask (1996), 113 Man. R. (2d) 265; R. v. Stone, [1999] 2 S.C.R. 290; R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. McDonnell, [1997] 1 S.C.R. 948; R. v. Gallon, 2006 NBCA 31, 297 N.B.R. (2d) 317; R. v. Biancofiore (1997), 35 O.R. (3d) 782; R. v. Gagnon (1998), 130 C.C.C. (3d) 194; R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Orr, 2008 BCCA 76, 228 C.C.C. (3d) 432; R. v. Flight, 2014 ABCA 380, 584 A.R. 392; R. v. Stimson, 2011 ABCA 59, 499 A.R. 185; R. v. Dass, 2008 CanLII 13191; R. v. Dankyi (1993), 86 C.C.C. (3d) 368; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458; R. v. Valiquette, 2004 CanLII 20126; R. v. Z.Z., 2013 QCCA 1498; R. v. Hernandez, 2009 BCCA 546, 277 B.C.A.C. 120; R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487; R. v. Witvoet, 2015 ABCA 152, 600 A.R. 200; R. v. Bartlett, 2005 NLCA 75, 252 Nfld. & P.E.I.R. 154; R. v. Joseph, 2012 BCCA 359, 326 B.C.A.C. 312; R. v. Provost, 2006 NLCA 30, 256 Nfld. & P.E.I.R. 205; R. v. Alarie (1980), 28 C.R. (3d) 73; R. v. Junkert, 2010 ONCA 549, 103 O.R. (3d) 284; R. v. Ruizfuentes, 2010 MBCA 90, 258 Man. R. (2d) 220; R. v. Lépine, 2007 QCCA 70; R. v. Brutus, 2009 QCCA 1382; R. v. Charles, 2011 BCCA 68, 10 M.V.R. (6th) 177, aff’g 2009 BCSC 1391; R. v. McIlwrick, 2008 ABQB 724, 461 A.R. 16; R. v. Olsen, 2011 ABCA 308, 515 A.R. 76; R. v. Pelletier, 2009 QCCQ 6277; R. v. Nottebrock, 2014 ABQB 662, 15 Alta. L.R. (6th) 114; R. v. Cooper, 2007 NSSC 115, 255 N.S.R. (2d) 18; R. v. Kummer, 2011 ONCA 39, 103 O.R. (3d) 641; R. v. Cote, 2007 SKPC 100, 300 Sask. R. 194; R. v. York, 2015 ABCA 129, 78 M.V.R. (6th) 4; R. v. Gravel, 2013 QCCQ 10482; R. v. Comeau, 2008 QCCQ 4804, aff’d 2009 QCCA 1175; R. v. Côté, 2002 CanLII 27228; R. v. Morneau, 2009 QCCA 1496, aff’g 2009 QCCQ 1271; R. v. Bois, 2005 CanLII 10575; R. v. Wood (2005), 196 C.C.C. (3d) 155; R. v. R.N.S., 2000 SCC 7, [2000] 1 S.C.R. 149; R. v. Bilodeau, 2013 QCCA 980; R. v. Pellicore, [1997] O.J. No. 226 (QL); Palmer v. The Queen, [1980] 1 S.C.R. 759.
Statutes and Regulations Cited
Act to amend the Criminal Code (impaired driving causing death and other matters), S.C. 2000, c. 25.
Criminal Code, R.S.C. 1985, c. C‑46, ss. 255(3) , 259(2) (a), (a.1 ), (3.3)(b), 687, 718 to 718.2, 718.1, 718.3(1), 719(1), 721(3)(b).
Highway Safety Code, CQLR, c. C‑24.2.
Tackling Violent Crime Act, S.C. 2008, c. 6 .
Authors Cited
Béliveau, Pierre, et Martin Vauclair. Traité général de preuve et de procédure pénales, 22e éd. Montréal: Yvon Blais, 2015.
Canada. House of Commons. Standing Committee on Justice and Human Rights. Ending Alcohol‑Impaired Driving: A Common Approach. Ottawa: Communication Canada, June 2009.
Dadour, François. De la détermination de la peine: Principes et applications. Markham, Ont.: LexisNexis, 2007.
Davis, Kenneth Culp. Administrative Law Text, 3rd ed. St. Paul, Minn.: West Publishing Co., 1972.
Delisle, Ronald Joseph, Don Stuart and David M. Tanovich. Evidence: Principles and Problems, 9th ed. Toronto: Carswell, 2010.
Desjardins, Tristan. L’appel en droit criminel et pénal, 2e éd. Montréal: LexisNexis, 2012.
Renaud, Gilles. Principes de la détermination de la peine. Cowansville, Que.: Yvon Blais, 2004.
Renaud, Gilles. The Sentencing Code of Canada: Principles and Objectives. Markham, Ont.: LexisNexis, 2009.
Ruby, Clayton C., Gerald J. Chan and Nader R. Hasan. Sentencing, 8th ed. Markham, Ont.: LexisNexis, 2012.
Thomas, D. A. Principles of Sentencing, 2nd ed. London: Heinemann, 1979.
APPEAL from a judgment of the Quebec Court of Appeal (Morissette, Gagnon and Bélanger JJ.A.), 2014 QCCA 1061, [2014] AZ‑51076563, [2014] J.Q. no 4929 (QL), 2014 CarswellQue 4930 (WL Can.), varying a sentence imposed by Couture J.C.Q., 2013 QCCQ 11960, [2013] AZ‑51009786, [2013] J.Q. no 13621 (QL), 2013 CarswellQue 10490 (WL Can.). Appeal allowed, McLachlin C.J. and Gascon J. dissenting.
Régis Boisvert and Audrey Roy‑Cloutier, for the appellant.
Alain Dumas and Geneviève Bertrand, for the respondent.
Joanne Dartana, for the intervener.
English version of the judgment of Abella, Moldaver, Karakatsanis, Wagner and Côté JJ. delivered by
Wagner J. —
I. Introduction
[1] Sentencing remains one of the most delicate stages of the criminal justice process in Canada. Although this task is governed by ss. 718 et seq. of the Criminal Code, R.S.C. 1985, c. C‑46 , and although the objectives set out in those sections guide the courts and are clearly defined, it nonetheless involves, by definition, the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing.
[2] For this purpose, the courts have developed tools over the years to ensure that similar sentences are imposed on similar offenders for similar offences committed in similar circumstances — the principle of parity of sentences — and that sentences are proportionate by guiding the exercise of that discretion, and to prevent any substantial and marked disparities in the sentences imposed on offenders for similar crimes committed in similar circumstances. For example, in Quebec and other provinces, the courts have adopted a system of sentencing ranges and categories designed to achieve these objectives.
[3] The credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders. A sentence that is unfit, whether because it is too harsh or too lenient, could cause the public to question the credibility of the system in light of its objectives.
[4] One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.
[5] In the context of offences such as the ones in the case at bar, namely impaired driving causing either bodily harm or death, courts from various parts of the country have held that the objectives of deterrence and denunciation must be emphasized in order to convey society’s condemnation: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 129; R. v. Lépine, 2007 QCCA 70, at para. 21 (CanLII); R. v. Brutus, 2009 QCCA 1382, at para. 18 (CanLII); R. v. Stimson, 2011 ABCA 59, 499 A.R. 185, at para. 21; R. v. McIlwrick, 2008 ABQB 724, 461 A.R. 16, at para. 69; R. v. Junkert, 2010 ONCA 549, 103 O.R. (3d) 284, at paras. 46‑47; R. v. Ruizfuentes, 2010 MBCA 90, 258 Man. R. (2d) 220, at para. 36.
[6] While it is normal for trial judges to consider sentences other than imprisonment in appropriate cases, in the instant case, as in all cases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law‑abiding society.
[7] The increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wanted such offences to be punished more harshly. Despite countless awareness campaigns conducted over the years, impaired driving offences still cause more deaths than any other offences in Canada: House of Commons Standing Committee on Justice and Human Rights, Ending Alcohol‑Impaired Driving: A Common Approach (2009), at p. 5.
[8] This sad situation, which unfortunately continues to prevail today, was denounced by Cory J. more than 20 years ago:
Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.
(R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 16)
[9] Such is the backdrop to the main issues in the case at bar. The appellant is appealing a Quebec Court of Appeal judgment that reduced from six and a half to four years a term of imprisonment imposed on the respondent by the trial judge after the respondent had pleaded guilty to two counts of impaired driving causing death.
[10] This appeal affords this Court, first of all, an occasion to clarify the standard on the basis of which an appellate court may intervene and vary a sentence imposed by a trial judge. The Court must determine, inter alia, the extent to which a deviation from a sentencing range that is otherwise established and adhered to may justify appellate intervention.
[11] This Court has on many occasions noted the importance of giving wide latitude to sentencing judges. Since they have, inter alia, the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in this regard. The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention. Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.
[12] In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice. Moreover, if appellate courts intervene without deference to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of the system and the authority of trial courts. With respect, I am of the opinion that the Court of Appeal was wrong in this case to reduce the sentence imposed by the trial judge by basing its intervention on the fact that he had departed from the established sentencing range.
[13] Secondly, this appeal also raises the question whether it is appropriate for a judge to consider the fact that a type of offence occurs with particular frequency in a given region as a relevant factor in determining a just and appropriate sentence. In this case, I am of the opinion that it was open to the trial judge, in balancing the relevant sentencing factors, to consider the frequency of impaired driving offences in the district where the crime was committed. Moreover, the Court of Appeal failed completely to address this question.
[14] Another question raised in this appeal relates to the length and other terms of the driving prohibition imposed by the trial judge. In this case, the length of the presentence driving prohibition should be subtracted from that of the prohibition imposed in the context of the sentence. In addition, the driving prohibition of four years and seven months is demonstrably unfit and must be reduced to two years and four months to take account of the recognizance entered into by the respondent under which he was to refrain from driving from his release date until his sentencing date (two years and three months).
[15] Finally, the appeal also concerns the admissibility of fresh evidence. In this case, the evidence in question was of two breaches of recognizances the respondent had entered into. The Court of Appeal found that the fresh evidence was inadmissible. Unlike the Court of Appeal, I am of the opinion that the evidence was admissible and that it provided information that was relevant to the determination of a just and appropriate sentence.
[16] In short, I respectfully find that the Court of Appeal erred in intervening, without valid grounds, to substitute a sentence it considered appropriate for the one that had been imposed by the trial judge. Even though the trial judge had made an error in principle by considering an element of the offence as an aggravating factor, that error had clearly had no impact on the sentence, which, moreover, was not demonstrably unfit. In this sense, the Court of Appeal erred in basing its intervention on the fact that the sentence fell outside the sentencing range established by the courts, while disregarding the criteria that are normally applied in the determination of a just and appropriate sentence. It also failed completely to address the factor relating to the local situation, that is, to the frequency of the type of offence at issue, on which the trial judge had relied. For these reasons, the appeal should be allowed and the sentence of imprisonment imposed by the trial judge should be restored.
II. Background and Judicial History
A. Facts
[17] The respondent pleaded guilty to two counts of alcohol‑impaired driving causing death, an offence under s. 255(3) of the Criminal Code . The parties filed a joint statement of facts. The following facts taken from it are relevant for the purposes of this appeal.
[18] On June 17, 2011, at about 4:00 a.m., Tommy Lacasse, the respondent in this appeal, lost control of his vehicle while entering a curve on a country road in Sainte‑Aurélie in the Beauce region. He was speeding, and his ability to drive was impaired by alcohol. Nadia Pruneau, who was celebrating her 18th birthday that night, and Caroline Fortier, aged 17, were in the back seat of the vehicle. They both died instantly. Neither the vehicle’s mechanical condition nor the weather contributed to the accident. The respondent is entirely responsible for it.
[19] The respondent admitted to having smoked a joint of cannabis at about 7:00 p.m., after which he had drunk four small beers between 7:30 p.m. and midnight, another between 1:00 and 2:30 a.m. and about 100 mL of a lemonade and vodka mixture between 10:30 and 11:00 p.m. The parties agreed that it was the alcohol and not the cannabis that had impaired the respondent’s ability to drive.
[20] The collision investigation report concluded that the vehicle had been travelling at 130 km/h, whereas the recommended speed for taking the curve was 75 km/h. The vehicle skidded more than 60 metres before hitting the bottom of a ditch, lifting off the ground and rolling over several times.
[21] The respondent did not testify at the sentencing hearing, although the defence adduced some evidence to show that he had been deeply distressed during the weeks and months following the accident. The evidence also showed that he had become suicidal and had said that he wished he had died instead of the victims.
[22] At the time of the sentencing hearing, the respondent was 20 years old. He was living with his parents and working as an autobody repairer in his family’s business. He did not have a criminal record, although he had been convicted of offences under the Highway Safety Code, CQLR, c. C‑24.2, including three speeding offences.
B. Court of Québec, 2013 QCCQ 11960
[23] In the Court of Québec, the appellant asked for a sentence of six to eight years’ imprisonment followed by a seven‑year driving prohibition. The respondent suggested a sentence of no more than three years’ imprisonment.
[24] Judge Couture began by listing the aggravating factors: the facts that the respondent had been intoxicated and had smoked cannabis, the context in which he had been drinking alcohol, the speed at which he had been driving, his driving record with the Société de l’assurance automobile du Québec, the number of victims and the impact of the accident on the victims’ families. He also identified a few mitigating factors, but he reduced the weight to be attached to them, except as regards the fact that the presentence report was favourable to the respondent.
[25] More specifically, Judge Couture attached less weight to the fact that the respondent had pleaded guilty on the ground that he had done so relatively late, long after he was in a position to make decisions about the conduct of his trial. Judge Couture also attached less weight to the fact that the respondent did not have a criminal record, because in his view, the offence was one that was likely to be committed by people who do not have criminal records. He relied in this regard on this Court’s decision in Proulx, at para. 129. He also noted that the respondent had sustained injuries, but pointed out that this was merely a consequence of the respondent’s own actions. In addition, Judge Couture reduced the weight attached to the respondent’s youth.
[26] After reiterating the principle of proportionality together with the principle of parity of sentences, Judge Couture stressed the importance of individualizing sentences and the need to emphasize the objectives of deterrence and denunciation where crimes involving impaired driving are concerned. He specified that sentencing ranges are only guidelines, and not hard and fast rules. He added that, in the case