On December 17th 2015 the Supreme Court of Canada in the decision of R. v. Lacasse  sent a warning to ordinarily law abiding citizens who commit impaired driving, by upholding a six and a half year term of imprisonment for the offence of impaired driving causing the death of two people. This warning extends to other ordinarily law abiding citizens who might be thinking about committing so called white collar crimes such as bribery or price fixing, or being willfully blind to the commission of such crimes. Justice Wagner’s majority decision specifically targets the impact of deterrence on first offenders:
While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences.
Released at a holiday time when the incidence of impaired driving increases, the Lacasse decision sends an important message to otherwise law abiding people condemning the “scourge” of impaired driving.
The decision in Lacasse has widespread implications for general sentencing principles on a number of levels. The Court recognizes that proportionality is a cardinal sentencing principle which trumps parity as a secondary sentencing principle. This trumping of principles allows for the evolution of sentencing beyond strict ranges as set by prior precedents.
Justice Wagner’s judgment provides a very helpful construction of proportionality into two fundamental competing factors: (1) Seriousness of the crime’s consequences and (2) Moral blameworthiness of the offender:
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.
This two pronged approach is amenable to a matrix analysis that reflects the type of risk assessment that is central to compliance in the area of corporate compliance. At the sentencing stage however, the risk matrix is on its head, as there has been a failure of risk management.
The decision in Lacasse is also important with respect to the standard of review of trial level sentencing decisions. The Court modifies the classic test that an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention, The modification is that such errors will only justify intervention where it appears from the trial judge’s decision that such an error had an impact on the sentence.
When a sentencing Justice departs from the matrix of the gravity of the offence and the offender’s degree of responsibility in a way that impacts the sentence, it is appropriate for a reviewing Court to intervene to restore the sentence that is consistent with this matrix. This may of course result in sentences being adjusted upwards or downward in specific circumstances.
Compliance programs are even more essential now, given the message from the Court that the objectives of deterrence and denunciation are particularly relevant to offences that might be committed by ordinarily law-abiding people.
II. GENERAL SENTENCING PRINCIPLES
The judgment in Lacasse recognizes that sentencing remains one of the most delicate stages of the criminal justice process in Canada. Although this task was 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, sentencing nonetheless involves 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. To that extent, the decision is applicable to other sentencing regimes outside of the federal sphere, such as sentencing under provincial offence legislation.
The courts have historically developed tools to ensure that similar sentences are imposed on similar offenders for similar offences committed in similar circumstances — the principle of parity of sentences which results in ranges of sentences being established. Justice Wagner observes that 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.
The Supreme Court holds on to the objective of rehabilitation as one of the main objectives of Canadian criminal law. Rehabilitation is identified as “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.” This is a complex area as it requires insight into why an offence occurred in order to effectively rehabilitate the offender, and there is considerable controversy about the efficacy of a prison term to achieve rehabilitation.
In the context of offences such as impaired driving causing either bodily harm or death, the Supreme Court confirms that 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.
While it is normal for trial judges to consider sentences other than imprisonment in appropriate cases, in cases where people die as a result of impaired driving, the courts have very few options other than imprisonment.
Justice Wagner sets out the stark reality that impaired driving offences still cause more deaths than any other offences in Canada. Yet our legislators for some reason resist the most simple pro-active ex ante mechanism to stop impaired driving which would be the mandatory requirement that every new vehicle be equipped with an interlock breathalyzer machine. The added costs to vehicle cost spread out across society would surely be worth it if lives would be saved, which is a virtual certainty.
Mr. Lacasse pleaded guilty to two counts of alcohol-impaired driving causing death. Lacasse lost control of his vehicle while entering a curve on a country road . 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. Lacasse was entirely responsible for the accident.
Lacasse had been deeply distressed during the weeks and months following the accident and had become suicidal. At the time of the sentencing hearing, he was 20 years old. He did not have a criminal record, although he had been convicted of offences under the Highway Safety Code, including three speeding offences.
The sentencing Judge attached less weight to the fact that Lacasse 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. The sentencing Judge also attached less weight to the fact that the Lacasse 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.
Furthermore, the sentencing Judge emphasized the particular situation in the Beauce region of Quebec, where approximately one in five cases involves an impaired driving offence. He even posed the question whether driving while impaired is trivialized more there than elsewhere.
For all these reasons, the sentencing Judge sentenced Lacasse, on each count of impaired driving causing death, to six years and six months’ imprisonment minus the period of one month he had spent in pre-trial detention; the two sentences were to be served concurrently.
The Quebec Court of Appeal found that the sentence of six years and five months was excessive because it departed from the principle of proportionality. In the court’s opinion, the trial judge should have given greater consideration to the respondent’s potential for rehabilitation and placed less emphasis on the objective of making an example of an offender.
IV. STANDARD FOR INTERVENTION ON AN APPEAL FROM A SENTENCE
The Supreme Court has reiterated on many occasions that appellate courts may not intervene lightly in sentence decisions, as trial judges have a broad discretion to impose the sentence they consider appropriate within the limits established by law. The Court has narrowly defined the types of error in principle that will generally justify intervention:
Put simply, 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.
An issue which split the Court in Lacasse is the question of whether such errors necessarily require intervention. Justice Gascon wrote a dissenting opinion, joined by Chief Justice MacLachlin, stating the view that where there is a reviewable error in the trial judge’s reasoning, for example where the judge has characterized an element of the offence as an aggravating factor, it is always open to an appellate court to intervene to assess the fitness of the sentence imposed by the trial judge. In other words, such an error opens the door to an appellate court then affirming that sentence if it considers the sentence to be fit, or imposing the sentence it considers appropriate without having to show deference.
Justice Wagner held that every such error of principle will not necessarily justify appellate intervention regardless of its impact on the trial judge’s reasoning. Intervention is only appropriate if the error would have had an impact on the sentence:
In my view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impact on the sentence.
In the Lacasse case, both the majority and minority of the Court were of the opinion that the sentencing Judge erred in identifying the fact that Lacasse was intoxicated as an aggravating factor, as intoxication was a constituent element of the offence itself and accordingly had a higher sentencing range by definition. However, Justice Wagner held that this is a non-determinative error that did not unduly affect the sentence, given that the sentencing Judge identified other aggravating factors and it was apparent that the sentencing Judge attached no real weight to this factor.
Ultimately it was the opinion of the Supreme Courr that the sentence of six years and six months’ imprisonment, although severe, falls within the overall range of sentences normally imposed in Quebec and elsewhere in the country and is not demonstrably unfit.
Justice Wagner repeats the reminder given by the Supreme Court about showing deference to a trial judge’s exercise of discretion because first, the trial judge has the advantage of having observed the witnesses in the course of the trial and having heard the parties’ sentencing submissions. While this is obviously a fact, the witnesses may have testified only on liability issues only and not on issues relevant to sentencing and this should be borne in mind. Moreover, a sentencing Judge may consider hearsay evidence where found to be credible and trustworthy.
I have argued previously that a trial Judge has little advantage over an appellate court in assessing hearsay evidence for the simple reason that the declarant of the hearsay evidence is not available for the trial Judge to see or evaluate under the spotlight of cross-examination. Rather, the decision is made on a principled basis which an appellate court is capable of doing well. To the extent that a sentencing Judge relies on hearsay evidence in making sentencing decisions, it is respectfully submitted that the level of deference ought to be adjusted accordingly.
Second, Justice Wager repeats the reminder that the sentencing judge is usually familiar with the circumstances in the district where he or she sits and therefore with the particular needs of the community in which the crime was committed. This is relevant to the consideration of local circumstances considered below. Finally, Justice Wagner points out that the appropriate use of judicial resources is a consideration that must never be overlooked.
The fundamental principle of proportionality is stated in s. 718.1 of the Criminal Code, which provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle.
As noted in the introduction, Justice Wagner’s judgment juxtaposes these two fundamental competing factors: The more serious the crime and its consequences, the heavier the sentence will be. The competing and different factor is the moral blameworthiness of the offender. This latter factor included three prior convictions of Lacasse for speeding which in the Court’s view showed that he was irresponsible when behind the wheel, and his convictions under theHighway Safety Code were all the more relevant given that speeding had played a part in the accident in this case.
A further example of the moral blameworthiness of the offender being weighed in the calculation is demonstrated by the trial judge attaching less weight to the remorse expressed by Lacasse and to his guilty plea because of the lateness of that plea. A plea entered at the last minute before the trial is not deserving of as much consideration as one that was entered promptly:
This two pronged approach is amenable to a matrix analysis that reflects the type of risk assessment that is central to compliance in the area of corporate compliance. At the sentencing stage however, the risk matrix is on its head, as there has been a failure of risk management. The application of a risk management matrix may provide some further guidance. Matrix analysis organizes the statutory principles listed above into two categories: “moral blameworthiness of the offender ” on the X axis versus “seriousness of the crime and its consequences” on the Y axis. The factors of sentencing can be grouped into these two axes along the following lines
- X axis: “moral blameworthiness of the offender”
- The history of compliance versus prior record
- Personal circumstances such as whether the offence was motivated by bias, prejudice or hate
- Personal circumstances such as age, experience
- Degree of planning involved in the offence
- Y axis: “seriousness of the crime and its consequences”
- Scope of the offence
- Any benefit obtained from the commission of the violation
- evidence that the offence had a significant impact on the victim, including physical, financial and emotional harm
- Extent of risk of harm that was created by the offence
The matrix can then be used to plot the range of the appropriate penalty which can be used for comparative purposes. For an example in the white collar area, assume that an individual has an otherwise good compliance record and the motive for the offence was related to business sustainability rather than for personal profit. Assume that the extent of harm is significant given the large volume of product that is the subject of the offence. The matrix might look as follows in Example A:
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The A plots the location on the matrix, which requires a significant penalty to achieve deterrence, even though the moral blameworthiness is on the low side.
Example B takes the fact situation as in Example A but changes a variable on the X axis. Assume that the motive for the offence was personal profit and that there was considerable planning for a period of time before the offence. The matrix would be adjusted as follows:
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The B plots the location on the matrix suggests that the sentence should be near the maximum that is set out by the legislative scheme pursuant to the principle of proportionality and to ensure adequate deterrence.
VI. PROPORTIONALITY TRUMPS PARITY AND ALLOWS FOR EVOLUTION OF SENTENCING LAW
Justice Wagner clearly sets out the order of sentencing principles: “The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the fundamental principle of proportionality.”  This ordering of principles is applied to the concept of sentence ranges that evolved over the years. The Court views sentencing ranges as 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, the Court cautions that 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”.
The matrix of the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case underlie the principle of proportionality that will trump sentence ranges in certain cases, putting the sentence either above or below those ranges.
The following paragraph from the judgment is an important description of the methodology of proportionality:
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. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case.
The reference to the process as going “beyond a purely mathematical calculation” is consistent with the rejection of sentencing ranges as straightjackets. I would however argue that the proportionality principle which reflects a matrix of factors (as illustrated above) has a basis in mathematical weighing of values. When a sentencing Justice departs from the matrix of the gravity of the offence and the offender’s degree of responsibility in a way that impacts the sentence, it is appropriate for a reviewing Court to intervene to restore the sentence that is consistent with this matrix. This may of course result in sentences being adjusted upwards or downward in specific circumstances.
VII. DETERRENCE AND DENUNCIATION
The following passage from Justice Wagner’s decision is of particular relevance for the sentencing of white collar offenders:
While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences. Impaired driving offences are an obvious example of this type of offence, as this Court noted in Proulx:
[D]angerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the ones most likely to be deterred by the threat of severe penalties: see R. v. McVeigh (1985), 22 C.C.C. (3d) 145 (Ont. C.A.), at p. 150; R. v. Biancofiore (1997), 119 C.C.C. (3d) 344 (Ont. C.A.), at paras. 18-24; R. v. Blakeley (1998), 40 O.R. (3d) 541 (C.A.), at pp. 542-43. [para. 129]
The emphasis on deterrence continues with the Court’s reference to the fact that it is young people who are affected the most by motor vehicle accidents that result from impaired driving. In light of the importance that must be attributed to the objectives of deterrence and denunciation in such cases as well as the dire consequences of the accident in the Lacasse case, the Supreme Court endorsed the reduction of the weight attached to youth as a mitigating factor.
VIII. LOCAL SITUATION
In conducting his sentencing analysis, the trial judge also referred to the “local situation” factor and stressed the need to convey a strong message of general deterrence and denunciation. The Supreme Court affirms this approach, noting that even though the Criminal Code applies everywhere in the country, local characteristics in a given region may explain certain differences in the sentences imposed on offenders by the courts. The frequency of a type of offence in a particular region can certainly be a relevant factor for a sentencing judge.
Justice Wagner recognizes that the fact that a type of crime occurs frequently in a particular region is not in itself an aggravating factor. However, 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.
Justice Wagner also recognizes that considerations of procedural fairness will generally require that a judge who intends to attach weight to the local reality and to the frequency of a crime in a given region offer the parties an opportunity to make representations on the subject. Moreover it was open to the sentencing Justice to take judicial notice of the evil represented by the large number of offences related to drinking and driving that are committed in the Beauce district as the frequency of impaired driving offences is something that can be determined objectively by consulting the court rolls. In short, it is public information that is known and uncontroversial, and the local reality was not in dispute in the instant case.
The sentence of six years and six months’ imprisonment imposed by the sentencing Judge in Lacasse although severe, falls within the overall range of sentences normally imposed in Quebec and elsewhere in the country and is not demonstrably unfit for the offence of impaired driving causing two deaths.
The fundamental principle of proportionality, which trumps the parity of sentences, provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. This matrix of factors is the same matrix of factors that underlies risk assessment and compliance in the area of white collar offences. At this stage however, it is risk management on its head as the sentencing focuses on the failure of the risk assessment that is essential to compliance.
Compliance programs are even more essential now, given the message from the Court that the objectives of deterrence and denunciation are particularly relevant to offences that might be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences.