36001    R. v. Lacasse

Criminal law — Sentencing — Appeals

On appeal from a judgment of the Quebec Court of Appeal (2014 QCCA 1061), varying a sentence imposed by Couture J. (2013 QCCQ 11960).

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 the respondent’s incarceration.

Held 5:2 (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 section 259(3.3)(bCr. C. 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.

Reasons for judgment by Wagner J. (Abella, Moldaver, Karakatsanis and Côté JJ. concurring)

Dissenting Reasons for judgment by Gascon J. (McLachlin C.J. concurring)

Neutral Citation: 2015 SCC 64

Docket Number: 36001  

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