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CONDITIONAL SENTENCE - HOUSE ARREST

R. v. Proulx, [2000] 1 S.C.R. 61

...

After a night of partying involving  consumption of some alcohol, the

accused decided to drive his friends home even though he knew that his vehicle was not mechanically sound.  For a period of 10 to 20 minutes, the accused, who had only seven weeks of experience as a licensed driver, drove erratically, weaving in and out of traffic, tailgating and trying to pass other vehicles without signalling, despite steady oncoming traffic and slippery roads.  As the accused was trying to pass another vehicle, he drove his car into an oncoming lane of traffic, side-swiped a first car and crashed into a second one.The driver of that second vehicle was seriously injured.  The accident also claimed the life of a passenger in the accused’s car.  The accused was in a near-death coma for some time, but ultimately recovered from his injuries.  The accused entered guilty pleas to one count of dangerous driving causing death and one count of dangerous driving causing bodily harm.  He was sentenced to 18 months of incarceration, to be served concurrently on both charges.  The sentencing judge concluded that a conditional sentence pursuant to s. 742.1 of the Criminal Code, which would allow the accused to

serve his sentence in the community, would not be appropriate because it would be

inconsistent with the objectives of denunciation and general deterrence.  The Court of

Appeal allowed the appeal and substituted a conditional custodial sentence for the jail

term.

Held:  The appeal should be allowed.

The 1996 sentencing reforms (“Bill C-41") substantially reformed Part XXIII

of the  Code, and introduced,  inter alia, an express statement of the purposes and

principles of sentencing, provisions for alternative measures for adult offenders and a

new type of sanction, the conditional sentence of imprisonment.  Bill C-41 in general and the conditional sentence in particular were enacted both to reduce reliance on

incarceration as a sanction and to increase the use of principles of restorative justice in sentencing.  

A conditional sentence should be distinguished from probationary measures.

Probation is primarily a rehabilitative sentencing tool.  By contrast, Parliament intended conditional sentences to include both punitive and rehabilitative aspects.  Therefore, conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty.  Conditions such as house arrest should be the norm, not the exception.

No offences are excluded from the conditional sentencing regime except

those with a minimum term of imprisonment, nor should there be presumptions in favour of or against a conditional sentence for specific offences.

Section 742.1 of the Code lists four criteria that a court must consider before

deciding to impose a conditional sentence:  

(1) the offender must be convicted of an

offence that is not punishable by a minimum term of imprisonment;

(2) the court must

impose a term of imprisonment of less than two years;

(3) the safety of the community

would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.  

The requirement in s. 742.1(a) that the judge impose a sentence of

imprisonment of less than two years does not require the judge to first impose a sentence

of imprisonment of a fixed duration before considering whether that sentence can be

served in the community.  Although this approach is suggested by the text of s. 742.1(a),

it is unrealistic and could lead to unfit sentences in some cases.  Instead, a purposive

interpretation of s. 742.1(a) should be adopted.  In a preliminary determination, the

sentencing judge should reject a penitentiary term and probationary measures as

inappropriate.  Having determined that the appropriate range of sentence is a term of

imprisonment of less than two years, the judge should then consider whether it is

appropriate for the offender to serve his or her sentence in the community.  As a

corollary of the purposive interpretation of s. 742.1(a), a conditional sentence need not

be of equivalent duration to the sentence of incarceration that would otherwise have been imposed.  The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.

The requirement in s. 742.1(b) that the judge be satisfied that the safety of

the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence, and not the primary consideration in determining whether a conditional sentence is

appropriate.  In making this determination, the judge should consider the risk posed by

the specific offender, not the broader risk of whether the imposition of a conditional

sentence would endanger the safety of the community by providing insufficient general

deterrence or undermining general respect for the law.  Two factors should be taken into account:  

(1) the risk of the offender re-offending; and

(2) the gravity of the damage that could ensue in the event of re-offence.  A consideration of the risk posed by the offender should include the risk of any criminal activity, and not be limited solely to the risk of physical or psychological harm to individuals.

Once the prerequisites of s. 742.1 are satisfied, the judge should give serious

consideration to the possibility of a conditional sentence in all cases by examining

whether a conditional sentence is consistent with the fundamental purpose and principles

of sentencing set out in ss. 718 to 718.2.  This follows from Parliament’s clear message

to the judiciary to reduce the use of incarceration as a sanction.

A conditional sentence can provide significant denunciation and deterrence.

As a general matter, the more serious the offence, the longer and more onerous the

conditional sentence should be.  There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to

deter similar conduct in the future.

Generally, a conditional sentence will be better than incarceration at

achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense  of responsibility in the offender and

acknowledgment of the harm done to the victim and the community.

Where a combination of both punitive and restorative objectives may be

achieved, a conditional sentence will likely be more appropriate than incarceration.

Where objectives such as denunciation and deterrence are particularly pressing,

incarceration will generally be the preferable sanction.  This may be so notwithstanding

the fact that restorative goals might be achieved.  However, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative

objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the

community in which the conditional sentence is to be served.  A conditional sentence

may be imposed even where there are aggravating circumstances, although the need for

denunciation and deterrence will increase in these circumstances.  

No party is under a burden of proof to establish that a conditional sentence

is either appropriate or inappropriate in the circumstances.  The judge should consider

all relevant evidence, no matter by whom it is adduced.  However, it would be in the

offender’s best interests to establish elements militating in favour of a conditional

sentence.

Sentencing judges have a wide discretion in the choice of the appropriate

sentence.  They are entitled to considerable deference from appellate courts.  Absent an error in principle, failure to consider a  relevant factor, or an overemphasis of the

appropriate factors, a court of appeal should only intervene to vary a sentence imposed

at trial if the sentence is demonstrably unfit.

In this case the sentencing judge considered that a term of imprisonment of

18 months was appropriate and declined to permit the accused to serve his term in the

community.  She found that, while the accused would not endanger the safety of the

community by serving a conditional sentence, such a sentence would not be in

conformity with the objectives of s. 718.  In her view, even if incarceration was not

necessary to deter the accused from similar future conduct or necessary for his

rehabilitation, incarceration was necessary to send a strong message to denounce the

accused’s conduct and to deter others from engaging in similar conduct.  While the

sentencing judge seems to have proceeded according to a rigid two-step process, in

deviation from the approach set out in these reasons, an 18-month sentence of

incarceration was not demonstrably unfit for these offences and this offender.  The

offences here were very serious, and had resulted in a death and in severe bodily harm.

Moreover, dangerous driving and impaired driving may be offences for which harsh

sentences plausibly provide general deterrence.  The Court of Appeal erred in holding

that the sentencing judge had given undue weight to the objective of denunciation.

Absent evidence that the sentence was demonstrably unfit, the Court of Appeal should

not have interfered to substitute its own opinion for that of the sentencing judge.  The

sentencing judge did not commit a reversible error in principle and she appropriately

considered all the relevant factors.  Accordingly, the 18-month sentence of incarceration imposed by her should be restored.  Since the accused has already served the conditional sentence imposed by the Court of Appeal in its entirety, and the Crown stated in oral argument that it was not seeking any further punishment, the service of the sentence of incarceration should be stayed.

Jim O'Neil, LL.B.

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