R. v. Solowan, 2008 SCC 62, [2008] 3 SCR 309

                                                 SUPREME COURT OF CANADA

Between:

Kenneth Stephen Terrance Solowan

Appellant

and

Her Majesty The Queen

Respondent

Coram: Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

Appeal heard and judgment rendered:  October 8, 2008

Reasons delivered:  November 14, 2008

______________________________

R v. Solowan, [2008] 3 S.C.R. 309, 2008 SCC 62

Kenneth Stephen Terrance Solowan                                                                                 Appellant

v.

Her Majesty The Queen                                                                                                 Respondent

Indexed as:  R. v. Solowan

Neutral citation:  2008 SCC 62.

File No.:  32237.

Hearing and judgment:  October 8, 2008.

Reasons delivered:  November 14, 2008.

Present:  Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for british columbia

Criminal law — Sentencing — Summary convictions — Crown electing to prosecute hybrid offences by way of summary conviction — Trial judge imposing maximum sentence — Whether trial judge erred in imposing maximum custodial sentences without first finding that accused was “worst offender who had committed the worst offence” — Whether “worst offender committing the worst offence” principle limits imposition of maximum sentence where it is otherwise appropriate in light of sentencing principles — Whether sentences imposed proportionate to offences — Whether Court of Appeal disregarded Crown’s election to proceed by way of summary conviction — Criminal Code, R.S.C. 1985, c. C‑46 , Part XXIII, ss. 718.1, 787(1).

The accused pleaded guilty to three offences, including two hybrid offences upon which the Crown had elected to proceed summarily.  He was sentenced to a total of 15 months’ imprisonment.  On appeal, the accused argued that the trial judge had erred in imposing the maximum custodial sentence of six months for each offence without first finding that “he was the worst offender who had committed the worst offence”.  In rejecting this submission, the Court of Appeal stated that “[t]he maximum sentence for the offences was not imposed here.  It is available only where the Crown elects to proceed by indictment.”  The Court of Appeal nonetheless found the global sentence to be excessive and reduced it from 15 to 12 months.  The accused now appeals on the ground that the Court of Appeal disregarded the Crown’s election to proceed by way of summary conviction.

Held:  The appeal should be dismissed.

The sentencing principles set out in Part XXIII of the Criminal Code  apply to both indictable and summary conviction offences.  Where the Crown elects to prosecute a hybrid offence summarily, as it did in this case, the offence must be treated for sentencing purposes as a summary conviction offence and the sentencing court must determine the appropriate punishment within the limits established by Parliament for that mode of procedure.  Absent an error of principle, failure to consider a relevant factor, or overemphasis of the appropriate factors, any sentence within that range — including the maximum — should not be varied on appeal unless it is demonstrably inadequate or excessive.  The “worst offender, worst offence” principle no longer operates as a constraint on the imposition of a maximum sentence where a maximum sentence is otherwise appropriate, bearing in mind the principles set out in Part XXIII.  In this case, the Court of Appeal was alert to the sentencing principles set out in the Code, particularly the fundamental principle of proportionality, and did not err in affirming the maximum custodial sentence for the second hybrid offence.  [3] [8] [13] [16]

Cases Cited

Referred to:  R. v. Cheddesingh, [2004] 1 S.C.R. 433, 2004 SCC 16; R. v. L.M., [2008] 2 S.C.R. 163, 2008 SCC 31; R. v._Gladue, [1999] 1 S.C.R. 688.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46 , Part XXIII, ss. 716, 718.1, 718.2(d), (e), 787(1).

APPEAL from a judgment of the British Columbia Court of Appeal (Saunders, Lowry and Kirkpatrick JJ.A.) (2007), 50 M.V.R. (5th) 30, [2007] B.C.J. No. 1658 (QL), 2007 CarswellBC 1718, 2007 BCCA 388, varying the sentence imposed by Hoy Prov. Ct. J., 2006 CarswellBC 3501.  Appeal dismissed.

Peter Benning and Roger P. Thirkell, for the appellant.

Wendy L. Rubin, for the respondent.

The judgment of the Court was delivered by

Fish J. —

I

[1]     The appellant pleaded guilty to three offences and was sentenced by the trial judge to a total of 15 months’ imprisonment: three months for taking a motor vehicle without consent; six months for possession of stolen property; and six months for failure to stop a motor vehicle while being pursued by the police. The latter two counts were for hybrid offences upon which the Crown had elected to proceed summarily.  On those two counts, the appellant received the maximum custodial sentences permitted by law.

[2]     The appellant attacked his six-month sentences on the ground that the trial judge “erred in imposing the maximum allowable sentence of six months on two of the counts without first finding that he was the worst offender who had committed the worst offence”.  The British Columbia Court of Appeal rejected this submission, but nonetheless reduced the appellant’s sentence for possession of stolen property from six to three months on the ground that a global sentence of 15 months was excessive in the circumstances.  The appellant’s six-month sentence for failure to stop was left undisturbed.

[3]     The “worst offender, worst offence” principle invoked by the appellant in the Court of Appeal has been laid to rest.  It no longer operates as a constraint on the imposition of a maximum sentence where a maximum sentence is otherwise appropriate, bearing in mind the principles of sentencing set out in Part XXIII of the Criminal Code, R.S.C. 1985, c. C-46 : R. v. Cheddesingh, [2004] 1 S.C.R. 433, 2004 SCC 16;  R. v. L.M., [2008] 2 S.C.R. 163, 2008 SCC 31.  Unwarranted resort to maximum sentences is adequately precluded by a proper application of those principles, notably the fundamental principle of proportionality set out in s. 718.1 of the Code, and Parliament’s direction  in s. 718.2 (d) and (e) to impose the least restrictive sanction appropriate in the circumstances: see R. v._Gladue, [1999] 1 S.C.R. 688.

[4]     Nothing in the reasons of the Court of Appeal calls into question any of these principles.

II

[5]     With his “worst offender, worst offence”  ground of appeal thus foreclosed, the appellant instead relies in this Court on the reasons given by the Court of Appeal in disposing of that issue.

[6]     Speaking for a unanimous court, Lowry J.A. rejected the appellant’s submission in these terms:

The applicant contends that the judge erred in imposing the maximum sentence for which the law provides on two of the counts without first finding he was the worst offender committing the worst offence which the judge could not have done.  The applicant says the sentences are in the result at odds with the principle of proportionality.  But possession of stolen property under $5,000 and failing to stop are hybrid offences.  The Crown can proceed summarily or by indictment.  The maximum sentence for the offences was not imposed here.  It is available only where the Crown elects to proceed by indictment. [Emphasis added.]

((2007), 50 M.V.R. (5th) 30, 2007 BCCA 388, at para. 9)

[7]     Pointing to the underlined words in this passage, the appellant contends that the Court of Appeal disregarded the Crown’s election to proceed by way of summary conviction.  In considering the fitness of the sentence imposed, says the appellant, the Court of Appeal mistakenly considered that the maximum sentence to which he was liable in this case was the maximum punishment available had the Crown elected to proceed by indictment.

[8]     Read literally, the impugned passage is capable of this construction.  With respect, it is to that extent wrong in law.  Where the Crown elects to prosecute a hybrid offence summarily, as it did in this case, that offence must be treated for sentencing purposes as a summary conviction offence. The defendant is therefore liable, except where otherwise provided by law, to a fine of not more than $5,000 ($2,000 at the time of trial in this case) or to imprisonment for six months or to both: Criminal Code, s. 787(1) .  Accordingly, the appellant did indeed receive the maximum custodial sentence on the only count that remains in issue here — for failure to stop a motor vehicle while being pursued by the police — and the question is whether the Court of Appeal erred in law in affirming that sentence.

[9]     I would answer that question in the negative. 

[10] As mentioned earlier, the “worst offender, worst offence” principle no longer operates as a constraint on the imposition of maximum sentences.  A maximum sentence, like any other, will be subject to intervention on appeal only where the trial court applied the wrong principles or the sentence was clearly excessive in the circumstances.

[11] In this case, the totality of the sentences was the prime focus of the representations by both counsel at trial.  Indeed, but for the six-month maximum applicable to all three offences, the trial judge would have acceded to the appellant’s plea for a longer global sentence in order to facilitate his rehabilitation: Through his counsel at trial, the appellant urged the sentencing judge to impose a two-year penitentiary term to “help him . . . access better programs”. 

[12] Moreover, through his counsel in this Court (who did not represent him at trial), the appellant does not now argue that his global sentence of 12 months’ imprisonment is manifestly excessive.  He submits instead that the Court of Appeal, in considering the fitness of the six-month sentence that remains in issue, failed to give effect to the sentencing principles, notably the fundamental principle of proportionality, made applicable by Parliament in Part XXIII of the Criminal Code  to indictable and summary conviction offences alike.  Section 718.1 of the Code provides:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[13] Considering the reasons of the Court of Appeal in their entirety, and bearing in mind the appellant’s previous convictions and the proceedings at trial, I am satisfied that the Court of Appeal was alert to the sentencing principles set out in the Code — particularly, I might add, to the fundamental principle of proportionality.

[14] Manifestly, that is why the court reduced the appellant’s global sentence from 15 to 12 months’ imprisonment.

III

[15] A fit sentence for a hybrid offence is neither a function nor a fraction of the sentence that might have been imposed had the Crown elected  to proceed otherwise than it did.  More particularly, the sentence for a hybrid offence prosecuted summarily should not be “scaled down” from the maximum on summary conviction simply because the defendant would likely have received less than the maximum had he or she been prosecuted by indictment.  Likewise, upon indictment, the sentence should not be “scaled up” from the sentence that the accused might well have received if prosecuted by summary conviction.

[16] In short, the sentencing principles set out in Part XXIII of the Criminal Code  apply to both indictable and summary conviction offences.  Parliament has made that clear in the definition of “court” at s. 716 of the Code.  And when the Crown elects to prosecute a “hybrid” offence by way of summary conviction, the sentencing court is bound by the Crown’s election to determine the appropriate punishment within the limits established by Parliament for that mode of procedure.  Absent an error of principle, failure to consider a relevant factor, or overemphasis of the appropriate factors, any sentence within that range —  including the maximum — should not be varied on appeal unless it is demonstrably inadequate or excessive. 

IV

[17] In affirming the appellant’s six-month sentence on one count while reducing his global sentence from 15 months to 12, the Court of Appeal committed no error warranting our intervention.  The court properly took into account the proceedings at trial, the mandatory requirement of proportionality and the other governing principles as well.

[18] The appellant’s further appeal to this Court was therefore dismissed at the conclusion of the hearing.

Appeal dismissed.

Solicitors for the appellant:  Thirkell & Company, Abbotsford.

Solicitor for the respondent:  Attorney General of British Columbia, Vancouver.