R. v. Fice, 2005 SCC 32, [2005] 1 SCR 742

                                                 SUPREME COURT OF CANADA

Between:

Her Majesty the Queen

Appellant

v.

Lynn Fice

Respondent

Coram: McLachlin C.J. and Major, Bastarache, Binnie, Deschamps, Fish and Abella JJ.

______________________________

R. v. Fice, [2005] 1 S.C.R. 742, 2005 SCC 32

Her Majesty The Queen                                                                                  Appellant

v.

Lynn Fice                                                                                                       Respondent

Indexed as:  R. v. Fice

Neutral citation:  2005 SCC 32.  

File No.:  29965.

2005:  January 13; 2005:  May 20.

Present:  McLachlin C.J. and Major, Bastarache, Binnie, Deschamps, Fish and Abella JJ.

on appeal from the court of appeal for ontario

Criminal law — Sentencing — Conditional sentences — Whether pre-sentence custody should affect sentencing judge’s determination of availability of conditional sentence — Criminal Code, R.S.C. 1985, c. C-46, ss. 719(3) , 742.1 .

The accused pleaded guilty to aggravated assault, fraud, personation, forgery and breach of recognizance.  At the time of sentencing, she had spent approximately 16 months in pre-sentence custody and six months in a circumstance of house arrest. Defence counsel conceded that a penitentiary sentence would have been appropriate had it been imposed at the time of arrest.  The sentencing judge considered the accused’s pre‑sentence custody to be the equivalent of almost three years of incarceration and concluded that she should serve an additional 14 months in the community on certain conditions.  The Court of Appeal upheld the conditional sentence.  Relying on the plain meaning of the language of ss. 742.1  and 719(3)  of the Criminal Code , the court concluded that these provisions allow the sentencing judge to take pre-sentence custody into account in determining the range of sentence under the conditional sentencing regime.

Held (Deschamps and Fish JJ. dissenting):  The appeal should be allowed.

Per McLachlin C.J. and Major, Bastarache, Binnie and Abella JJ.: The sentencing judge erred in imposing a conditional sentence. Under s. 742.1 of the Criminal Code , such a sentence cannot become available to an offender who otherwise deserves a penitentiary term solely because of the time the offender has spent in pre-sentence custody.  The conditional sentence regime was not designed for those offenders for whom a penitentiary term is appropriate.  When a sentencing judge considers the gravity of the offence and the moral blameworthiness of the offender and concludes that a sentence in the penitentiary range is warranted and that a conditional sentence is therefore unavailable, time spent in pre‑sentence custody ought not to disturb this conclusion.

Section 742.1 provides that a sentence of imprisonment of less than two years must be imposed before a conditional sentence can be authorized.  The Proulx approach to s. 742.1 requires a sentencing judge to proceed in two stages.  At the first stage, the judge must determine if a conditional sentence is available.  In doing so,  the judge need not impose a term of imprisonment of a fixed duration; rather, he need only exclude two possibilities: probationary measures and a penitentiary term.  If a conditional sentence is available, the judge must, at the second stage, determine if it is appropriate. The time spent in pre‑sentence custody ought to be taken into account at the second stage of the analysis with respect to the duration of the sentence, not at the first stage with respect to sentence range.  To hold otherwise would run counter to the nature of the conditional sentencing regime, as it was defined in Proulx.  The time spent in pre-sentence custody should be considered part of the offender’s total punishment rather than a mitigating factor that can affect the range of sentence and the availability of a conditional sentence.  Furthermore, under the Proulx approach, s. 742.1(a) should not be construed literally.  The  requirement in s. 742.1(a) that the court impose “a sentence of imprisonment of less than two years” must be interpreted purposively, and it is fulfilled by a preliminary determination of the appropriate range of available sentences.

The  judicial discretion, provided for in s. 719(3) of the Code, to consider the time spent in pre-sentencing custody in determining the sentence to be imposed does not mean that the requirement in s. 742.1(a) refers only to the actual time to be spent in jail after sentencing; rather, this requirement refers to the total time taken into account by the sentencing judge in determining the degree of punishment warranted by the gravity of the offence and the moral blameworthiness of the offender.

Per Deschamps and Fish JJ. (dissenting):  The Court of Appeal’s reasons and its conclusion that a conditional sentence was available in this case are agreed with.  A sentence of less than two years is not transformed into a sentence of more than two years for the purpose of s. 742.1 (a) of the Criminal Code  simply because the trial judge took into account, in imposing the sentence of less than two years, time already spent in custody as a result of the offence.  When the offence is not punishable by a minimum term of imprisonment, a court is empowered by s. 742.1 , in the plainest of terms, to impose a conditional sentence whenever it imposes a sentence of less than two years and is satisfied that serving the sentence in the community meets the test set out in s. 742.1 (b). A court that might otherwise have imposed a sentence of more than two years is authorized by s. 719(3) of the Code to impose a sentence of less than two years where a longer term of imprisonment would be excessive, bearing in mind the time already spent in custody as a result of the offence.  From a statutory point of view, the resulting sentence of less than two years clearly satisfies s. 742.1 (a).  Nothing in Proulx precludes the imposition of a conditional sentence where, as here, the statutory conditions are met.

Cases Cited

By Bastarache J.

Applied:  R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; referred to:  R. v. Wu, [2003] 3 S.C.R. 530, 2003 SCC 73; R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18; R. v. McDonald (1998), 127 C.C.C. (3d) 57; R. v. Knoblauch, [2000] 2 S.C.R. 780, 2000 SCC 58; R. v. Predenchuk (2000), 199 Sask. R. 264, 2000 SKCA 122; R. v. Runns (2002), 165 C.C.C. (3d) 217, 2002 SKCA 48; R. v. Dobis (2002), 58 O.R. (3d) 536; R. v. Persaud (2002), 26 M.V.R. (4th) 41; R. v. Bastien, [2003] R.J.Q. 1695; R. v. McClelland (2001), 281 A.R. 378, 2001 ABCA 182; R. v. La (2003), 15 Alta. L.R. (4th) 56, 2003 ABQB 391; R. v. Skani (2002), 331 A.R. 50, 2002 ABQB 1097; R. v. Brown (2002), 32 M.V.R. (4th) 211, 2002 ABPC 187; R. v. Harris (2002), 167 C.C.C. (3d) 246, 2002 BCCA 152; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42.

By Fish J. (dissenting)

R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46 , Part XXIII, ss. 718, 718.1, 718.2, 719(1), (3), 731(1)(b), 742.1.

Authors Cited

Roberts, Julian V.  “Pre-Trial Custody, Terms of Imprisonment and the Conditional Sentence:  Crediting ‘Dead Time’ to Effect ‘Regime Change’ in Sentencing” (2005), 9 Can. Crim. L. Rev. 191.

APPEAL from a judgment of the Ontario Court of Appeal (Charron, Moldaver and Feldman JJ.A.) (2003), 65 O.R. (3d) 751, 173 O.A.C. 357, 13 C.R. (6th) 174, 177 C.C.C. (3d) 566, [2003] O.J. No. 2617 (QL), affirming a decision of McLean J., 2002 CarswellOnt 5477.  Appeal allowed, Deschamps and Fish JJ. dissenting.

Philip Perlmutter, for the appellant.

D. Edwin Boeve, for the respondent.

The judgment of McLachlin C.J. and Major, Bastarache, Binnie and Abella JJ. was delivered by

Bastarache J. —

I.  Overview

1                                   The issue in this case is whether pre-sentence custody should affect a sentencing judge’s determination of the availability of a conditional sentence.  The problem here is one of statutory interpretation.  Section 719(3)  of the Criminal Code, R.S.C. 1985, c. C-46 , authorizes a court to take into account time spent in custody in determining the sentence to be imposed, while s. 742.1 (a) of the Criminal Code  provides that a sentence of imprisonment of less than two years must be imposed before a conditional sentence can be authorized.  Does a sentencing judge decide on the availability of a conditional sentence on the basis of the actual time to be spent in jail after sentencing, or the total punishment of the offender, which reflects the degree of punishment warranted by the gravity of the offence and the moral blameworthiness of the offender?

2                                   Section 742.1 (a) was interpreted in a purposeful manner in R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5.  This Court decided that the requirement that the court must impose a sentence of imprisonment of less than two years before a conditional sentence can be authorized should be fulfilled by a preliminary determination of the appropriate range of available sentences.  In the course of this determination, the judge need only exclude two possibilities:  (a) probationary measures; and (b) a penitentiary term.  The judge need not impose a term of imprisonment of a fixed duration in the first stage of the application of s. 742.1 (a).  Thus, it can be stated that the object of the requirement in s. 742.1 (a) is to exclude categories of offenders from the conditional sentencing regime on the basis of the range of sentence that would apply to them.  In particular, offenders for whom probation or a penitentiary sentence would be considered appropriate are barred from receiving a conditional sentence.

3                                   In my view, this interpretation of s. 742.1 (a) is determinative of the issue in the present case.  Here, the respondent pleaded guilty to aggravated assault, fraud over $5,000, personation, forgery and breach of recognizance.  Defence counsel conceded  that a penitentiary sentence was otherwise warranted but urged a conditional sentence be imposed because of the time spent in pre-sentence custody.  The respondent had spent approximately 16 months in pre-sentence custody and six months in a circumstance of house arrest at the time of sentencing.  Without addressing the Crown’s argument that it was not open to him as a matter of law to impose a conditional sentence, the sentencing judge considered the respondent’s pre-sentence custody to be the equivalent of almost three years of incarceration.  He then concluded that the respondent should serve an additional 14 months in the community on certain conditions.  The Court of Appeal dismissed the Crown’s appeal: (2003), 65 O.R. (3d) 751.

4                                   As noted above, defence counsel conceded that a penitentiary sentence was otherwise appropriate.  According to this Court’s purposive interpretation of s. 742.1 (a) in Proulx, the respondent therefore fell into a category of offenders that is excluded from the conditional sentencing regime.  In my view, the sentencing judge erred in imposing such a sentence.  A conditional sentence cannot become available to an offender who otherwise deserves a penitentiary term solely because of the time the offender spends in pre-sentence custody.

II.  Relevant Statutory Provisions

5                                   Criminal Code, R.S.C. 1985, c. C‑46 

719. (1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.

                                                                   . . .

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence.

742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

(a) imposes a sentence of imprisonment of less than two years, and

(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,

the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3.

III.  Analysis

6                                   The provisions regarding conditional sentences were first considered in Proulx.  In that case, Lamer C.J. noted that the conditional sentence was specifically enacted as a new sanction designed to achieve Parliament’s two objectives:  (i) reducing the use of prison as a sanction, and (ii) expanding the use of restorative justice principles in sentencing (paras. 15 and 21).  He described the conditional sentence as “a meaningful alternative to incarceration for less serious and non-dangerous offenders” (para. 21).

7                                   After identifying the objectives underlying the new conditional sentencing regime, Lamer C.J. then turned to the criteria, set out in s. 742.1 , 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.  [para. 46]

He described the first three criteria as “prerequisites” to any conditional sentence, in that they “answer the question of whether or not a conditional sentence is possible in the circumstances” (para. 47).  In the context of this appeal, we are concerned with the second prerequisite — i.e. that the court impose a term of imprisonment of less than two years.  This prerequisite is set out in s. 742.1 (a) of the Criminal Code .

8                                   In his reasons for judgment in Proulx, Lamer C.J. acknowledged that a literal reading of s. 742.1 (a) suggests that the decision to impose a conditional sentence should be made in two distinct stages.  He described these two stages as follows:

In the first stage, the judge would have to decide the appropriate sentence according to the general purposes and principles of sentencing (now set out in ss. 718 to 718.2).  Having found that a term of imprisonment of less than two years is warranted, the judge would then, in a second stage, decide whether this same term should be served in the community pursuant to s. 742.1 .  [para. 50]

9                                   Nevertheless, Lamer C.J. did not accept this literal interpretation of s. 742.1 (a) and the two-step approach it implied because it would have introduced “a rigidity which is both unworkable and undesirable in practice” (para. 51).  He was concerned with two issues in particular.

10                               First, he was concerned with the fact that, in practice, “the determination of a term of imprisonment is necessarily intertwined with the decision of where the offender will serve the sentence” (para. 52).  For example, he noted that “[a] judge does not impose a fixed sentence of ‘x months’ in the abstract, without having in mind where that sentence will be served” (para. 52).  Moreover, when a conditional sentence is chosen, he observed that its duration will depend on the type of conditions imposed. In light of this concern, Lamer C.J. concluded that “the duration of the sentence should not be determined separately from the determination of its venue” (para. 52).

11                               Second, Lamer C.J. was concerned that if the rigid, two-step approach implied by a literal reading of s. 742.1 (a) were to be followed, then this could lead to a “penological paradox”, in that the “second step of the analytical process would effectively compromise the principles of sentencing that led to the imposition of a sentence of imprisonment in the first place” (para. 54).  He explained that the principle of proportionality, set out in s. 718.1 as the fundamental principle of sentencing, requires that all sentences be proportional to the gravity of the offence and the degree of responsibility of the offender. However, Lamer C.J. noted that

[w]hen a judge — in the first stage decides that a term of imprisonment of “x months” is appropriate, it means that this sentence is proportional.  If the sentencing judge decides — in the second stage — that the same term can be served in the community, it is possible that the sentence is no longer proportional to the gravity of the offence and the responsibility of the offender, since a conditional sentence will generally be more lenient than a jail term of equivalent duration.  [Emphasis in original; para. 54.]

Therefore, he concluded that the two-step approach implied by a literal reading of s. 742.1  “introduces a rigidity in the sentencing process that could lead to an unfit sentence” (para. 54).

12                               On the basis of these two concerns, Lamer C.J. declined to interpret s. 742.1 (a) literally.  Instead, he proposed to interpret this provision purposively and said that the requirement that the court impose a sentence of imprisonment of less than two years before a conditional sentence can be authorized

was included to identify the type of offenders who could be entitled to a conditional sentence.  At one end of the range, Parliament denied the possibility of a conditional sentence for offenders who should receive a penitentiary term.  At the other end, Parliament intended to ensure that offenders who were entitled to a more lenient community measure — such as a suspended sentence with probation — did not receive a conditional sentence, a harsher sanction in this legislative scheme.  [para. 55]

13                               Therefore, Lamer C.J. held that “the requirement that the court must impose a sentence of imprisonment of less than two years can be fulfilled by a preliminary determination of the appropriate range of available sentences” (para. 58).  Of course, the overall approach to s. 742.1  suggested by Lamer C.J. still requires a sentencing judge to proceed in two stages: first, the judge must determine if a conditional sentence is available; if it is, the judge must then determine if it is appropriate.  However, at the first stage of this analysis, Lamer C.J. made it clear that the judge need not impose a term of imprisonment of a fixed duration; rather, the judge need only exclude two possibilities:  (i) probationary measures, and (ii) a penitentiary term.  Lamer C.J. explained that “[i]f either of these sentences is appropriate, then a conditional sentence should not be imposed” (para. 58).  In making this preliminary determination, he noted that “the judge need only consider the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 to the extent necessary to narrow the range of sentence for the offender” (para. 59).

14                               In this case, it is not argued that a penitentiary sentence was unwarranted; what is argued is that the actual sentence imposed by the sentencing judge was less than two years and that a conditional sentence was therefore available.  This argument is not consistent with the conditional sentencing regime, as defined in Proulx, for three reasons.

15                               First, the object of the requirement in s. 742.1 (a) is to ensure that a conditional sentence is only available for those offenders who would have otherwise received a sentence of imprisonment of less than two years.  Offenders for whom probation or penitentiary sentence would be appropriate are barred from receiving a conditional sentence: see Proulx, at paras. 49 and 55.  In his sentencing submissions, defence counsel conceded that a penitentiary sentence would have been appropriate had it been imposed at the time of the respondent’s arrest.  The time spent in pre-sentence custody notwithstanding, since the respondent was the type of offender who deserved a penitentiary term, by operation of s. 742.1 (a) and this Court’s interpretation of this requirement in Proulx, a conditional sentence was not available.

16                               This conclusion accords with this Court’s caution against “widening the net” of the conditional sentencing regime.  In Proulx, Lamer C.J. warned against imposing conditional sentences on offenders who would otherwise have received a non-custodial disposition, since this could undermine Parliament’s objective of reducing incarceration for less serious offenders (para. 56).  Similarly, in R. v. Wu, [2003] 3 S.C.R. 530, 2003 SCC 73, Binnie J. for a majority of this Court stated that to imprison an offender in his or her home under punitive conditions purely on the basis of his or her inability to pay a fine would be to widen the net of the conditional sentencing regime, and such widening is repugnant to the regime that was enacted by Parliament (para. 27).

17                               Although the cautions against net widening in Proulx and Wu relate to imposing conditional sentences on offenders who would otherwise have received a non-custodial disposition, in my view, this caution should also extend to imposing conditional sentences on offenders who would otherwise have received a penitentiary term, as is the case here.  In this regard, I agree with the appellant that in enacting s. 742.1 , Parliament intended to cast a small net and only capture conduct serious enough to attract a sentence of incarceration but not so severe as to warrant a penitentiary term. The limits of this net are clearly defined in s. 742.1  and should not be stretched at either end.  Therefore, just as the conditional sentence net should not be stretched to include an offender who simply cannot pay a fine, it should likewise not be stretched to include an offender for whom a penitentiary term would be appropriate were it not for his or her time spent in pre-sentence custody.

18                               The second reason why it is inconsistent with the conditional sentencing regime to argue that pre-sentence custody should be taken into account in determining the availability of a conditional sentence is because the time spent in pre-sentence custody is part of the total punishment imposed; it is not a mitigating factor that can affect the range of sentence and therefore the availability of a conditional sentence.

19                               In R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18, this Court considered the issue of whether, when Parliament has imposed a mandatory minimum sentence for a certain offence, a sentencing judge may exercise the discretion provided for in s. 719(3)  of the Criminal Code  and credit time spent in pre-sentence custody when calculating the appropriate sentence, if this has the effect of reducing the sentence pronounced by the court to less than the minimum provided by law.  On behalf of this Court, Arbour J. approved of the Ontario Court of Appeal’s decision in R. v. McDonald (1998), 127 C.C.C. (3d) 57, in which Rosenberg J.A., writing for a unanimous court, held that pre-sentence custody could be considered even if such credit resulted in reducing the sentence imposed on conviction below the mandatory minimum, since the total punishment would still equal this minimum.

20                               In Wust, Arbour J. stated that “[t]o maintain that pre-sentencing custody can never be deemed punishment following conviction because the legal system does not punish innocent people is an exercise in semantics that does not acknowledge the reality of pre-sentencing custody” (para. 41 (emphasis in original)).  In particular, Arbour J. noted the typically harsh nature of pre-sentence custody and its frequent characterization as “dead time” (paras. 28-29).  She concluded that “while pre‑trial detention is not intended as punishment when it is imposed, it is, in effect, deemed part of the punishment following the offender’s conviction, by the operation of s. 719(3) ” (para. 41).

21                               Applying the reasoning in Wust to the issue in this case, I conclude that the time credited to an offender for time served before sentence ought to be considered part of his or her total punishment rather than a mitigating factor that can affect the range of sentence and therefore the availability of a conditional sentence.  If the credit for time served awarded by the sentencing judge in this case is considered part of the respondent’s total punishment, it is clear that this global sum of 50 months’ imprisonment (three years pre-sentence plus 14 months post-sentence) is in the penitentiary range, thus rendering a conditional sentence an impossibility.  Treating pre-sentence custody as part of the total punishment imposed also accords with the fact that, for purposes of precedent, the respondent’s “sentence” for the offence she committed will generally be understood to be the global sum of 50 months, rather than the 14 months actually imposed by the sentencing judge.

22                               Since the time spent in pre-sentence custody is part of the total punishment imposed, it is clear that it is not a mitigating factor that can affect the range of sentence and therefore the availability of a conditional sentence, as argued by the respondent. This makes sense because the appropriate range of sentence is related to the gravity of the offence or the moral blameworthiness of the offender, and these concepts do not change with the time spent in pre-sentence custody.  Let me explain.

23                               When considering whether a conditional sentence was warranted in Wu, Binnie J. recognized that such a sentence should only arise for consideration when the gravity of the offence and the degree of responsibility of the offender require a term of imprisonment of less than two years.  Specifically, Binnie J. wrote:

Only when the sentencing judge has rejected other sentencing options, such as a conditional discharge, a suspended sentence, probation or a fine, and has concluded that a term of imprisonment of less than two years is required by the gravity of the offence and the degree of responsibility of the offender, does a conditional sentence arise for consideration.  [para. 25]

On the basis of this passage from Wu, it is clear to me that the appropriate range of sentence and therefore the availability of a conditional sentence is dependent on the gravity of the offence and the degree of responsibility of the offender.  This conclusion is also evident from Lamer C.J.’s reference in Proulx to the “type of offenders” envisaged by Parliament who could be entitled to a conditional sentence (para. 55).

24                               The conclusion that the appropriate range of sentence is dependent on the gravity of the offence and the degree of responsibility of the offender begs the question: what effect does pre-sentence custody have on these two concepts?  In my view, spending time in custody pre-sentence in no way changes the gravity of the offence, the degree of responsibility of the offender, or, as it was put in Proulx, the “type of offender”.  Thus, it is clear that the time spent in pre-sentence custody is not a mitigating factor that can affect the range of sentence and therefore the availability of a conditional sentence.

25                               This conclusion also accords with Lamer C.J.’s statement in Proulx that “[i]n making [a] preliminary determination [of the appropriate range of sentence], the judge need only consider the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 to the extent necessary to narrow the range of sentence for the offender” (para. 59).  Not only did  Lamer C.J. direct that the purpose and principles of sentencing set out in ss. 718 to 718.2 need only be considered in a limited fashion when determining the range of sentence, it is also clear that he did not at all mention s. 719(3)  and the discretion it bestows on a judge to take into account pre-sentence custody as a consideration at this stage of the analysis.  This further supports the conclusion that time spent in pre-sentence custody should not be considered at the first stage of the analysis with respect to sentence range.  This is not to say that time spent in pre-sentence custody is never taken into account.  Rather, as I will explain below, this factor is properly considered at the second stage of the analysis with respect to the duration of the sentence.

26                               The third reason why it is inconsistent with the conditional sentencing regime to argue that time spent in pre-sentence custody should be taken into account in determining the range of sentence and therefore the availability of a conditional sentence is because this argument, accepted by the Court of Appeal and advanced by the respondent before this Court, is based on a plain reading of the requirement in s. 742.1 (a), and such a reading has already been rejected by this Court.

27                               For instance, for a unanimous Court of Appeal in this case, Charron J.A. (as she then was) noted that “[t]he first criterion that must be met under s. 742.1 (a) is that ‘the court imposes a sentence of imprisonment of less than two years’”, and, “[i]n ‘determining the sentence to be imposed’, s. 719(3)  allows the court to count pre-sentence custody” (para. 18 (emphasis in original)).  Relying on the plain meaning of the language of ss. 742.1  and 719(3) , Charron J.A. concluded that these provisions allow the sentencing judge to take into account pre-sentence custody in determining the range of sentence under the conditional sentencing regime.

28                               This conclusion must be rejected because, as discussed above, in Proulx, this Court declined to read s. 742.1 (a) literally and instead gave the requirement that the court “impos[e] a sentence of imprisonment of less than two years” a purposive interpretation, in which it concluded that this requirement should be fulfilled by a preliminary determination of the appropriate range of available sentences (para. 58). It is only after this preliminary determination is made and all other statutory prerequisites are met that the judge should proceed to the second stage of the analysis, in which the duration, venue and, if imposing a conditional sentence, conditions of the sentence are determined (Proulx, at para. 60).

29                               In my view, the time spent in pre-sentence custody ought to be considered at the second stage of the analysis with respect to the duration of the sentence rather than at the first stage with respect to sentence range.  I have already explained above why the time spent in pre-sentence custody should not affect the range of the sentence. Let me now explain why this factor ought to be considered with respect to the duration of the sentence.

30                               First, as noted above, in Proulx, Lamer C.J. held that when the sentencing judge is determining the range of sentence and therefore the availability of a conditional sentence, he or she need not impose a term of imprisonment of fixed duration; rather, the judge need only exclude two possibilities:  (a) probationary measures; and (b) a penitentiary term.  Therefore, to argue, as the respondent does, that the judge should nonetheless be permitted to take into account the time spent in pre-sentence custody at this stage of the analysis does not make sense, since the judge cannot deduct a specific figure (i.e. the credit for the time served) from a general range of sentence.  Instead, the judge ought to apply any credit for time served when he or she finally fixes the duration of the sentence imposed.  This will occur in the second stage of the analysis set out in Proulx.

31                               Second, in Wust, Arbour J. stated that by holding that s. 719(3)  may be applied to mandatory minimum punishments, “this Court can uphold both Parliament’s intention that offenders under s. 344(a) receive a minimum punishment of four years imprisonment and Parliament’s equally important intention to preserve the judicial discretion to consider pre‑sentencing custody under s. 719(3)  and ensure that justice is done in the individual case” (para. 9 (emphasis in original)).  I agree with the appellant that it can likewise be stated that by holding that pre-sentence custody ought to be considered at the second stage of the Proulx analysis with respect to sentence duration rather than at the first stage with respect to sentence range, this Court can give effect to Parliament’s intention to exclude from the conditional sentencing regime those offenders for whom a penitentiary term would be appropriate, while also honouring “Parliament’s equally important intention to preserve the judicial discretion to consider pre-sentencing custody under s. 719(3)  and ensure that justice is done in the individual case” (para. 9).

32                               In this regard, it is important to emphasize that there is a significant difference between a conditional sentence of imprisonment in the community and a jail term of equivalent duration, since offenders serving their sentence in the community are only partially deprived of their freedom, and a conditional sentence is not subject to reduction through parole: see Proulx, at paras. 40-44. Because a conditional sentence is conceptually distinct from a jail sentence, I agree with the appellant that it is not inequitable for an offender who warrants a sentence in the penitentiary range and is therefore ineligible for a conditional sentence to find that the duration of his or her sentence is nonetheless reduced by operation of s. 719(3)  to a reformatory term of less than two years.  In the end, this offender will still have served the jail sentence warranted in respect of the offence.  The change in location from a federal to a provincial institution does not change the nature of the sentence, which is one of institutional confinement: see J. V. Roberts, “Pre-Trial Custody, Terms of Imprisonment and the Conditional Sentence: Crediting ‘Dead Time’ to Effect ‘Regime Change’ in Sentencing” (2005), 9 Can. Crim. L. Rev. 191, at p. 207.

33                               For all these reasons, I conclude that the time spent in pre-sentence custody should not affect a sentencing judge’s determination of the range of sentence and therefore the availability of a conditional sentence.  Rather, it is a factor that ought to be considered in the course of the judge’s determination of the duration of the actual sentence imposed.  To hold otherwise would run contrary to the nature of the conditional sentencing regime, as it was defined in Proulx.

34                               Besides this Court’s decision in Proulx, the case law regarding the conditional sentencing regime does not assist in resolving the issue of whether pre-sentence custody should affect a sentencing judge’s determination of the range of sentence and therefore the availability of a conditional sentence.  For example, in R. v. Knoblauch, [2000] 2 S.C.R. 780, 2000 SCC 58, this Court examined the legality of the conditional sentence originally imposed by the trial judge.  In the course of her determination that this sentence was indeed legal and fit, Arbour J., writing for a majority of this Court, noted that

in this case both the trial judge and the Court of Appeal were of the view, which has not been disputed before us, that considering all the circumstances, the appropriate punishment for this offender would have been a sentence of three years of incarceration which was properly reduced to two years less a day to take into account the period spent in pre-trial custody.  [para. 16]

In determining the availability of a conditional sentence in these circumstances, Arbour J. briefly addressed the first criterion in s. 742.1 (a) as follows:

There is no dispute, as I indicated earlier, that a sentence of two years less a day was a fit and appropriate sentence in all the circumstances.  The first criterion in s. 742.1 of the Code having been satisfied, it remains only to be decided whether the trial judge was entitled to conclude that “serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing”, in accordance with s. 742.1 (b).  [Emphasis added; para. 25.]

Given Arbour J.’s comment that the first criterion in s. 742.1  of the Criminal Code  (i.e. that a judge impose a sentence of imprisonment of less than two years) was satisfied in this case, despite the fact that but for pre‑sentence custody the appropriate sentence would have been three years and therefore in the penitentiary range, it can be argued that, contrary to my conclusion here, this Court has implicitly ruled that a sentencing judge can consider pre‑sentence custody in determining the range of sentence and therefore the availability of a conditional sentence.  However, as I noted in dissent in Knoblauch, at para. 67, the central point of contention between the appellant and the respondent in that case related to the third conditional sentence prerequisite of safety to the community.  In neither the majority nor the dissenting reasons in Knoblauch was there any comprehensive consideration of whether it was proper for the trial judge to consider pre‑sentence custody in narrowing the range of sentence thereby making a conditional sentence a possibility.  Thus, I conclude that this Court’s decision in Knoblauch is not particularly helpful in resolving the issue in the case at bar.

35                               Jurisprudence from the lower courts is similarly unhelpful.  Decisions arising out of Saskatchewan and Ontario appear to hold that a sentencing judge cannot calculate the amount of time that the accused has spent on remand and deduct it to determine whether the conduct in question would normally merit the imposition of imprisonment within a penitentiary:  see R. v. Predenchuk (2000), 199 Sask. R. 264, 2000 SKCA 122; R. v. Runns (2002), 165 C.C.C. (3d) 217, 2002 SKCA 48; R. v. Dobis (2002), 58 O.R. (3d) 536 (C.A.).  Another decision from Ontario and one from Quebec are not as clear and seem to suggest that where a penitentiary sentence is otherwise warranted, a conditional sentence will only be imposed in a rare and exceptional case after factoring in time spent in pre-trial custody: see R. v. Persaud (2002), 26 M.V.R. (4th) 41 (Ont. C.A.); R. c. Bastien, [2003] R.J.Q. 1695 (C.Q.).  In contrast, decisions arising out of Alberta and British Columbia implicitly support the respondent’s argument that pre-sentence custody can be considered with respect to the range of sentence and therefore can impact upon the availability of a conditional sentence:  see R. v. McClelland (2001), 281 A.R. 378, 2001 ABCA 182; R. v. La (2003), 15 Alta. L.R. (4th) 56, 2003 ABQB 391; R. v. Skani (2002), 331 A.R. 50, 2002 ABQB 1097; R. v. Brown (2002), 32 M.V.R. (4th) 211, 2002 ABPC 187; R. v. Harris (2002), 167 C.C.C. (3d) 246, 2002 BCCA 152.

36                               As was the case with Knoblauch, none of these cases offer a thorough analysis of the issue of whether pre-sentence custody should affect a sentencing judge’s determination of the range of sentence and therefore the availability of a conditional sentence.  Therefore, they do not assist with resolving the issue in the case at bar.

37                               It remains to consider the respondent’s argument that prohibiting a sentencing judge from considering pre-sentence custody at the first stage of the Proulx analysis will lead to inequitable results.  For example, in her written submissions to this Court, the respondent described a situation in which two accused are arrested on serious charges normally warranting a sentence in the range of three years.  At a bail hearing, the more affluent accused presents evidence of a good financial background and a surety with some assets. This accused is released with some bail conditions.  The second accused has no money and can present no suitable surety.  This accused is detained in custody.  Twelve months later, at the sentencing hearing, defence counsel for the first accused tells the judge that his or her client should get a conditional sentence because, while released, the offender has, for example, followed restrictive bail conditions, upgraded his or her education or secured a steady job.  The sentencing judge is impressed by this behaviour and imposes a conditional sentence.  The second accused has not been able to achieve any of these mitigating factors, because he or she has been detained.  Therefore, a conditional sentence is not available to this accused. In order to correct this apparent inequity, the respondent submits that, in determining whether the sentence comes within the range in which a conditional sentence is available, the sentencing judge should be able to consider all the factors presented by both individuals at the time of sentencing, including the time spent in pre‑sentence custody.

38                               In contrast to the respondent’s argument, the Crown submitted that if this Court allows pre-sentence custody to be considered in determining the range of sentence and therefore the availability of a conditional sentence,  this may result in the unequal treatment of similarly situated offenders and an increase in sentencing discrepancies between the least and worst offenders, given that only those meriting detention before trial could potentially qualify for conditional sentences by virtue of time spent in pre‑sentence custody.  In support of this argument, the Crown offered the example of two co‑accuseds who are arrested for a serious crime.  One accused, a first-time offender, is released on bail.  The other accused is detained on the strength of his substantial criminal record.  The first-time offender enters an early plea and receives a three‑year penitentiary term.  The other accused eventually pleads guilty after 18 months in custody and receives credit for 36 months.  Pursuant to the Court of Appeal’s interpretation of ss. 719(3)  and 742.1 (a), even if the sentence this accused would otherwise have received was five years on account of his record, he would be eligible for a conditional sentence because of the time spent in pre-sentence custody. This sentencing option would be unavailable to his accomplice, in spite of his prior unblemished record and earlier guilty plea.

39                               It is clear that there are potential inequitable results associated with both positions.  Whatever the circumstances, it is always necessary to choose the interpretation of ss. 719(3)  and 742.1 (a) that best honours Parliament’s intention in enacting the conditional sentence regime.  In Proulx, this Court held that “Parliament intended that a conditional sentence be considered only for those offenders who would have otherwise received a sentence of imprisonment of less than two years” (para. 49). It was not designed for those offenders for whom a penitentiary term is appropriate. Thus, once a sentencing judge considers the gravity of the offence and the moral blameworthiness of the offender and concludes that a sentence in the penitentiary range is warranted and that a conditional sentence is therefore unavailable, time spent in pre‑sentence custody ought not to disturb this conclusion.  Instead, this time should be considered at the second stage of the Proulx analysis with respect to the duration of the sentence actually imposed.  Not only does this approach honour Parliament’s intention to offer an alternative to incarceration for less serious and non-dangerous offenders, it also makes good practical sense since a sentencing judge cannot properly “deduct” the credit for time served from an estimated range of sentence.

40                               Therefore, I conclude that the judicial discretion to consider the time spent in pre-sentencing custody in determining the sentence to be imposed provided for by s. 719(3)  of the Criminal Code  does not mean that the requirement in s. 742.1 (a) that a sentence of imprisonment of less than two years be imposed before a conditional sentence can be authorized refers only to the actual time to be spent in jail after sentencing; rather, this requirement refers to the total time taken into account by the sentencing judge in determining the degree of punishment warranted by the gravity of the offence and the moral blameworthiness of the offender.

41                               Since writing these reasons, I have had an opportunity to read the reasons of my colleague Fish J.  They invite the following comments.

42                               First, at the outset of his reasons, my colleague raises the concern that pre-sentence custody could transform what would otherwise be a penitentiary range sentence into a suspended sentence, a probation order, a discharge or a fine but not a conditional sentence.  With respect, I must emphasize that the effect of pre-sentence custody on the availability of a suspended sentence, a probation order, a discharge or a fine is an issue that is not before us in this appeal.  Rather, this appeal is solely concerned with whether time spent in pre-sentence custody ought to affect a sentencing judge’s determination of the range of sentence and therefore the availability of a conditional sentence.  As noted by Lamer C.J. in Proulx, the conditional sentence was specifically enacted as a new sanction designed to reduce the use of prison as a sanction and to expand the use of restorative justice principles in sentencing (paras. 15 and 21). Given that the conditional sentence is a new sanction with a unique combination of objectives, it should not be automatically equated with other sentencing alternatives, such as a suspended sentence, a probation order, a discharge or a fine. Accordingly, it is my position that the relationship between pre-sentence custody and the availability of a suspended sentence, a probation order, a discharge or a fine is an issue that is better left for another day.

43                               Second, at para. 65, he states that “[a] sentence of less than two years is not transformed into a sentence of more than two years for the purpose of s. 742.1 (a) simply because the trial judge took into account, in imposing the sentence of less than two years, time already spent in custody as a result of the offence.”  Respectfully, it is my view that this statement does not accord with this Court’s conclusion in Wust that time credited to an offender for time served before sentence ought to be considered part of the total punishment imposed.  As noted earlier, in Wust, Arbour J. stated that

while pre‑trial detention is not intended as punishment when it is imposed, it is, in effect, deemed part of the punishment following the offender’s conviction, by the operation of s. 719(3) .  The effect of deeming such detention punishment is not unlike the determination, discussed earlier in these reasons, that time spent lawfully at large while on parole is considered nonetheless a continuation of the offender’s sentence of incarceration.  [para. 41]

44                               Third, at para. 75, my colleague states that “[w]here an offender has at the time of sentence already spent time in custody and a court would otherwise have imposed a sentence of more than two years, the deterrent and punitive purposes will in some instances have been satisfied by the time spent in custody.”  I accept that this situation may occur in some cases; however, I do not agree with my colleague’s statement that, in such cases, there is “no reason of principle, policy or precedent to limit the sentencing court to a choice between a probationary sentence that is too lenient and custodial sentence that is too severe” (para. 77).

45                               In my view, the sentencing court is indeed limited to these choices by operation of s. 742.1 (a) and this Court’s interpretation of this requirement in Proulx.  In Proulx, this Court held that “Parliament intended that a conditional sentence be considered only for those offenders who would have otherwise received a sentence of imprisonment of less than two years” (para. 49).  Since the offender in the cases described by my colleague is of the type that would otherwise deserve a penitentiary term, he or she is ineligible for a conditional sentence.  Of course, the time spent in pre-sentence custody can be taken into account by the sentencing court when determining the duration of the actual sentence imposed (whether it is a custodial or a non-custodial sentence).  While this may be perceived to be an inequitable result in cases where it is felt that a probationary sentence would be too lenient and custodial sentence too severe, absent a challenge on constitutional grounds, the courts must interpret and apply a statute in accordance with Parliament’s intent:  see Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 62.

46                               Accordingly, I would allow the appeal. Since defence counsel conceded that but for the time spent in pre-sentence custody a penitentiary sentence would have been appropriate, by operation of s. 742.1 (a) and this Court’s interpretation of this requirement in Proulx, a conditional sentence was unavailable in this case.  A term of incarceration, reduced by the application of the credit for time served pursuant to s. 719(3) , should have been imposed.  Nevertheless, the respondent has long since served her sentence and the Crown is no longer seeking her incarceration.  Therefore, while the appeal is allowed, the order imposing a sentence of incarceration is stayed.

The reasons of Deschamps and Fish JJ. were delivered by

Fish J. (dissenting) —

I

47                               At the hearing of this appeal, the Crown’s position was summarized by a member of the Court in these terms:

. . . it seems to me that what you’re saying is that pretrial custody could transform what would otherwise be a penitentiary range sentence into a suspended sentence, a probation order, [a] discharge [or] a fine but not a conditional sentence.  Is that a fair summary?

With appropriate candour, able and experienced Crown counsel responded:

That’s right.  That’s fair and I recognize that that attracts a certain . . . wonder.

48                               The reason for wonderment, of course, is that the Crown’s position on this appeal is illogical on its face.  It is manifestly unattractive at first sight — and that initial impression is not enhanced, in my view, on reflection.

49                               On the contrary, as we shall presently see, the Crown’s position is entirely devoid of statutory support, inconsistent with Parliament’s purpose in introducing the conditional sentencing regime, and neither required nor even contemplated by R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, this Court’s leading authority on the subject.

50                               Still less is the Crown’s position supported by R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18.

51                               The issue in Wust was whether a sentencing court, when required by Parliament to impose a minimum term of imprisonment, may deduct time spent by the accused in custody while awaiting trial and sentence.  This Court answered that question, unanimously, in the affirmative.  If pre-sentence custody can properly result in a sentence of shorter duration than the minimum term of imprisonment fixed by Parliament, why can it not result in a sentence of less than two years, within the meaning of s. 742.1  of the Criminal Code, R.S.C. 1985, c. C-46 , with respect to offences for which Parliament has not fixed a minimum sentence of imprisonment?

52                               Moreover, in concluding as it did in Wust, the Court emphasized the need, in interpreting the sentencing provisions of the Criminal Code , “to avoid absurd results by searching for internal coherence and consistency in the statute” (para. 34).

53                               As we have already seen, the position advocated by the Crown in this case is illogical on its face.  And it is not made coherent by arbitrarily excluding from consideration, on the ground that they are “not before us in this appeal”, any of the sentencing alternatives — custodial, probationary or conditional — that have been specifically postulated by Parliament (reasons of Bastarache J., at para. 42).

54                               On the contrary, that is what this case is about: To which, if any, of the sentencing alternatives created by Parliament, does s. 719(3)  of the Criminal Code  not apply?  Parliament has expressly provided in s. 742.1 of the Code that conditional sentences are available where “the court . . . imposes a sentence of imprisonment of less than two years”, provided, of course, that the two other statutory conditions are met.  And Parliament has provided in s. 719(3) of the Code, again in express terms, that the court may take pre-sentencing custody into account “[i]n determining the sentence to be imposed.”  The issue in this case is whether the Court, by judicial fiat, should declare s. 719(3)  inapplicable to one or more of the sentencing alternatives created by Parliament — though Parliament itself has declined to do so.

55                               With respect for the contrary opinion of Bastarache J., I agree with the reasons and the conclusion of Charron J.A. (as she then was), speaking for herself and Moldaver and Feldman JJ.A. in the Court of Appeal for Ontario: (2003), 65 O.R. (3d) 751. 

56                               I would therefore dismiss the appeal and wish only to add some observations of my own.

II

57                               It is conceded by the Crown that nothing in the Criminal Code  requires sentencing judges to disregard time spent in preventive custody when they determine, upon sentencing an accused, whether a conditional sentence is appropriate or not.

58                               For ease of reference, I reproduce here the governing statutory criteria:

742.1  Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

(a) imposes a sentence of imprisonment of less than two years, and

(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,

the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3.

59                               When the offence is not punishable by a minimum term of imprisonment, the Court is empowered by this provision, in the plainest of terms, to impose a conditional sentence whenever it imposes a sentence of less than two years and is satisfied that serving the sentence in the community meets the test set out in s. 742.1 (b).

60                               This point was made clear in Proulx, at para. 79:

Section 742.1  does not exclude any offences from the conditional sentencing regime except those with a minimum term of imprisonment. Parliament could have easily excluded specific offences in addition to those with a mandatory minimum term of imprisonment but chose not to.

. . .

Thus, a conditional sentence is available in principle for all offences in which the statutory prerequisites are satisfied. [First emphasis added; second emphasis in original.]

61                               Section 719(3)  of the Criminal Code  reads:

719. . . .

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence.

62                               A court that might otherwise have imposed a sentence of more than two years is thus authorized by s. 719(3)  to impose a sentence of less than two years where a longer term of imprisonment would be excessive, bearing in mind the time already spent in custody as a result of the offence.

63                               From a statutory point of view, the resulting sentence of less than two years clearly satisfies s. 742.1 (a).  In this regard, I see no ambiguity whatever in either s. 719(3)  or s. 742.1 (a).

64                               If the offence is punishable by a minimum term of imprisonment, the accused is of course ineligible for a conditional sentence.  Where the offence is not punishable by a minimum term of imprisonment, its duration is calculated for all purposes (subject to statutory exceptions not relevant here) from the date of its imposition: s. 719(1) of the Code. 

65                               A sentence of less than two years is not transformed into a sentence of more than two years for the purpose of s. 742.1 (a) simply because the trial judge took into account, in imposing the sentence of less than two years, time already spent in custody as a result of the offence.  Were it otherwise, a sentence of less than two years in like circumstances would preclude a probation order: see s. 731(1)(b).  No authority to that effect has been drawn to our attention.

66                               Indeed, as I mentioned earlier, the Crown concedes that probation is permitted where a sentence of less than two years is imposed on account of the time already spent in custody.

67                               It is well established that courts should not impose conditional sentences where less restrictive sanctions would adequately reflect the gravity of the offence and the degree of responsibility of the offender.  This overarching principle is turned on its head by the Crown’s position in this case. 

68                               Conditional sentences are said by the Crown to be prohibited because they do not adequately reflect the need for severity, while the manifestly less restrictive sentences, such as a probationary sentence, a fine or a discharge — which the sentencing court must find to be inadequate before a conditional sentence can be imposed — are permissible.  In short, less restrictive sentences are permitted where a more restrictive sanction — a conditional sentence — is excluded because it is too lenient!

III

69                               I turn, finally, to Parliament’s purpose in introducing the conditional sentencing regime, and to the decision of this Court in Proulx.

70                               In Proulx, speaking for the Court, Lamer C.J. explained:

The conditional sentence . . . was introduced in the amendments to Part XXIII of the Code. Two of the main objectives underlying the reform of Part XXIII were to reduce the use of incarceration as a sanction and to give greater prominence to the principles of restorative justice in sentencing — the objectives of rehabilitation, reparation to the victim and the community, and the promotion of a sense of responsibility in the offender.

The conditional sentence facilitates the achievement of both of Parliament’s objectives.  It affords the sentencing judge the opportunity to craft a sentence with appropriate conditions that can lead to the rehabilitation of the offender, reparations to the community, and the promotion of a sense of responsibility in ways that jail cannot. However, it is also a punitive sanction. Indeed, it is the punitive aspect of a conditional sentence that distinguishes it from probation. As discussed above, it was not Parliament’s intention that offenders who would otherwise have gone to jail for up to two years less a day now be given probation or some equivalent thereof.

Thus, a conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstances.  [Emphasis added; paras. 98-100.]

71                               I do not read the underlined passage of this last paragraph to mean that, where there is opportunity to achieve a restorative objective by imposing a conditional sentence, it is improper or illegal to do so because sufficient incarceration has already occurred at the time of sentencing.

72                               Earlier, Lamer C.J. stated:

. . . a consideration of ss. 718.2(d) and 718.2(e) leads me to the conclusion that serious consideration should be given to the imposition of a conditional sentence in all cases where the first three statutory prerequisites are satisfied. Sections 718.2(d) and 718.2(e) codify the important principle of restraint in sentencing and were specifically enacted, along with s. 742.1 , to help reduce the rate of incarceration in Canada. Accordingly, it would be an error in principle not to consider the possibility of a conditional sentence seriously when the statutory prerequisites are met. Failure to advert to the possibility of a conditional sentence in reasons for sentence where there are reasonable grounds for finding that the first three statutory prerequisites have been met may well constitute reversible error. [First emphasis in original; second and third emphases added; para. 90.]

73                               And finally:

. . . it bears pointing out that a conditional sentence may be imposed even in circumstances where there are aggravating circumstances relating to the offence or the offender. Aggravating circumstances will obviously increase the need for denunciation and deterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravating factors are present.  I repeat that each case must be considered individually.

Sentencing judges will frequently be confronted with situations in which some objectives militate in favour of a conditional sentence, whereas others favour incarceration. In those cases, the trial judge will be called upon to weigh the various objectives in fashioning a fit sentence. As La Forest J. stated in R. v. Lyons, [1987] 2 S.C.R. 309, at p. 329, “[i]n a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender.”  There is no easy test or formula that the judge can apply in weighing these factors. Much will depend on the good judgment and wisdom of sentencing judges, whom Parliament vested with considerable discretion in making these determinations pursuant to s. 718.3. [Emphasis added; paras. 115-16.]

74                               These are the predominant teachings of Proulx.  Nothing in the text or subtext of that decision precludes the imposition of a conditional sentence where the statutory conditions are met.  Still less does Proulx exclude conditional sentences for particular offences or particular offenders.  The opposite, as we have just seen, is true.

75                               Where an offender has at the time of sentence already spent time in custody and a court would otherwise have imposed a sentence of more than two years, the deterrent and punitive purposes will in some instances have been satisfied by the time spent in custody.

76                               A further custodial sentence may well frustrate both of Parliament’s main objectives in reforming Part XXIII of the Criminal Code .  The first, it will be recalled, was to reduce the use of incarceration as a sanction; the second, to give greater prominence to the principles of restorative justice, including rehabilitation.

77                               A conditional sentence of imprisonment, on the other hand, will in some circumstances promote both of Parliament’s objectives without overlooking the need for punishment or denunciation.  Where this is the case, I see no reason of principle, policy or precedent to limit the sentencing court to a choice between a probationary sentence that is too lenient and a custodial sentence that is too severe.

78                               Conditional sentences were introduced by Parliament to afford judges greater flexibility in sentencing: Section 742.1  should not be interpreted so as to frustrate this evident purpose.

79                               In my respectful view, nothing in Proulx was meant to prevent trial courts from imposing conditional sentences where, on account of the time already served, further institutional detention is not required and a term of imprisonment to be served in the community best responds to the principles and purposes of sentencing set out by Parliament in the Criminal Code .  At its highest, from the Crown’s perspective, Proulx is silent on that issue.

80                               Indeed, as I mentioned earlier, Proulx requires the imposition of a conditional sentence to be considered where the statutory conditions are met, as they were in this case.

81                               The reasons of Charron J.A., as I have said as well, are in my view persuasive, and her conclusion is in my view correct.

82                               Accordingly, with respect for those who are of a different view, I would dismiss the appeal.

Appeal allowed, Deschamps and Fish JJ. dissenting.

Solicitor for the appellant:  Attorney General of Ontario, Toronto.

Solicitors for the respondent:  Aitken Robertson, Peterborough, Ontario.