R. v. Proulx, 2000 SCC 5, [2000] 1 SCR 61

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

Her Majesty The Queen                                                                   Appellant

v.

Jeromie Keith D. Proulx                                                                    Respondent

and

The Attorney General of Canada and

the Attorney General for Ontario                                                     Interveners

Indexed as:  R. v. Proulx

Neutral citation:  2000 SCC 5.

File No.:  26376.

1999:  May 25, 26; 2000:  January 31.

Present:  Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory,^* McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

on appeal from the court of appeal for manitoba

Criminal law – Sentencing – Conditional sentences – Accused pleading guilty to dangerous driving causing death and dangerous driving causing bodily harm and receiving sentence of 18 months of incarceration – Whether Court of Appeal erred in substituting conditional custodial sentence for jail term – Proper interpretation and application of conditional sentencing regime – Distinction between conditional sentence of imprisonment and suspended sentence with probation – Meaning of “safety of the community” – Criminal Code, R.S.C., 1985, c. C-46, ss. 742.1 , 742.3 .

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.

Cases Cited

Considered:  R. v. Gladue, [1999] 1 S.C.R. 688; referred to:  R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Chaisson, [1995] 2 S.C.R. 1118; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Taylor (1997), 122 C.C.C. (3d) 376; R. v. Ziatas (1973), 13 C.C.C. (2d) 287; R. v. Caja (1977), 36 C.C.C. (2d) 401; R. v. Lavender (1981), 59 C.C.C. (2d) 551; R. v. L. (1986), 50 C.R. (3d) 398; R. v. McDonald (1997), 113 C.C.C. (3d) 418; R. v. Brady (1998), 121 C.C.C. (3d) 504; R. v. Shropshire, [1995] 4 S.C.R. 227; Cunningham v. Canada, [1993] 2 S.C.R. 143; R. v. Wismayer (1997), 115 C.C.C. (3d) 18; Gagnon v. La Reine, [1998] R.J.Q. 2636; R. v. Pierce (1997), 114 C.C.C. 23; R. v. Ursel (1997), 96 B.C.A.C. 241; R. v. O’Keefe (1968), 53 Cr. App. R. 91; R. v. Maheu, [1997] R.J.Q. 410, 116 C.C.C. (3d) 361; R. v. Parker (1997), 116 C.C.C. (3d) 236; R. v. Horvath, [1997] 8 W.W.R. 357; R. v. McDonnell, [1997] 1 S.C.R. 948; Kwiatkowsky v. Minister of Employment and Immigration, [1982] 2 S.C.R. 856; Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660; Pfizer Co. v. Deputy Minister of National Revenue for Customs and Excise, [1977] 1 S.C.R. 456; Tupper v. The Queen, [1967] S.C.R. 589; Goodyear Tire and Rubber Co. of Canada v. T. Eaton Co., [1956] S.C.R. 610; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Fleet (1997), 120 C.C.C. (3d) 457; R. v. W. (G.), [1999] 3 S.C.R. 597; R. v. McVeigh (1985), 22 C.C.C. (3d) 145; R. v. Biancofiore (1997), 119 C.C.C. (3d) 344; R. v. Blakeley (1998), 40 O.R. (3d) 541; R. v. Hollinsky (1995), 103 C.C.C. (3d) 472;  R. v. R.A.R., [2000] 1 S.C.R. 163, 2000 SCC 8.

Statutes and Regulations Cited

Act to amend the Criminal Code  (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22.

Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 112(1) , 133 .

Corrections and Conditional Release Regulations, SOR/92-620, s. 161.

Criminal Code, R.S.C., 1985, c. C-46, ss. 259(2) , Part XXIII [repl. 1995, c. 22, s. 6], 718, 718.1, 718.2 [am. 1997, c. 23, s. 17], 718.3, 722, 723, 732.1(2), (3)(g.1) [ad. 1999, c. 32, s. 6], (g.2) [idem], (h), 732.2(5), 733.1(1), 734(2), 742.1(a), (b) [repl. 1997, c. 18, s. 107.1], 742.3(1), (2)(f), 742.6(9).

Authors Cited

Canada.  Canadian Sentencing Commission.  Sentencing Reform:  A Canadian Approach:  Report of the Canadian Sentencing Commission.  Ottawa:  The Commission, 1987.

Canada.  Commission of Inquiry into the Non-Medical Use of Drugs.  Final Report.  Ottawa:  Information Canada, 1973.

Canada.  Committee on Corrections.  Report.  Toward Unity:  Criminal Justice and Corrections.  Ottawa:  Queen’s Printer, 1969.

Canada.  Correctional Service Canada.  A Summary of Analysis of Some Major Inquiries on Corrections  -- 1938 to 1977.  Ottawa:  Correctional Service Canada, May 1977 (reprinted August 1982).

Canada.  House of Commons.  Standing Committee on Justice and Solicitor General.  Report of the Standing Committee on Justice and Solicitor General on its Review of Sentencing, Conditional Release and Related Aspects of Corrections.  Taking Responsibility, August 1988.

Canada.  House of Commons Debates, vol. IV, 1st Sess., 35th Parl., September 20, 1994, p. 5873.

Côté, Pierre-André.  Interprétation des lois, 3^e éd.  Montréal:  Thémis, 1999.

Gemmell, Jack.  “The New Conditional Sentencing Regime” (1997), 39 Crim. L.Q. 334.

Roberts, Julian V.  “Conditional Sentencing:  Sword of Damocles or Pandora’s Box?” (1997), 2 Can. Crim. L. Rev. 183.

Roberts, Julian V.  “The Hunt for the Paper Tiger:  Conditional Sentencing after Brady” (1999), 42 Crim. L.Q. 38.

Rosenberg, Marc.  “Recent Developments in Sentencing”, a paper prepared for the National Judicial Institute’s Supreme Court of Nova Scotia Education Seminar in Halifax, February 25-26, 1999.

APPEAL from a judgment of the Manitoba Court of Appeal (1997), 123 Man. R. (2d) 107, 159 W.A.C. 107, 121 C.C.C. (3d) 68, [1998] 5 W.W.R. 1, [1997] M.J. No. 563 (QL), allowing the accused’s appeal from a sentence of 18 months of incarceration imposed by Keyser J.  Appeal allowed.

Matthew Britton, for the appellant.

Sandra L. Chapman and Wanda Garreck, for the respondent.

S. Ronald Fainstein, Q.C., for the intervener the Attorney General of Canada.

Kenneth L. Campbell and Gregory J. Tweney, for the intervener the Attorney General for Ontario.

The judgment of the Court was delivered by

1                                   The Chief Justice – By passing the Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 (“Bill C-41”), Parliament has sent a clear message to all Canadian judges that too many people are being sent to prison.  In an attempt to remedy the problem of overincarceration, Parliament has introduced a new form of sentence, the conditional sentence of imprisonment.

2                                   As a matter of established practice and sound policy, this Court rarely hears appeals relating to sentences: see R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 404, R. v. Chaisson, [1995] 2 S.C.R. 1118, at para. 7, and R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 33.  However, we have decided to hear this case and four related cases because they afford the Court the opportunity to set out for the first time the principles that govern the new and innovative conditional sentencing regime.  Given the inevitable length of these reasons, I have summarized the essentials at para. 127. 

I.  Factual Background

3                                   On the morning of November 1, 1995, after a night of partying involving consumption of some alcohol, the respondent 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 respondent, 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 respondent 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 the second vehicle was seriously injured.  The accident also claimed the life of a passenger in the respondent’s car.  The respondent was in a near-death coma for some time, but ultimately recovered from his injuries.  The respondent entered guilty pleas to one count of dangerous driving causing death and one count of dangerous driving causing bodily harm.

II.  Judgments Below

A.  Manitoba Court of Queen’s Bench

4                                   On June 5, 1997, Keyser J. sentenced the respondent to 18 months of incarceration, to be served concurrently on both charges.  In her reasons for sentence, the judge explained that she was not prepared to order a penitentiary term because the respondent was only 18 years old at the time of the accident, he had no prior record and he himself was seriously injured in the accident.   She also noted that the respondent was now employed and expecting a first child with his girlfriend.  She conceded that the amount of alcohol involved -- one and a half to two beers -- was probably not a major factor in the accident.  However, she found that the respondent’s knowledge that he was operating an unsafe vehicle, the fact that, prior to the accident, he had just barely avoided rear-ending another vehicle and his egregious driving in general that morning warranted such a sentence.

5                                   Keyser J. then turned her attention to the question of whether it was appropriate to allow the respondent to serve his sentence in the community, pursuant to s. 742.1  of the Criminal Code, R.S.C., 1985, c. C-46 .  She took notice of the May 2, 1997 amendment to s. 742.1 , which added to that section an express reference to the fundamental purpose and principles of sentencing listed in ss. 718 to 718.2 of the Code.  She concluded that this amendment meant that she had to refer to the fundamental purpose and principles of sentencing in deciding whether to impose a conditional sentence.  In the case at hand, she found that even though the respondent would not endanger the community and a jail sentence would not be necessary to deter him from similar conduct in the future or to rehabilitate him, a conditional sentence would not be appropriate because it would be inconsistent with the objectives of denunciation and general deterrence.

6                                   Keyser J. sentenced the respondent to 18 months of incarceration and, pursuant to s. 259(2) of the Code, she made an order prohibiting the respondent from driving for a period of five years.

B. Manitoba Court of Appeal (1997), 123 Man. R. (2d) 107

7                                   The Court of Appeal allowed the appeal and substituted a conditional custodial sentence for the jail term.  Helper J.A., writing for the court, contended that the sentencing judge had erred in her application of s. 742.1  by giving undue weight to the objective of denunciation.  She explained that the recent amendment to s. 742.1  had not changed the fact that Parliament had identified the safety of the community as the primary consideration when deciding whether to impose a conditional sentence.  Helper  J.A. added that the principles of sentencing played a different role in the determination of whether to impose a conditional sentence than they did in determining the length of the sentence.  At pp. 111-12, she stated:

However, in s. 742.1 (b), Parliament has directed the sentencing judge to look to the principles of sentencing only for the purpose of satisfying herself that there is consistency between those principles and a conditional sentence for a particular offender.  The amendment does not direct the sentencing judge to consider individually each of the principles of sentencing and determine that each is consistent with the offender’s serving his sentence in the community.  The sentencing judge must consider the principles of sentencing globally.  It would be contrary to Parliament’s intent for the sentencing judge to single out any one factor and to give it substantial weight to the exclusion of the other listed factors when she is making a decision under s. 742.1 (b).

8                    According to Helper J.A., the sentencing judge’s comments implied that a conditional sentence would never be appropriate for the offence of dangerous driving, even when the offender did not potentially endanger the community, because that offence required a large component of general deterrence.  Helper J.A. found this to be an error, as  it would have rendered s. 742.1  inoperable in the case of particular offences, contrary to Parliament’s intention.  She found that, in the instant appeal, the sentencing judge had failed to recognize that a conditional sentence had some denunciatory effect.       

9                    Helper J.A. concluded that generally, after the judge has attributed the appropriate weight to each relevant principle of sentencing, determined that a fit sentence would be less than two years and found that the offender would not be a danger to the community, a conditional sentence would be consistent with ss. 718 to 718.2. 

III.  Relevant Statutory Provisions

10                Criminal Code, R.S.C., 1985, c. C-46 

718.  The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

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

718.2  A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or child,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, or

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

732.1 . . .

(2)  The court shall prescribe, as conditions of a probation order, that the offender do all of the following:

(a) keep the peace and be of good behaviour;

(b) appear before the court when required to do so by the court; and

(c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

(3)  The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following:

(a) report to a probation officer

(i) within two working days, or such longer period as the court directs, after the making of the probation order, and

(ii) thereafter, when required by the probation officer and in the manner directed by the probation officer;

(b) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;

(c) abstain from

(i) the consumption of alcohol or other intoxicating substances, or

(ii) the consumption of drugs except in accordance with a medical prescription;

(d) abstain from owning, possessing or carrying a weapon;

(e) provide for the support or care of dependants;

(f) perform up to 240 hours of community service over a period not exceeding eighteen months;

(g) if the offender agrees, and subject to the program director's acceptance of the offender, participate actively in a treatment program approved by the province;

(g.1) where the lieutenant governor in council of the province in which the probation order is made has established a program for curative treatment in relation to the consumption of alcohol or drugs, attend at a treatment facility, designated by the lieutenant governor in council of the province, for assessment and curative treatment in relation to the consumption by the offender of alcohol or drugs that is recommended pursuant to the program;

(g.2) where the lieutenant governor in council of the province in which the probation order is made has established a program governing the use of an alcohol ignition interlock device by an offender and if the offender agrees to participate in the program, comply with the program; and

(h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender's successful reintegration into the community.

732.2 . . .

(5) Where an offender who is bound by a probation order is convicted of an offence, including an offence under section 733.1, and

(a) the time within which an appeal may be taken against that conviction has expired and the offender has not taken an appeal,

(b) the offender has taken an appeal against that conviction and the appeal has been dismissed, or

(c) the offender has given written notice to the court that convicted the offender that the offender elects not to appeal the conviction or has abandoned the appeal, as the case may be,

in addition to any punishment that may be imposed for that offence, the court that made the probation order may, on application by the prosecutor, require the offender to appear before it and, after hearing the prosecutor and the offender,

(d) where the probation order was made under paragraph 731(1)(a), revoke the order and impose any sentence that could have been imposed if the passing of sentence had not been suspended, or

(e) make such changes to the optional conditions as the court deems desirable, or extend the period for which the order is to remain in force for such period, not exceeding one year, as the court deems desirable,

and the court shall thereupon endorse the probation order accordingly and, if it changes the optional conditions or extends the period for which the order is to remain in force, inform the offender of its action and give the offender a copy of the order so endorsed.

733.1 (1)  An offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding eighteen months, or to a fine not exceeding two thousand dollars, or both.

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 .

742.3 (1)  The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following:

(a) keep the peace and be of good behaviour;

(b) appear before the court when required to do so by the court;

(c) report to a supervisor

(i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and

(ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;

(d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and

(e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.

(2)  The court may prescribe, as additional conditions of a conditional sentence order, that the offender do one or more of the following:

(a) abstain from

(i) the consumption of alcohol or other intoxicating substances, or

(ii) the consumption of drugs except in accordance with a medical prescription;

(b) abstain from owning, possessing or carrying a weapon;

(c) provide for the support or care of dependants;

(d) perform up to 240 hours of community service over a period not exceeding eighteen months;

(e) attend a treatment program approved by the province; and

(f) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.

742.6 . . .

(9)  Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may

(a) take no action;

(b) change the optional conditions;

(c) suspend the conditional sentence order and direct

(i) that the offender serve in custody a portion of the unexpired sentence, and

(ii) that the conditional sentence order resume on the offender's release from custody, either with or without changes to the optional conditions; or

(d) terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence.

IV.  Issues

11                              This appeal concerns the proper interpretation and application of the conditional sentencing regime set out in s. 742.1  and subsequent sections of the Criminal Code .

12                Since it came into force on September 3, 1996, the conditional sentence has generated considerable debate.  With the advent of s. 742.1 , Parliament has clearly mandated that certain offenders who used to go to prison should now serve their sentences in the community.  Section 742.1  makes a conditional sentence available to a subclass of non-dangerous offenders who, prior to the introduction of this new regime, would have been sentenced to a term of incarceration of less than two years for offences with no minimum term of imprisonment. 

13                In my view, to address meaningfully the complex interpretive issues raised by this appeal, it is important to situate this new sentencing tool in the broader context of the comprehensive sentencing reforms enacted by Parliament in Bill C-41.  I will also consider the nature of the conditional sentence, contrasting it with probationary measures and incarceration.  Next, I will address particular interpretive issues posed by s. 742.1 .  I will first discuss the statutory prerequisites to the imposition of a conditional sentence.  Thereafter, I will consider how courts should determine whether a conditional sentence is appropriate, assuming the prerequisites are satisfied.  I conclude with some general comments on the deference to which trial judges are entitled in matters of sentencing and dispose of the case at hand in conformity with the principles outlined in these reasons.

V.  Analysis

A.  The 1996 Sentencing Reforms (Bill C-41)

14                In September 1996, Bill C-41 came into effect.  It 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.

15                As my colleagues Cory and Iacobucci JJ. explained in R. v. Gladue, [1999] 1 S.C.R. 688, at para. 39, “[t]he enactment of the new Part XXIII was a watershed, marking the first codification and significant reform of sentencing principles in the history of Canadian criminal law”.  They noted two of Parliament’s principal objectives in enacting this new legislation: (i) reducing the use of prison as a sanction, and (ii) expanding the use of restorative justice principles in sentencing (at para. 48).  

(1) Reducing the Use of Prison as a Sanction

16                Bill C-41 is in large part a response to the problem of overincarceration in Canada.  It was noted in Gladue, at para. 52, that Canada’s incarceration rate of approximately 130 inmates per 100,000 population places it second or third highest among industrialized democracies.  In their reasons, Cory and Iacobucci JJ. reviewed numerous studies that uniformly concluded that incarceration is costly, frequently unduly harsh and “ineffective, not only in relation to its purported rehabilitative goals, but also in relation to its broader public goals” (para. 54).  See also Report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections (1969); Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (1987), at pp. xxiii‑xxiv; Standing Committee on Justice and Solicitor General, Taking Responsibility (1988), at p. 75.    Prison has been characterized by some as a finishing school for criminals and as ill-preparing them for reintegration into society: see generally Canadian Committee on Corrections, supra, at p. 314; Correctional Service of Canada, A Summary of Analysis of Some Major Inquiries on Corrections  – 1938 to 1977 (1982), at p. iv.   In Gladue, at para. 57, Cory and Iacobucci JJ. held:

        Thus, it may be seen that although imprisonment is intended to serve the traditional sentencing goals of separation, deterrence, denunciation, and rehabilitation, there is widespread consensus that imprisonment has not been successful in achieving some of these goals. Overincarceration is a long‑standing problem that has been many times publicly acknowledged but never addressed in a systematic manner by Parliament. In recent years, compared to other countries, sentences of imprisonment in Canada have increased at an alarming rate. The 1996 sentencing reforms embodied in Part XXIII, and s. 718.2(e) in particular, must be understood as a reaction to the overuse of prison as a sanction, and must accordingly be given appropriate force as remedial provisions. [Emphasis added.]

17                Parliament has sought to give increased prominence to the principle of restraint in the use of prison as a sanction through the enactment of s. 718.2(d) and (e).  Section 718.2(d) provides that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”, while s. 718.2(e) provides that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”.  Further evidence of Parliament’s desire to lower the rate of incarceration comes from other provisions of Bill C-41: s. 718(c) qualifies the sentencing objective of separating offenders from society with the words “where necessary”, thereby indicating that caution be exercised in sentencing offenders to prison; s. 734(2) imposes a duty on judges to undertake a means inquiry before imposing a fine, so as to decrease the number of offenders who are incarcerated for defaulting on payment of their fines; and of course, s. 742.1 , which introduces the conditional sentence.  In Gladue, at para. 40, the Court held that “[t]he creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration”.

(2) Expanding the Use of Restorative Justice Principles in Sentencing

18                Restorative justice is concerned with the restoration of the parties that are affected by the commission of an offence.  Crime generally affects at least three parties: the victim, the community, and the offender.  A restorative justice approach seeks to remedy the adverse effects of crime in a manner that addresses the needs of all parties involved.  This is accomplished, in part, through the rehabilitation of the offender, reparations to the victim and to the community, and the promotion of a sense of responsibility in the offender and acknowledgment of the harm done to victims and to the community.

19                Canadian sentencing jurisprudence has traditionally focussed on the aims of denunciation, deterrence, separation, and rehabilitation, with rehabilitation a relative late-comer to the sentencing analysis: see Gladue, at para. 42.  With the introduction of Bill C-41, however, Parliament has placed new emphasis upon the goals of restorative justice.  Section 718 sets out the fundamental purpose of sentencing, as well as the various sentencing objectives that should be vindicated when sanctions are imposed.  In Gladue, supra, Cory and Iacobucci JJ. stated (at para. 43):

Clearly, s. 718 is, in part, a restatement of the basic sentencing aims, which are listed in paras. (a) through (d).  What are new, though, are paras. (e) and (f), which along with para. (d) focus upon the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.  The concept of restorative justice which underpins paras. (d), (e), and (f) is briefly discussed below, but as a general matter restorative justice involves some form of restitution and reintegration into the community.  The need for offenders to take responsibility for their actions is central to the sentencing process. . . .  Restorative sentencing goals do not usually correlate with the use of prison as a sanction.  In our view, Parliament’s choice to include (e) and (f) alongside the traditional sentencing goals must be understood as evidencing an intention to expand the parameters of the sentencing analysis for all offenders. [Emphasis added; citation omitted.]

20                Parliament has mandated that expanded use be made of restorative principles in sentencing as a result of the general failure of incarceration  to rehabilitate offenders and reintegrate them into society.  By placing a new emphasis on restorative principles, Parliament expects both to reduce the rate of incarceration and improve the effectiveness of sentencing.  During the second reading of Bill C-41 on September 20, 1994 (House of Commons Debates, vol. IV, 1st Sess., 35th Parl., at p. 5873), Minister of Justice Allan Rock made the following statements:

     A general principle that runs throughout Bill C-41 is that jails should be reserved for those who should be there.  Alternatives should be put in place for those who commits offences but who do not need or merit incarceration.

. . .

Jails and prisons will be there for those who need them, for those who should be punished in that way or separated from society. . . .   [T]his bill creates an environment which encourages community sanctions and the rehabilitation of offenders together with reparation to victims and promoting in criminals a sense of accountability for what they have done.

It is not simply by being more harsh that we will achieve more effective criminal justice.  We must use our scarce resources wisely. 

B. The Nature of the Conditional Sentence

21                The conditional sentence was specifically enacted as a new sanction designed to achieve both of Parliament’s objectives.  The conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders.  The offenders who meet the criteria of s. 742.1  will serve a sentence under strict surveillance in the community instead of going to prison.  These offenders’ liberty will be constrained by  conditions to be attached to the sentence, as set out in s. 742.3 of the Code.  In case of breach of conditions, the offender will be brought back before a judge, pursuant to s. 742.6.  If an offender cannot provide a reasonable excuse for breaching the conditions of his or her sentence, the judge may order him or her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

22                The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration.  Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender.  However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence.  It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn. 

  (1) Comparing Conditional Sentences with Probation

23                There has been some confusion among members of the judiciary and the public alike about the difference between a conditional sentence and a suspended sentence with probation.  This confusion is understandable, as the statutory provisions regarding  conditions to be attached to conditional sentences (s. 742.3 ) and probation orders (s. 732.1) are very similar.  Notwithstanding these similarities, there is an important distinction between the two.  While a suspended sentence with probation is primarily a rehabilitative sentencing tool, the evidence suggests that Parliament intended a conditional sentence to address both punitive and rehabilitative objectives.

(a) A Comparative Reading of the Provisions

24                A comparative reading of the provisions governing conditional sentences and probation orders reveals three differences.  First, a probation order includes only three  compulsory conditions  –  to keep the peace and be of good behaviour, appear before the court when required, and notify the court or probation officer of any change in employment or address –  whereas there are five such conditions in the case of a conditional sentence.  The two additional compulsory conditions of a conditional sentence – to report to a supervisor and remain within the jurisdiction unless permission is granted to leave – are listed as optional conditions under a probation order.

25                The second difference concerns the power of the judge to order the offender to undergo treatment.  Under a conditional sentence, the sentencing judge can order the offender to attend a treatment program, regardless of whether the offender consents.  Under a probation order, the judge can only impose a treatment order with the consent of the offender (with the exception of drug or alcohol addiction programs since the 1999 amendment to s. 732.1 (S.C. 1999, c. 32, s. 6)).  In practice, however, this difference is not very significant, since it is unlikely that an offender faced with the choice between imprisonment and a suspended sentence with treatment as a condition of probation would refuse to consent to treatment.

26                The third difference is in the wording of the residual clauses of the provisions governing the imposition of optional conditions.  In the case of a conditional sentence, s. 742.3(2)(f) provides that the court may order that the offender comply with such other reasonable conditions as the court considers desirable “for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences”.  By contrast, s. 732.1(3)(h) provides that the court may impose such other reasonable conditions of probation “for protecting society and for facilitating the offender’s successful reintegration into the community”.

27                On their face, these three differences do not suggest that a conditional sentence is more punitive than a suspended sentence with probation.  Moreover, the penalty for breach of probation is potentially more severe than that for breach of a conditional sentence. Pursuant to s. 733.1(1), breach of probation constitutes a new offence, punishable by up to two years  imprisonment, while a breach of condition does not constitute a new offence per se.  The maximum penalties are also different.  In the case of a breach of probation, the offender is subject to the revocation of the probation order and can be sentenced for the original offence (in cases where a suspended sentence was rendered): see s. 732.2(5).  By contrast, in the case of breaches of conditional sentences,  the maximum punishment available is incarceration for the time remaining of the original sentence (s. 742.6(9)).  Presumably, if a conditional sentence is more onerous than probation, the consequences of breaching a condition should be more onerous as well.    

(b) Conditional Sentences Must Be More Punitive Than Probation

28                Despite the similarities between the provisions and the fact that the penalty for breach of probation is potentially more severe than for breach of a conditional sentence, there are strong indications that Parliament intended the conditional sentence to be more punitive than probation.  It is a well accepted principle of statutory interpretation that no legislative provision should be interpreted so as to render it mere surplusage.  It would be absurd if Parliament  intended conditional sentences to amount merely to probation under a different name.  While this argument is clearly not dispositive, it suggests that Parliament intended there to be a meaningful distinction between the two sanctions.  I will now consider more specific arguments in support of this position.

29                The conditional sentence is defined in the Code as a sentence of imprisonment.  The heading of s. 742 reads “Conditional Sentence of Imprisonment”.  Furthermore, s. 742.1(a) requires the court to impose a sentence of imprisonment of less than two years before considering whether the sentence can be served in the community subject to the appropriate conditions.  Parliament intended imprisonment, in the form of incarceration, to be more punitive than probation, as it is far more restrictive of the offender’s liberty.  Since a conditional sentence is, at least notionally, a sentence of imprisonment, it follows that it too should be interpreted as more punitive than probation.

30                On a related note, with the enactment of s. 742.1, Parliament has mandated that certain non-dangerous offenders who would otherwise have gone to jail for up to two years now serve their sentences in the community.  If a conditional sentence is not distinguished from probation, then these offenders will receive what are effectively considerably less onerous probation orders instead of jail terms.  Such lenient sentences would not provide sufficient denunciation and deterrence, nor would they be accepted by the public.  Section 718 provides that the fundamental purpose of sentencing is “to contribute . . . to respect for the law and the maintenance of a just, peaceful and safe society”.  Inadequate sanctions undermine respect for the law.  Accordingly, it is important to distinguish a conditional sentence from probation by way of the use of punitive conditions.

31                Earlier I drew attention to a subtle difference between the residual clauses in the provisions governing the imposition of optional conditions of probation orders and conditional sentences.  While the difference between the two residual clauses is subtle, it is also significant.  In order to appreciate this difference, it is necessary to consider the case law and practice that has developed with respect to probation.

32                Probation has traditionally been viewed as a rehabilitative sentencing tool.  Recently, the rehabilitative nature of the probation order was explained by the Saskatchewan Court of Appeal in R. v. Taylor (1997), 122 C.C.C. (3d) 376.  Bayda C.J.S. wrote, at p. 394:

       Apart from the wording of the provision, the innate character of a probation order is such that it seeks to influence the future behaviour of the offender.  More specifically, it seeks to secure “the good conduct” of the offender and to deter him from committing other offences.  It does not particularly seek to reflect the seriousness of the offence or the offender’s degree of culpability.  Nor does it particularly seek to fill the need for denunciation of the offence or the general deterrence of others to commit the same or other offences. Depending upon the specific conditions of the order there may well be a punitive aspect to a probation order but punishment is not the dominant or an inherent purpose.  It is perhaps not even a secondary purpose but is more in the nature of a consequence of an offender’s compliance with one or more of the specific conditions with which he or she may find it hard to comply. [Emphasis added.]

33                        Many appellate courts have struck out conditions of probation that were imposed to punish rather than rehabilitate the offender: see  R. v. Ziatas (1973), 13 C.C.C. (2d) 287 (Ont. C.A.), at p. 288; R. v. Caja (1977), 36 C.C.C. (2d) 401 (Ont. C.A.), at pp. 402-3;  R. v. Lavender (1981), 59 C.C.C. (2d) 551 (B.C.C.A.), at pp. 552-53, and R. v. L. (1986), 50 C.R. (3d) 398 (Alta. C.A.), at pp. 399-400.  The impugned terms of probation in these cases were imposed pursuant to a residual clause in force at the time whose wording was virtually identical to that presently used in s. 742.3(2)(f).

34                Despite the virtual identity in the wording of s. 742.3(2)(f) and the old residual clause applicable to probation orders, it would be a mistake to conclude that punitive conditions cannot now be imposed under s. 742.3(2)(f).  Parliament amended the residual clause for probation, s. 732.1(3)(h), to read “for protecting society and for facilitating the offender’s successful reintegration into the community” (emphasis added).  It did so to make clear the rehabilitative purpose of probation and to distinguish s. 742.3(2)(f) from s. 732.1(3)(h).   The wording used in s. 742.3(2)(f) does not focus principally on the rehabilitation and reintegration of the offender.  If s. 742.3(2)(f) were interpreted as precluding punitive conditions, it would frustrate Parliament’s intention in distinguishing the two forms of sentence.  Parliament would not have distinguished them if it intended both clauses to serve the same purpose.

35                In light of the foregoing, it is clear that Parliament intended a conditional sentence to be more punitive than a suspended sentence with probation, notwithstanding the similarities between the two sanctions in respect of their rehabilitative purposes.  I agree wholeheartedly with Vancise J.A., who, dissenting in R. v. McDonald (1997), 113 C.C.C. (3d) 418 (Sask. C.A.), stated, at p. 443, that conditional sentences were designed to “permit the accused to avoid imprisonment but not to avoid punishment”.

36                Accordingly, conditional sentences should generally include punitive conditions that are restrictive of the offender’s liberty.  Conditions such as house arrest or strict curfews should be the norm, not the exception.  As the Minister of Justice said during the second reading of Bill C-41 (House of Commons Debates, supra, at p. 5873), “[t]his sanction is obviously aimed at offenders who would otherwise be in jail but who could be in the community under tight controls” (emphasis added). 

37                There must be a reason for failing to impose punitive conditions when a conditional sentence order is made.  Sentencing judges should always be mindful of the fact that conditional sentences are only to be imposed on offenders who would otherwise have been sent to jail.  If the judge is of the opinion that punitive conditions are unnecessary, then probation, rather than a conditional sentence, is most likely the appropriate disposition.

38                The punitive nature of the conditional sentence should also inform the treatment of breaches of conditions.  As I have already discussed, the maximum penalty for breach of probation is potentially more severe than that for breach of a conditional sentence.  In practice, however, breaches of conditional sentences may be punished more severely than breaches of probation.  Without commenting on the constitutionality of these provisions, I note that breaches of conditional sentence need only be proved on a balance of probabilities, pursuant to s. 742.6(9), whereas breaches of probation must be proved beyond a reasonable doubt.

39                More importantly, where an offender breaches a condition without reasonable excuse, there should be a presumption that the offender serve the remainder of his or her sentence in jail.  This constant threat of incarceration will help to ensure that the offender complies with the conditions imposed: see R. v. Brady (1998), 121 C.C.C.  (3d) 504 (Alta. C.A.); J. V. Roberts, “Conditional Sentencing: Sword of Damocles or Pandora’s Box?” (1997), 2 Can. Crim. L. Rev. 183.  It also assists in distinguishing the conditional sentence from probation by making the consequences of a breach of condition more severe.

(2) Conditional Sentences and Incarceration

40                Although a conditional sentence is by statutory definition a sentence of imprisonment, this Court,  in R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 21, recognized that there “is a very significant difference between being behind bars and functioning within society while on conditional release”. See also Cunningham v. Canada, [1993] 2 S.C.R. 143, at p. 150, per McLachlin J.  These comments are equally applicable to the conditional sentence.  Indeed, offenders serving a conditional sentence in the community are only partially deprived of their freedom.  Even if their liberty is restricted by the conditions attached to their sentence, they are not confined to an institution and they can continue to attend to their normal employment or educational endeavours.  They are not deprived of their private life to the same extent.  Nor are they subject to a regimented schedule or an institutional diet.     

41                This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration.  As this Court stated in Gladue, supra, at para. 72:

. . . in our view a sentence focussed on restorative justice is not necessarily a “lighter” punishment.  Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.

A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.

42                Moreover, the conditional sentence is not subject to reduction through parole.  This would seem to follow from s. 112(1)  of the Corrections and Conditional Release Act, S.C. 1992, c. 20 , which gives the provincial parole board jurisdiction in respect of the parole of offenders “serving sentences of imprisonment in provincial correctional facilities” (R. v. Wismayer (1997), 115 C.C.C. (3d) 18 (Ont. C.A.), at p. 33).   

43                I would add that the fact that a conditional sentence cannot be reduced through parole does not in itself lead to the conclusion that as a general matter a conditional sentence is as onerous as or even more onerous than a jail term of equivalent duration.  There is no parole simply because the offender is never actually incarcerated and he or she does not need to be reintegrated into society.  But even when an offender is released from custody on parole,  the original sentence continues in force.  As I stated in M. (C.A.), supra, at para. 62:

       In short, the history, structure and existing practice of the conditional release system collectively indicate that a grant of parole represents a change in the conditions under which a judicial sentence must be served, rather than a reduction of the judicial sentence itself. . . .  But even though the conditions of incarceration are subject to change through a grant of parole to the offender’s benefit, the offender’s sentence continues in full effect.  The offender remains under the strict control of the parole system, and the offender’s liberty remains significantly curtailed for the full duration of the offender’s numerical or life sentence. [Emphasis in original.]

The parolee has to serve the final portion of his or her sentence under conditions similar to those that can be imposed under a conditional sentence, perhaps even under stricter conditions, as the parolee can be assigned to a “community-based residential facility”: see s. 133  of the Corrections and Conditional Release Act  and s. 161 of the Corrections and Conditional Release Regulations, SOR/92-620.       

44                In light of these observations, a conditional sentence, even with stringent conditions, will usually be a more lenient sentence than a jail term of equivalent duration: see also  Gagnon v. La Reine, [1998] R.J.Q. 2636 (C.A.), at p. 2645; Brady, supra, at paras. 36 and 48 to 50.  The fact that incarceration is a threatened punishment for those who breach their conditions provides further support for this conclusion.  In order for incarceration to serve as a punishment for breach of a conditional sentence, logically it must be more onerous than a conditional sentence.

C.   Application of Section 742.1  of the Criminal Code 

45                For convenience, I will reproduce here s. 742.1 : 

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 .

46                This provision 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.

47                In my view, the first three criteria are prerequisites to any conditional sentence.  These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances.  Once they are met, the next question is whether a conditional sentence is appropriate.  This decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.  I will discuss each of these elements in turn.

(1)   The Offender Must be Convicted of an Offence That Is Not Punishable by a Minimum Term of Imprisonment 

48                This prerequisite is straightforward.  The offence for which the offender was convicted must not be punishable by a minimum term of imprisonment.  Offences with a minimum term of imprisonment are the only statutory exclusions from the conditional sentencing regime.

(2) The Court Must Impose a Term of Imprisonment of Less than Two Years 

49                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.  There is some controversy as to whether this means that the judge must actually impose a term of imprisonment of a fixed duration before considering the possibility of a conditional sentence.  Far from addressing purely methodological concerns, this question carries implications as to the role of ss. 718 to 718.2 in the determination of the appropriate sentence, the duration of the sentence, its venue and other modalities.   

50                A literal reading of s. 742.1 (a) suggests that the decision to impose a conditional sentence should be made in two distinct stages.  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 .  At first sight, since Parliament said: “and the court (a) imposes a sentence of imprisonment of less than two years”, it seems that the sentencing judge must first impose a term of imprisonment of a fixed duration before contemplating the possibility that this term be served in the community. 

51                This two-step approach was endorsed by the Manitoba Court of Appeal in the present appeal.  However, this literal reading of s. 742.1  and the two-step approach it implies introduce a rigidity which is both unworkable and undesirable in practice.

(a)  Duration and Venue Cannot Be Separated

52                This two-step process does not correspond to the reality of sentencing.  In practice, the determination of a term of imprisonment is necessarily intertwined with the decision of where the offender will serve the sentence.  A judge does not impose a fixed sentence of “x months” in the abstract, without having in mind where that sentence will be served (see Brady, supra, at para. 86; R. v. Pierce (1997), 114 C.C.C. (3d) 23 (Ont. C.A.), at p. 39; R. v. Ursel (1997), 96 B.C.A.C. 241, at p. 284 (per Ryan J.A.) and pp.  291-92 (per Rowles J.A.)).  Furthermore, when a conditional sentence is chosen, its duration will depend on the type of conditions imposed.  Therefore, the duration of the sentence should not be determined separately from the determination of its venue. 

(b)  “Penalogical Paradox”

53                There is a contradiction embedded in this rigid two-step process.  After having applied ss. 718 to 718.2 in the first stage to conclude that the appropriate sentence is a term of imprisonment of a fixed duration (in all cases less than two years), the judge would then have to decide if serving the same sentence in the community is still consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2, as required by s. 742.1 (b).  It is unrealistic to believe that a judge would consider the objectives and principles twice or make a clear distinction in his or her mind between the application of ss. 718 to 718.2 in the first stage and in the second stage.   Even if this could be done, it could lead to a “penalogical paradox”, as described by J. Gemmell in,  “The New Conditional Sentencing Regime” (1997), 39 Crim. L.Q. 334, at p. 337:

. . .  the judge must first determine that imprisonment is the only reasonable sanction in the circumstances then decide whether the offender should nevertheless serve that sentence in the community.  The decision to impose a conditional sentence is almost a kind of reductio ad absurdum of the original decision that called for imprisonment. [Footnote omitted.]

54                This 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.  For instance, the principle of proportionality, set out in s. 718.1 as the fundamental principle of sentencing, directs that all sentences must be proportional to the gravity of the offence and the degree of responsibility of the offender.  When 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.  Thus, such a two-step approach introduces a rigidity in the sentencing process that could lead to an unfit sentence. 

(c)  A Purposive Interpretation of Section 742.1 (a)

55                These problems can be addressed by a purposive interpretation of s. 742.1 (a).  For the reasons discussed above, the requirement that the court “imposes a sentence of imprisonment of less than two years” could not have been intended to impose on judges a rigid two-step process.  Rather, it 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.

56                Section 742.1(a), when read in conjunction with ss. 718.2(d) and 718.2(e), cautions sentencing judges against “widening the net” of the conditional sentencing regime by imposing conditional sentences on offenders who would otherwise have received a non-custodial disposition (Gagnon, supra, at p. 2645; McDonald, supra, at pp. 437-39).  As Rosenberg J.A. puts it in Wismayer, supra, at p. 42:

     Parliament’s goal of reducing the prison population of non-violent offenders and increased use of community sanctions will be frustrated if the courts refuse to use the conditional sentence order for offences that normally attract a jail sentence and resort to the conditional sentence only for offences that previously would have attracted non-custodial dispositions.

Erroneously imposing conditional sentences could  undermine Parliament’s objective of reducing incarceration for less serious offenders.   

57                These concerns are illustrated by the English experience with a similar sentence called a “suspended sentence”.  As Parker L.C.J. explained, writing for the Court of Appeal (Criminal Division) in R. v. O’Keefe (1968), 53 Cr. App. R. 91, at pp. 94-95:

     This Court would like to say as emphatically as they can that suspended sentences should not be given when, but for the power to give a suspended sentence, a probation order was the proper order to make.  After all, a suspended sentence is a sentence of imprisonment. . . .

     Therefore, it seems to the Court that before one gets to a suspended sentence at all, a court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fine, and then say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment: is immediate imprisonment required, or can I give a suspended sentence?  

58                A similar approach should be used by Canadian courts.  Hence, a purposive interpretation of s. 742.1 (a) does not dictate a rigid two-step approach in which the judge would first have to impose a term of imprisonment of a fixed duration and then decide if that fixed term of imprisonment can be served in the community.  In my view, 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.  Thus, the approach I suggest still requires the judge to proceed in two stages.  However, the judge need not impose a term of imprisonment of a fixed duration at the first stage of the analysis.  Rather, at this stage, the judge simply has to exclude two possibilities: (a) probationary measures; and (b) a penitentiary term.  If either of these sentences is appropriate, then a conditional sentence should not be imposed.  

59                In making this preliminary determination, 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.  The submissions of the parties, although not binding, may prove helpful in this regard.  For example, both parties may agree that the appropriate range of sentence is a term of imprisonment of less than two years. 

60                Once that preliminary determination is made, and assuming the other statutory prerequisites are met, the judge should then proceed to the second stage of the analysis: determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.  Unlike the first stage, the principles of sentencing are now considered comprehensively.  Further, it is at the second stage that the duration and venue of the sentence should be determined, and, if a conditional sentence, the conditions to be imposed.

61                This purposive interpretation of s. 742.1 (a) avoids the pitfalls of the literal interpretation discussed above, while at all times taking into account the principles and objectives of sentencing. As I stressed in M. (C.A.), supra, at para. 82.

In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a “just and appropriate” sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender.

(3)          The Safety of the Community Would Not Be Endangered by the Offender Serving the Sentence in the Community

62                This criterion, set out in s. 742.1 (b), has generated wide discussion in courts and among authors. I intend to discuss the following issues:

(a)  Is safety of the community a prerequisite to any conditional sentence?

(b)  Does “safety of the community” refer only to the threat posed by the specific offender?

(c)  How should courts evaluate danger to the community?

(d)  Is risk of economic prejudice to be considered in assessing danger to the community?

(a)  A Prerequisite to Any Conditional Sentence

63                As a prerequisite to any conditional sentence, the sentencing judge must be satisfied that having the offender serve the sentence in the community would not endanger its safety: see Brady, supra, at para. 58; R. v. Maheu, [1997] R.J.Q. 410, 116 C.C.C. (3d) 361 (C.A.), at p. 368 C.C.C.; Gagnon, supra, at p. 2641; Pierce, supra, at p. 39; Ursel, supra, at pp. 284-86 (per Ryan J.A.).  If the sentencing judge is not satisfied that the safety of the community can be preserved, a conditional sentence must never be imposed. 

64                With respect, the Manitoba Court of Appeal in the case before us erred in concluding that safety of the community was the primary consideration in the decision to impose a conditional sentence.  As the Alberta Court of Appeal in Brady, supra, at para. 58, stated:

So to suggest that danger is the primary consideration is tendentious.  It wrongly implies that absence of danger trumps or has paramountcy over other sentencing principles.  Either the offender meets the no-danger threshold, or he does not.  If he does, this consideration is spent and the focus must then properly be on the other sentencing principles and objectives.

65                I agree.  It is only once the judge is satisfied that the safety of the community would not be endangered, in the sense explained in paras. 66 to 76 below, that he or she can examine whether a conditional sentence “would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2”.  In other words, rather than being an overarching consideration in the process of determining whether a conditional sentence is appropriate, the criterion of safety of the community should be viewed as a condition precedent to the assessment of whether a conditional sentence would be a fit and proper sanction in the circumstances.

(b)          “Safety of the Community” Refers to the Threat Posed by the Specific Offender

66                The issue here is whether “safety of the community” refers only to the threat posed by the specific offender or whether it also extends to the broader risk of undermining respect for the law.  The proponents of the broader interpretation argue that, in certain cases where a conditional sentence could be imposed, it would be perceived that wrongdoers are receiving lenient sentences, thereby insufficiently deterring those who may be inclined to engage in similar acts of wrongdoing, and, in turn, endangering the safety of the community.

67                Leaving aside the fact that a properly crafted conditional sentence can also achieve the objectives of general deterrence and denunciation, I think the debate has been rendered largely academic in light of an amendment to s. 742.1 (b) (S.C. 1997, c. 18, s. 107.1) which clarified that courts must take into consideration the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 in deciding whether to impose a conditional sentence.  This ensures that objectives such as denunciation and deterrence will be dealt with in the decision to impose a conditional sentence.  Since these factors will be taken into account later in the analysis, there is no need to include them in the consideration of the safety of the community.

68                In my view, the focus of the analysis at this point should clearly be on the risk posed by the individual offender while serving his sentence in the community.  I would note that a majority of appellate courts have adopted an interpretation of the criterion referring only to the threat posed by the specific offender: see Gagnon, supra, at pp. 2640-41 (per Fish J.A.); R. v. Parker (1997), 116 C.C.C. (3d) 236 (N.S.C.A.), at pp. 247-48; Ursel, supra, at p. 260; R. v. Horvath, [1997] 8 W.W.R. 357 (Sask. C.A.), at p. 374; Brady, supra, at paras. 60-61; Wismayer, supra, at p. 44.

(c)  How Should Courts Evaluate Danger to the Community?

69                In my opinion, to assess the danger to the community posed by the offender while serving his or her sentence in the community, two factors must 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.  If the judge finds that there is a real risk of re-offence, incarceration should be imposed.  Of course, there is always some risk that an offender may re-offend.  If the judge thinks this risk is minimal, the gravity of the damage that could follow were the offender to re-offend should also be taken into consideration.  In certain cases, the minimal risk of re-offending will be offset by the possibility of a great prejudice, thereby precluding a conditional sentence.

(i)  Risk of Re-offence

70                A variety of factors will be relevant in assessing the risk of re-offence.  In Brady, supra, at paras. 117-27, Fraser C.J.A. suggested that consideration be given to whether the offender has previously complied with court orders and, more generally, to whether the offender has a criminal record that suggests that the offender will not abide by the conditional sentence.  Rousseau-Houle J.A. in Maheu, supra, at p. 374 C.C.C. enumerated additional factors which may be of relevance:

[translation] . . . 1) the nature of the offence, 2) the relevant circumstances of the offence, which can put in issue prior and subsequent incidents, 3) the degree of participation of the accused, 4) the relationship of the accused with the victim, 5) the profile of the accused, that is, his [or her] occupation, lifestyle, criminal record, family situation, mental state, 6) his [or her] conduct following the commission of the offence, 7) the danger which the interim release of the accused represents for the community, notably that part of the community affected by the matter.

71                This list is instructive, but should not be considered exhaustive.  The risk that a particular offender poses to the community must be assessed in each case, on its own facts.  Moreover, the factors outlined above should not be applied mechanically.  As Fraser C.J.A. held in Brady, supra, at para. 124:

Forgetting a court date once ten years ago does not automatically bar an offender from any future conditional sentence.  Nor does turning up for his trial guarantee an offender a conditional sentence.  The sentencing judge must of course look at all aspects of these previous disobediences of courts.  That includes frequency, age, maturity, recency, seriousness of disobedience and surrounding circumstances.

72                The risk of re-offence should also be assessed in light of the conditions attached to the sentence.  Where an offender might pose some risk of endangering the safety of the community, it is possible that this risk be reduced to a minimal one by the imposition of appropriate conditions to the sentence: see Wismayer, supra, at p. 32; Brady, supra, at para. 62; Maheu, supra, at p. 374 C.C.C.  Indeed, this is contemplated by s. 742.3(2)(f), which allows the court to include as optional conditions “such other reasonable conditions as the court considers desirable . . . for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences”.  For example, a judge may wish to impose a conditional sentence with a treatment order on an offender with a drug addiction, notwithstanding the fact that the offender has a lengthy criminal record linked to this addiction, provided the judge is confident that there is a good chance of rehabilitation and that the level of supervision will be sufficient to ensure that the offender complies with the sentence.

73                This last point concerning the level of supervision in the community must be underscored.  As the Alberta Court of Appeal stressed in Brady, supra, at para. 135:

A conditional sentence drafted in the abstract without knowledge of what actual supervision and institutions and programs are available and suitable for this offender is often worse than tokenism: it is a sham.

Hence, the judge must know or be made aware of the supervision available in the community by the supervision officer or by counsel.  If the level of supervision available in the community is not sufficient to ensure safety of the community, the judge should  impose a sentence of incarceration.

(ii)  Gravity of the Damage in the Event of Re-offence  

74                Once the judge finds that the risk of recidivism is minimal, the second factor to consider is the gravity of the potential damage in case of re-offence.  Particularly in the case of violent offenders, a small risk of very harmful future crime may well warrant a conclusion that the prerequisite is not met: see Brady, supra, at para. 63.

(d)  Risk of Economic Harm Can Be Taken Into Consideration

75                The meaning of the phrase “would not endanger the safety of the community” should not be restricted to a consideration of the danger to physical or psychological safety of persons.  In my view, this part of s. 742.1 (b) cannot be given this narrow meaning.  As Finch J.A. stated in Ursel, supra, at p. 264 (dissenting in part but endorsed by the majority on this issue, at p. 287):

I would not give to this phrase the restricted meaning for which the defence contends.  Members of our community have a reasonable expectation of safety not only in respect of their persons, but in respect as well of their property and financial resources.  When homes are broken into, motor-vehicles are stolen, employers are defrauded of monies, or financial papers are forged, the safety of  the community is, in my view endangered.  We go to considerable lengths to protect and secure ourselves against the losses that may result from these sorts of crimes, and I think most ordinary citizens would regard themselves as threatened or endangered where their property or financial resources are exposed to the risk of loss.

76                I agree with this reasoning.  The phrase “would not endanger the safety of the community” should be construed broadly, and include the risk of any criminal activity.  Such a broad interpretation encompasses the risk of economic harm.

(4)          Consistent with the  Fundamental Purpose and Principles of Sentencing Set Out in Sections 718 to 718.2

77                Once the sentencing judge has found the offender guilty of an offence for which there is no minimum term of imprisonment, has rejected both a probationary sentence and a penitentiary term as inappropriate, and is satisfied that the offender would not endanger the community, the judge must then consider whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to  718.2.

78                A consideration of the principles set out in ss. 718 to 718.2 will determine whether the offender should serve his or her sentence in the community or in jail.  The sentencing principles also inform the determination of the duration of these sentences and, if a conditional sentence, the nature of the conditions to be imposed.

(a)  Offences Presumptively Excluded from the Conditional Sentencing Regime?

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.  As Rosenberg J.A. held in Wismayer, supra, at p. 31:

Parliament clearly envisaged that a conditional sentence would be available even in cases of crimes of violence that are not punishable by a minimum term of imprisonment.  Thus, s. 742.2 requires the court, before imposing a conditional sentence, to consider whether a firearms prohibition under s. 100  of the Criminal Code  is applicable.  Such orders may only be imposed for indictable offences having a maximum sentence of ten years or more “in the commission of which violence against a person is used, threatened, or attempted” (s. 100(1) ) and for certain weapons and drug offences (s. 100(2) ). 

Thus, a conditional sentence is available in principle for all offences in which the statutory prerequisites are satisfied.

80                Several parties in the appeals before us argued that the fundamental purpose and principles of sentencing support a presumption against conditional sentences for certain offences.  The Attorney General of Canada and the Attorney General for Ontario submitted that a conditional sentence would rarely be appropriate for offences such as: sexual offences against children; aggravated sexual assault; manslaughter; serious fraud or theft; serious morality offences; impaired or dangerous driving causing death or bodily harm; and trafficking or possession of certain narcotics.   They submitted that this followed from the principle of proportionality as well as from a consideration of the objectives of denunciation and deterrence.  A number of appellate court decisions support this position.

81                In my view, while the gravity of such offences is clearly relevant to determining whether a conditional sentence is appropriate in the circumstances, it would be both unwise and unnecessary to establish judicially created presumptions that conditional sentences are inappropriate for specific offences.  Offence-specific presumptions introduce unwarranted rigidity in the determination of whether a conditional sentence is a just and appropriate sanction.  Such presumptions do not accord with the principle of proportionality set out in s. 718.1 and the value of individualization in sentencing, nor are they necessary to achieve the important objectives of uniformity and consistency in the use of conditional sentences.

82                This Court has held on a number of occasions that sentencing is an individualized process, in which the trial judge has considerable discretion in fashioning a fit sentence.  The rationale behind this approach stems from the principle of proportionality, the fundamental principle of sentencing, which provides that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender.  Proportionality requires an examination of the specific circumstances of both the offender and the offence so that the “punishment fits the crime”.  As a by-product of such an individualized approach, there will be inevitable variation in sentences imposed for particular crimes.  In M. (C.A.), supra, I stated, at para. 92:

It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . . Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.  As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

83                My difficulty with the suggestion that the proportionality principle presumptively excludes certain offences from the conditional sentencing regime is that such an approach focuses inordinately on the gravity of the offence and insufficiently on the moral blameworthiness of the offender.  This fundamentally misconstrues the nature of the principle.  Proportionality requires that full consideration be given to both factors.  As s. 718.1 provides:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [Emphasis added.]

84                Some appellate courts have held that once the statutory prerequisites are satisfied  there ought to be a presumption in favour of a conditional sentence.  In the instant appeal, Helper J.A. found at p. 112  that:

Generally (though certainly not in all cases), it will be that, when a sentencing judge has attributed the appropriate weight to each of the relevant principles in determining that a fit sentence would be less than two years and has found that the offender would not be a danger to the community, a decision to allow the offender to serve his sentence in the community will be consistent with ss. 718 to 718.2. 

85                It is possible to interpret these comments as implying that once the judge has found that the prerequisites to a conditional sentence are met, a conditional sentence would presumably be consistent with the fundamental purpose and principles of sentencing.  Assuming that Helper J.A. intended to suggest that there ought to be a presumption in favour of a conditional sentence once the prerequisites are met, I respectfully disagree with her.  For the same reasons that I rejected the use of presumptions against conditional sentences, I also reject presumptions in favour of them.  The particular circumstances of the offender and the offence must be considered in each case. 

(b)  A Need for Starting Points?

86                An individualized sentencing regime will of necessity entail a certain degree of disparity in sentencing.  I recognize that it is important for appellate courts to minimize, to the greatest extent possible, “the disparity of sentences imposed by sentencing judges for similar offenders and similar offences committed throughout Canada”: M. (C.A.), supra, at para. 92.  Towards this end, this Court held in R. v. McDonnell, [1997] 1 S.C.R. 948, that “starting point sentences” may be set out as guides to lower courts in order to achieve greater uniformity and consistency.  I am also acutely aware of the need to provide guidance to lower courts regarding the use of the conditional sentence, as it is a new sanction which has created a considerable amount of controversy and confusion in its short life.

87                That said, I do not find it necessary to resort to starting points in respect of specific offences to provide guidance as to the proper use of conditional sentences.   In my view, the risks posed by starting points, in the form of offence-specific presumptions in favour of incarceration, outweigh their benefits.  Starting points are most useful in circumstances where there is the potential for a large disparity between sentences imposed for a particular crime because the range of sentence set out in the Code is particularly broad.  In the case of conditional sentences, however, the statutory prerequisites of s. 742.1  considerably narrow the range of cases in which a conditional sentence may be imposed.  A conditional sentence may only be imposed on non-dangerous offenders who would otherwise have received a jail sentence of less than two years.  Accordingly, the potential disparity of sentence between those offenders who were candidates for a conditional sentence and received a jail term, and those who received a conditional sentence, is relatively small.

88                The minimal benefits of uniformity in these circumstances are exceeded by the costs of the associated loss of individualization in sentencing.  By creating offence-specific starting points, there is a risk that these starting points will evolve into de facto minimum sentences of imprisonment.  This would thwart Parliament’s intention of not excluding particular categories of offence from the conditional sentencing regime.  It could also result in the imposition of disproportionate sentences in some cases.

89                Given the narrow range of application for conditional sentences, I am of the opinion that a consideration of the principles of sentencing themselves, without offence-specific presumptions, can provide sufficient guidance as to whether a conditional sentence should be imposed.  Some principles militate in favour of a conditional sentence, whereas others favour incarceration.  It is the task of this Court to articulate, in general terms, which principles favour each sanction.  Although it cannot ensure uniformity of result, the articulation of these principles can at least ensure uniformity in approach to the imposition of conditional sentences.  It is to this task that I now turn.

(c)  Principles Militating For and Against a Conditional Sentence

90                First, 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.

91                I pause here to consider an interpretive difficulty posed by s. 718.2(e).  By its terms, s. 718.2(e) requires judges to consider “all available sanctions other than imprisonment that are reasonable in the circumstances” (emphasis added).  A conditional sentence, however, is defined as a sentence of imprisonment.  As a sentence of imprisonment, it cannot be an alternative to imprisonment.  It would therefore appear as though s. 718.2(e) has no bearing on the sentencing judge’s decision as to whether a conditional sentence or a jail term should be imposed.  Indeed, if interpreted in the technical sense ascribed to imprisonment in Part XXIII of the Code, s. 718.2(e) would only be relevant to the judge’s preliminary determination as to whether a sentence of imprisonment, as opposed to a probationary measure, should be imposed.  Once the sentencing judge rejects a probationary sentence as inappropriate, the legislative force of s. 718.2(e) is arguably spent.

92                This interpretation seems to fly in the face of Parliament’s intention in enacting s. 718.2(e)  –   reducing the rate of incarceration.  As this Court held in Gladue, supra, at para. 40:

The availability of the conditional sentence of imprisonment, in particular, alters the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted to only where no other sentencing option is reasonable in the circumstances.  The creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration.  The general principle expressed in s. 718.2(e) must be construed and applied in this light. [Emphasis added.]

Moreover, if this interpretation of s. 718.2(e) were adopted, it could lead to absurd results in relation to aboriginal offenders.  The particular circumstances of aboriginal offenders would only be relevant in deciding whether to impose probationary sentences, and not in deciding whether a conditional sentence should be preferred to incarceration.  This would greatly diminish the remedial purpose animating Parliament’s enactment of this provision, which contemplates the greater use of conditional sentences and other alternatives to incarceration in cases of aboriginal offenders.

93                The language used in the French version avoids this difficulty.  The French version reads as follows:

                          718.2  Le tribunal détermine la peine à infliger compte tenu également des principes suivants:

. . .

e) l’examen de toutes les sanctions substitutives applicables qui sont justifiées dans les circonstances, plus particulièrement en ce qui concerne les délinquants autochtones. [Emphasis added.]

94                The use of “sanctions substitutives” for “sanctions other than imprisonment” in the French version of this provision means that s. 718.2(e) plays a role not only in the decision as to whether imprisonment or probationary measures should be imposed (preliminary step of the analysis), but also in the decision as to whether to impose a conditional sentence of imprisonment since conditional sentences are clearly “sanctions substitutives” to incarceration.

95                The French version and the English version of s. 718.2(e) are therefore in conflict.  In conformity with a long-standing principle of interpretation, to resolve the conflict between the two official versions, we have to look for the meaning common to both: see for instance Kwiatkowsky v. Minister of Employment and Immigration, [1982] 2 S.C.R. 856, at pp. 863-64; Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660, at p. 669; Pfizer Co. v. Deputy Minister of National Revenue for Customs and Excise, [1977] 1 S.C.R. 456, at pp. 464-65; Tupper v. The Queen, [1967] S.C.R. 589, at p. 593; Goodyear Tire and Rubber Co. of Canada v. T. Eaton Co., [1956] S.C.R. 610, at p. 614; P.-A. Côté, Interprétation des lois (3rd ed. 1999), at pp. 412-15.  Accordingly, the word “imprisonment” in s. 718.2(e) should be interpreted as “incarceration” rather than in its technical sense of encompassing both incarceration and a conditional sentence.  Read in this light, s. 718.2(e) clearly exerts an influence on the sentencing judge’s determination as to whether to impose a conditional sentence as opposed to a jail term.

96                Both ss. 718.2(d) and 718.2(e) seek to vindicate the important objective of restraint in the use of incarceration.  However, neither seeks to do so at all costs.  Section 718.2(d) provides that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances” (emphasis added).  Section 718.2(e) provides that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered” (emphasis added).  In my view, a determination of when less restrictive sanctions are “appropriate” and alternatives to incarceration “reasonable” in the circumstances  requires a consideration of the other principles of sentencing set out in ss. 718 to 718.2 

97                In determining which principles favour of a conditional sentence and which favour incarceration, it is necessary to consider again the nature and purpose of the conditional sentence.  Through an appreciation of Parliament’s intention in enacting this new sanction and the mischief it seeks to redress, trial judges will be better able to make appropriate use of this innovative tool.

98                The conditional sentence, as I have already noted, 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.

99                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.  

100            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.

101            I turn now to the question of when a conditional sentence may be appropriate having regard to the six sentencing objectives set out in s. 718.

(i)  Denunciation

102            Denunciation is the communication of society's condemnation of the offender's conduct.  In M. (C.A.), supra, at para. 81, I wrote:

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.  As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: “society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass”.

Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration.  That said, a conditional sentence can still provide a significant amount of denunciation.  This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.  I will discuss each point in turn.

103            First, the conditions should have a punitive aspect.  Indeed, the need for punitive conditions is the reason why a probationary sentence was rejected and a sentence of imprisonment of less than two years imposed.  As stated above, conditions such as house arrest should be the norm, not the exception.  This means that the offender should be confined to his or her home except when working, attending school, or fulfilling other conditions of his or her sentence, e.g. community service, meeting with the supervisor, or participating in treatment programs.  Of course, there will need to be exceptions for medical emergencies, religious observance, and the like. 

104            Second, although a literal reading of s. 742.1  suggests that a conditional sentence must be of equivalent duration to the jail term that would otherwise have been imposed,  I have explained earlier why such a literal interpretation of s. 742.1  should be eschewed.  Instead, the preferred approach is to have the judge reject a probationary sentence and a penitentiary term as inappropriate in the circumstances, and then consider whether a conditional sentence of less than two years would be consistent with the fundamental purpose and principles of sentencing, provided the statutory prerequisites are met.  This approach does not require that there be any equivalence between the duration of the conditional sentence and the jail term 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: see Brady, supra, at para. 111;  Ursel, supra, at pp. 284-86 and 291-92; Pierce, supra, at p. 39; J. V. Roberts, “The Hunt for the Paper Tiger:  Conditional Sentencing after Brady” (1999), 42 Crim. L.Q. 38, at pp. 47-52.

105            The stigma of a conditional sentence with house arrest should not be underestimated.  Living in the community under strict conditions where fellow residents are well aware of the offender’s criminal misconduct can provide ample denunciation in many cases.   In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison.

106            The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender, the nature of the conditions imposed, and the community in which the sentence is to be served.  As a general matter, the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be.  However, there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct. 

(ii)  Deterrence

107            Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence.  Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: see Wismayer, supra, at p. 36.  The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generally Sentencing Reform: A Canadian Approach, supra,  at pp. 136-37.  Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences.  There is also the possibility of deterrence through the use of community service orders, including those in which the offender may be obliged to speak to members of the community about the evils of the particular criminal conduct in which he or she engaged, assuming the offender were amenable to such a condition.  Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration.  This will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on the circumstances of the community in which the offences were committed.

(iii) Separation

108            The objective of separation is not applicable in determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing because it is a prerequisite of a conditional sentence that the offender not pose a danger to the community.  Accordingly, it is not necessary to completely separate the offender from society.  To the extent that incarceration, which leads to the complete separation of offenders, is warranted in circumstances where the statutory prerequisites are met, it is as a result of the objectives of denunciation and deterrence, not the need for separation as such.

(iv)  Restorative Objectives

109            While incarceration may provide for more denunciation and deterrence than a conditional sentence, a conditional sentence is generally better suited to achieving the restorative objectives of rehabilitation, reparations, and promotion of a sense of responsibility in the offender.  As this Court held in Gladue, supra, at para. 43, “[r]estorative sentencing goals do not usually correlate with the use of prison as a sanction”.  The importance of these goals is not to be underestimated, as they are primarily responsible for lowering the rate of recidivism.  Consequently, when the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may realistically be achieved in the case of a particular offender, a conditional sentence will likely be the appropriate sanction, subject to the denunciation and deterrence considerations outlined above.

110             I will now consider examples of conditions that seek to vindicate these objectives.  There are any number of conditions a judge may impose in order to rehabilitate an offender.  Mandatory treatment orders may be imposed, such as psychological counseling and alcohol and drug rehabilitation.  It is well known that sentencing an offender to a term of incarceration for an offence related to a drug addiction, without addressing the addiction, will probably not lead to the rehabilitation of the offender.  The Final Report of the Commission of Inquiry into the Non-Medical Use of Drugs (1973) noted at p. 59 that:

     These adverse effects of imprisonment are particularly reflected in the treatment of drug offenders.  Our investigations suggest that there is considerable circulation of drugs within penal institutions, that offenders are reinforced in their attachment to the drug culture, and that in many cases they are introduced to certain kinds of drug use by prison contacts.  Thus imprisonment does not cut off all contact with drugs or the drug subculture, nor does it cut off contact with individual drug users.  Actually, it increases exposure to the influence of chronic, harmful drug users.

111            House arrest may also have a rehabilitative effect to a certain extent in so far as it prevents the offender from engaging in habitual anti-social associations and promotes pro-social behaviors such as attendance at work or educational institutions: see Roberts, “The Hunt for the Paper Tiger: Conditional Sentencing after Brady”, supra, at p. 65.   

112            The objectives of reparations to the victim and the community, as well as the promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community may also be well served by a conditional sentence.  For example, in some cases, restitution orders to compensate the victim may be made a condition.  Furthermore, the imposition of a condition of community service can assist the offender in making reparations to the community and in promoting a sense of responsibility.  An interesting possibility in this regard would be an order that the offender speak in public about the unfortunate consequences of his or her conduct, assuming the offender were amenable to such a condition.  Not only could such an order promote a sense of responsibility and an acknowledgment of the harm done by the offender, it could also further the objective of deterrence, as I discussed above.  In my view, the use of community service orders should be encouraged, provided that there are suitable programs available for the offender in the community.  By increasing the use of community service orders, offenders will be seen by members of the public as paying back their debt to society.  This will assist in contributing to public respect for the law.

(v) Summary

113            In sum, in determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing, sentencing judges should consider which sentencing objectives figure most prominently in the factual circumstances of the particular case before them.  Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration.  In determining whether restorative objectives can be satisfied in a particular case, the judge should consider the offender’s prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or her wrongdoing and expresses remorse; as well as the victim’s wishes as revealed by the victim impact statement (consideration of which is now mandatory pursuant to s. 722 of the Code).  This list is not exhaustive. 

114            Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction.  This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence.  Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served. 

115            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.

116            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.

(d)  Appropriate Conditions   

117            In the event that a judge chooses to impose a conditional sentence, there are five compulsory conditions listed in s. 742.3(1) that must be imposed.  The judge also has considerable discretion in imposing optional conditions pursuant to s. 742.3(2).  There are a number of principles that should guide the judge in exercising this discretion.  First,  the conditions must ensure the safety of the community.  Second, conditions must be tailored to fit the particular circumstances of the offender and the offence.  The type of conditions imposed will be a function of the sentencing judge’s creativity.  However, conditions will prove fruitless if the offender is incapable of abiding by them, and will increase the probability that the offender will be incarcerated as a result of breaching them.  Third,  punitive conditions such as house arrest should be the norm, not the exception.  Fourth, the conditions must be realistically enforceable.  This requires a consideration of the available resources in the community in which the sentence is to be served.  I agree with Rosenberg J.A., who, in “Recent Developments in Sentencing”, a paper prepared for the National Judicial Institute’s Supreme Court of Nova Scotia Education Seminar in Halifax, February 25-26, 1999, at p. 63, wrote that:

. . . the courts must be careful not to impose conditions that are purely cosmetic and are incapable of effective enforcement.  For example, I would think that any condition that can only be effectively enforced through an intolerable intrusion into the privacy of innocent persons would be problematic.  Conditions that impose an unacceptable burden on the supervisor might also be of dubious value.  If the conditions that the court imposes are impractical, the justice system will be brought into disrepute.

D.  Burden of Proof

118            It is submitted by the intervener the Attorney General for Ontario that the offender has the burden of proving that a conditional sentence should be imposed pursuant to s. 742.1 .  According to the Attorney General:

[W]hen a sentencing court determines that a reformatory sentence of imprisonment is an appropriate sentence for an offender, there is, in effect, a rebuttable presumption that this custodial sentence will prevail unless the offender can convince the sentencing Court to make the sentence of imprisonment “conditional”.  [Emphasis in original.]

119            The Attorney General for Ontario’s position seems to be premised on a rigid two-step approach, which I rejected for the reasons explained earlier.  The Attorney General submits that the offender has to establish that: (a) he or she would not endanger the safety of the community by serving a conditional sentence; and (b) the imposition of a conditional sentence would be consistent with the fundamental purpose and principles set out in ss. 718 to 718.2.

120            I disagree. The wording used in s. 742.1  does not attribute to either party the onus of establishing that the offender should or should not receive a conditional sentence.  To inform his or her decision about the appropriate sentence, the judge can take into consideration all the evidence, no matter who adduces it (Ursel, supra, at pp. 264-65 and  287).

121            In matters of sentencing, while each party is expected to establish elements in support of its position as to the appropriate sentence that should be imposed, the ultimate decision as to what constitutes the best disposition is left to the discretion of the sentencing judge.  This message is explicit in s. 718.3(1) and (2):

718.3 (1)  Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.

(2)  Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment.

122            The sentencing judge can take into account the submissions and evidence presented by counsel (s. 723), but is in no way bound by them in the decision as to the sentence.  Having said this, in practice, it will generally be the offender who is best situated to convince the judge that a conditional sentence is indeed appropriate.  Therefore, it would be in the offender’s best interests to establish those elements militating in favour of a conditional sentence: see Ursel, supra, at pp. 264-65; R. v. Fleet (1997), 120 C.C.C. (3d) 457 (Ont. C.A.), at para. 26.  For instance, the offender should inform the judge of his or her remorse, willingness to repair and  acknowledgment of responsibility, and propose a plan of rehabilitation.  The offender could also convince the judge that he or she would not endanger the safety of the community if appropriate conditions were imposed.  It would be to the great benefit of the offender to make submissions in this regard.  I would also note the importance of the role of the supervision officer in informing the judge on these issues.

E.  Deference Owed to Sentencing Judges

123            In  recent years, this Court has repeatedly stated that the sentence imposed by a trial court is entitled to considerable deference from appellate courts: see  Shropshire, supra, at paras. 46-50; M. (C.A.), supra, at paras. 89-94; McDonnell, supra, at paras. 15-17 (majority); R. v. W. (G.), [1999] 3 S.C.R. 597, at paras. 18-19.  In M. (C.A.), at para. 90, I wrote:

      Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.  Parliament explicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code . [Emphasis in original.]

124            Several provisions of Part XXIII confirm that Parliament intended to confer a wide discretion upon the sentencing judge.  As a general rule, ss. 718.3(1) and 718.3(2) provide that the degree and kind of punishment to be imposed is left to the discretion of the sentencing judge.  Moreover, the opening words of s. 718 specify that the sentencing judge must seek to achieve the fundamental purpose of sentencing “by imposing just sanctions that have one or more of the following objectives” (emphasis added).  In the context of the conditional sentence, s. 742.1  provides that the judge “may” impose a conditional sentence and enjoys a wide discretion in the drafting of the appropriate conditions, pursuant to s. 742.3(2).

125            Although an appellate court might entertain a different opinion as to what objectives should be pursued and the best way to do so, that difference will generally not constitute an error of law justifying interference.  Further, minor errors in the sequence of application of s. 742.1  may not warrant intervention by appellate courts.  Again, I stress that appellate courts should not second-guess sentencing judges unless the sentence imposed is demonstrably unfit.  

126            As explained in M. (C.A.), supra, at para. 91:

     This deferential standard of review has profound functional justifications. As Iacobucci J. explained in Shropshire, at para. 46, where the sentencing judge has had the benefit of presiding over the trial of the offender, he or she will have had the comparative advantage of having seen and heard the witnesses to the crime. But in the absence of a full trial, where the offender has pleaded guilty to an offence and the sentencing judge has only enjoyed the benefit of oral and written sentencing submissions (as was the case in both Shropshire and this instance), the argument in favour of deference remains compelling. A sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community. The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.  The discretion of a sentencing judge should thus not be interfered with lightly. [Emphasis added.]

This last justification is particularly relevant in the case of conditional sentences.  Crafting appropriate conditions requires knowledge of both the needs and resources of the community. 

VI.      Summary

127            At this point, a short summary of what has been said in these reasons might be useful:

1.  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.

2. 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. 

3.  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. 

4. 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.

5.  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.

6.  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.

7. 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.

8. 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.

9.  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.

10.  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.

11.  A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances. 

12.  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.

13.  Sentencing judges have a wide discretion in the choice of the appropriate sentence.  They are entitled to considerable deference from appellate courts.  As explained in M. (C.A.), supra, at para. 90: "Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit”.

VII.     Application to the Case at Hand

128            In the case at hand, Keyser J. considered that a term of imprisonment of 18 months was appropriate and declined to permit the respondent to serve his term in the community.  She found  that, while the respondent 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 respondent from similar future conduct or necessary for his rehabilitation, incarceration was necessary to denounce the conduct of the respondent and to deter others from engaging in similar conduct.

129            While Keyser J. seems to have proceeded according to a rigid two-step process, in deviation from the approach I have set out, I am not convinced that an 18-month sentence of incarceration was demonstrably unfit for these offences and this offender.  I point out that the offences here were very serious, and that they 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.  These crimes are often committed by otherwise law-abiding persons, with good employment records and families.  Arguably, such persons are the ones most likely to be deterred by the threat of severe penalties: see R. v. McVeigh (1985), 22 C.C.C. (3d) 145 (Ont. C.A.), at p. 150;  R. v. Biancofiore (1997), 119 C.C.C. (3d) 344 (Ont. C.A.), at paras. 18-24; R. v. Blakeley (1998), 40 O.R. (3d) 541 (C.A.), at pp. 542-43.

130            I hasten to add that these comments should not be taken as a directive that conditional sentences can never be imposed for offences such as dangerous driving or impaired driving.  In fact, were I a trial judge, I might have found that a conditional sentence would have been appropriate in this case.  The respondent is still very young, he had no prior record and no convictions since the accident, he seems completely rehabilitated, he wants to go back to school, he has already suffered a lot by causing the death of a friend and was himself in a coma for some time.  To make sure that the objectives of denunciation and general deterrence would have been sufficiently addressed, I might have imposed conditions such as house arrest and a community service order requiring the offender to speak to designated groups about the consequences of dangerous driving, as was the case in Parker, supra, at p. 239,  and R. v. Hollinsky (1995), 103 C.C.C. (3d) 472 (Ont. C.A.). 

131            However, trial judges are closer to their community and know better what would be acceptable to their community.  Absent evidence that the sentence imposed by the trial judge was demonstrably unfit, the Court of Appeal should not have interfered to substitute its own opinion for that of the sentencing judge.  The trial judge did not commit a reversible error in principle and she appropriately considered all the relevant factors.  Although the Court of Appeal’s decision is entitled to some deference (see the companion appeal R. v. R.A.R., [2000] 1 S.C.R. 163, 2000 SCC 8, at paras. 20-21), in my opinion it erred in holding that the sentencing judge had given undue weight to the objective of denunciation.  I see no ground for the Court of Appeal’s intervention.

VIII.    Disposition

132            I would allow the appeal.  Accordingly, the 18-month sentence of incarceration imposed by the trial judge should be restored.  However, given that the respondent has already served the conditional sentence imposed by the Court of Appeal in its entirety, and that the Crown stated in oral argument that it was not seeking any further punishment, I would stay the service of the sentence of incarceration.

Appeal allowed.

Solicitor for the appellant:  Manitoba Justice, Winnipeg.

Solicitors for the respondent:  Killeen Chapman Garreck, Winnipeg.

Solicitor for the intervener the Attorney General of Canada:  The Deputy Attorney General of Canada, Ottawa.

Solicitors for the intervener the Attorney General for Ontario:  The Ministry of the Attorney General, Toronto.

Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.