R. v. L.F.W., 2000 SCC 6, [2000] 1 SCR 132

R. v. L.F.W., [2000] 1 S.C.R. 132

Her Majesty The Queen                                                                   Appellant

v.

L.F.W.                                                                                                 Respondent

and

The Attorney General of Canada and

the Attorney General for Ontario                                                     Interveners

Indexed as:  R. v. L.F.W.

Neutral citation:  2000 SCC 6.

File No.:  26329.

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 newfoundland

Criminal law – Sentencing – Conditional sentences – Accused convicted of indecent assault and gross indecency and receiving 21-month conditional sentence –  Whether Court of Appeal erred in affirming trial judge’s decision to impose conditional sentence – Criminal Code, R.S.C., 1985, c. C-46, s. 742.1 .

The accused was convicted of one count of indecent assault and one count of gross indecency.  The offences were committed between 1967 and 1973 and, at the time, the victim was between 6 and 12 and the accused was between 22 and 28 years old.  The trial judge sentenced the accused to a 21-month conditional sentence.  The Crown appealed, seeking a 21-month term of incarceration.  A majority of the Newfoundland Court of Appeal dismissed the appeal.

Held on equal division (L’Heureux-Dubé, Gonthier, McLachlin and Bastarache JJ. dissenting):  The appeal should be dismissed.

Per Lamer C.J. and Iacobucci, Major and Binnie JJ.:  In R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, this Court set out the principles governing the conditional sentencing regime of the Criminal Code .  The sentence imposed by a trial judge is entitled to considerable deference from appellate courts.  In the present case, although the accused committed very serious offences, the conditional sentence imposed by the trial judge was nevertheless within the acceptable range of sentences that could have been imposed in the circumstances.  The trial judge’s reasons were very thorough, taking into consideration all relevant sentencing principles, including denunciation and deterrence.  A conditional sentence can provide significant denunciation and deterrence, particularly when onerous conditions are imposed.  The trial judge was well positioned to assess the degree of denunciation and deterrence required in the circumstances and that would be provided by the conditional sentence he imposed.  He also imposed conditions capable of achieving restorative objectives.  Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration.  Since the trial judge committed no reversible error in principle and thoroughly considered all appropriate factors, there is no reason to disturb the sentence.

Per L’Heureux-Dubé, Gonthier, McLachlin and Bastarache JJ.  (dissenting):  There is disagreement with the majority’s application of the principles of sentencing as set out in R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, to the facts at hand.  In this case, a conditional sentence of 21 months was a demonstrably unfit sentence.  In deciding that a conditional sentence was appropriate, the trial judge overemphasized restorative objectives, while giving inordinately little weight to the principles of denunciation and general deterrence.  The principle of denunciation weighs particularly heavily in cases of offences perpetrated against children by adults in positions of trust and authority.  The trial judge did not give sufficient weight to the moral blameworthiness of the offender in disregard of the proportionality principle.  Even taking into account the deference owed to trial judges’ discretion in sentencing, the conditional sentence should not stand.  The passing of the sentence of incarceration should, however, be stayed as the offender has now served his 21-month conditional sentence in full.

Cases Cited

By Lamer C.J.

Applied:  R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; referred to: R. v. R.N.S., [2000] 1 S.C.R. 149, 2000 SCC 7;  R. v. R.A.R., [2000] 1 S.C.R. 163, 2000 SCC 8; R. v. Bunn, [2000] 1 S.C.R. 183, 2000 SCC 9; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Shropshire, [1995] 4 S.C.R. 227.

By L’Heureux-Dubé J. (dissenting)

R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v. Oliver (1997), 99 O.A.C. 234; R. v. Alfred (1998), 122 C.C.C. (3d) 213; R. v.  D. (P.) (1999), 139 C.C.C. (3d) 274; R. v. R.R.E., [1998] O.J. No. 2226 (QL); R. v. P.M., [1999] O.J. No. 421 (QL); R. v. I., [1998] O.J. No. 5713 (QL); R. v. Cuthbert (1998), 101 B.C.A.C. 147.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C-46 , Part XXIII [repl. 1995, c. 22, s. 6], ss. 718 , 718.1 , 718.2  [am. 1997, c. 23, s. 17], 742.1 [am. 1997, c. 18, s. 107.1], 742.3(1).

APPEAL from a judgment of the Newfoundland Court of Appeal (1997), 155 Nfld. & P.E.I.R. 115, 481 A.P.R. 115, 119 C.C.C. (3d) 97, [1997] N.J. No. 234 (QL), dismissing the Crown’s appeal from a sentence of 21 months’ imprisonment to be served in the community imposed by Mercer J. (1996), 146 Nfld. & P.E.I.R. 298, 456 A.P.R. 298, [1996] N.J. No. 330 (QL).  Appeal dismissed on equal division, L’Heureux-Dubé, Gonthier, McLachlin and Bastarache JJ. dissenting.

Wayne Gorman, for the appellant.

Robert E. Simmonds and Jerome P. Kennedy, 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 Lamer C.J. and Iacobucci, Major and Binnie JJ. was delivered by

1                                   The Chief Justice -- This is a Crown appeal from a decision of the Newfoundland Court of Appeal affirming the respondent’s conditional sentence.  This case was heard together with the appeals in R. v. Proulx, [2000] 1 S.C.R. 61,  2000 SCC 5; R. v. R.N.S., [2000] 1 S.C.R. 149, 2000 SCC 7;  R. v. R.A.R., [2000] 1 S.C.R. 163, 2000 SCC 8, and R. v. Bunn, [2000] 1 S.C.R. 183, 2000 SCC 9.  In disposing of this appeal I will apply the general principles governing the conditional sentencing regime set out in Proulx to the facts of this case.

I.  Factual Background

2                                   The respondent was convicted of one count of indecent assault and one count of gross indecency.  The offences were committed on the respondent’s first cousin and next-door neighbour M.W. between October 1967 and July 1973 in the rural community of Bay de Verde, Newfoundland.  At the time, M.W. was between 6 and 12 years old while the respondent was between 22 and 28 years old.  There were 10 to 12 incidents, involving forced masturbation and fellatio.  Most of the incidents occurred in a locked shed next to their homes.  The complainant was warned not to tell anyone about what transpired, particularly her parents.  The respondent told M.W. that he had a gun, leading her to believe that her family would be endangered if she told anyone about the events.

3                                   In her victim impact statement the complainant described the consequences of the abuse she suffered.  Her childhood and adolescent years were marred by feelings of shame, isolation, and low self-esteem.  These feelings stood in the way of her confiding in her family and thereby accentuated her stress.  She also experienced difficulties in her marriage, finding it difficult to be sexually intimate with her husband.  The birth of her son intensified her feelings of fear, confusion, and pain, as she found it difficult to change his diapers and toilet train him.  In 1995, with her husband’s support, she contacted the RCMP.  The indictment was filed over 20 years after the offences were committed.

4                                   The respondent, a widower, had four children and has resided in Bay de Verde his whole life, except for three years spent in the armed forces.   He had no criminal record and a good work record.  He was close to and had the support of his four children, whom he had provided for throughout their lives.  Letters from the mayor of Bay de Verde, a former postmaster and parish priest entered by consent at the sentencing hearing attested to his good character and reputation in the community.  The respondent acknowledged a problem with alcohol in the past, around the time the offences were committed, but had abstained from drinking for approximately 20 years.

5                                   The respondent was sentenced to a 21-month conditional sentence.  The Crown appealed, seeking a 21-month term of incarceration.  A majority of the Newfoundland Court of Appeal dismissed the appeal.  Cameron J.A. dissenting, would have ordered the respondent to serve the remainder of his sentence in prison.  The Crown sought leave to appeal to this Court.

II. Relevant Statutory Provisions

6                                   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.

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

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

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

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

III.   Judgments Below

A. Supreme Court of Newfoundland, Trial Division (1996), 146 Nfld. & P.E.I.R. 298

7                                   In his reasons for sentence, Mercer J. reviewed the various aggravating and mitigating circumstances in the case.  Aggravating factors were the victim’s age, the fact that the crimes were repeated, the harmful impact on the victim, and the abuse of a relationship of familial trust.  Mitigating factors were the absence of further criminal conduct and the respondent’s good reputation in the community.  He agreed with counsel that the appropriate length of sentence was between 18 and 24 months, and concluded that a sentence of 21 months’ imprisonment was appropriate.

8                                   Mercer J. then considered whether a conditional sentence should be imposed.  He was satisfied by the evidence at trial, the information contained in a pre-sentence report, and various letters of reference that there was no appreciable risk of criminal conduct by the offender if he served his sentence in the community.  Over a quarter of a century had passed since the offences occurred without any related criminal activity by the respondent, who had led a productive life.  Incarceration was, therefore, not needed for specific deterrence of the offender despite the absence of expressed remorse.

9                                   In determining whether to exercise the discretion to impose a conditional sentence, the trial judge also considered the principles of denunciation and general deterrence.  In that regard, he stated that the stigma of trial and conviction should not be minimized, and that a conditional sentence may indeed serve the purposes of denunciation and general deterrence if meaningful conditions are imposed and enforced.  He also found that a community service order was appropriate in this case.  The respondent was proficient in construction and had previously performed valuable volunteer work in the community utilizing that skill. 

10                               Accordingly, he ordered the respondent to serve a sentence of 21 months’ imprisonment, to be served in the community.  Aside from the mandatory statutory conditions imposed pursuant to s. 742.3(1)  of the Criminal Code , Mercer J. ordered that the respondent (1) abstain from the consumption of alcohol or drugs, (2) attend sex-offender counselling if required by his supervisor, (3) not associate with M.W. or her immediate family except at their request, (4) perform up to 150 hours of community service if so directed by his supervisor, and (5) remain under house arrest subject to specified exceptions.

B. Newfoundland Court of Appeal (1997), 155 Nfld. & P.E.I.R. 115

(1) Marshall J.A. for the majority

11                               Marshall J.A. (Green J.A. concurring) began by reviewing the principles governing the conditional sentencing regime.  He then turned to consider the Crown’s argument that sexual offences against children merit incarceration except in the rarest and most exceptional cases.  He found that the Crown’s argument failed on three fronts.  In the first place, the argument assumed that deterrence and denunciation could not be achieved through a conditional sentence, and reflected the traditional mind set that those objectives could only be achieved through incarceration in a jail.  That was not a tenable position, in his view.  As the trial judge observed, the denunciatory and general deterrent effect of a conditional sentence ought not to be underestimated.  Not only may the offender’s freedom be severely limited, but his continued presence in the community, detained at home and bearing the stigma of conviction, is calculated to serve as a daily deterrent to any like-minded person and to have real denunciatory consequences.  These effects may perhaps be considered all the more pronounced in the rural setting from which the respondent came. 

12                               The second weakness in the Crown’s argument was that it presupposed that nothing had really changed in the sentencing process.  Marshall J.A. said that it was a mistake to depict the new provisions as making no changes.  Part XXIII now contains the new option of conditional sentencing that was not part of the process before.  While the stance that deterrence and denunciation are prime considerations in child sexual abuse cases is still operative, the option of serving sentences in the community under strict conditions is now available in certain circumstances to give effect to those ends. 

13                               Finally, the Crown’s position was flawed insofar as it attempted to set up certain categories of offences whose gravity is such that they will never, or rarely ever, be punishable by a conditional sentence notwithstanding the length of imprisonment imposed.  As the trial judge underscored, however, this is a restriction that Parliament chose not to impose.  Marshall J.A. found that it was neither within the province of the courts to exempt certain categories of offences from the new conditional sentencing option, nor to impose more rigorous standards for its application to them, on grounds that the gravity of a given crime accentuates the imperatives of deterrence and denunciation to such a level that only incarceration in a penal institution will adequately address them.  The role of the courts, as directed by the legislation, was rather to examine the specific circumstances of each offence and offender, while screening them through the requirement that a conditional sentence be consistent with the principles of sentencing to determine if service of the sentence in the community can, nevertheless, be justified.

14                               Marshall J.A. found that appellate courts should not intervene to vary a sentence unless the sentence was clearly unreasonable.  The gist of the Crown’s challenge was that the trial judge did not place sufficient weight on the principles of denunciation and deterrence.  In this case, the trial judge exercised his discretion to impose a conditional sentence after a full and careful consideration of all factors and principles, including deterrence and denunciation.  Accordingly, there was no reason to vary the original sentence, and Marshall J.A. dismissed the appeal.

(2) Cameron J.A. (dissenting)

15                               Cameron J.A. began by reviewing the conditional sentencing provisions, and was in basic agreement with the majority’s approach to their interpretation.  She noted that Parliament did not exclude any offences from the conditional sentencing regime except those with a minimum term of imprisonment.  However, she found that the circumstances of a particular offence or offender may make conditional sentences inappropriate, and certain classes of offences are more likely to result in the circumstances which make conditional sentences inappropriate.

16                               In analysing the circumstances of this particular case, Cameron J.A. accepted that the safety of the community was not a concern, and that the factors of rehabilitation and specific deterrence did not require that the respondent serve his time in a prison.  The real issue, as she saw it, was whether retribution, denunciation and general deterrence could be adequately served by a conditional sentence with meaningful conditions.

17                               Cameron J.A. noted that the sexual assault of children is abhorrent to Canadian society and that society’s condemnation of such offences must be communicated in the clearest of terms since they involve a very high level of moral blameworthiness.  She disagreed with the trial judge’s finding that house arrest under a conditional sentence of imprisonment in this case could satisfy the objectives of denunciation and general deterrence, and properly address the offender’s moral blameworthiness.  Cameron J.A. stated that the sentence imposed by the trial judge was “so inadequate that it demands action by the Court of Appeal” (p. 148).  She referred specifically to the fact that the offence involved several incidents, a locked shed, a warning to be silent, a child victim, and an offender who was an older relative and a neighbour.  The nature of the crimes demanded the limitation on the liberty of the offender provided by service of the term in an institution.  She would have allowed the appeal in part, confirming the term of 21 months’ imprisonment but requiring that the balance of the sentence be served in prison.

IV.   Issue

18                               Since this Court has set out the principles governing the conditional sentencing regime in Proulx, supra, the sole issue in this appeal is whether the Newfoundland Court of Appeal erred in affirming the trial judge’s decision to impose a conditional sentence in this case.

V.  Analysis

19                               In Proulx, supra, at para. 123, this Court reiterated that the sentence imposed by a trial judge is entitled to considerable deference from appellate courts.  The Court reaffirmed its holding in R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 90, that

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.

The majority of the Court of Appeal, in applying this deferential standard of review, concluded that the sentence imposed by the trial judge was not demonstrably unfit and should therefore not be disturbed. 

20                               I agree.  Although the respondent committed terrible offences and did not express any remorse, the conditional sentence imposed by the trial judge was nevertheless within the acceptable range of sentences that could have been imposed in the circumstances.  I would add that in Proulx, this Court held, at para. 79, that a conditional sentence is available for all offences with no minimum sentence of imprisonment.  Gross indecency and indecent assault carry no minimum term.

21                               Mercer J.’s reasons were very thorough, taking into consideration all relevant sentencing principles, including denunciation and deterrence.  As this Court held in Proulx, supra, at paras. 102 and 107, a conditional sentence can provide significant denunciation and deterrence, particularly when onerous conditions are imposed.  In this case the respondent received a 21-month conditional sentence which included a condition of house arrest.  Commenting on the severity of this sentence, the majority of the Court of Appeal held, at p. 134:

It is no mean punishment for a person of previously unblemished reputation to bear the stigma of being confined to virtual house arrest, subject to restricted conditions of circulation within a community for a serious crime committed in his early adult years, all to the general knowledge of others in that community.  Neither may it be counted inconsequential for such a person to daily bear the shame of his guilt for that crime and of his loss of esteem before his fellow residents during his restricted ventures from his home.

22                               I would also note that the sentencing judge had the opportunity to observe the respondent and the victim at trial, and was presumably familiar with the conditions in the rural community of Bay de Verde, Newfoundland.  Accordingly, he was well positioned to assess the degree of denunciation and deterrence required in the circumstances and that would be provided by the conditional sentence he imposed.  His finding should not be interfered with lightly.

23                               Moreover, Mercer J. imposed conditions capable of achieving restorative objectives.  Two of the conditions were that the respondent attend sex offender counselling and perform up to 150 hours community service if so directed by his supervisor.  Despite the respondent’s lack of remorse, he agreed to comply with any order the court imposed.  Mercer J. also noted the respondent’s proficiency in construction and previous volunteer work using this skill.  In Proulx, supra, at para. 113, the Court held that “[w]here a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration”.  

24                               While there are aggravating circumstances in this case, in Proulx, supra, the Court stated “that a conditional sentence may be imposed even in circumstances where there are aggravating circumstances relating to the offence or the offender” (para. 115).  Mercer J. also pointed out an important mitigating factor, namely, that over a quarter of a century had passed since the offences occurred without any related criminal activity, and that the respondent had led a productive life.

25                               I note that Cameron J.A. dissented on the ground that the sentencing judge did not give the principles of denunciation and deterrence sufficient weight, and that a sentence of incarceration was necessary in the circumstances.  Were I a trial judge, I might well have agreed with Cameron J.A. and imposed a sentence of incarceration.  That said, as an appellate judge, deference must be given to the trial judge’s decision.  Mercer J. did not commit a reversible error in principle and thoroughly considered all appropriate factors.  Nor was the sentence demonstrably unfit.  Counsel for both parties agreed that the appropriate range of sentence was a term of imprisonment of 18 to 24 months.  A 21-month conditional sentence with restrictive conditions, to be served in the small rural community in which the respondent resided for offences which occurred over 25 years ago, when viewed in light of the fact that the respondent has since led a productive life without further criminal activity is not “clearly unreasonable”: see R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46.  Therefore, despite the fact that I might have imposed a sentence of incarceration, the sentence should not be disturbed.

VI.  Disposition

26                               For the foregoing reasons, I would dismiss the appeal.

The reasons of L’Heureux-Dubé, Gonthier, McLachlin and Bastarache JJ. were delivered by

27                            L’Heureux-Dubé J. (dissenting) -- The issue in this appeal is whether a conditional sentence of 21 months was a demonstrably unfit sentence in the case of a conviction on one count of indecent assault and one count of gross indecency for multiple incidents involving an adult male who forced fellatio and masturbation on a female child, his cousin, over a period of 5 to 6 years.

28                            While I agree with the law on the principles of sentencing as set out by the Chief Justice in the companion appeal of R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, I am unable to agree with the majority’s application of the law to the facts at hand.  For the reasons given by Cameron J.A. in dissent in the Newfoundland Court of Appeal in this case ((1997), 155 Nfld. & P.E.I.R. 115), I would allow the appeal on the basis that in deciding that a conditional sentence was appropriate, the trial judge overemphasized restorative objectives, while giving inordinately little weight to the principles of denunciation and general deterrence. 

29                                  Courts have tended, even under the new sentencing principles adopted in Bill C-41 (now S.C. 1995, c. 22), to find that the principle of denunciation weighs particularly heavily in cases of offences perpetrated against children by adults in positions of trust and authority.  See: R. v. Oliver (1997), 99 O.A.C. 234;  R. v. Alfred (1998), 122 C.C.C. (3d) 213 (Ont. C.A.);  R. v. D. (P.) (1999), 139 C.C.C. (3d) 274 (Ont. C.A.);  R. v. R.R.E., [1998] O.J. No. 2226 (QL) (Prov. Div.); R. v. P.M., [1999] O.J. No. 421 (QL) (Prov. Div.); R. v. I., [1998] O.J. No. 5713 (QL) (Gen. Div.); R. v. Cuthbert (1998), 101 B.C.A.C. 147.  While the trial judge stated that he considered principles of deterrence and denunciation in determining the sentence, in my view, the decision to impose a conditional sentence in this case indicates a serious failure to give appropriate weight to the objective of denunciation.

30                            I also agree with Cameron J.A. that the trial judge did not give sufficient weight to the moral blameworthiness of the offender, who engaged in offensive and demeaning behaviour with a young person over whom he had significant power as an older relative and neighbour, and who indicated no remorse even upon conviction for the offences.  This offends the proportionality principle set out in s. 718.1  of the Criminal Code, R.S.C., 1985, c. C-46 , which establishes the fundamental principle that the court must impose a sentence proportionate to the gravity of the offence and the degree of responsibility of the offender.

31                            Recognizing that there is no presumption in favour of incarceration for certain types of offences, I adopt the following comments of Cameron J.A., at p. 148:

. . . I do start from the premise that sexual assault of a child is a crime that is abhorrent to Canadian society and society’s condemnation of those who commit such offences must be communicated in the clearest of terms.  As to moral blameworthiness, the use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions.  The trial judge obviously concluded that “house arrest” with certain liberties would be sufficient to communicate society’s condemnation of the offender’s conduct in the case.  With the greatest respect for the opinion of the trial judge, I do not accept that the objectives of sentencing can be met in this case by a conditional sentence and, in my view, the sentence imposed is so inadequate that it demands action by the Court of Appeal. 

32                            I therefore find that Cameron J.A. was correct to hold that the conditional sentence imposed by the trial judge should not stand, even taking into account the deference owed to trial judges’ discretion in sentencing.  Cameron J.A. would have allowed the appeal and sentenced the offender to incarceration for the remainder of his 21-month sentence which, at the time of the appeal, was approximately 12 months.  While I find that this would have fallen within the range of appropriate sentences in factual circumstances such as these, I recognize that the offender has now served his 21-month conditional sentence in full.  It is therefore impossible to restore Cameron J.A.’s sentence on the terms she specified.  I recognize that it would also be very difficult for a trial judge to whom the case was now remanded to determine an appropriate equivalent.  Thus, I would allow the appeal but stay the passing of the sentence of incarceration.

Appeal dismissed on equal division, L’Heureux-Dubé, Gonthier, McLachlin and Bastarache JJ. dissenting.

Solicitor for the appellant:  The Department of Justice, St. John’s.

Solicitors for the respondent:  Simmonds, Kennedy, St. John’s.

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

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