R. v. Ryazanov et al. [Indexed as: R. v. Ryazanov]

92 O.R. (3d) 81

Court of Appeal for Ontario,

Laskin, Simmons and Epstein JJ.A.

October 2, 2008

Charter of Rights and Freedoms -- Fundamental justice -- Abuse of process -- Trial Crown at pre-trial conference giving undertaking not to appeal conditional sentence -- Accused pleading guilty and receiving conditional sentence -- Attorney General appealing -- Accused failing to show that permitting Attorney General to appeal amounting to abuse of process in violation of s. 7 of Charter -- Crown Attorney not able to divest Attorney General's statutory right to appeal -- Attorney General required to appeal to ensure administration of justice properly carried out given error in law in sentence imposed at trial -- Charter of Rights and Freedoms, s. 7.

Criminal law -- Appeals -- Crown at trial giving undertaking not to appeal conditional sentence in pre-trial conference -- Crown Attorney cannot divest Attorney General of statutory power to appeal from sentence -- Undertaking not constituting bar to Attorney General's appeal from conditional sentence.

Criminal law -- Sentence -- Conditional sentence -- Dangerous driving causing death -- Two young first offenders pleading guilty to dangerous driving causing death following fatal collision with taxi driver -- Accused driving at more than twice the speed limit for more than one kilometre over busy thoroughfare -- Trial judge imposing conditional sentence of two years less a day with house arrest for first year followed by two years' probation plus concurrent driving prohibition of four years -- Trial judge not failing to consider aggravated features of offence -- Conditional sentence not demonstrably unfit for offence but trial judge erring in failing to impose sufficiently punitive terms to reflect need for general deterrence and denunciation -- Conditional sentence affirmed on appeal but house arrest extended to full term and driving prohibition increased to seven years.

The accused drove at more than twice the speed limit for about a kilometre and a half on a busy thoroughfare, passing each other and at times leaving little space between each other. One of the accused crashed into a taxi, killing the driver. The accused were charged with criminal negligence causing death and dangerous driving causing death, and one accused was also charged with leaving the scene of an accident. At a pre-trial conference, Crown counsel gave an undertaking, approved by the Crown Attorney for the Region of Toronto, not to appeal a conditional sentence. After reviewing the agreed facts, the trial judge indicated that he would be prepared to impose conditional sentences. Each accused pleaded guilty to dangerous driving causing death, and the other charges were withdrawn. The accused were 18 years old at the time of the offence. They had no criminal records. Their pre-sentence reports were positive, and they were remorseful. In each case, the trial judge imposed a conditional sentence of two years less a day, with house arrest for the first year and a curfew thereafter, followed by two years' probation, plus a four-year driving prohibition. The Attorney General appealed.

Held, the appeal should be allowed. [page82 ]

The undertaking by Crown counsel not to appeal did not constitute a bar to the appeal. The Attorney General's power to appeal is statutory in nature, and the Crown Attorney's office cannot divest the Attorney General of that power. Granting leave to appeal would not amount to an abuse of process in violation of s. 7 of the Canadian Charter of Rights and Freedoms. It was clear that the plea bargain was not dependent on the Crown's undertaking not to appeal if conditional sentences were imposed. Defence counsel knew of the Crown's position that a significant term of incarceration was appropriate, and were presumably aware of the power of appeal vested in the Attorney General by statute and of the case law establishing that Crown counsel cannot divest the Attorney General of that power. While granting leave to appeal might appear unfair, it was not so unfair as to be contrary to the interests of justice, and would not violate the conscience of the community. On the contrary, the error in the sentences imposed was of such a nature as to require the Attorney General to appeal to ensure that the administration of justice was fairly and properly carried out.

The trial judge did not err in principle in imposing conditional sentences. The Crown failed to prove beyond a reasonable doubt that the accused were racing. In any event, the trial judge took into account the fact that the accused were travelling at speeds of more than two times the legal limit, while switching from one lane to another. It was not important to assign a label to the conduct in question in order to determine the appropriate sentence. However, the trial judge erred by failing to impose sufficiently punitive terms of the conditional sentence to reflect the principles of general deterrence and denunciation. Leave to appeal is granted to the Attorney General, the house arrest condition is extended to the full term of the sentence and the driving prohibition is extended to seven years.

APPEAL from sentences imposed by John C. Moore J., dated May 29, 2007, for dangerous driving causing death.

Cases referred to R. v. Dubien, [1982] O.J. No. 60, 67 C.C.C. (2d) 341, 27 C.R. (3d) 378 (C.A.), apld Other cases referred to R. v. Burcham, [1987] O.J. No. 963, 23 O.A.C. 21, 7 M.V.R. (2d) 112, 3 W.C.B. (2d) 120 (C.A.); R. v. Gardiner, [1982] 2 S.C.R. 368, [1982] S.C.J. No. 71, 140 D.L.R. (3d) 612, 43 N.R. 361, J.E. 82-824, 68 C.C.C. (2d) 477, 30 C.R. (3d) 289, 8 W.C.B. 128; R. v. Khosa, [2003] B.C.J. No. 2695, 2003 BCCA 645, 190 B.C.A.C. 42, 180 C.C.C. (3d) 225, 61 W.C.B. (2d) 500 [Leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 38]; R. v. M. (C.A.), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, 194 N.R. 321, J.E. 96-671, 73 B.C.A.C. 81, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269, 30 W.C.B. (2d) 200; R. v. M. (L.), [2008] S.C.J. No. 31, 2008 SCC 31, EYB 2008-133843, J.E. 2008-1117, 77 W.C.B. (2d) 463, 374 N.R. 351, 231 C.C.C. (3d) 310, 293 D.L.R. (4th) 1, 56 C.R. (6th) 278; R. v. Menezes, [2002] O.J. No. 551, [2002] O.T.C. 118, 50 C.R. (5th) 343, 23 M.V.R. (4th) 185, 53 W.C.B. (2d) 49 (S.C.J.); R. v. O'Connor, [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, J.E. 96-64, 68 B.C.A.C. 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, 33 C.R.R. (2d) 1; R. v. Power, [1994] 1 S.C.R. 601, [1994] S.C.J. No. 29, 165 N.R. 241, J.E. 94-649, 117 Nfld. & P.E.I.R. 269, 89 C.C.C. (3d) 1, 29 C.R. (4th) 1, 2 M.V.R. (3d) 161, 23 W.C.B. (2d) 194; R. v. Proulx, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, 2000 SCC 5, 182 D.L.R. (4th) 1, 249 N.R. 201, [2000] 4 W.W.R. 21, J.E. 2000-264, 142 Man. R. (2d) 161, 140 C.C.C. (3d) 449, 30 C.R. (5th) 1, 49 M.V.R. (3d) 163, 44 W.C.B. (2d) 479 Statutes referred to Canadian Charter of Rights and Freedoms, s. 7 Criminal Code, R.S.C. 1985, c. C-46, ss. 676(1)(d) [as am.], 718 [as am.], 724(3)(e) [as am.], 742.1 [as am.], 742.3(1) [as am.] [page83 ] Authorities referred to Martin, Arthur G., Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (Toronto: A.G. Ontario, 1993)

Brian H. Greenspan and Seth P. Weinstein, for respondent Wang-Piao Dumani Ross. Edward L. Greenspan, Q.C., and David Tice, for respondent Alexander Ryazonov. R.W. Hubbard and Matthew Asma, for appellant.

The judgment of the court was delivered by

EPSTEIN J.A.: --

I. Introduction

[1] This appeal, brought on behalf of the Attorney General, concerns the conditional sentences imposed upon the respondents, Alexander Ryazanov and Wang-Piao Dumani Ross, after each pleaded guilty to the charge of dangerous driving causing death.

[2] The respondents were travelling north on Mount Pleasant Road in the City of Toronto at excessive rates of speed on a January evening in 2006. One of their vehicles crashed into Tahir Khan, a taxi driver attempting a left-hand turn onto Whitehall Road. Mr. Khan died at the scene.

[3] Each respondent was sentenced to serve a conditional sentence of two years less a day, followed by two years' probation, plus a concurrent driving prohibition of four years. In addition to the statutory terms, the sentences included a period of house arrest for the first year, followed by a curfew for the second year and 150 hours of community service work. The appellant has urged this court to overturn the conditional sentences, arguing that a period of incarceration was warranted in this case.

[4] For the reasons that follow, I would allow the appeal by varying the terms of the conditional sentences to require house arrest for both years and to increase the length of the driving prohibition to seven years.

II. Background Facts

(1) The offences

[5] The following is a summary of the agreed statement of facts that, together with the guilty pleas, supported the convictions. [page84 ]

[6] The fatal collision occurred just after 10:00 p.m. on January 24, 2006. The respondents, each driving Mercedes-Benz automobiles, were on their way to Mr. Ryazanov's house. They chose a route that took them northbound on Mount Pleasant Road, a major four-lane north-south thoroughfare in Toronto with numerous curves and grades. The posted speed limit is 60 kilometres per hour.

[7] A number of witnesses observed the respondents over a distance of approximately one and a half kilometres as they drove north on Mount Pleasant Road from Bloor Street to where the collision took place. The vehicles were observed travelling at estimated speeds varying from 80 to 140 kilometres per hour. They were described as passing each other, at times leaving little space between them.

[8] As the respondents were driving northbound on Mount Pleasant, the victim was driving southbound. Mr. Khan stopped at the intersection of Mount Pleasant and Whitehall to turn left. The intersection is controlled by a flashing amber light. Mr. Khan, moving about 20 kilometres per hour, was part way through the turn when Mr. Ryazanov's car crashed into the right hand side of his taxi. It was estimated that Mr. Ryazanov was travelling at about 119 kilometres per hour at the moment of impact.

[9] The momentum of the impact forced Mr. Khan's car north over the raised concrete curb and left the driver's side wrapped around a utility pole.

[10] Mr. Ross had been following right behind Mr. Ryazanov. He manoeuvred his car through the cloud of debris and continued northbound for about 700 metres further. After parking, Mr. Ross, and a friend who was travelling with him, walked back to the crash site.

[11] The respondents were each charged with criminal negligence causing death and dangerous driving causing death. Mr. Ross was also charged with leaving the scene of an accident.

[12] Tahir Khan had come to Toronto from a village in Pakistan to create a better life for his family. He worked as a taxi driver to support his extended family, who all remained in Pakistan. He was hard-working and much loved by his family. Mr. Khan's death has caused the family horrific personal loss.

[13] After arrest, the respondents spent one week in jail following which they were released on bail under their parents' supervision. Their bail terms, which included a driving prohibition, remained in place until sentencing -- a period of 16 months.

[14] At the time of the accident the respondents were both 18 years old and had just completed high school. Neither had a criminal record. At the time of sentencing, both were university [page85 ]students. Neither had a history of drug or alcohol abuse. Both respondents were supported by stable families, had expressed remorse and accepted full responsibility for their actions.

(2) The sentencing

[15] Each respondent pleaded guilty to dangerous driving causing death. The Crown withdrew the other charges.

(i) The submissions of counsel

[16] Counsel for the respondents argued in favour of conditional sentences of two years less a day, plus probation. The proposed terms of the conditional sentences included nine months of house arrest and a driving prohibition of one year after the completion of the conditional sentences.

[17] The respondents submitted that conditional sentences were appropriate in light of their guilty pleas and being youthful first offenders with positive pre-sentence reports. The criminal conduct was characterized as a "mistaken decision to drive fast". It was argued that there was no racing -- no crazy driving, apart from speed.

[18] The Crown argued in favour of penitentiary sentences of three years and driving prohibitions of significant length. The Crown asked the court to find that the respondents' conduct was more than just speeding and in fact constituted racing. The Crown described the nature of the conduct as follows:

My friends have said there was not racing, but in the agreed statement of fact that was read in, the witnesses estimated that, "Two vehicles were travelling at speeds varying from 80 kilometres an hour to 130, to 140 kilometres an hour. They were passing cars in the roadway, at the time leaving little space between them, veering from a couple of car lengths to a few feet. There were instances where they were both in separate lanes going at a high rate of speed. All witnesses saw the cars for only a few seconds at a time."

I think it's just a matter of semantics, Your Honour. That is racing in my respectful submission. It's more than just speed, and I'd ask Your Honour to accept that.

[19] In consideration of the nature of the conduct and its catastrophic consequences, the Crown submitted that the principles of denunciation and general deterrence demanded a custodial term.

[20] In the alternative, the Crown argued that if conditional sentences were imposed, the sentences should include terms amounting to house arrest for at least one year, significant community service and a driving prohibition of seven to eight years. [page86 ]

(ii) The reasons for sentence

[21] For sentencing purposes, the sentencing judge treated the respondents identically in all relevant respects.

[22] The sentencing judge accepted as mitigating the respondents' expressed remorse, their pleas of guilty and their youthful first offender status. He noted their positive pre- sentence reports and that there was no suggestion that drugs or alcohol were involved. Further, the media and stigma to which each respondent had been subject was regarded as a relevant consideration.

[23] The sentencing judge considered the following as aggravating factors: the respondents' conduct resulted in the death of an innocent, hard-working family man; the respondents were travelling at speeds of more than two times the legal limit on a major Toronto thoroughfare; the nature of the driving covered a distance of at least one and a half kilometres; and the respondents freely and voluntarily engaged in wrongful conduct with absolutely no justification.

[24] The sentencing judge held that it was excessive speed and bad judgment that resulted in the death of Mr. Khan. He stated that the Crown was not relying on evidence of racing.

[25] Based upon the case law before him, the sentencing judge concluded that there was no set range of sentence for this type of offence. He further concluded that the principles of deterrence and denunciation could be addressed within the framework of conditional sentences.

[26] The respondents were each sentenced to serve a conditional sentence of two years less a day, on the following terms: (a) The statutory terms under s. 742.3(1) [of the Criminal Code, R.S.C. 1985, c. C-46]; (b) the first 12 months under house arrest, with exceptions for work, school, religious observance, and medical and legal appointments; (c) the last 12 months under curfew, requiring the respondents to be at home between 11:00 p.m. and 6:00 a.m., with exceptions for employment, or while in the company of a parent, or with the prior written approval of a parent; (d) perform 150 hours of community service; (e) take counselling as required; (f) not to drive a motor vehicle. [page87 ] Further, two years' probation was imposed, the main condition being a driving prohibition. There was also a separate driving prohibition order for four years, concurrent to the conditional sentence and probation orders.

(iii) The Crown undertaking not to appeal

[27] The Attorney General brought this appeal notwithstanding that, prior to sentencing, the Crown Attorney's office undertook that an appeal against sentence would not be pursued if conditional sentences were to be imposed.

[28] The following is a summary of the agreed statement of facts detailing discussions between the Assistant Crown Attorney who had carriage of this matter, defence counsel and the sentencing judge, which occurred prior to the guilty pleas.

[29] On March 19, 2007, the respondents attended at the Ontario Court of Justice for the start of the preliminary hearing. Prior to the commencement of the proceedings, the Crown and defence counsel discussed the possibility of resolving the matter on the basis of guilty pleas to dangerous driving causing death, rather than criminal negligence causing death. Crown counsel expressed a willingness to consult with Paul Culver, the Crown Attorney for the Region of Toronto, to see if he would sanction such a resolution.

[30] The commencement of the preliminary hearing was adjourned to the following day. The Crown and counsel for Mr. Ryazanov continued to discuss the possible guilty pleas and the corresponding positions with respect to sentence. The Crown indicated that even if she were able to agree to a plea of dangerous driving causing death, she would seek a penitentiary term of three years. Counsel for Mr. Ryazanov made it clear that he would ask for a conditional sentence. In the course of this exchange, counsel for Mr. Ryazanov proposed that the matter be pre-tried with the judge presiding at the preliminary hearing, who later became the sentencing judge. Counsel for Mr. Ryazanov asked the Crown to consider giving an undertaking not to appeal should the presiding judge see fit to impose a conditional sentence.

[31] The Crown indicated that she would have to seek approval from Mr. Culver about the proposed undertaking.

[32] On the morning of March 20, 2007, the Crown advised defence counsel that she was prepared to accept pleas to dangerous driving causing death and pre-try the matter with the preliminary hearing judge. When court commenced, all counsel requested that they meet with the preliminary hearing judge in chambers. During the in-chambers discussions, counsel outlined the general facts and their positions as to sentence. The judge asked if the Crown would appeal a conditional sentence should [page88 ]one be imposed. Crown counsel indicated that the Crown would not appeal and that Mr. Culver had approved this position.

[33] The issue of the nature of the sentence the judge was considering was left unresolved pending the preparation of the agreed statement of facts that would support the guilty pleas.

[34] Counsel and the officer in charge of the case revised the draft facts in consultation with the respondents and their families. An agreement was reached as to the wording of the underlying facts.

[35] Later that day, counsel again met in chambers with the judge and presented him with the agreed facts. During this discussion, at the judge's request, the Crown and defence confirmed their positions as to sentence. Crown counsel confirmed that the Crown would not appeal if conditional sentences were imposed.

[36] The judge then indicated that he would be prepared to impose conditional sentences.

[37] It was against this background that in the afternoon on March 20, 2007, both respondents pleaded guilty to dangerous driving causing death. Charges of criminal negligence causing death against both respondents, and the charge of failing to remain at the scene against Mr. Ross, were withdrawn.

[38] The Crown read in the agreed statement of facts. The judge ordered that pre-sentence reports be prepared with respect to both respondents and the matter was adjourned to May 11, 2007 for sentencing submissions.

III. Issues

[39] Three issues present themselves for determination. The first issue, raised by the respondents, concerns the effect of the Crown undertaking: (1) Does the Crown undertaking bar this appeal? The second two issues are the grounds of appeal advanced by the appellant: (2) Did the sentencing judge err in principle? (3) Were the sentences imposed demonstrably unfit?

IV. Analysis

(1) Does the Crown undertaking bar this appeal?

[40] The respondents contend that the Crown undertaking should act as an absolute bar to this appeal and that this court should refuse to grant leave. It is argued that to permit the [page89 ]Crown's repudiation from the express assurance that the sentences would not be appealed would amount to an abuse of process in violation of s. 7 of the Canadian Charter of Rights and Freedoms and would undermine the integrity of the judicial pre-trial and resolution process.

[41] The appellant acknowledges that this appeal was advanced notwithstanding that, prior to sentencing, the Crown Attorney's office undertook that no appeal would be pursued. The appellant submits, however, that the undertaking does not preclude the Attorney General from appealing.

[42] In my view, the sentence appeal is within the Attorney General's statutory power. The Crown Attorney's office cannot divest the Attorney General of this power, for the following reasons: (i) The power of the Attorney General to appeal is statutory in nature; (ii) case law establishes that Crown counsel cannot divest the Attorney General of this statutory power of appeal; and (iii) the respondents failed to establish that granting leave to appeal would amount to an abuse of process in violation of s. 7 of the Charter.

(i) The power of the Attorney General to appeal is statutory in nature

[43] The Attorney General's power to appeal and seek leave to appeal in criminal matters is a right conferred by Parliament under the Criminal Code. The Attorney General's power to seek leave to appeal a sentence in indictable matters is conferred under s. 676(1)(d). This power is vested in "[t]he Attorney General or counsel instructed by him for the purpose". Parliament has not vested the Crown's trial counsel with the authority to decide whether or not to appeal, nor has this power been delegated by the Attorney General to the Crown's trial counsel. The explicit policy of the Ministry of the Attorney General delegates the authority to launch appeals in indictable matters to only the Director of the Crown Law Office -- Criminal, or his/her designate.

(ii) Case law establishes that Crown counsel cannot divest the Attorney General of this statutory power of appeal

[44] The proposition that the Crown's trial counsel cannot bind the Attorney General's statutory discretion to appeal was accepted by this court in R. v. Dubien, [1982] O.J. No. 60, 67 C.C.C. (2d) 341 (C.A.). [page90 ]In that case, the Crown undertook that if the sentences proposed by the pre-trial judge were imposed, the Crown Attorney's office would not recommend an appeal. The Crown made it clear that he could not and was not purporting to bind the Attorney General on the question of whether an appeal from sentence should be taken. However, the matter came to the Attorney General's attention independently of the Crown Attorney's office and an appeal against sentence was launched. The respondent argued that the Attorney General was "estopped" from appealing due to the Crown's undertaking. This court held that Crown counsel could not bind the Attorney General's exercise of authority to decide whether an appeal should or should not be taken. Significantly, the court went on to hold as follows, at p. 346 C.C.C.:

Even if [the trial Crown] had not "conditioned" his understanding [by the explicit caveat that the Attorney General cannot be bound by the trial Crown's undertaking], counsel for the Crown could not take away the discretion vested in the Attorney General to determine whether an appeal should or should not be taken or the obligation imposed on this Court to consider the fitness of the sentences when the matter is before us.

[45] It is clear that the relationship between Crown Attorneys and the Attorney General differs from the law of agency in other contexts where the agent's acts may bind the principal. I agree with the comments included in the "Martin Report" (Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (Toronto: A.G. Ontario, 1993)), at p. 331, that the relationship between the Attorney General and his or her agents involves more than simple principles of agency:

It involves the pre-eminent social value of administering criminal justice in furtherance of the public interest, which the Attorney General must accomplish as a matter of duty. Therefore, when principles of agency and the public interest in administering criminal justice collide, the latter must prevail.

[46] As will become clear later in these reasons, the sentences imposed in this case are of a nature such as to require the Attorney General, in the discharge of his or her duty, to appeal the sentences to ensure that the administration of justice is fairly and properly carried out.

[47] I reject the respondents' argument that to permit the Crown to appeal in these circumstances would lead to a collapse of the plea bargaining system. The same in terrorem argument was advanced and rejected by this court in Dubien. In the 26 years since Dubien was decided, the plea bargaining system has not collapsed and judicial pre-trials have continued to be a productive part of the criminal trial process. [page91 ]

[48] Further, I note that the Crown Attorneys involved did not purport to bind the discretion of the Attorney General. In this sense, there was no true repudiation of a pre-trial agreement.

[49] It may be helpful to make one additional comment regarding the Attorney General's discretion to appeal. Given that under the current state of the law there is no ability to insulate a decision from appellate review, it is unwise for either counsel or the trial judge to enter into discussions that contemplate an agreement to restrict the appeal rights of either side. Resolution discussions should focus upon resolving matters at the trial level in a manner that is warranted in the particular circumstances. It is the independent duty of the Attorney General to ensure that trial matters have been resolved in a manner that is fair and just.

(iii) The respondents failed to establish that granting leave to appeal would amount to an abuse of process in violation of [s. 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec7_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[50] The respondents argue that to allow this appeal to proceed would amount to an abuse of process, in violation of s. 7 of the Charter. This argument falls short of establishing a constitutional violation sufficient to remove the discretion vested by Parliament in the Attorney General to launch an appeal in this case.

[51] The Supreme Court of Canada has held that abuse of process is found only in the "clearest of cases" where there is "overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice": see, e.g., R. v. O'Connor, [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 103 C.C.C. (3d) 1, at pp. 615-16 S.C.R., p. 38 C.C.C.; R. v. Power, [1994] 1 S.C.R. 601, [1994] S.C.J. No. 29, 89 C.C.C. (3d) 1, at pp. 615-16 S.C.R., p. 10 C.C.C. In this case, affidavits sworn by each of the respondents' trial counsel were submitted as fresh evidence. Both state that "[i]n light of Justice Moore's indication that he would impose a conditional sentence and the Crown's assurance that there would be no appeal, my client provided me final instructions that he wished to proceed with a plea of guilty to dangerous driving causing death".

[52] The circumstances here fall far short of establishing abuse of process. First, on a fair reading of this record, it is clear that the plea agreement was not dependent on the Crown's undertaking not to appeal if conditional sentences were imposed. The affidavits filed by experienced trial counsel for the respondents do not suggest that the instructions to plead guilty would not have been given but for the Crown's undertaking.

[53] Second, any purported reliance by the respondents upon the Crown's assurance that there would not be an appeal must be tempered by the following considerations: counsel for the [page92 ]respondents knew of the Crown's position that a significant term of incarceration was appropriate in this case; the Crown Attorneys involved did not purport to bind the right of the Attorney General to appeal the sentences imposed; and it should be assumed that respondents' counsel were aware of the power vested by Parliament in the Attorney General and of this court's affirmation of that power in Dubien.

[54] Thus, while I accept that granting leave to appeal could appear unfair, it does not amount to a level of unfairness that is contrary to the interests of justice. Granting leave to appeal would not violate the conscience of the community: see R. v. Power, at pp. 615-16 S.C.R., p. 10 C.C.C. On the contrary, as I have mentioned, the error in the sentences imposed is of a nature such as to require the Attorney General to appeal to ensure that the administration of justice is fairly and properly carried out.

[55] Leave to appeal is granted. The sentence appeal must be considered on its merits.

(2) Did the sentencing judge err in principle?

[56] The Supreme Court of Canada has recently affirmed that appellate courts must show considerable deference in reviewing decisions of trial judges where appeals against sentence are concerned: see R. v. M. (L.), 2008 SCC 31, [2008] S.C.J. No. 31, 231 C.C.C. (3d) 310. At para. 14, the court stated the principle of deference, in reference to R. v. M. (C.A.), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, 105 C.C.C. (3d) 327, as follows:

[A]bsent 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.

[57] The appellant argues that the sentencing judge erred in principle by failing to properly consider two aggravating factors as follows: (i) the sentencing judge failed to properly address the respondents' sober, conscious choices to drive dangerously; and (ii) the sentencing judge failed to properly address racing.

(i) Did the sentencing judge fail to properly address the respondents' conscious, sober choices to drive dangerously as aggravating?

[58] The appellant submits that the sentencing judge erred in failing to consider the absence of alcohol as an aggravating factor. In other words, the fact that the conduct was soberly contemplated should have been seen as increasing the moral culpability of the offenders as much as if alcohol had been involved: see R. v. Burcham, [1987] O.J. No. 963, 23 O.A.C. 21 (C.A.), at para. 21. [page93 ]

[59] The offender's mental state is a factor that must be considered by the sentencing judge in crafting a fit sentence. However, I do not accept the appellant's argument that the manner in which the sentencing judge dealt with this issue constituted an error in principle. In his reasons, it is clear that he treated the respondents' sober, conscious choice to drive dangerously as aggravating. It was acknowledged that the dangerous driving was not due to a momentary lapse in judgment. The sentencing judge found that there was "absolutely no justification" for the respondents' behaviour and further, that they "freely and voluntarily engaged in this obviously wrong conduct". The weight to be attached to this factor was for the sentencing judge to determine.

(ii) Did the sentencing judge fail to properly address racing as an aggravating factor?

[60] The appellant argues that the sentencing judge erred in principle by failing to consider whether the respondents were racing. In turn, the appellant argues that the sentencing judge erred by failing to find that their conduct amounted to racing, which should have been treated as an aggravating factor. The respondents argue that, although the sentencing judge stated that the Crown was not relying on evidence of racing, he properly considered the details contained in the agreed statement of facts in support of the Crown's claim of racing.

(a) Did the sentencing judge err by failing to consider whether the respondents were racing?

[61] The sentencing judge was obliged to consider the evidence set out in the agreed statement of facts in support of the Crown's claim of racing. Even though the sentencing judge mistakenly stated that the Crown was not relying on evidence of racing, he nonetheless gave proper consideration to the facts that could support the Crown's contention. He acknowledged that the respondents were travelling at speeds of more than two times the legal limit, while switching from one lane to another and that this conduct continued over a distance of one and a half kilometres. I am satisfied that the sentencing judge considered the factors that the Crown argued amounted to racing, although in his reasons he did not individually list each aspect of the respondents' driving behaviour.

(b) Did the sentencing judge err by failing to conclude that the respondents were racing?

[62] First, it may be helpful to consider the procedure at sentencing where the Crown seeks to rely upon a disputed aggravating factor. [page94 ]

[63] Where, following a guilty plea, there remains a dispute with respect to a factor upon which the Crown wishes to rely as aggravating, the onus lies on the Crown to prove the aggravating facts beyond a reasonable doubt: see s. 724(3)(e) of the Criminal Code; see also R. v. Gardiner, [1982] 2 S.C.R. 368, [1982] S.C.J. No. 71, 68 C.C.C. (2d) 477. This generally involves a formal hearing where the Crown calls evidence to prove the aggravating factor in dispute.

[64] In the circumstances of this case, I would not interfere with the sentencing judge's refusal to assign the racing label. "Racing" is not defined in the Criminal Code. In R. v. Menezes, [2002] O.J. No. 551, 50 C.R. (5th) 343 (S.C.J.), at para. 83, Hill J. offered a common-sense definition as follows:

[T]he synchronized or in-tandem movements of two motor vehicles marked by high speed and close proximity over a material distance, often accompanied by abrupt lane changes, blocking, or bold manoeuvres in and out of traffic, amounts to racing behaviour even though all the trappings of a drag race may not be present.

[65] Here, the sentencing judge had only the agreed statement of facts to assist on the issue of whether the respondents were racing. The two vehicles were described as speeding and passing on the roadway at times leaving little distance between them. There were instances when they were both in separate lanes going at a high rate of speed in the same direction. The agreed statement of facts did not include a statement that the respondents were attempting to out-distance each other or that they were preventing each other from passing. There was no mention of abrupt lane changes or bold manoeuvring consistent with racing behaviour. In the circumstances, the agreed statement of facts did not support an inference of racing on the standard of proof beyond a reasonable doubt.

[66] In any event, I do not regard it as important to assign a label to the respondents' conduct in order to determine the appropriate sentence. I agree with the comments, at para. 27 in R. v. Khosa, [2003] B.C.J. No. 2695, 180 C.C.C. (3d) 225 (C.A.), leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 38, that "[i]t is more important to focus on the particulars of the offence and the offenders rather than to rely simply on the label 'street race' to determine how to sentence the respondents". That is precisely what the sentencing judge did in this case. While he found that the cause of the accident was a combination of speed and bad judgment, he also acknowledged the features of the respondents' driving that made it "dangerous", features that were properly acknowledged as aggravating.

[67] I see no error in principle in the sentencing judge's reasons. [page95 ]

(3) Were the sentences imposed demonstrably unfit?

[68] The appellant submits that, in any event, the sentences imposed were demonstrably unfit. While acknowledging that the sentences are within the established range, the appellant argues that the current range is inadequate to address the paramount sentencing objectives of denunciation and general deterrence appropriate to the circumstances here. Simply put, in dangerous driving offences causing death, a period of incarceration should be the norm.

[69] The respondents submit that the conditional sentences imposed were fit and reasonable. Further, the respondents argue against the imposition of a judicially created presumption against conditional sentences in dangerous driving cases. It is submitted that the offence of dangerous driving causing death can occur in such a variety of different circumstances that the appropriate sentence can only be determined by examining the individual features of each case.

[70] In considering the appellant's request to re-evaluate the current range for dangerous driving causing death cases, I am cognizant of the Supreme Court of Canada's observation in R. v. Proulx, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, 140 C.C.C. (3d) 449, at para. 79, that "a conditional sentence is available in principle for all offences in which the statutory prerequisites are satisfied" (emphasis added), namely, (i) there is no minimum term of imprisonment; (ii) the appropriate sentence is less than two years; and (iii) the safety of the community would not be endangered by the offender serving the sentence in the community: see Criminal Code, s. 742.1.

[71] In this case, each statutory prerequisite is met, and thus a conditional sentence is available in principle. However, this conclusion does not end the inquiry. Where the statutory prerequisites are satisfied, a conditional sentence may be imposed only if it is consistent with the fundamental purposes and principles of sentencing as set out in s. 718 of the Criminal Code.

[72] Where, as here, two young men made a conscious decision to drive in a dangerous fashion and caused the death of an innocent member of our community, the sentencing objectives of denunciation and general deterrence must be paramount. I agree with the sentencing judge's view that, in this case, these objectives can be addressed within the framework of conditional sentences. However, the problem lies in the conditions of the sentences imposed and the length of the driving prohibitions.

[73] The conditions imposed, particularly in the second half of the sentences, amount to merely being grounded without driving [page96 ]privileges. The respondents continue to go to school and work. Now that the first year is over, they have complete freedom during the day and can even go out after curfew with a parent's note.

[74] Conditions such as these fall far short of communicating denunciation and general deterrence in sufficiently strong and clear terms. Moreover, the circumstances of this case require the added deterrent effect of significant driving prohibitions to support the imposition of conditional sentences. The sentences imposed, therefore, are not fit and call for this court's intervention.

(4) Variation of the sentences

[75] Conditional sentences should be punitive. As the Supreme Court of Canada stated in R. v. Proulx, at para. 117: "[P] unitive conditions such as house arrest should be the norm, not the exception." In my view, that comment applies throughout the duration of a conditional sentence. Therefore, the house arrest conditions should be extended to the full term of the respondents' conditional sentences.

[76] Turning to the driving prohibition, it is driving that is at the core of this case. When young people are granted the privilege of driving they take on a grave responsibility. When that privilege is abused through irresponsible conduct -- in this case conduct that took a man's life -- the loss of the privilege must be felt, both by the perpetrators and by others who would engage in similar conduct.

[77] Given that the sentencing judge chose to impose conditional sentences, it was necessary that he combine those sentences with sufficiently lengthy driving prohibitions to convey the message that conduct similar to that which occurred in this case will not be tolerated.

[78] In my view, the driving prohibition should be extended from four years to seven years. A driving prohibition that extends a further three years after the respondents complete their conditional sentences and probation would, it is hoped, have a meaningful impact, particularly in terms of general deterrence.

V. Disposition

[79] Leave to appeal is granted. The appeal is allowed through the variation of the conditional sentences. The respondents shall serve the remaining term of the conditional sentences under the house arrest terms originally limited to the first year of each sentence. Further, each driving prohibition is increased to seven years.

Appeal allowed.