R. v. Dutrisac, 2009 ONCA 283
COURT OF APPEAL FOR ONTARIO
Goudge, Cronk and LaForme JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Patrick Dutrisac
Appellant
Robin McKechney, for the appellant
Alexandra Campbell, for the Crown
Heard and endorsed orally: March 27, 2009
On appeal from the sentence imposed by Justice P. Kane of the Superior Court of Justice dated June 6, 2008.
APPEAL BOOK ENDORSEMENT
1The appellant argues that the sentencing judge erred in principle by not properly considering the suitability of a conditional sentence in the circumstances of this case. The Crown submits that the trial judge committed no error in considering and rejecting a conditional sentence for the appellant. Indeed, it says that in fact the trial judge was loath to impose a conditional sentence but determined that the principles of sentencing required him to do so.
2In general, this, in our view, is where the trial judge begins to fall into error. That is, he was not required to impose a custodial sentence. Rather, he was entitled to also consider and impose a conditional sentence if it was appropriate.
3In fashioning his sentence, the trial judge relied on the sentencing objectives of general deterrence and denunciation to conclude that in the circumstances of this case only a period of incarceration could satisfy these objectives.
4The trial judge incorrectly concluded that he had no other option therefore than to impose a period of incarceration. Contrary to the trial judge’s view, the Supreme Court of Canada in R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 makes it clear that a conditional sentence, when properly fashioned, can indeed meet these sentencing objectives. The trial judge therefore was not bound to sentence the appellant to incarceration.
5As well, it is of significance that the appellant’s co-accused, who also pleaded guilty to these same offences before another trial judge, was sentenced to an 18-month conditional sentence. While both the appellant and the co-accused were described as being equally culpable, the co-accused had a previous criminal record.
6Finally, in our view, it is clear on the reasons of the trial judge that he based his decision to reject a conditional sentence entirely on the aggravating factors of the offences. In doing so, especially in light of the fact that the appellant is a youthful first-time offender, he ran afoul of the principles recognized in Proulx (supra) at para. 115 and this court’s decision in Regina v. Kutsukake (2006), 213 C.C.C. (3d) at p. 80.
7In light of these considerations, the sentence imposed must be set aside. In its place we would substitute a conditional sentence of 18 months.