Her Majesty the Queen v. Batisse [Indexed as: R. v. Batisse]
93 O.R. (3d) 643
Court of Appeal for Ontario,
Laskin, Gillese and Blair JJ.A.
February 5, 2009
Criminal law -- Sentencing -- Child abduction -- Aboriginal accused pleading guilty to one count of abducting person under 14 after taking child from hospital as substitute for stillborn child -- Accused suffering from depression at time of offence and mental health problems playing central role in commission of offence -- Accused's appeal from sentence of five years' imprisonment in addition to 23 days' time served allowed -- Sentencing judge properly determining that penitentiary sentence was required but failing to impose the lowest sentence that was adequate in circumstances in light of accused's Aboriginal status, past victimization and mental health issues -- Sentence varied to two and a half years' imprisonment in addition to time served.
The accused, a 30-year-old Aboriginal woman, pleaded guilty to one count of abducting a person under 14. At the time of the offence, she was living with a supportive man, but feared that her relationship with him would be jeopardized if he knew that their child was stillborn as a result of a vicious beating by three individuals. She convinced her boyfriend that she was still pregnant and formed a plan of going to the hospital alone, ostensibly to have the baby, dressing as a health care worker, abducting a newborn baby at the hospital and passing it off as her own. The child was found after seven hours and was unharmed. The accused had no criminal record, and had a tragic background filled with abuse as a child and at the hands of prior partners. She entered a guilty plea three weeks after the offence. The trial judge imposed a sentence of five years' imprisonment in addition to time served of 23 days. The accused appealed.
Held, the appeal should be allowed.
Per Gillese J.A. (Laskin J.A. concurring): The sentencing judge accepted that the accused was suffering from depression at the time of the offence and that the depression, along with a personality disorder, led to her committing the offence. He properly found that, given the extremely serious nature of the offence, a conditional sentence was not available as a term of incarceration greater than two years less a day was called for. However, he erred in taking as a starting point a seven-year sentence that was upheld by the Court of Appeal in another child abduction case. The facts in that case were materially different and it was decided prior to the proclamation of s. 718.2(e) of the Criminal Code, R.S.C. 1985, c. C-46, which is a critical consideration in the sentencing of Aboriginal offenders. After determining that a penitentiary sentence was warranted, consistent with the principle of restraint, the sentencing judge should have considered the minimum sentence that was appropriate in the circumstances. In cases where the offender's mental health problems played a central role in the commission of the offence, deterrence and punishment assume less importance, and the primary concern in sentencing shifts to treatment, as that is the best means of ensuring the protection of the public. In the circumstances of this case, a sentence of two and a half years' incarceration in addition to pre-trial custody was adequate to properly reflect society's denunciation and act as a deterrent, while allowing the accused the hope of meaningful rehabilitation.
Per Blair J.A. (dissenting): The sentencing judge made no error in principle in arriving at the conclusion that the appropriate sentence in all the circumstances [page644] was five years' imprisonment. He did not interpret the prior decision as amounting to a starting point for sentencing in all child abduction cases. He properly considered the mitigating factors, including her Aboriginal status and tragic background. He agreed that, if the sole issue was what sentence would best serve her need, a sentence that would leave her in her own community would be the correct result. The sentence imposed by the trial judge was not demonstrably unfit and was entitled to great deference.
APPEAL from the sentence imposed by R.D. Gordon J. of the Superior Court of Justice dated June 18, 2008.
Cases referred to R. v. Hill, [1995] O.J. No. 1859 (C.A.), affg (March 22, 1994), Milton M677/94 (Ont. Gen. Div.), distd Other cases referred to R. v. Blanas, 2006 2610 (ON CA), [2006] O.J. No. 364, 207 O.A.C. 226, 68 W.C.B. (2d) 386 (C.A.); R. v. Dubinsky, [2005] O.J. No. 862, 64 W.C.B. (2d) 230, 2005 5668 (C.A.); R. v. Gillen, [1979] B.C.J. No. 575, 8 C.R. (3d) S.5 (C.A.); R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19, 171 D.L.R. (4th) 385, 238 N.R. 1, J.E. 99-881, 121 B.C.A.C. 161, 133 C.C.C. (3d) 385, [1999] 2 C.N.L.R. 252, 23 C.R. (5th) 197, 41 W.C.B. (2d) 402; R. v. Hiltermann, 1993 16387 (AB CA), [1993] A.J. No. 609, 141 A.R. 223, 20 W.C.B. (2d) 508 (C.A.); R. v. Hucal, 1998 5014 (BC CA), [1998] B.C.J. No. 1203, 109 B.C.A.C. 227, 52 B.C.L.R. (3d) 319, 38 W.C.B. (2d) 343 (C.A.); R. v. Jones, [2002] O.J. No. 5148, 56 W.C.B. (2d) 302 (C.J.); R. v. Kakekagamick (2006), 2006 28549 (ON CA), 81 O.R. (3d) 664, [2006] O.J. No. 3346, 214 O.A.C. 127, 211 C.C.C. (3d) 289, 40 C.R. (6th) 383, 70 W.C.B. (2d) 470 (C.A.); R. v. M. (C.A.), 1996 230 (SCC), [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. Peters, [2000] N.J. No. 287, 2000 NFCA 55, 194 Nfld. & P.E.I.R. 184, 47 W.C.B. (2d) 535; R. v. Priest (1996), 1996 1381 (ON CA), 30 O.R. (3d) 538, [1996] O.J. No. 3369, 93 O.A.C. 163, 110 C.C.C. (3d) 289, 1 C.R. (5th) 275, 32 W.C.B. (2d) 191 (C.A.); R. v. Robinson, 1974 1491 (ON CA), [1974] O.J. No. 545, 19 C.C.C. (2d) 193 (C.A.); R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52, 129 D.L.R. (4th) 657, 188 N.R. 284, J.E. 95-2139, 65 B.C.A.C. 37, 102 C.C.C. (3d) 193, 43 C.R. (4th) 269, 28 W.C.B. (2d) 516; R. v. Wells, [2000] 1 S.C.R. 207, [2000] S.C.J. No. 11, 2000 SCC 10, 182 D.L.R. (4th) 257, 250 N.R. 364, [2000] 3 W.W.R. 613, J.E. 2000-414, 250 A.R. 273, 141 C.C.C. (3d) 368, [2000] 2 C.N.L.R. 274, 30 C.R. (5th) 254, 45 W.C.B. (2d) 80; R. v. Whiskeyjack, [2008] O.J. No. 4755, 2008 ONCA 800, 243 O.A.C. 150 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 718(a) [as am.], (b) [as am.], (d) [as am.], (f) [as am.], 718.01 [as am.], 718.1 [as am.], 718.2 [as am.], (d) [as am.], (e) [as am.] Authorities referred to Ruby, Clayton C., Sentencing, 6th ed. (Markham, Ont.: LexisNexis Butterworths, 2004)
Frank Addario and Berk Keaney, for appellant. Karen Shai, for respondent.
[1] GILLESE J.A. (LASKIN J.A. concurring): -- The appellant, an Aboriginal woman from the Matachewan First Nations Reserve, [page645] abducted a newborn infant from a Sudbury hospital on November 1, 2007. Thanks to the efforts of hospital staff, the police and media, and the use of the AMBER Alert system, the child was recovered from the appellant, unharmed, seven hours later.
[2] On November 23, 2007, the appellant pled guilty to one count of abduction of a person under 14 for which she was sentenced to five years' imprisonment, in addition to time served of 23 days. She seeks leave to appeal from sentence.
[3] The appellant also seeks leave to adduce, as fresh evidence, a psychiatric report prepared after she was sentenced and three reports prepared by the correctional institution in which she is incarcerated. The fresh evidence speaks to the mental health challenges that the appellant faces, the effect of incarceration on her mental health and the availability of treatment options.
[4] For the reasons that follow, I would grant leave to appeal sentence and allow the appeal.
The Offence
[5] Apart from very recently, the appellant's life has been characterized by physical, sexual and emotional abuse. She suffers from serious mental health challenges as a result of that abuse. Against this background, the appellant became pregnant in 2007 by her boyfriend, Trevor Schram, with whom she enjoyed a healthy relationship. Mr. Schram welcomed the pregnancy. The appellant and Mr. Schram began living together at his home in Kirkland Lake and, when the school year was completed, the appellant's two daughters from a prior relationship, joined them. They later moved to a home in Kenogami and were living there when the offence in question took place.
[6] In August 2007, the appellant was seriously beaten by three individuals in Kirkland Lake. She went to a hospital and was told that the baby she was carrying was unharmed. However, some time later, the fetus stopped moving and, a week thereafter, was delivered stillborn in the appellant's home while Mr. Schram was away at work. The appellant feared that her relationship with Mr. Schram would not survive the loss of the child, so she did not tell him their baby had died. Instead, she pretended that she was still pregnant and that the baby would be delivered by Caesarean section at the end of October in North Bay.
[7] As the due date approached, the appellant developed a plan in which she would depart alone for North Bay, ostensibly to have the baby, and would return some time thereafter with an infant. In this way, the appellant believed she could preserve her relationship with Mr. Schram. To avoid Mr. Schram attending the hospital with her, the appellant started an argument with [page646] him shortly before she was to leave. She told Mr. Schram that her sister was unable to look after the children so he would have to. He agreed that she could take his truck to the hospital. To ensure that he did not find someone else to look after the girls, she left Mr. Schram a note in which she referred to their earlier argument and said that he ought not to contact her, the hospital or the police. The appellant then drove to Sudbury alone.
[8] On October 31, 2007, the appellant called Mr. Schram and told him that she had given birth to a healthy baby boy.
[9] The following day, the appellant went to the maternity ward at St. Joseph's Health Centre in Sudbury. She changed into "scrubs", posing as a health care worker. After entering several rooms looking for a child to take under a medical pretext, the appellant went into a room occupied by a newborn baby girl and her mother. The appellant suggested that the mother go into the bathroom to change her dressing. When she did, the appellant took the child and left the hospital.
[10] When the mother came out of the washroom and discovered the baby and the appellant were gone, she began looking for them. At the nursing station, she was told the appellant was not a nurse and the hospital went on high alert. Hospital video cameras caught the appellant in the stairwell with the baby.
[11] In the hospital parking lot, the appellant changed out of her scrubs and removed the child's identification bracelet. She drove home to Kenogami and introduced the child to her daughters and Mr. Schram.
[12] In the meantime, the hospital moved quickly to involve the police. The Sudbury region was locked down and all cars leaving the city were searched. Approximately 90 police officers were involved at one point. An AMBER Alert was issued across Ontario and the story was broadcast nationally, with videotaped images of the appellant in the hospital. Police officers, security staff and auxiliary officers investigated the tips that poured in as a result of the alert.
[13] The police determined that the appellant had returned to Kenogami. They went to her home and told her they were investigating a child abduction in Sudbury. The appellant admitted that she had an infant with her but attempted to convince the police that the child was a boy. The officers asked the appellant to remove the baby's diapers so that they could determine its gender. She refused, but the police demanded that she do so. When she did, it became apparent that the infant was a female. The appellant was arrested and the child was returned to her parents. Some seven hours elapsed from the time of the abduction to the time that the baby was recovered. Thankfully, she had suffered no physical harm. [page647]
[14] The appellant's actions had a serious effect on both the victim's family and the community. There are no words to describe the agony that the victim's parents went through in the hours until their child was returned. They are now unable to trust others to watch their children and have nightmares about the abduction. The victim's father avoids talking about the offence and the family has kept the abduction a secret from their friends and family members. The wider community was also affected. On the day of the abduction, the Sudbury region was locked down and police searched numerous vehicles. The abduction also spurred security upgrades to the Sudbury Regional Hospital maternity ward.
[15] Three weeks after the abduction, the appellant pled guilty to abduction of a person under 14. She was released on bail pending sentencing. While on bail, she and her daughters moved in with her aunt and uncle, Anne and Mario Batisse. The appellant undertook psychiatric counselling and reintegrated herself in the Matachewan community. She participated in native healing ceremonies and made progress through them, the psychiatric care she was receiving and the supportive and therapeutic home environment provided by Anne Batisse, a therapist and certified life-skills coach.
[16] The sentencing judge gave lengthy, thoughtful reasons for sentence. He considered the appellant's tragic circumstances and, based on the psychiatric evidence, found that she was suffering from depression at the time of the offence. He determined that the depression, along with her personality disorder, led to her committing the offence. The sentencing judge also considered the progress the appellant had made while on bail and concluded that, if he were considering only her best interests, he would have no hesitation in finding that the circumstances in which she was then living were the most beneficial for her and for her eventual complete rehabilitation. However, when he considered the impact of the offence on the victim and the community, he concluded that a significant custodial sentence was warranted in order to meet the sentencing goals of denunciation and deterrence.
[17] The sentencing judge considered four Canadian cases on infant abduction: R. v. Gillen, [1979] B.C.J. No. 575, 8 C.R. (3d) S. 5 (C.A.); R. v. Hill (March 22, 1994), Milton M677/ 94 (Ont. Gen. Div.), affd [1995] O.J. No. 1859 (C.A.); R. v. Hucal, 1998 5014 (BC CA), [1998] B.C.J. No. 1203, 52 B.C.L.R. (3d) 319 (C.A.); and R. v. Jones, [2002] O.J. No. 5148, 56 W.C.B. (2d) 302 (C.J.). The sentences in these cases range from two and a half years' imprisonment for an attempt to abduct a baby from the hospital (Jones) to a life sentence where the infant abduction also involved violence against the mother (Gillen). [page648]
[18] The sentencing judge concluded his review of the aggravating and mitigating factors with the following:
Although I am not persuaded that a term of seven years is called for given the most unfortunate circumstance of this offender, in my view a sentence of five years imprisonment in addition to the time already served is adequate to meet the deterrent and denunciatory principles of sentencing set out in the Code and the indictment has been endorsed accordingly.
[19] In so doing, he took as his starting point the seven-year sentence that had been imposed in Hill and upheld by a majority of this court on appeal. [See Note 1 below] In Hill, a 48-year-old woman entered the room of a patient in a maternity ward and asked to take the baby for hemoglobin tests. The mother handed over the baby and the accused left with the child. The child was recovered about 11 hours later after a media and police blitz. The accused had been neglected as a child by her alcoholic parents and been taken away by child welfare authorities and placed for adoption. She had suffered turmoil in her marriage and slipped into a transient lifestyle involving alcohol abuse.
[20] Before turning to the legal analysis, I will set out the appellant's circumstances in more detail, as they are a critical aspect of this appeal.
The Offender
[21] The appellant is a 30-year-old Aboriginal woman. She has no prior criminal record. She survived an unimaginably abusive and cruel childhood in which she was physically, emotionally and sexually abused. Since then, she has had a series of unsuccessful, abusive relationships with men.
[22] Prior to her birth, the appellant's natural father abandoned her mother, Jane Batisse. Jane Batisse blamed the appellant for being abandoned. Jane, who was a member of the Matachewan First Nation, continuously abused the appellant physically and emotionally. Jane appears to have suffered from an untreated major mental illness.
[23] When the appellant was three years old, her family moved in with her stepfather's brother's family. Her mother continued to abuse the appellant. She regularly beat her with a board and a wooden spoon. She extinguished cigarettes on the appellant's back and legs. On one occasion, she threw the appellant down a flight of stairs. [page649]
[24] When the appellant was 11 years old, her family and her stepfather, Willey Renaud, moved to Quebec. The appellant's mother continued to abuse her physically and emotionally. When the appellant was 14, Willey found Jane holding the appellant's head in one hand and a hammer in her other hand. He took Jane to North Bay Psychiatric Hospital, where she was committed. She did not come home when she was released. The appellant continued to live with Willey Renaud.
[25] Willey's brother, Placide Renaud, started sexually abusing the appellant when she was 11 years old and continued to do so until she was 17. The sexual assaults occurred roughly ten times a month. Eventually, Placide was charged with sexually assaulting both the appellant and his own children. He received a ten-year sentence after being found guilty at trial.
[26] When the appellant was 17, her mother committed suicide. She left a note instructing the appellant to look after her younger sister, Evangeline, who was ten years old at the time. Not long after this, the appellant began a relationship with a 23-year-old man named Archie Wabie. He was an alcoholic and he physically abused the appellant when he got drunk. On at least one occasion, the appellant was admitted overnight to a hospital because of injuries he inflicted on her. Wabie was sentenced to jail as a result of one of these beatings. Wabie was also verbally abusive and denigrated the appellant's Aboriginal heritage. The appellant had two daughters in the course of this relationship, which ended in 2002. After this relationship, the girls continued to live with the appellant. At the time of sentencing, they were five and eight years of age.
[27] In 2003, the appellant began a relationship with Denis Presseault. This relationship was also marked by physical and verbal abuse. In early 2004, the appellant's stepfather, Willey Renaud, was diagnosed with liver cancer. The appellant spent a great deal of time caring for him until he died in July 2005. During this time, her relationship with Presseault deteriorated further. He denigrated the appellant's close relationship with her stepfather. He mocked her Aboriginal heritage. He was jealous, controlling and violent. He did not allow the appellant to leave her house and he frequently spent money on prostitutes. The relationship ended in December 2006.
[28] In early 2007, the appellant began dating Trevor Schram. This was the first positive relationship she had with a male other than her stepfather. Mr. Schram accepted and cared for the appellant's daughters. In April 2007, while pregnant with his child, the appellant and Mr. Schram moved in together.
[29] Sometime during 2007, the appellant loaned $160 to her cousin, Henry Batisse, and his wife, Tina Houston, to buy food. [page650] She went to their home in early August 2007 to be repaid. Instead, she was attacked by two males and a female. They kicked her in the stomach and back. She suffered a head wound that required stitches. At the urging of the police, she went to the hospital, where it appeared that the baby she was carrying was unharmed. However, some weeks later, the fetus stopped moving and shortly thereafter, it was delivered stillborn. Mr. Schram was working out of town when this happened. The appellant did not tell Mr. Schram because she believed he would leave her if he found out that she had lost the baby. She then committed the offence described above.
Analysis
[30] The sentencing judge found that given the extremely serious nature of the offence, which involved an utterly defenceless newborn, violated the safety and security of the hospital and had a significant effect on the victim's family and the broader community, a conditional sentence was not available as a term of incarceration greater than two years less a day was called for. I agree, and for the reasons given by the sentencing judge.
[31] In my view, however, the sentencing judge erred in using the sentence in Hill as a baseline from which to determine the appropriate length of the penitentiary sentence to impose. The facts in Hill are materially different from those in this case. In Hill, unlike the present case, the offender was not Aboriginal, had not encountered the same systemic factors and did not suffer from mental illness. Moreover, it is significant that Hill was decided prior to s. 718.2(e) of the Criminal Code, R.S.C. 1985, c. C-46 being proclaimed. [See Note 2 below] As discussed below, s. 718.2(e) is a critical consideration in the sentencing of Aboriginal offenders. Instead, I accept the appellant's submission that after determining that a penitentiary sentence was warranted, consistent with the principle of restraint, the sentencing judge should have considered the minimum sentence that was adequate in the circumstances.
[32] The principle of restraint operates in three ways in the present case. First, it is an important consideration because the appellant was a first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 1996 1381 (ON CA), 30 O.R. (3d) 538, [1996] O.J. No. 3369 (C.A.), at p. 545 O.R. [page651]
[33] Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas, 2006 2610 (ON CA), [2006] O.J. No. 364, 207 O.A.C. 226 (C.A.), at para. 5:
[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.
[34] In serious cases and cases involving violence, rehabilitation alone is not the determinative factor -- general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, [2005] O.J. No. 862, 2005 5668 (C.A.), at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.
[35] Third, Parliament has codified the principle of restraint to limit the use of incarceration as a sentencing alternative, particularly for Aboriginal offenders. Subsection 718.2(d) of the Criminal Code provides that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances". Subsection 718.2(e) provides:
718.2 A court that imposes a sentence shall also take into consideration the following principles: . . . . . (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.
[36] The principle of restraint enjoys an important role in cases involving Aboriginal offenders. In R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19, the Supreme Court of Canada directed the courts to consider the systemic and background factors which may have played a role in bringing an Aboriginal offender before the court (para. 69) and stated that s. 718.2(e) creates a judicial duty to give its remedial purpose real force. See, also, R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, [2000] S.C.J. No. 11, where the Supreme Court directs sentencing judges to give effect to the principles in s. 718.2(e) and Gladue, even in cases where the offence is serious and the sentence involves imprisonment.
[37] The sentence imposed by the trial judge was based on his perceived need to give predominance to the principles of general deterrence and denunciation and without an express consideration [page652] of the effect of the sentence on the appellant's rehabilitation. Had he done so, in my view, he would have concluded that a sentence of that length would not promote the appellant's rehabilitation -- in fact, it would diminish her prospect of rehabilitation by removing her from her community, her children and her support network, as the closest federal institution for women is the Grand Valley Institution for Women near Kitchener, Ontario, which is 750 kilometres from the Matachewan community where her sister and children are located.
[38] Furthermore, unlike Hill, where mental illness was not a factor, here the appellant's mental health problems played a central role in the commission of the offence. In such circumstances, deterrence and punishment assume less importance. As this court emphasized in R. v. Robinson, 1974 1491 (ON CA), [1974] O.J. No. 545, 19 C.C.C. (2d) 193 (C.A.), at p. 197 C.C.C., where offenders commit offences while they are out of touch with reality due to mental illness, specific deterrence is meaningless to them. Further, general deterrence is unlikely to be achieved either since people with mental illnesses that contribute to the commission of a crime will not usually be deterred by the punishment of others. As well, severe punishment is less appropriate in cases of persons with mental illnesses since it would be disproportionate to the degree of responsibility of the offender. In such circumstances, the primary concern in sentencing shifts from deterrence to treatment as that is the best means of ensuring the protection of the public and that the offending conduct is not repeated. This is especially so where a lengthy prison term may be regarded as counterproductive: see, also, R. v. Hiltermann, 1993 16387 (AB CA), [1993] A.J. No. 609, 141 A.R. 223 (C.A.), and R. v. Peters, 2000 NFCA 55, [2000] N.J. No. 287, 194 Nfld. & P.E.I.R. 184 (C.A.), at paras. 18-19.
[39] Without in any way minimizing the seriousness of the offence and the consequences for the victim's family and the community within which it occurred, in my view, a sentence of two and one-half years' incarceration in addition to pre- sentence custody is adequate to properly reflect society's denunciation and act as a deterrent, while allowing the appellant the hope of meaningful rehabilitation. The appellant was a youthful, Aboriginal, first offender with an atrocious childhood and an abusive early adulthood. Her background is filled with physical, sexual and emotional abuse at the hands of her mother, uncle and common-law partners. She has serious mental health challenges flowing from that abuse. There is no question that the systemic and personal factors in the appellant's background led to those mental health challenges which in turn led to the offence. At the time the appellant committed the offence, she had recently suffered a [page653] miscarriage following an unprovoked beating. The victim was unharmed and returned to her parents seven hours after being abducted.
[40] The appellant has been fully remorseful for her actions from the beginning. She pled guilty three weeks after her arrest, which avoided the need for witnesses to testify. She made numerous other expressions of remorse. She is a single parent of two young children with strong family and community support. After her arrest and while on bail, she made unmistakable progress in her rehabilitation. She found a supportive and therapeutic home environment with her aunt. She received mental health care and counselling, and had the opportunity to participate in native healing ceremonies with her daughters and other members of the community. Her risk of re-offending, as noted by the sentencing judge and attested to by all of the experts at the sentencing hearing, is minimal.
[41] A sentence of two and one-half years' incarceration would adequately reflect the seriousness of the offence while recognizing the background and systemic factors which led to the offence, thus giving effect to the remedial purpose underlying s. 718.2(e).
Disposition
[42] Accordingly, I would grant leave to appeal sentence, allow the appeal and impose a sentence of two and one-half years' incarceration (in addition to pre-sentence custody), less credit for the time served. In the circumstances, it is unnecessary to determine whether to admit the fresh evidence.
[43] BLAIR J.A. (Dissenting): -- I have read the persuasive and thoughtful reasons of my colleague, Justice Gillese. Respectfully, however, I disagree with her decision to interfere with the equally persuasive and thoughtful findings and conclusion of the trial judge. While I would grant leave to appeal sentence, I would dismiss the appeal.
The Importance of Deference in Sentencing Cases
[44] Why I arrive at this conclusion may be summarized in one word: deference.
[45] The sentencing judge, Justice R.D. Gordon, delivered a particularly careful, thorough and balanced decision. He concluded that the appropriate sentence in all of the circumstances was a term of imprisonment for five years. [See Note 3 below] In arriving at this [page654] conclusion, he made no error in principle. He did not fail to take into account any relevant factors or place inappropriate emphasis on any relevant factor -- including, importantly in this case, the R. v. Gladue [1999 679 (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19] considerations that are mandatory in situations involving Aboriginal offenders. The sentence he imposed is not demonstrably unfit. Absent some such a flaw, his decision is entitled to great deference and appellate courts are not permitted to interfere: see R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28; R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52.
[46] This deference is afforded -- and warranted -- because trial judges are fully attuned to the dynamics of the situation in front of them. We are not. Sentencing judges have seen the offender, the witnesses called on the sentencing hearing and, quite likely, the victims. They may well have heard from them all. We have not. Very significantly, they are close to the communities in which they reside. We are not. Sentencing judges are therefore best suited, and best situated, to assess the impact of the crime on their own community, and the broader community, as well as to consider the particular circumstances of the offender and of the offence in context. Whether an appellate judge, sitting in the relative isolation of another courtroom and far removed in time and place, might have arrived at a somewhat different sentence is not the point of sentencing appeals.
[47] This principle was forcefully articulated by Chief Justice Lamer, speaking for the entire Court, in R. v. M. (C.A.), at paras. 90-91. What he said bears reiterating:
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 . . .
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 . . . 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. [page655] 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. (Citation omitted; emphasis added)
The Circumstances of this Case and the Principles Applied by the Sentencing Judge
[48] By any measure, this is an exceedingly sad and tragic case, whether viewed from the perspective of the offender, the infant victim and her parents, or the community. It would be difficult to imagine an upbringing and background more dehumanizing, brutal, and bereft of hope than that endured by Ms. Batisse. Her heart-rending story is poignantly described in the reasons of both my colleague and the trial judge. I need not repeat it here. Nothing I say in these reasons is intended to minimize or detract from that reality.
[49] As the trial judge pointed out, however, there is more to be addressed in the sentencing process than simply the needs and circumstances of the offender. Although the provisions of s. 718.2 of the Criminal Code, R.S.C. 1985. c. C-46 mandate a different methodology in the sentencing of Aboriginal offenders, and a different perspective towards the balancing of the various factors involved, the fundamental purposes of sentencing and its objectives, as set out in the Code, continue to apply in such circumstances. In addition to the goal of rehabilitating offenders, the objects of just penal sanctions include the denunciation of unlawful conduct, the deterrence of offenders and others from committing offences, the need to promote a sense of responsibility in offenders, and the need to acknowledge the harm done by the crime to victims and to the community: s. 718(a), (b), (d) and (f). It is an important principle, as well, that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1.
[50] Other sentencing principles are of particular relevance to Aboriginal offenders, notably those contained in subsections 718.2(d) and (e):
718.2 A court that imposes a sentence shall also take into consideration the following principles: . . . . . [page656] (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. (Emphasis added)
[51] How this interplay of sentencing principles will be weighed and applied will vary with the case. It remains the fundamental duty of the trial judge, however, to impose a sentence that is fit for the offence and the offender in the circumstances. Indeed, the Supreme Court of Canada has been clear that, while s. 718.2(e) "requires a different methodology for assessing a fit sentence for an aboriginal offender, it does not mandate, necessarily, a different result": R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, [2000] S.C.J. No. 11, at para. 44. At the same paragraph in Wells, Iacobucci J. continued:
Section 718.2(e) does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. Furthermore, in Gladue, as mentioned the Court stressed that the application of s. 718.2(e) does not mean that aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice and less weight to goals such as deterrence, denunciation, and separation. As a result, it will generally be the case, as a practical matter, that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non- aboriginal offenders. Accordingly, I conclude that it was open to the trial judge to give primacy to the principles of denunciation and deterrence in this case on the basis that the crime involved was a serious one. (Underlining in original; citations omitted; italics added)
[52] More recently, Justice LaForme affirmed this same principle in R. v. Kakekagamick (2006), 2006 28549 (ON CA), 81 O.R. (3d) 664, [2006] O.J. No. 3346 (C.A.), at para. 42. See, also, R. v. Whiskeyjack, [2008] O.J. No. 4755, 2008 ONCA 800, at paras. 31-33.
[53] The Supreme Court made clear in Gladue that the principles of denunciation, deterrence and separation are not principles of the criminal justice system as distinct from Aboriginal communities. In other words, one cannot assume that Aboriginal communities will necessarily reject the application of the principles of denunciation, deterrence and separation in the sentencing of Aboriginal offenders [at para. 78].
In describing the effect of s. 718.2(e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe [page657] in the importance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases. Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant. (Emphasis added)
[54] Unlike in Kakekagamick, where the trial judge had not done so, here the sentencing judge followed the Gladue and s. 718.2(e) procedure. He observed, correctly in my view, that the principles of denunciation, deterrence and rehabilitation should be at the forefront of his consideration. He canvassed each of those issues fully. He analyzed the relevant provisions in the Criminal Code in the context of this crime and this Aboriginal offender. In this regard, he said:
The Criminal Code also contains specific provisions for consideration when dealing with an aboriginal offender. In particular, Section 718.2 (e) contains a remedial provision directed at ameliorating the serious problem of overrepresentation of aboriginal people in our prisons. This provision alters the method of analysis which the court is to use in determining a fit sentence for aboriginal offenders and requires the consideration of all available sanctions other than imprisonment along with the consideration of the particular circumstances of the offender. When sentencing an aboriginal offender, the court must consider information concerning the unique systemic or background factors which may have played a part in bringing the offender before the court. In particular the court is to consider whether the offender has been affected by such factors as substance abuse in the community, poverty, overt racism, and family or community breakdown. The court is also to consider the types of sentencing procedures and sanctions which might be appropriate in the circumstances for the offender because of her particular aboriginal heritage or connection. (Emphasis added)
[55] The sentencing judge applied those directions. He scrupulously considered the appellant's tragic antecedents. He carefully reviewed the circumstances giving rise to the abduction plot -- including the stillbirth of her own baby as a result of a senseless beating she suffered shortly before the event and her deep-seated fear that the loss of her baby would undermine the only stable relationship she had ever been able to establish with a man, her current spouse.
[56] The sentencing judge weighed the testimony of the appellant's aunt, with whom the appellant was then living, about her current progress and mental condition, and that of the medical experts who were called to speak to her state of mental distress. He rejected the notion that she was suffering from a major depressive disorder prior to the offence, but accepted "unequivocally, that she was suffering from some level of depression and that this depression, along with her personality disorder, were active ingredients in her decision to commit this crime". With [page658] respect to the appellant's then current situation in her Aboriginal community, and the interests he had to balance, the sentencing judge concluded:
Since her release, Ms. Batisse has had the very good fortune to have made her home with her aunt Anne Batisse who has provided a supportive and therapeutic home environment. Between the support and counselling she has received there, and the psychiatric care being provided by Doctor Gagnon, she has made slow but steady progress in dealing, not just with her actions in the context of the offence, but in dealing with her entire past. She has also had the opportunity to participate in native healing ceremonies with her daughters and other members of the community and these have been of significant benefit to her.
Without a doubt, if I was to be considering only what is in the best interest of Brenda Batisse, I would have no hesitation in finding that her current circumstances are most beneficial to her and to her eventual complete rehabilitation.
It is, of course, necessary also to consider the impact of a crime such as this on the victim and the community when considering what is just and appropriate as a sentence. (Emphasis added)
[57] After thoughtfully describing what he saw as the impact of the crime on the community, the infant and the infant's family, the sentencing judge summarized the mitigating and aggravating factors in the case. He concluded there were significant mitigating factors, including (i) the short period of time the child was missing and the fact that the child was well treated and returned unharmed; (ii) the appellant's plea of guilty and genuine remorse; (iii) the appellant's "singularly difficult upbringing resulting in significant emotional difficulties which were affecting her judgment when this offence was committed"; (iv) the loss of the appellant's own child just prior to the crime; (v) her lack of a criminal record; and (vi) the fact that everyone agreed her risk of re- offending was minimal.
[58] As aggravating factors, the sentencing judge took into account (i) that the crime had not been committed on the spur of the moment and was one that "required significant aforethought and planning"; (ii) that it was committed against society's most vulnerable victim, an infant not yet five hours old; (iii) that it had a significant impact on the community, resulting in substantial costs being incurred and a virtual lock down of the City of Sudbury for a period of time; and (iv) that it had major and long-lasting effects on the parents.
[59] Following this review, the sentencing judge proceeded to consider the positions of the Crown and the defence as to the sentence to be imposed, including the case law presented to him. The [page659] Crown sought a lengthy penitentiary sentence of seven years. The defence asked for a conditional jail sentence.
The Sentence of Five Years was neither Erroneously Imposed nor Demonstrably Unfit
[60] Like Justice Gillese, I agree that the sentencing judge was correct in holding that a conditional sentence was not available because a term of incarceration of more than two years is required in this case.
[61] I note that, having properly arrived at this conclusion, the sentencing judge must be taken to have fulfilled his obligation under s. 718.2(d) and (e) of the Criminal Code to consider the availability and appropriateness of less restrictive sanctions than imprisonment, that is, to give effect to the principle of restraint as now codified in s. 718.2(e) of the Criminal Code. [See Note 4 below] He determined that a conditional sentence was not suitable in the circumstances. He made this decision acknowledging that if the appellant's rehabilitation and best interests were the only factors to be weighed, he would leave her in her pre-sentencing situation in her native community. On balance, however, the sentencing judge concluded that a sentence served in the community would not adequately give effect to the principles of denunciation and general deterrence that were also in play with respect to this very serious crime. We are all agreed that he did not err in this regard.
[62] The issue remaining for the sentencing judge, then, was to determine the appropriate length of the period of incarceration. He said five years. My colleague would say two and one-half years. This is a determination -- absent an error in principle, the failure to consider and weigh relevant factors or a demonstrably unfit result -- that is quintessentially for the sentencing judge. Appellate judges should not strain to find such errors simply because they think a penalty is too high or too low. There were no such errors here. Indeed, the range of sentences disclosed in the [page660] jurisprudence presented to the sentencing judge in this type of case -- including decisions from this court -- ranged from seven years to life imprisonment.
[63] Mr. Addario argued skilfully that, having rejected the fitness of a conditional sentence in the circumstances, the sentencing judge was obliged to repeat the same analysis he had already done, asking himself again -- consistent with the principles of restraint -- what was the minimum sentence that was adequate in the circumstances. My colleague accepts this argument. I am not sure what it means in this context, however.
[64] If all the appellant is suggesting is that the sentencing judge must still remain alert to the minimal sentence principle in determining the ultimate sentence, I do not disagree. A sentencing judge is not required to take a mechanical compartmentalized approach to his or her sentencing analysis, however. At the end of the exercise, the judge must arrive at a sentence that is fit for the offence and the offender in question, having regard to the circumstances in question and the principles of sentencing set out in the Criminal Code and, in the case of Aboriginal offenders, the principles enunciated in the Gladue line of cases. Undoubtedly -- particularly in cases of first offenders -- this analysis entails a consideration of what is the minimum sentence that is adequate in the circumstances: see, for example, R. v. Priest (1996), 1996 1381 (ON CA), 30 O.R. (3d) 538, [1996] O.J. No. 3369 (C.A.), at pp. 544-45 O.R.
[65] But in conducting the conditional sentencing analysis properly -- as he admittedly did here -- and rejecting that option, the sentencing judge gave effect to those principles. His reasons, read fairly and as a whole, make it abundantly clear that he did not suddenly forget those principles when he went on to the next stage of the analysis. Indeed, at the end of the day his decision was that a sentence of five years' imprisonment was "adequate" -- that is, not too much and not too little -- to meet the needs of denunciation and deterrence, having earlier determined that rehabilitation alone could not override these other considerations in the circumstances.
[66] In accepting the appellant's submission that the sentencing judge gave up the search for an appropriate minimal sentence in his post-conditional sentence analysis, my colleague fastens on the use she concludes he made of the seven-year sentence imposed by Justice LeSage (as he then was), and affirmed by this court, in R. v. Hill (March 22, 1994), Milton M677/94 (Ont. Gen. Div.), affd [1995] O.J. No. 1859 (C.A.). She says that the sentencing judge used the Hill sentence as a baseline for the low end of sentences in cases of this nature and [page661] worked backwards from that point, in effect "discounting" that minimum for the appellant's emotional difficulties, Aboriginal background and other mitigating factors. Instead, in her analysis, having concluded that a penitentiary term was warranted, the sentencing judge should have searched again for the minimum sentence that was adequate in the circumstances, consistent with the principle of restraint.
[67] Respectfully, I cannot accept this analysis, for several reasons.
[68] First, the sentencing judge did not err in the way he dealt with Hill and the other cases to which he referred. I do not read his reasons as suggesting he adopted the Hill sentence as some sort of benchmark and worked backward from there to arrive at what he found to be the appropriate disposition. The sentencing judge addressed the jurisprudence specifically in the course of reflecting on the second prerequisite for a conditional sentence, namely whether a sentence of less than two years' imprisonment was warranted. He did so to determine "if the range of appropriate sentence might include a period of incarceration of less than two years". He decided it would not. This was a perfectly proper approach. Having thus confirmed that the jurisprudence suggests some sort of range for the offence in question, a sentencing judge does not err in ultimately crafting an appropriate sentence in the circumstances with one eye on that range. That is what ranges are for.
[69] Here, the sentencing judge considered at length the Canadian precedents presented to him involving infant abductions, including Hill. While similar in type to the present case, they all may be distinguished in some ways. The sentencing judge was aware of this. But, significantly, they all involved sentences of incarceration longer than that imposed by the sentencing judge here -- varying from life imprisonment in R. v. Gillen, [See Note 5 below] to eight years in R. v. Hucal [See Note 6 below] and seven years in Hill. In R. v. Jones, [See Note 7 below] a sentence of two and one-half years' imprisonment was imposed for an attempted abduction where the child was neither touched nor taken.
[70] The foundation for my colleague's analysis in this regard appears to be the sentencing judge's remarks to this effect: [page662]
Although I am not persuaded that a term of seven years is called for given the most unfortunate circumstance of this offender, in my view a sentence of five years imprisonment in addition to the time already served is adequate to meet the deterrent and denunciatory principles of sentencing set out in the Code . . .
[71] Although the sentence imposed in Hill was seven years' imprisonment, this comment did not refer particularly to Hill at all, in my view. It is a response to the Crown's submission requesting "a lengthy penitentiary sentence of seven years". It may be that my colleague is influenced by the fact that the sentencing judge quoted from a portion of the judgment of Justice LeSage dealing with the nature of this sort of crime but ending with the comment that he "believe[d] that seven years is at the lower if not the lowest end of an appropriate range of sentence for this crime". However, I see nothing in the reasons of the sentencing judge to suggest that he viewed Justice LeSage as having laid down some sort of minimum benchmark or baseline.
[72] The sentencing judge's comment was made immediately after a lengthy analysis of the jurisprudence presented to him in the context of the defence request for a conditional sentence. Having rejected that argument, he in turn rejected the argument put forward by the Crown for a seven-year sentence. In my view, he did not treat the reference to seven years being "at the lower if not the lowest end of an appropriate range" as establishing some sort of baseline.
[73] Second, the sentencing judge was fully alert to the purposes and principles of sentencing as enunciated in ss. 718 through 718.2 of the Criminal Code, including the requirement that all available sanctions other than imprisonment must be considered and including the need "to consider the types of sentencing procedures and sanctions which might be appropriate in the circumstances for the offender because of her particularly aboriginal heritage or connection" (emphasis added). Because he addressed these matters earlier in his reasons does not mean he forgot them at the end.
[74] Since I am satisfied the sentencing judge was completely alive to all of the principles of sentencing set out in the Criminal Code as well as to the additional requirements to be addressed in the context of an Aboriginal offender, I am not able to conclude, as my colleague has, that he failed to give effect to the principle of restraint -- whether from a misreading of Hill or otherwise. I therefore cannot conclude that this court should embark upon a re-application of the those factors leading to a sentence that might be more in keeping with what some of us might have imposed had we been the sentencing judge. [page663]
[75] The principle of restraint operates in three ways in the present case, my colleague suggests: (i) it is an important consideration because the appellant is a first offender; (ii) it requires the sentencing judge to consider rehabilitation in determining the appropriate length of sentence; and (iii) the principle of restraint enjoys an important role in cases involving Aboriginal offenders, among other things, because Parliament has codified the principle to limit the use of incarceration. I do not disagree.
[76] However, the sentencing judge gave effect to all of these considerations, in my view. He was well aware that the appellant was a first offender, mentioning it at least twice and including it in his list of mitigating factors. He plainly took this factor into account.
[77] Nor did he ignore in any way, or fail to weigh, the appellant's prospects of rehabilitation. I have earlier cited a passage from the sentencing judge's reasons where he noted that, had he only to consider the best interests of the appellant, leaving her with her aunt in her native community would be "most beneficial to her and to her eventual complete rehabilitation". Earlier he had acknowledged the importance of rehabilitation to society in the long term because of the eventual need -- whatever the length of sentence -- to re- establish and re-integrate the offender into the community. Significantly, however, in the two paragraphs immediately preceding the very passage cited by my colleague, the sentencing judge said:
In the case before me, I am aware of and have considered the various mitigating factors earlier referred to. I am aware of Ms. Batisse's aboriginal heritage, and I have considered fully her upbringing and the various tragedies that have befallen her. I have considered the racial discrimination that she suffered as a student and I have considered that a sanction which incorporates native healing traditions would be of significant benefit to her. Although these factors will impact on the ultimate sentence I impose, their combined effect is not sufficient to leave a sentence of two years less a day as a viable or possible sentencing alternative. Even had I found otherwise, it is my view that serving the sentence in the community would not be consistent with the fundamental purpose and principles of sentencing set out in Section 718 to 718.2 of the Code. In particular, a conditional jail sentence would not, in the circumstances of this case, satisfy the denunciatory or general deterrence goals of sentencing.
Notwithstanding the sadness I feel for Ms. Batisse ... the enormity of this crime calls out for a significant custodial sentence. ... (Emphasis added)
[78] The principle of restraint to limit the use of incarceration as a sentencing alternative, particularly for Aboriginal offenders, is now well-embedded in Canadian law: Criminal Code, subsections 718(d) and (e); Gladue; and Wells. The trial judge was attentive [page664] to this prerequisite and applied it, even if he did not call it specifically by that name. He satisfied himself that permitting the appellant to serve her sentence in the community was inconsistent in the circumstances with the fundamental purpose and principles of sentencing as set out in the Code. For the same reasons, he held that a period of incarceration of less than two years was unsuitable. Having balanced all of the factors, including the appellant's best interests and prospects of rehabilitation, her Aboriginal background and the need for denunciation and deterrence, he concluded that the seven-year sentence sought by the Crown was too long but that a sentence of five years was appropriate.
[79] In my own view, the sentence he imposed is fit in the circumstances. As I have argued, however, that is not the point. The sentence is not demonstrably unfit and I see no error in the sentencing judge's view that the principles of denunciation and general deterrence should outweigh principles of rehabilitation in the circumstances of this case. Nothing is to be gained by comparing this offence to other serious crimes that harm society and debating which is worse and what punishments are warranted by which. By any standard, the appellant committed a monstrous, egregious crime. In that regard, the following observations of LeSage J. in Hill -- a somewhat parallel case -- have resonance:
She has committed a most heinous crime. She is not an evil person but she has committed an evil crime. The crime of kidnapping, especially the kidnapping of a young child, is one that we, as citizens, have no reasonable way of protecting ourselves from. Kidnapping by a stranger in Canada is, thank God, not a common crime but it is so shockingly evil that when it occurs a denunciatory or an exemplary sentence must be imposed. Society simply cannot react to this crime except with a sentence that will deter other persons who might consider doing the same . . . . . . . .
Notwithstanding all of the mitigating factors, I cannot disregard the enormity of this crime. Not only the effect that it has had on the . . . family, but the effect that such a crime has had on this community, this province, this country. That is what criminal laws are designed to protect against. A sentence to be imposed must be denunciatory of such conduct. (Emphasis added)
[80] Those comments apply with equal force to the present case. In arriving at his conclusion, the sentencing judge carefully considered all of the relevant principles of sentencing and applied them -- correctly, in my view -- to the difficult and poignant circumstances he faced. We are all in agreement that he made no error in concluding that a significant period of incarceration was [page665] warranted. We disagree over the term of that incarceration he chose. But the sentencing judge, after weighing all of the relevant principles and factors and after having considered the rehabilitative needs of the appellant, decided that a sentence of five years' imprisonment was "adequate" to meet the principles of denunciation and deterrence that he viewed as outweighing rehabilitation in the circumstances.
[81] In my view, this was his call, and we are not entitled to interfere.
Disposition
[82] I would accordingly grant leave to appeal sentence, but dismiss the appeal.
Appeal allowed.
Notes
Note 1: Finlayson J.A. dissented on the basis that the sentence was excessive and gave little consideration to the appellant's early plea of guilty.
Note 2: Subsection 718.2(e), along with other amendments to the Criminal Code, was assented to July 13, 1995, and proclaimed in force September 3, 1996.
Note 3: The appellant was in pre-trial custody for 23 days. This amount was added to the sentence of five years.
Note 4: See Clayton C. Ruby, Sentencing, 6th ed., (Markham, Ont: LexisNexis Butterworths, 2004), at pp. 443-44. The authors note that the common-law principle of restrint provided not only that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate, but also the principle that even if imprisonment need be imposed, it ought to be the lightest possible in the circumstances. They point out the codified version in s. 718.2(e) of the Code is narrower and incorporates only the former notion. On the view I take of this case, it is not necessary to determine the significance, if any, of this difference, as I am satisfied that the sentencing judge was alive to the importance of crafting a minimal sentence.
Note 5: [1979] B.C.J. No. 575, 8 C.R. (3d) S.5 (C.A.).
Note 6: 1998 5014 (BC CA), [1998] B.C.J. No. 1203, 52 B.C.L.R. (ed) 319 (C.A.).
Note 7: [2002] O.J. No. 5148, 56 W.C.B. (2d) 302 (C.J.).