R. v. Dutrisac, 2009 ONCA 283

CITATION: R. v. Dutrisac, 2009 ONCA 283

DATE: 20090408

DOCKET: C48988

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

[1] The 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.

[2] In 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.

[3] In 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.

[4] The 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.

[5] As 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.

[6] Finally, 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.

[7] In light of these considerations, the sentence imposed must be set aside. In its place we would substitute a conditional sentence of 18 months.