R. v. Wells, [2000] 1 S.C.R. 207

James Warren Wells Appellant

v.

Her Majesty The Queen Respondent

and

Aboriginal Legal Services of Toronto Inc. Intervener

Indexed as: R. v. Wells

Neutral citation: 2000 SCC 10.

File No.: 26642.

1999: May 27; 2000: February 17.

Present: L’Heureux‑Dubé, Gonthier, Cory,^* McLachlin, Iacobucci, Bastarache and Binnie JJ.

on appeal from the court of appeal for alberta

Criminal law -- Sentencing -- Conditional sentences -- Aboriginal offenders -- Accused convicted of sexual assault and sentenced to 20 months’ incarceration -- Whether non-custodial sentence reasonable in circumstances where paramount sentencing objectives are denunciation and deterrence -- Whether sentencing judge failed to take into account appropriate considerations in light of accused’s aboriginal status -- Criminal Code, R.S.C., 1985, c. C-46, ss. 718.2(e), 742.1.

The accused was convicted of sexual assault. He had attended a house party at the home of the victim, an 18‑year‑old aboriginal woman living with friends. Evidence at trial established that the victim was assaulted in her own bedroom while she was either asleep or unconscious from the effects of alcohol. There was medical evidence of vaginal abrasions but no evidence of penetration. At the sentencing hearing, the judge characterized the accused’s actions as a “major” or “near major” sexual assault. In his view, deterrence and denunciation were the paramount sentencing factors to be considered for this type of offence. The sentencing judge took into account that there was no evidence of planning or deliberation, or gratuitous violence. He also observed that the accused had two prior convictions for assault. Finally, he noted that there was no evidence of remorse. The pre-sentence report was generally favourable to the accused and recommended a conditional sentence. Given that the accused was an aboriginal, the sentencing judge observed that he was “obliged to bear in mind” s. 718.2(e) of the Criminal Code. Taking all these factors into account, the sentencing judge held that “the necessary elements of deterrence and denunciation would be lacking” if the accused were permitted to serve a conditional sentence in the community. He sentenced the accused to 20 months’ incarceration. The Court of Appeal upheld the sentence.

Held: The appeal should be dismissed.

A purposive interpretation of s. 742.1of the Criminal Code requires the sentencing judge to proceed in stages in determining the appropriateness of a conditional sentence. At the preliminary stage, the judge simply has to exclude two possibilities: (a) probationary measures; and (b) a penitentiary term. Pursuant to s. 742.1(b), the second and most substantial stage of the analysis involves the determination of whether a conditional sentence would be consistent with the fundamental purpose and principles set out in ss. 718 to 718.2. If the judge’s preliminary assessment of a fit sentence excludes both a suspended sentence and a penitentiary sentence, and the statutory prerequisites in s. 742.1 are fulfilled, then he or she is required to consider s. 718.2(e) when deciding the appropriateness of a conditional sentence. Under that provision, all available sanctions other than imprisonment that are reasonable in the circumstances should be considered, with particular attention to the circumstances of aboriginal offenders. Moreover, whenever a judge narrows the choice to a sentence involving a sentence of incarceration, the judge is obliged to consider the unique systemic or background circumstances which may have played a part in bringing the particular aboriginal offender before the courts. As well, the judge must consider the types of practicable procedures and sanctions which would be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage. The application of s. 718.2(e) does not mean that a sentence will automatically be reduced, since the determination of a fit sentence requires a consideration of all the principles and objectives set out in Part XXIII. Depending on the severity of the conditions imposed, a conditional sentence may be reasonable in circumstances where deterrence and denunciation are paramount considerations. Ultimately, however, the determination of the availability of a conditional sentence depends upon the sentencing judge’s assessment of the specific circumstances of the case, including a consideration of the aggravating factors, the nature of the offence, the community context, and the availability of conditions which have the capacity to properly reflect society’s condemnation.

While the objective of restorative justice, by virtue of s. 718.2(e), applies to all offenders, the requirement to pay “particular attention to the circumstances of aboriginal offenders” recognizes that most traditional aboriginal conceptions of sentencing hold restorative justice to be the primary objective. In addition, s. 718.2(e) has a particular remedial purpose for aboriginal peoples, as it was intended to address the serious problem of overincarceration of aboriginal offenders in Canadian penal institutions. While s. 718.2(e) requires a different methodology for assessing a fit sentence for an aboriginal offender, it does not necessarily mandate a different result. 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, 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. It was accordingly open to the sentencing 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.

The sentencing judge made a reasonable determination as to the availability of a conditional sentence in this case. He did not misconstrue the seriousness of the crime, and his use of the words “near major” or “major” instead of “serious” does not constitute a reversible error. Since there was no error in principle, no overemphasis of the appropriate factors, and no failure to consider a relevant factor, deference should be shown to the trial judge’s assessment of the particular circumstances of the offence and the offender.

Cases Cited

Considered: R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688; R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; referred to: R. v. L.F.W., [2000] 1 S.C.R.132, 2000 SCC 6; R. v. R.N.S., [2000] 1 S.C.R. 149, 2000 SCC 7; R. v. R.A.R., [2000] 1 S.C.R. 163, 2000 SCC 8; R. v. Bunn, [2000] 1 S.C.R. 183, 2000 SCC 9; R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227; R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500; R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948; R. v. Brady (1998), 1998 ABCA 7, 121 C.C.C. (3d) 504.

Statutes and Regulations Cited

Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22.

Criminal Code, R.S.C., 1985, c. C-46, ss. 100, 271, Part XXIII [repl. 1995, c. 22, s. 6], ss. 718, 718.1, 718.2 [am. 1997, c. 23, s. 17], 726.1, 742.1 [am. 1997, c. 18, s. 107.1], 742.3, 742.6(9).

APPEAL from a judgment of the Alberta Court of Appeal (1998), 1998 ABCA 109, 125 C.C.C. (3d) 129, 61 Alta. L.R. (3d) 377, 216 A.R. 61, 175 W.A.C. 61, [1998] A.J. No. 405 (QL), dismissing the accused’s appeal from the 20‑month custodial sentence imposed by McMahon J. after he was convicted of sexual assault. Appeal dismissed.

Marian E. Bryant, for the appellant.

Goran Tomljanovic, for the respondent.

Kent Roach and Kimberly R. Murray, for the intervener.

The judgment of the Court was delivered by

Iacobucci J. –

I. Introduction

1 This appeal requires us to consider the conditional sentencing provisions of the Criminal Code, R.S.C., 1985, c. C‑46, in the context of aboriginal offenders. The appellant appeals his 20-month custodial sentence, seeking to have it converted to a conditional sentence on the basis that the sentencing judge did not take into account the appropriate considerations required in s. 718.2(e) of the Code, in light of the appellant’s aboriginal status.

2 In September 1996, the Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 (“Bill C-41”), came into effect, introducing significant amendments to the sentencing regime outlined in Part XXIII of the Code. These amendments included an expanded articulation of the fundamental purpose and principles of sentencing (ss. 718 to 718.2), a specific provision dealing with aboriginal offenders (s. 718.2(e)), and the introduction of the conditional sentence (s. 742.1).

3 In R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, this Court was asked to determine the proper application of s. 718.2(e). In so deciding, it was necessary to place this provision within the context provided by the purposes and principles of sentencing set out in ss. 718 to 718.2, and the overall scheme of Part XXIII. The Court determined that the new sentencing amendments represented “a watershed, marking the first codification and significant reform of sentencing principles in the history of Canadian criminal law” (para. 39).

4 In noting that Parliament had two primary objectives in enacting this new legislation: (i) reducing the use of prison as a sanction, and (ii) expanding the use of restorative justice principles in sentencing, the Court stated (at para. 48):

It can be seen, therefore, that the government position when Bill C-41 was under consideration was that the new Part XXIII was to be remedial in nature. The proposed enactment was directed, in particular, at reducing the use of prison as a sanction, at expanding the use of restorative justice principles in sentencing, and at engaging in both of these objectives with a sensitivity to aboriginal community justice initiatives when sentencing aboriginal offenders.

5 This appeal was heard along with five companion appeals in which the Court was called upon to outline the general principles governing the new conditional sentencing provisions in Part XXIII (s. 742.1): see R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v. L.F.W., [2000] 1 S.C.R. 132, 2000 SCC 6; R. v. R.N.S., [2000] 1 S.C.R. 149, 2000 SCC 7; R. v. R.A.R., [2000] 1 S.C.R. 163, 2000 SCC 8, and R. v. Bunn, [2000] 1 S.C.R. 183, 2000 SCC 9. The Court has extensively outlined its interpretation of s. 742.1 in Proulx.

6 Consequently, the decisions in Gladue and Proulx provide the legal background for understanding the manner in which ss. 742.1 and 718.2(e) interact on the issues presented in this appeal. It should be pointed out that neither the trial judge nor the Court of Appeal had these decisions available to them when they considered the new sentencing regime.

II. Background

7 On November 8, 1996, a jury convicted the appellant of committing sexual assault contrary to s. 271 of the Criminal Code, and on December 19, 1996, he was sentenced to 20 months’ incarceration with a 10-year firearm prohibition pursuant to s. 100 of the Code.

8 Early in the morning of May 15, 1994, the appellant attended a house party at the home of the victim, an 18-year-old aboriginal woman living with friends on the Tsuu T’ina Nation Reserve (also known as the Sarcee Reserve). Evidence at trial established that the victim was either asleep or unconscious from the effects of alcohol and she was assaulted in her own bedroom. There was medical evidence of vaginal abrasions but there was no evidence of penetration. While the victim has no memory of the assault, she suffered hurt and humiliation when she learned of the event the next morning.

III. Relevant Statutory Provisions

9 Criminal Code, R.S.C., 1985, c. C‑46

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or child,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, or

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

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

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

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

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

742.3 (1) The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following:

(a) keep the peace and be of good behaviour;

(b) appear before the court when required to do so by the court;

(c) report to a supervisor

(i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and

(ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;

(d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and

(e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.

(2) The court may prescribe, as additional conditions of a conditional sentence order, that the offender do one or more of the following:

(a) abstain from

(i) the consumption of alcohol or other intoxicating substances, or

(ii) the consumption of drugs except in accordance with a medical prescription;

(b) abstain from owning, possessing or carrying a weapon;

(c) provide for the support or care of dependants;

(d) perform up to 240 hours of community service over a period not exceeding eighteen months;

(e) attend a treatment program approved by the province; and

(f) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.

742.6 . . .

(9) Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may

(a) take no action;

(b) change the optional conditions;

(c) suspend the conditional sentence order and direct

(i) that the offender serve in custody a portion of the unexpired sentence, and

(ii) that the conditional sentence order resume on the offender’s release from custody, either with or without changes to the optional conditions; or

(d) terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence.

IV. Judicial History

A. Alberta Court of Queen’s Bench

10 At the sentencing hearing, McMahon J. characterized the appellant’s actions as a “major” or “near major sexual assault”. In his view, deterrence and denunciation were the paramount sentencing factors to be considered for this type of offence. McMahon J. took into account that there was no evidence of planning or deliberation, or gratuitous violence. He also observed that the appellant had two prior convictions for assault. Finally, he noted that there was no evidence of remorse.

11 The pre-sentence report was generally favourable to the appellant and recommended a conditional sentence. The appellant had completed a 28-day treatment program for alcohol abuse at the Poundmaker’s Lodge, an aboriginal-focussed alcohol treatment centre. In addition, the appellant was assessed as posing no threat to the community as long as he abstained from alcohol use. Given that the appellant was an aboriginal, McMahon J. observed that he was “obliged to bear in mind section 718.2(e) of the Code”.

12 Taking all these factors into account, McMahon J. held that “the necessary elements of deterrence and denunciation would be lacking” if the appellant were permitted to serve a conditional sentence in the community. As a result, he sentenced the appellant to 20 months in a provincial correctional institution.

B. Alberta Court of Appeal (1998), [1998 ABCA 109](https://www.canlii.org/en/ab/abca/doc/1998/1998abca109/1998abca109.html), 125 C.C.C. (3d) 129

13 The appellant appealed on the basis that s. 718.2(e) had not been properly considered by the sentencing judge. The Court of Appeal dismissed the appeal, upholding the sentence imposed by the trial judge.

14 At the outset, the Court of Appeal determined that the standard of appellate review for a trial judge’s imposition of sentence had been set out in a trilogy of sentencing decisions from this Court: R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, and R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948. The court accepted (at p. 135) that “absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit” (citing M. (C.A.), per Lamer C.J., at para. 90).

15 Fresh evidence of the appellant’s involvement in community alcohol programs was presented at the Court of Appeal with the consent of the Crown. The appellant and Crown had agreed that the Court of Appeal could consider this new evidence, and treat it as if it had been available at the original sentencing.

16 The evidence included an application, made by the appellant, to the aboriginal-specific services of the Poundmaker’s Lodge Alcohol and Drug Abuse Centre for a second treatment session by the appellant. There were also submissions from the Tsuu T’ina Nation Spirit Healing Lodge indicating that they were willing to admit the appellant after the hearing of the Court of Appeal, and that he could remain in this alcohol treatment program until his admission to the Poundmaker’s Lodge. There was also a brochure outlining the Tsuu T’ina Nation Spirit Healing Lodge program which described the Lodge’s goals and objectives. The court took note that the Tsuu T’ina Nation Spirit Healing Lodge’s brochure indicated that “persons who have a history of violence, child molestation, sexual offences” were considered “inappropriate clients” (p. 141).

17 In holding that the evidence was properly adduced, the court remarked that this information had assisted the court in considering alternatives to imprisonment. However, the court commented that the evidence was problematic for the appellant since the nature of the appellant’s crime had apparently rendered him an inappropriate client for the alcohol treatment centre.

18 Adopting the approach in R. v. Brady (1998), 1998 ABCA 7, 121 C.C.C. (3d) 504 (Alta. C.A.), the court determined that a conditional sentence would rarely be available where the paramount sentencing concerns are deterrence and denunciation which pursuant to Brady called for actual imprisonment.

19 The court also held that the application of s. 718.2(e) would not alter this result (at p. 142):

We reject the suggestion that s. 718.2(e) would displace the rationale in Brady, and faced as we are here with a crime worthy of denunciation and deterrence, and the fact that the sentence must be proportionate to the gravity of the crime, it is clear that s. 718.2(e) cannot be interpreted to mean that in some fashion an alternative to imprisonment must be imposed as a sentence for the Appellant. [Emphasis in original.]

20 The court stated that the words “reasonable in the circumstances” contained in s. 718.2(e) required an expansive reading, understanding them within the context of the objectives and purposes of sentencing outlined in ss. 718 to 718.2. From this basis, the term “reasonable” requires that the sentence be commensurate with these objectives and principles of sentencing. Accordingly, the “circumstances” to be considered include the gravity and nature of the offence, the record of the accused, impact on victims and the community, the need for denunciation and deterrence, the need to maintain proportionality, aggravating and mitigating factors, relevant case law, and the particular circumstances of the accused (at p. 138).

21 The court’s analysis of s. 718.2(e) continued with his examination of the words “with particular attention to the circumstances of aboriginal offenders”. In its view these words required that the sentencing judge pay attention to all of the sentencing factors noted above, “together with the additional circumstances particular to aboriginal offenders” (p. 138). These “additional circumstances” included: social factors particular to aboriginal Canadians; recognition of the alternative approaches taken to sanctions by aboriginal communities; the geographic availability of alternative sanctions; and community support.

22 The court held that Parliament could not have intended that victims of aboriginal offenders, including aboriginal victims, would receive less protection under the law. Nor did Parliament intend s. 718.2(e) to be in any way paramount to the other provisions set out in ss. 718 to 718.2. Again, the court emphasized that the sentence must be one which accords with all of the sentencing principles and objectives set out in ss. 718 to 718.2, and includes attention to the factors noted above.

23 Noting that s. 726.1 of the Criminal Code was permissive rather than mandatory, the court held that the sentencing judge was not under an obligation to conduct an inquiry as to the circumstances of the aboriginal offender. Rather, the onus rests on the accused to suggest specific alternative sanctions supported by evidentiary submissions to the court. The sentencing judge must take into account that he or she is dealing with an aboriginal offender and “must address his or her mind to the circumstances of aboriginal offenders” (p. 141). In order to succeed, the submissions on behalf of the accused must be reasonable in the circumstances and must be commensurate with the other sentencing provisions set out in the Criminal Code as well as relevant jurisprudence.

24 In summary, the court found that the sentencing judge had properly taken into account the circumstances of the appellant, including the fact that the appellant was an aboriginal. In concluding, the court stated (at p. 142):

The Trial Judge was faced with a serious sexual assault on an unconscious victim in her own bedroom, involving an adult offender with a record. While it is clear that the Appellant has a long-standing problem of alcohol abuse, the Appellant evidently made no effort prior to 1994 to address this problem and all efforts to rehabilitate have been subsequent to the offence.

Given the circumstances which were before the Trial Judge, it is clear that any sentence that he imposed would have to properly reflect denunciation, specific and general deterrence, and be proportionate to the gravity of the offence.

V. Analysis

A. Introduction

25 Section 718.2(e) of the Criminal Code provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered, with particular attention to the circumstances of aboriginal offenders. As a general matter, this appeal raises the issue of whether a non-custodial sentence is reasonable, to use the language of s. 718.2(e), in circumstances where the paramount sentencing objectives are denunciation and deterrence. More specifically, this appeal must determine whether the trial judge properly applied s. 718.2(e) when sentencing the appellant.

26 My discussion of these issues will deal with the following points. First, as a preliminary matter, it is important to understand how and when a sentencing judge should consider the particular circumstances of an aboriginal offender in relation to the determination of the availability of a conditional sentence pursuant to s. 742.1. Since s. 718.2(e) requires the consideration of “all available sanctions other than imprisonment that are reasonable in the circumstances” (emphasis added), the second section of my analysis focuses on the availability of conditional sentences for crimes where, as in this appeal, the objectives of denunciation or deterrence are paramount. Finally, given that a conditional sentence is possible where the sentencing objectives are denunciation and deterrence, the third section of the analysis will discuss whether the imposition of a conditional sentence, as opposed to a sentence of incarceration, was “reasonable in the circumstances” of this case. In other words, the issue is whether the sentencing judge properly applied s. 718.2(e) to this appellant.

B. The Determination of the Availability of a Conditional Sentence, and Section 718.2(e)’s Role Therein

27 Lamer C.J., in Proulx, supra, held that a purposive interpretation of s. 742.1 required the sentencing judge to proceed in stages in determining the appropriateness of a conditional sentence. At the preliminary stage, the judge simply has to exclude two possibilities: (a) probationary measures; and (b) a penitentiary term. The duration and venue of the sentence are not determined at this preliminary stage. In addition, the judge is required to consider the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 only to the extent necessary to narrow the range of sentence for the offender. If, at this point, either a penitentiary or a suspended sentence is appropriate, then a conditional sentence should not be imposed (Proulx, at paras. 58-59).

28 Before moving to the next stage of the analysis, the sentencing judge must also establish whether the statutory prerequisites set out in s. 742.1 have been satisfied. These prerequisites include: (i) the absence of a minimum term of imprisonment; (ii) a sentence of imprisonment of less than two years (i.e., the elimination of a penitentiary term per step one); and (iii) that the safety of the community would not be endangered by the offender serving the sentence in the community. Two factors must be taken into account in assessing the danger to a community posed by an offender: (i) the risk of the offender re-offending; and (ii) the gravity of the damage that could ensue in the event of re-offence. In Proulx, the Chief Justice provided helpful guidance for this risk assessment at paras. 69-76.

29 Pursuant to s. 742.1(b), the second and most substantial stage of the analysis involves the determination of whether a conditional sentence would be consistent with the fundamental purpose and principles set out in ss. 718 to 718.2. Unlike the more cursory review of the purpose and principles of sentencing at the preliminary stage, this second stage requires a comprehensive consideration of these principles and objectives. It is this comprehensive consideration which guides the sentencing judge in determining (i) whether the offender should serve the sentence in the community or in jail, (ii) the duration of the sentence, and, if a conditional sentence, (iii) the nature of the conditions to be imposed.

30 If the judge’s preliminary assessment of a fit sentence excludes both a suspended sentence and a penitentiary sentence, and the statutory prerequisites in s. 742.1 are fulfilled, then he or she is required to consider s. 718.2(e) when deciding the appropriateness of a conditional sentence. The judge’s consideration of s. 718.2(e) at this stage does not displace the need to take into account all of the other principles and objectives set out in ss. 718 to 718.2. Moreover, whenever a judge narrows the choice to a sentence involving a sentence of incarceration, the judge is obliged to consider the unique systemic or background circumstances which may have played a part in bringing the particular aboriginal offender before the courts. As well, the judge must consider the types of practicable procedures and sanctions which would be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage (Gladue, supra, at para. 93). As was indicated in Gladue, the application of s. 718.2(e) does not mean that a sentence will automatically be reduced, since the determination of a fit sentence requires a consideration of all the principles and objectives set out in Part XXIII.

C. The Availability of a Conditional Sentence for Offences Where the Paramount Sentencing Objectives Are Denunciation or Deterrence

31 In Proulx, supra, the Court determined that the conditional sentence of imprisonment, introduced with Bill C-41, represents a meaningful alternative to incarceration for less serious and non-dangerous offenders. As was the case with s. 718.2(e) (see Gladue, supra), the conditional sentence was enacted in order to further Parliament’s goals of reducing the use of prison and expanding the use of restorative justice principles in sentencing. At paras. 99-100 in Proulx, Lamer C.J. described how the conditional sentence incorporates traditionally punitive goals of sentencing while also providing an opportunity to further the goals of restorative justice:

The conditional sentence facilitates the achievement of both of Parliament’s objectives. It affords the sentencing judge the opportunity to craft a sentence with appropriate conditions that can lead to the rehabilitation of the offender, reparations to the community, and the promotion of a sense of responsibility in ways that jail cannot. However, it is also a punitive sanction. Indeed, it is the punitive aspect of a conditional sentence that distinguishes it from probation. As discussed above, it was not Parliament’s intention that offenders who would otherwise have gone to jail for up to two years less a day now be given probation or some equivalent thereof.

Thus, a conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstances.

32 The Chief Justice discussed how the sentencing objectives, outlined in s. 718(a) to (f), related to this interpretation of the provision’s dual purpose. While recognizing that a conditional sentence is generally better suited to achieve the restorative objectives of rehabilitation, reparations, and promotion of a sense of responsibility in the offender, Lamer C.J. indicated that the objectives of deterrence and denunciation could be well served with a conditional sentence. Indeed, he noted that certain conditions can create more onerous circumstances than those associated with incarceration (at para. 105).

33 The amount of denunciation and deterrence provided by a conditional sentence varies depending on the nature of the conditions imposed and the duration of the sentence. Since the imposition of any sentence is determined on an individual basis, each conditional sentence needs to be crafted with attention to the particular circumstances of the offence, offender, and the community in which the offence took place (see M. (C.A.), supra, per Lamer C.J., at para. 92). Consequently, conditions will vary according to these factors with it being generally true that “the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be” (Proulx, at para. 106).

34 Nevertheless, Lamer C.J. pointed out that “there may be certain circumstances in which the need for denunciation [or deterrence] is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct” (Proulx, at para. 106). He further stated (at paras. 114 and 116):

This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence. Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served.

Sentencing judges will frequently be confronted with situations in which some objectives militate in favour of a conditional sentence, whereas others favour incarceration. In those cases, the trial judge will be called upon to weigh the various objectives in fashioning a fit sentence. As La Forest J. stated in R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 329 “[i]n a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender”. There is no easy test or formula that the judge can apply in weighing these factors. Much will depend on the good judgment and wisdom of sentencing judges, whom Parliament vested with considerable discretion in making these determinations pursuant to s. 718.3.

35 Therefore, depending on the severity of the conditions imposed, a conditional sentence may be reasonable in circumstances where deterrence and denunciation are paramount considerations. Ultimately, however, the determination of the availability of a conditional sentence depends upon the sentencing judge’s assessment of the specific circumstances of the case, including a consideration of the aggravating factors, the nature of the offence, the community context, and the availability of conditions which have the capacity to properly reflect society’s condemnation.

D. Whether the Imposition of a Conditional Sentence Is Reasonable in the Circumstances

36 In Gladue, supra, the Court concluded that, as a general principle, s. 718.2(e) indicates that a custodial sentence is the penal sanction of last resort for all offenders, to be used only where no other sanction is appropriate. As to the words “with particular attention to the circumstances of aboriginal offenders”, the Court reasoned that sentencing judges should pay particular attention to the fact that the circumstances of aboriginal offenders are unique in comparison with those of non-aboriginal offenders. Section 718.2(e) has a remedial purpose for all offenders, focussing as it does on the concept of restorative justice, a sentencing approach which seeks to restore the harmony that existed prior to the accused’s actions. Again, the appropriateness of the sentence will take into account the needs of the victims, the offender, and the community as a whole.

37 While the objective of restorative justice, by virtue of s. 718.2(e), applies to all offenders, the requirement to pay “particular attention to the circumstances of aboriginal offenders” recognizes that most traditional aboriginal conceptions of sentencing hold restorative justice to be the primary objective. In addition, s. 718.2(e) has a particular remedial purpose for aboriginal peoples, as it was intended to address the serious problem of overincarceration of aboriginal offenders in Canadian penal institutions. In singling out aboriginal offenders for distinct sentencing treatment in s. 718.2(e), it is reasonable to assume that Parliament intended to address this social problem, to the extent that a remedy was possible through sentencing procedures.

38 In order to provide guidance to sentencing judges as to the manner in which the remedial purpose of s. 718.2(e) could be given effect, the reasons in Gladue set out a framework of analysis for the sentencing judge. In considering the circumstances of aboriginal offenders, the sentencing judge must take into account, at the very least, both the unique systemic or background factors that are mitigating in nature in that they may have played a part in the aboriginal offender’s conduct, and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection (Gladue, at para. 66). In particular, given that most traditional aboriginal approaches place a primary emphasis on the goal of restorative justice, the alternative of community-based sanctions must be explored.

39 In the search for a fit sentence, therefore, the role of the sentencing judge is to conduct the sentencing process and impose sanctions taking into account the perspective of the aboriginal offender’s community. As was noted in Gladue, it is often the case that imposing a custodial sentence on an aboriginal offender does not advance the remedial purpose of s. 718.2(e), neither for the offender nor for his community. This is particularly true for less serious or non-violent offences, where the goal of restorative justice will no doubt be given greater weight than principles of denunciation or deterrence.

40 However, the scope of s. 718.2(e), as it applies to all offenders, restricts the adoption of alternatives to incarceration to those sanctions that are “reasonable in the circumstances”. Again, as was expressly stated in Gladue, the Court in no way intended to suggest that as a general rule, the greatest weight is to be given to principles of restorative justice, and less weight accorded to goals such as denunciation and deterrence. Indeed, such a general rule would contradict the individual or case-by-case nature of the sentencing process, which proceeds on the basis of inquiring whether, given the particular facts of the offence, the offender, the victim and the community, the sentence is fit in the circumstances.

41 I should take this opportunity to stress that the guidelines as set out in Gladue, and reiterated in the present appeal, are not intended to provide a single test for a sentencing judge to apply in determining a reasonable sentence in the circumstances. Section 718.2(e) imposes an affirmative duty on the sentencing judge to take into account the surrounding circumstances of the offender, including the nature of the offence, the victims and the community.

42 Notwithstanding what may well be different approaches to sentencing as between aboriginal and non-aboriginal conceptions of sentencing, it is reasonable to assume that for some aboriginal offenders, and depending upon the nature of the offence, the goals of denunciation and deterrence are fundamentally relevant to the offender’s community. As held in Gladue, at para. 79, to the extent that generalizations may be made, the more violent and serious the offence, the more likely as a practical matter that the appropriate sentence will not differ as between aboriginal and non-aboriginal offenders, given that in these circumstances, the goals of denunciation and deterrence are accorded increasing significance.

E. Whether the Imposition of a Conditional Sentence Is Reasonable in the Circumstances of This Case

(1) Significance of the Goal of Restorative Justice in Sentencing Aboriginal Offenders Convicted of Serious Crimes

43 The appellant submits that in according greater weight to the goals of denunciation and deterrence based on the nature of his offence, the sentencing judge did not take into account, as required by s. 718.2(e), the paramount significance of restorative justice within aboriginal communities. The appellant also submits that on the same basis, the Court of Appeal was in error when it held that it would be unreasonable to conclude that a fit sentence for a non-aboriginal offender would not also be a fit sentence for an aboriginal offender. It is important to note, however, that consistent with the reasoning in Gladue, supra, the Court of Appeal was referring to “serious crimes”, rather than offences in general, as follows (at p. 140):

For serious crimes, it would not be reasonable to conclude that a fit sentence for a non-aboriginal person would not also be fit for an aboriginal person, and this point was made by Esson, J.A. speaking for the majority in the British Columbia Court of Appeal decision of R. v. Gladue (1997), 1997 CanLII 3015 (BC CA), 119 C.C.C. (3d) 481 at p. 506, who stated, “To put it another way, the particular circumstances could not reasonably support a conclusion that the sentence, if a fit one for a non-aboriginal person, would not also be fit for an aboriginal person”. [Emphasis added.]

44 Let me emphasize that 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. 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 (at para. 78). 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 (Gladue, at para. 33). 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.

45 Whether a crime is indeed serious in the given circumstances is, in my opinion, a factual matter that can only be determined on a case-by-case basis. I am not suggesting that there are categories of offences which presumptively exclude the possibility of a non-custodial sentence. Indeed, Lamer C.J. specifically rejected such an approach in relation to the conditional sentencing regime (Proulx, supra, at para. 79). More generally, Sopinka J., in McDonnell, supra, at paras. 32-33, rejected a category-based approach to sentencing for the following reasons:

In any event, in my view it can never be an error in principle in itself to fail to place a particular offence within a judicially created category of assault for the purposes of sentencing. There are two main reasons for this conclusion. First, Shropshire and M. (C.A.), two recent and unanimous decisions of this Court, clearly indicate that deference should be shown to a lower court's sentencing decision. If an appellate court could simply create reviewable principles by creating categories of offences, deference is diminished in a manner that is inconsistent with Shropshire and M. (C.A.). In order to circumvent deference and to enable appellate review of a particular sentence, a court may simply create a category of offence and a "starting point" for that offence, and treat as an error in principle any deviation in sentencing from the category so created. . . . If the categories are defined narrowly, and deviations from the categorization are generally reversed, the discretion that should be left in the hands of the trial and sentencing judges is shifted considerably to the appellate courts.

Second, there is no legal basis for the judicial creation of a category of offence within a statutory offence for the purposes of sentencing. As has been true since Frey v. Fedoruk, 1950 CanLII 24 (SCC), [1950] S.C.R. 517, it is not for judges to create criminal offences, but rather for the legislature to enact such offences.

46 Furthermore, Lamer C.J. reasoned that a categorical approach represents only a partial, and therefore unbalanced, application of the fundamental sentencing principle of proportionality contained in s. 718.1 (Proulx, supra, at para. 83). Moreover, s. 718.1 provides that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (emphasis added). Thus, in assessing the seriousness of a crime we are directed to consider the gravity of the offence and the offender’s degree of responsibility.

47 In this case, the trial judge did refer to “guideline cases binding on this court”, an apparent reference to case law which outlined “starting point” guidelines for establishing sentences for serious sexual assaults. The reference to a “starting point” does not, however, establish that the judge failed to consider the seriousness of the offence and the offender’s degree of responsibility on the facts of the case. Independent of this reference it is clear that the trial judge determined that this was a serious crime, taking into account the gravity of the offence, the existence or absence of aggravating factors, and the lack of evidence of remorse:

The maximum term provided by the Criminal Code is 10 years imprisonment. The sexual assault occurred when the 18-year-old victim was either asleep or unconscious from the effects of alcohol. The medical evidence indicated vaginal abrasions but did not establish penetration or intercourse. It was, in my view, in any event, a major, or at the very best, a near major sexual assault, as those terms have been used in the guideline cases binding on this court. The paramount sentencing factors for these kinds of offences are deterrence and denunciation.

Mr. Wells here took complete advantage of an unconscious 18-year-old girl. His own admitted and voluntary intoxication is no excuse. He violated the victim’s personal integrity in the basest of ways.

48 I cannot conclude that the trial judge misconstrued the seriousness of the crime. In addition, the judge’s use of the words “near major” or “major” instead of “serious” does not constitute a reversible error. I find no error in principle, no overemphasis of the appropriate factors, nor a failure to consider a relevant factor, and, accordingly, defer to the trial judge’s assessment of the particular circumstances of the offence and offender (M. (C.A.), supra). Therefore, the trial judge made a reasonable determination as to the availability of a conditional sentence.

49 I would like to add at this point that the reasons in Gladue, supra, do not foreclose the possibility that, in the appropriate circumstances, a sentencing judge may accord the greatest weight to the concept of restorative justice, notwithstanding that an aboriginal offender has committed a serious crime. As was concluded in Gladue, at para. 81, the remedial purpose of s. 718.2(e) directs the sentencing judge not only to take into account the unique circumstances of aboriginal offenders, but also to appreciate relevant cultural differences in terms of the objectives of the sentencing process:

The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances. There is no single test that a judge can apply in order to determine the sentence. The sentencing judge is required to take into account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including the unique circumstances of the offender as an aboriginal person. Sentencing must proceed with sensitivity to and understanding of the difficulties aboriginal people have faced with both the criminal justice system and society at large. When evaluating these circumstances in light of the aims and principles of sentencing as set out in Part XXIII of the Criminal Code and in the jurisprudence, the judge must strive to arrive at a sentence which is just and appropriate in the circumstances. By means of s. 718.2(e), sentencing judges have been provided with a degree of flexibility and discretion to consider in appropriate circumstances alternative sentences to incarceration which are appropriate for the aboriginal offender and community and yet comply with the mandated principles and purpose of sentencing. In this way, effect may be given to the aboriginal emphasis upon healing and restoration of both the victim and the offender.

50 The generalization drawn in Gladue to the effect that the more violent and serious the offence, the more likely as a practical matter for similar terms of imprisonment to be imposed on aboriginal and non-aboriginal offenders, was not meant to be a principle of universal application. In each case, the sentencing judge must look to the circumstances of the aboriginal offender. In some cases, it may be that these circumstances include evidence of the community’s decision to address criminal activity associated with social problems, such as sexual assault, in a manner that emphasizes the goal of restorative justice, notwithstanding the serious nature of the offences in question.

51 As Lamer C.J. noted in M. (C.A.), supra, at para. 92, sentencing requires an individualized focus, not only of the offender, but also of the victim and community as well:

It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . . Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. [Emphasis added.]

52 In this respect, I note that the appellant introduced evidence of the availability of an aboriginal-specific alcohol and drug abuse treatment program. There was, however, an indication that this program would be inappropriate for the appellant as a sexual offender. In addition, there was no evidence of the existence of, or the appellant’s participation in, an anti-sexual-assault program.

(2) Extent of the Sentencing Judge’s Obligation to Inquire into the Circumstances of an Aboriginal Offender

53 As noted in Gladue, supra, at para. 83, it will be necessary in every case for the sentencing judge to take judicial notice of systemic or background factors that have contributed to the difficulties faced by aboriginal people in both the criminal justice system, and throughout society at large. In addition, the judge is obliged to inquire into the unique circumstances of aboriginal offenders.

54 At times, it may be necessary to introduce evidence of this nature. It is to be expected in our adversarial system of criminal law that counsel for both the prosecution and the accused will adduce this evidence, but even where counsel do not provide the necessary information, s. 718.2(e) places an affirmative obligation upon the sentencing judge to inquire into the relevant circumstances. In most cases, the requirement of special attention to the circumstances of aboriginal offenders can be satisfied by the information contained in pre-sentence reports. Where this information is insufficient, s. 718.2(e) authorizes the sentencing judge on his or her own initiative to request that witnesses be called to testify as to reasonable alternatives to a custodial sentence.

55 Having said that, it was never the Court’s intention, in setting out the appropriate methodology for this assessment, to transform the role of the sentencing judge into that of a board of inquiry. It must be remembered that in the reasons in Gladue, this affirmative obligation to make inquiries beyond the information contained in the pre-sentence report was limited to “appropriate circumstances”, and where such inquiries were “practicable” (para. 84). The application of s. 718.2(e) requires a practical inquiry, not an impractical one. As with any other factual finding made by a court of first instance, the sentencing judge’s assessment of whether further inquiries are either appropriate or practicable is accorded deference at the appellate level.

VI. Conclusion and Disposition

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

Appeal dismissed.

Solicitor for the appellant: Marian E. Bryant, Calgary.

Solicitor for the respondent: The Attorney General for Alberta, Calgary.

Solicitors for the intervener: Kent Roach and Kimberly R. Murray, Toronto.

^*Cory J. took no part in the judgment.