R. v. R.N.S., 2000 SCC 7

R. v. R.N.S., [2000] 1 S.C.R. 149

Her Majesty The Queen Appellant

v.

R.N.S. Respondent

and

The Attorney General of Canada and

the Attorney General for Ontario Interveners

Indexed as: R. v. R.N.S.

Neutral citation: 2000 SCC 7.

File No.: 26462.

1999: May 25, 26; 2000: January 31.

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

on appeal from the court of appeal for british columbia

Criminal law – Sentencing – Conditional sentences – Accused convicted of sexual assault and invitation to sexual touching – Whether Court of Appeal erred in substituting conditional sentence for jail term imposed by trial judge – Criminal Code, R.S.C., 1985, c. C-46, s. 742.1.

The accused was convicted of sexual assault and invitation to sexual touching in relation to incidents with his step-granddaughter. The offences were committed between 1990 and 1994 and, at the time, the victim was between 5 and 8 and the accused was between 46 and 50 years old. The trial judge sentenced the accused to nine months’ imprisonment. The conditional sentencing regime came into force after the accused was sentenced. The Court of Appeal allowed the accused’s sentence appeal and substituted a nine-month conditional sentence.

Held: The appeal should be allowed.

Per Lamer C.J. and Iacobucci, Major and Binnie JJ.: For the reasons outlined in R. v. R.A.R., [2000] 1 S.C.R. 163, 2000 SCC 8, the accused was entitled to the benefit of the conditional sentencing regime on appeal, and the Court of Appeal could re-sentence him. Notwithstanding the deference to which sentencing decisions by a court of appeal are entitled, this Court should intervene in this case and restore the trial judge’s original sentence. A nine-month conditional sentence was not a fit sentence, in light of the gravity of the offences committed and the high moral blameworthiness of the accused. Despite the fact that the accused’s liberty was restricted by the conditions imposed, the amount of denunciation provided by a nine-month conditional sentence was clearly insufficient in the circumstances to signify society’s abhorrence for the acts the accused committed. By imposing a conditional sentence of only nine months, the Court of Appeal transformed what was already a lenient sentence into an unfit sentence. A nine-month sentence of incarceration would have been appropriate in this case. Since the accused has served his conditional sentence in its entirety and the Crown does not seek any further punishment, the nine-month term of incarceration should be stayed.

Per L’Heureux-Dubé, Gonthier, McLachlin and Bastarache JJ.: There is agreement with the reasons of the Chief Justice with the exception of his comments regarding the disposition of the appeal in R. v. L.F.W., [2000] 1 S.C.R. 132, 2000 SCC 6, in view of the dissent in that case.

Cases Cited

By Lamer C.J.

Applied: R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v. R.A.R., [2000] 1 S.C.R. 163, 2000 SCC 8; distinguished: R. v. L.F.W., [2000] 1 S.C.R. 132, 2000 SCC 6; referred to: R. v. Bunn, [2000] 1 S.C.R. 183, 2000 SCC 9; R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729; R. v. Dunn, 1995 CanLII 149 (SCC), [1995] 1 S.C.R. 226; R. v. Ursel (1997), 1997 CanLII 12512 (BC CA), 117 C.C.C. (3d) 289; R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500.

By L’Heureux-Dubé J.

R. v. L.F.W., [2000] 1 S.C.R. 132, 2000 SCC 6.

By Gonthier J.

R. v. L.F.W., [2000] 1 S.C.R. 132, 2000 SCC 6.

By McLachlin J.

R. v. L.F.W., [2000] 1 S.C.R. 132, 2000 SCC 6.

By Bastarache J.

R. v. L.F.W., [2000] 1 S.C.R. 132, 2000 SCC 6.

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, Part XXIII [repl. 1995, c. 22, s. 6], ss. 718, 718.1, 718.2 [am. 1997, c. 23, s. 17], 742.1 [am. 1997, c. 18, s. 107.1].

Interpretation Act, R.S.C., 1985, c. I-21, s. 44(e).

APPEAL from a judgment of the British Columbia Court of Appeal (1997), 1997 CanLII 22734 (BC CA), 121 C.C.C. (3d) 426, 100 B.C.A.C. 120, 163 W.A.C. 120, [1997] B.C.J. No. 2776 (QL), allowing the accused’s appeal from a sentence of nine months’ incarceration imposed by MacArthur Prov. Ct. J. Appeal allowed.

Alexander Budlovsky and Jennifer Duncan, for the appellant.

Bruce H. Ralston, for the respondent.

S. Ronald Fainstein, Q.C., for the intervener the Attorney General of Canada.

Kenneth L. Campbell and Gregory J. Tweney, for the intervener the Attorney General for Ontario.

The judgment of Lamer C.J. and Iacobucci, Major and Binnie JJ. was delivered by

1 The Chief Justice – This is a Crown appeal from a decision of the British Columbia Court of Appeal substituting a conditional sentence for the jail term imposed by the sentencing judge. This case was heard together with the appeals in 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.A.R., [2000] 1 S.C.R. 163, 2000 SCC 8, and R. v. Bunn, [2000] 1 S.C.R. 183, 2000 SCC 9. At issue in all of these appeals are the principles governing the pronouncement of conditional sentences in the new legislative scheme. These reasons are concerned primarily with the application of the principles set out in Proulx. As in R.A.R., this case raises the additional question of the consequences of changes in the law between the pronouncement of the sentence by the trial judge and the hearing of the appeal.

I. Factual Background

2 The respondent was convicted of sexual assault and invitation to sexual touching in relation to incidents with his step-granddaughter which occurred between October 1990 and September 1994. At the time of the offences, the complainant was between 5 and 8 years old, and the respondent was between the ages of 46 and 50. The evidence on the sexual assault count was that the respondent fondled the complainant’s vagina on a number of occasions. On none of the occasions was there any vaginal penetration. The evidence on the incidents comprising the invitation to sexual touching count was that the complainant was offered $5 or some such sum to touch the accused’s penis, that she accepted the offer and was paid the money. The touching incidents occurred two or three times. A charge of sexual interference was conditionally stayed pursuant to the principles discussed by this Court in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

3 At the time of sentencing, the respondent lived with his wife. Both his wife and his two step-sons remained supportive of the respondent throughout the proceedings against him and following his conviction, while the complainant and her mother were ostracized by the family. The respondent was in poor health, suffering from heart problems and hypertension, as well as agitation as a result of the proceedings against him. He had no prior criminal record, and had good letters of reference from members of his community. He maintained his innocence after his convictions, and expressed no remorse.

4 On July 31, 1996, the respondent was sentenced to nine months’ imprisonment. The conditional sentencing regime came into force in September 1996. The respondent appealed his convictions and sentence. The conviction appeal was dismissed. The sentence appeal was heard on October 6, 1997, and the Court of Appeal allowed the appeal and substituted a nine-month conditional sentence.

5 The respondent completed his conditional sentence on September 12, 1998, and is bound by a probation order until September 12, 2000.

II. Relevant Statutory Provisions

6 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 acknowledgement 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 offender

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.

III. Judgments Below

A. Provincial Court of British Columbia (Reasons for sentence)

7 The respondent was sentenced on July 31, 1996. At the time of sentencing, the amendments to Part XXIII of the Criminal Code (An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 (“Bill C-41”)), were not yet in force. Accordingly, MacArthur Prov. Ct. J., the trial judge, did not have the option of imposing a conditional sentence.

8 MacArthur Prov. Ct. J. outlined the principles of sentencing. He stated that the fundamental principle was the protection of the public and that special concern had to be given to the objective of general deterrence in cases of sexual interference with a child. He added that the Supreme Court of Canada had reinforced the notion that denunciation had its place in the criminal sentencing process. Finally, he said he also had to take into consideration the rehabilitation of the offender.

9 MacArthur Prov. Ct. J. decided that a term of incarceration was necessary, in light of the clearly abhorrent and reprehensible conduct that had occurred. The judge conceded that the actions of the respondent were somewhat limited, but found that they were still extremely harmful to such a young child, particularly considering that the child was in a trust relationship with the respondent. He agreed with the submission of the Crown that a term between 18 months and two years might be warranted. However, taking into consideration the respondent’s poor health at the time of sentencing, that he had withdrawn from socializing, experienced difficulties in his marriage since the charges had been laid and that he had no prior criminal record, MacArthur Prov. Ct. J. sentenced him to nine months’ imprisonment on each count, to be served concurrently. MacArthur Prov. Ct. J. recommended that the respondent be incarcerated in the institution of Stave Lake, so as to allow him to take part in a treatment program for sexual offenders. Finally, MacArthur Prov. Ct. J. ordered that the term of incarceration be followed by probation for a period of two years.

B. British Columbia Court of Appeal (1997), 100 B.C.A.C. 120

10 Bill C-41 came into force in September 1996. The respondent’s convictions were upheld by the Court of Appeal on September 29, 1997. On December 12, 1997, the Court of Appeal allowed the sentence appeal and substituted a nine-month conditional sentence for the term of incarceration imposed by MacArthur Prov. Ct. J.

11 Lambert J.A. held that the new conditional sentencing provisions were applicable to this appeal, pursuant to s. 44(e) of the Interpretation Act, R.S.C., 1985, c. I-21, and this Court’s decision in R. v. Dunn, 1995 CanLII 149 (SCC), [1995] 1 S.C.R. 226. Lambert J.A. then considered whether the respondent should receive a conditional sentence. He explained that he was not bound by the deferential standard usually applied by appellate courts in reviewing the sentence imposed by the sentencing judge, in light of the changes in the law since the original sentencing. He found that this case should be treated like one in which a trial judge had erred in principle by failing to consider the new Part XXIII of the Criminal Code, and that the Court of Appeal could proceed as if it were sentencing the respondent for the first time.

12 After summarizing the principles laid down by the British Columbia Court of Appeal in R. v. Ursel (1997), 1997 CanLII 12512 (BC CA), 117 C.C.C. (3d) 289, Lambert J.A. concluded that a conditional sentence may fulfill the sentencing objectives of general deterrence, specific deterrence and denunciation as well as or better than a sentence of incarceration, particularly if the conditions that are made part of the sentence are appropriate for the fulfilment of these sentencing objectives.

13 Turning to the case at hand, Lambert J.A. noted that the offences for which the respondent was convicted did not require a minimum term of imprisonment. In reviewing the requirement of s. 742.1(a), Lambert J.A. concluded that the sentence ought to be less than two years, and he gave considerable weight to the sentence of nine months imposed by the trial judge. He was satisfied that serving the sentence in the community would not endanger its safety. In spite of the aggravating factor of breach of trust, Lambert J.A. felt that the respondent’s previously clean record, his poor health, the fact that he was self-employed and that his business would suffer greatly if he were incarcerated, the tensions in his marriage and social stigma he suffered, combined with the minimal risk of re-offence suggested that this was a proper case for a conditional sentence.

14 Lambert J.A. allowed the sentence appeal, and substituted a nine-month conditional sentence. The conditions imposed were that the respondent attend counselling as directed by his supervisor, including counselling for sexual offenders; that he have no contact or communication with the complainant and her mother; that he not be alone with any female child under the age of 14 (except when in the company of a responsible adult); and, finally, that he be confined to his house subject to limited exceptions. Lambert J.A. did not modify the probation order imposed by the judge, stating that it would run from the completion of the conditional sentence.

IV. Issue

15 At issue in this appeal is whether the Court of Appeal erred in substituting a conditional sentence for the jail term imposed by the trial judge.

V. Analysis

A. Benefit of the Conditional Sentencing Regime on Appeal

16 For the reasons I outlined in R.A.R., supra, at paras. 14-16, the respondent was entitled to the benefit of the conditional sentencing regime on appeal, as he received a sentence of less than two years’ imprisonment at trial. Accordingly, the Court of Appeal could re-sentence the respondent.

B. Application of the Principles Set Out in Proulx to the Case at Hand

17 As I explained in R.A.R., supra, at paras. 17-21, sentencing decisions by appellate courts are entitled to some deference from this Court. Notwithstanding this deference, I believe our intervention is justified in this case.

18 With respect, I do not think that a nine-month conditional sentence was a fit sentence, in light of the relevant sentencing considerations, including the gravity of the offences committed and the high moral blameworthiness of the respondent. The impugned acts occurred repeatedly over a period of approximately five years. The respondent abused the trust of a very young child, despite clear indications from the complainant that she did not like what he was doing. He remained unrepentant and continued to deny that the offences took place. The amount of denunciation provided by a nine-month conditional sentence was clearly insufficient in the circumstances to signify society’s abhorrence for the acts the respondent committed, despite the fact that his liberty was restricted by the conditions imposed. It must be remembered that, even though the respondent experienced some marital difficulties, he still benefited from the support of his family, while the victim and her mother were ostracized by the rest of the family.

19 In conducting its re-sentencing, the Court of Appeal should have recognized that the relatively lenient nine-month term imposed by MacArthur Prov. Ct. J. was the result of his taking into account the precarious health of the respondent at the time of sentencing, his marital difficulties and the social stigma he had already suffered, as the sentencing judge would have been inclined to agree with the Crown’s submission that a term of incarceration in the range of 18 to 24 months was warranted. By imposing a conditional sentence of only nine months, the Court of Appeal transformed what was already a lenient sentence into an unfit sentence. I would add that the Court of Appeal was not obligated to impose a conditional sentence of equivalent duration to the term of incarceration imposed by the trial judge: see Proulx, supra, at para. 104.

20 The errors committed by the Court of Appeal entitle this Court to intervene. The Crown is seeking a restoration of the trial judge’s original sentence of nine months’ incarceration. I agree with the Crown that a nine-month sentence of incarceration would have been appropriate in this case. That said, a lengthy conditional sentence with restrictive conditions might also have been appropriate.

21 In circumstances where either a sentence of incarceration or a conditional sentence would be appropriate, a conditional sentence should generally be imposed. This follows from s. 718.2(e) of the Criminal Code, which provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. I would note, however, that there may be circumstances in which a short, sharp sentence of incarceration may be preferable to a lengthy conditional sentence.

22 I need not decide whether this is such a case. The respondent has served his conditional sentence in its entirety, having completed it in September 1998. Further, in oral argument the Crown stated that even if it were successful it would not seek any further punishment. Thus, whether this Court imposes a sentence of incarceration or a conditional sentence will make no practical difference to the respondent. Accordingly, I am content to grant the order requested by the Crown. I would allow the appeal, restore the nine-month sentence of incarceration imposed by the trial judge, and stay the service of the sentence.

23 Although this conclusion seems to differ from the result I have reached in L.F.W., supra, the present appeal can be distinguished from L.F.W. in three respects. First, in L.F.W., the conditional sentence imposed was considerably longer than the nine-month conditional sentence imposed by the Court of Appeal in this case. Had the Court of Appeal imposed a significantly longer conditional sentence, I would not have interfered, given the deference to which sentencing decisions by appellate courts are entitled. Second, in L.F.W., the offender was arguably rehabilitated, as demonstrated by the 25-year period that had elapsed without any further criminal activity. Finally, in L.F.W., the conditional sentence imposed by the trial judge (and confirmed by the majority of the Court of Appeal) was entitled to considerable deference, according to the standard enunciated in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 90, and Proulx, supra, at paras. 123-26. The Court of Appeal’s sentence in this case, although entitled to some deference, is not entitled to the same level of deference accorded to sentences imposed by trial judges. I would add that in L.F.W., I might well have imposed a term of incarceration were it not for the deference I was bound to give to the sentence imposed by the trial judge (at para. 25).

VI. Disposition

24 I would allow the appeal, restore the nine-month sentence of incarceration imposed by the trial judge, and stay the service of this sentence, given the fact that the respondent has already served his conditional sentence in its entirety and the Crown is not seeking any further punishment. The probation order should remain in force.

The following are the reasons delivered by

25 L’Heureux-Dubé J. -- I agree with the reasons of the Chief Justice with the exception of his comments regarding his disposition of the appeal in R. v. L.F.W., [2000] 1 S.C.R. 132, 2000 SCC 6, in view of my dissent in that case.

The following are the reasons delivered by

26 Gonthier J. -- I agree with the reasons of the Chief Justice with the exception of his comments regarding his disposition of the appeal in R. v. L.F.W., [2000] 1 S.C.R. 132, 2000 SCC 6, in view of my concurrence in the dissent of Justice L’Heureux-Dubé in that case.

The following are the reasons delivered by

27 McLachlin J. -- I agree with the reasons of the Chief Justice with the exception of his comments regarding his disposition of the appeal in R. v. L.F.W., [2000] 1 S.C.R. 132, 2000 SCC 6, in view of my concurrence in the dissent of Justice L’Heureux-Dubé in that case.

The following are the reasons delivered by

28 Bastarache J. — I agree with the reasons of the Chief Justice with the exception of his comments regarding his disposition of the appeal in R. v. L.F.W., [2000] 1 S.C.R. 132, 2000 SCC 6, in view of my concurrence in the dissent of Justice L’Heureux-Dubé in that case.

Appeal allowed.

Solicitor for the appellant: The Ministry of the Attorney General, Vancouver.

Solicitor for the respondent: Bruce Ralston, Surrey, B.C.

Solicitor for the intervener the Attorney General of Canada: The Deputy Attorney General of Canada, Ottawa.

Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.

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