2011 QCCA 228, 2011 QCCA 228

R. c. Bernier 2011 QCCA 228 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004617-104 (500-73-003013-089) DATE: FEBRUARY 8, 2011 CORAM: THE HONOURABLE ANDRÉ BROSSARD, J.A. JULIE DUTIL, J.A. GUY COURNOYER, J.A. (AD HOC) HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v.

JONATHAN BERNIER RESPONDENT– Accused JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on February 26, 2010, by the Honourable Sylvie Durand, Court of Quebec, Criminal and Penal Division, District of Montreal. [ 2 ] For the reasons of Cournoyer, J.A., with which Brossard and Dutil, JJ.A. agree, the Court: [ 3 ] ALLOWS the appeal solely to prolong the 11:00 p.m. to 7:00 a.m. curfew period until the end of the conditional sentence. ANDRÉ BROSSARD, J.A. JULIE DUTIL, J.A.

GUY COURNOYER, J.A. (AD HOC) Mtre Denis Gallant For the Director of Public Prosecutions of Canada For the appellant Mtre Christiane Filteau For the respondent Date of hearing: December 3, 2010 REASONS OF COURNOYER, J.A. (AD HOC) [ 4 ] The appellant appeals from a judgment of the Court of Quebec, Criminal and Penal Division, District of Montreal (the Honourable Judge Sylvie Durand) that sentenced the respondent to a conditional sentence of two years less a day and to three years' probation. I - The facts

[ 5 ] The appeal concerns crimes committed nearly five years ago. [ 6 ] On January 31, 2006, the respondent was stopped in New Brunswick for a highway safety violation while driving a rental vehicle. A search carried out with his consent turned up one kilo of cocaine and two kilos of hashish in a bag at the back of the vehicle. [ 7 ] The drugs were being transported on behalf of a criminal organization.

The respondent, who was the courier, received $1,500 for his work. [ 8 ] On February 2, 2006, in Moncton, New Brunswick, he was charged for possession of cocaine and cannabis resin for the purpose of trafficking. [ 9 ] On July 30, 2008, the Attorney General of Canada consented to the transfer of the respondent's file to Montreal, pursuant to subsection 478(3) Cr. C . [ 10 ] On September 23, 2008, the respondent pleaded guilty to the offences before the Honourable Judge Sansfaçon of the Court of Quebec.

A pre-sentence report was ordered. [ 11 ] Completed on January 14, 2009, this report, is generally unfavourable to the accused. [ 12 ] On September 24, 2009, Sansfaçon J.C.Q. withdrew from the case due to health issues. [ 13 ] On January 6, 2010, submissions on sentencing were made before the Honourable Judge Durand. The appellant sought 42 months in a penitentiary, while the respondent suggested a conditional sentence.

II - TRIAL JUDGMENT [ 14 ] On February 26, 2010, the trial judge sentenced the respondent to two years less a day to be served in the community and ordered that he comply with the conditions set out in a three-year probation order. [ 15 ] The trial judge began by summarizing the facts and drawing attention to the accused's prior convictions, which are as follows: - August 18, 2000 – possession of hashish: conditional discharge, $200 and six months' unsupervised probation. - May 13, 2005 – criminal interest rate: conditional discharge, $1000 and one year's unsupervised probation; - January 12, 2006 – mischief: suspended sentence and one year's probation. [ 16 ] She then summarized the principles of case law applicable to sentencing matters, noting that this was a serious crime before embarking on a more detailed consideration of the facts. [ 17 ] As aggravating factors, the trial judge listed the following: - greed; - the quantity of drugs; - the fact that he was acting on behalf of a criminal organization; - the fact that he had been on probation for less than three weeks; - the unfavourable pre-sentence report, which determined that there was a risk of re-offending . [ 18 ] As mitigating factors, she took the following elements into account: - his guilty plea - his collaboration with authorities upon interception of his vehicle; - the fact that he lacked an official status within the criminal organization; - the fact that he acted as a mere courier, with no other involvement; - the absence of pending cases, repeated offences, or breach of conditions; - his work and parental responsibilities, which he takes seriously; - over the last year, since the pre-sentence report was drafted, he became self-aware. [ 19 ] Therefore, despite an unfavourable report, the trial judge found that the respondent had become increasingly self-aware since the drafting of the pre-sentence report, admitting that he had acted irresponsibly and saying that he understood that transporting drugs was as unacceptable as selling drugs.

[20] She concluded that the appropriate sanction was neither probation nor a penitentiary sentence, but a sentence of less than twoyears. [21] She applied the tests set out by the Supreme Court in R. v. Proulx[1] and by this Court in R. v. Maheu[2] and found that therisk of re-offending was lower because of the mitigating circumstances of this case. After considering the aggravating and mitigatingfactors, she found that the respondent could be given a term of imprisonment of two years less a day to be served in the community.

III - The Grounds for Appeal [22] The appellant challenges the sentence imposed by the trial judge on three grounds: - The sentence is inconsistent with case law in matters involving cocaine trafficking and the principles flowing therefrom. - The sentence takes insufficient account of the numerous aggravating factors. - The principle of parity of sentencing was not applied.

IV - ANALYSIS A - Sentences imposed for drug offences [23] The appellant’s first ground states that case law relating to drug offences favours imposing a term of imprisonment and thatthe sentence imposed here is unreasonably lenient because it does not fulfil the requirements of denunciation and deterrence in suchmatters. Moreover, the respondent's case is not exceptional and consequently does not justify the leniency of a conditional sentence. [24] The appellant rightly points out that the courts have consistently been severe in cases involving drug offences. [25] In R. v.

Smith,[3] Lamer J. writes the following with regard to the importing of drugs: Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellowhuman beings as a result of their becoming drug addicts. The direct cause of the hardship cast upon their victims and their families, theseimporters must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts inorder to feed their demand for drugs.

Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meetbut also to finance their needs is not necessarily the same in degree as that of cold-blooded non-users), should, upon conviction, in myrespectful view, be sentenced to and actually serve long periods of penal servitude.[4] [26] In R. v. Pearson,[5] Lamer J. describes the trafficking of drugs as follows: [T]rafficking in narcotics occurs systematically, usually within a highly sophisticated commercial setting. It is often a business and a wayof life.

It is highly lucrative, creating huge incentives for an offender to continue criminal behaviour even after arrest and release onbail.[6] [27] In R. v. Bonenfant , Proulx J.A. writes the following: [translation] It must be noted that the longstanding principle whereby imprisonment is the rule in drug trafficking cases has not discouraged suchoffenders, and that the courts, faced with this scourge, have no choice but to clamp down on such offences unequivocally.

There can beno doubt that the trial judge understood this when he took into account the denunciatory and dissuasive aspects of the sentence.[7] [28] Thus, while admitting that offences involving hard drugs are not excluded from the conditional sentence regime, the appellantargues that the respondent's situation is not sufficiently exceptional to justify such leniency. The appellant refers to no decision of thisCourt to justify the application of such a criterion. [29] It is true that, in R. v.

Hamilton,[8] a case involving the importation of drugs, Doherty J.A. of the Court of Appeal for Ontariowrote the following: If a sentence of less than two years is appropriate, there is no presumption that conditional sentences are unavailable for those convictedof importing cocaine. However, the reality is that the crime of importing cocaine is so serious and harmful to the community thatconditional sentences will, in the vast majority of cases, not adequately reflect the gravity of the offence or send the requisitedenunciatory and deterrent message: R. v. Ly and Nguyen (1997), (ON CA), 114 C.C.C. (3d) 279 (Ont.

C.A.); R. v.Berbeck, [1997] O.J. No. 2434 (C.A.); R. v. Holder, (ON SC), [1998] O.J. No. 5102 at paras. 46-50 (Ct. J.).Conditional sentences for those who import dangerous drugs like cocaine into Canada will usually be a viable sentencing option onlywhere, in addition to the usual mitigating factors, there are one or more extraordinary mitigating factors such as cooperation with theauthorities in their attempts to identify and arrest those behind the drug trade[9]. [30] Admittedly, as the British Columbia Court of Appeal stated in R. v.

Hein,[10] in cases involving couriers, there is nosubstantial difference between importing narcotics and trafficking narcotics: It is true that the courts treat importing of cocaine more severely than trafficking: see, for example, R. v. Saulnier (1987), (BC CA), 21 B.C.L.R. (2d) 232 at 235 (C.A.). However, once the cocaine is landed in the country, it matters not whether thecourier's transport of the cocaine is temporally or geographically close to or remote from the importation.

Commercial cocaine traffickerscould not carry on their business without couriers to carry the cocaine from waypoint to waypoint within Canada. Wherever it occurs,

this transportation is an essential link in the distribution chain of an imported illicit drug that causes untold misery and grief in oursociety and it must be deterred by effective sentences.

Moreover, Isaza and Lobon-Valencia are appropriate comparators because thesentences imposed in those cases reflected discounts from the appropriate range to reward the offenders' cooperation with the police[11]. [31] It is worth noting, however, that the case before us involves two charges of possession for the purpose of trafficking. [32] The appellant's submission regarding the exceptional order of conditional sentences in cases involving hard drugs has not yetbeen recognized by this Court.

It goes without saying that the portrait of the offender must be such that such a measure may beconsidered. [33] The appellant sought a prison sentence of 42 months.

It acknowledged, however, that if the trial judge had imposed a prisonsentence of two years, or even two years less a day, the standard of intervention in sentencing matters would not permit this Court tointervene. [34] The issue the appellant raises is whether offenders who transport non-negligible quantities of drugs on behalf of a criminalorganization but who have no other role in the said organization are precluded from being given a prison sentence to be served in thecommunity. [35] Without saying so openly, the appellant is asking the Court to set a starting point and to exclude conditional sentences in caseslike the one before us. [36] First, this Court has always refused to establish starting points in the sentencing process.[12] [37] Second, this Court has heard cases where conditional sentences were imposed in similar situations and where there was nointervention.[13] Case law from the Court of Quebec also provides several examples. [14] [38] R. v.

Prokos[15] sets out the principles for granting a conditional sentence in such a situation. In that case, the Court noted thatthe principle of the individualization of sentences can in some circumstances justify favouring the rehabilitation of the offender. [39] Rousseau-Houle J.A. wrote the following: [translation] Offences relating to the trafficking of narcotics must always be unequivocally and openly condemned. In cases involving the importingand trafficking of drugs such as heroin and base cocaine (crack), when addiction is not an issue, deterrence is undeniably a majorpurpose.

We must guard ourselves, however, from upholding the myth, in the name of general deterrence and the inherent seriousness ofthe offences, that the only valid and deterrent punishment is incarceration. The individualization of sentences remains a fundamental principle of sentencing. With regard to offences relating to narcotics,sentencing cannot be based exclusively on social deterrence and the denunciation of the seriousness of the offences. Sentencing must betailored and individualized.

It falls to the judge on whom the duty to determine the sentence lies to choose the sentence most likely todeter the offender and ensure his or her social rehabilitation while also protecting society.

While general deterrence is a consideration of primordial importance, rehabilitation, where it has been convincingly demonstrated, maynevertheless become the pre-eminent factor in sentencing.[16] [Emphasis added.] [Citations omitted.] [40] In my opinion, there is a subtle difference between the exceptional nature argued by the appellant and the convincingdemonstration referred to by Otis J.A. in Lafrance[17] and reiterated by Rousseau-Houle J.A. in Prokos.

I shall revisit the issue of theconvincing demonstration a little further on. [41] I note that LeBel J.A. was dissenting in that case, not with regard to the principles set out by Rousseau-Houle J.A. but withregard to their application to that particular case. He wrote the following: [translation] Once again, we are asked to consider a decision relating to the imposition of a conditional sentence. At this stage of the statutory andjurisprudential development of this new sanction, there is no point in going on at great length about the merits of

section 742.1 Cr. C. orthe legal framework of its operation. Despite the sometimes sharp criticism emanating from the courts themselves on occasion (see, forexample, The Queen v. Joseph Redman Brady, [(1998), 1998 ABCA 7 , 121 C.C.C. (3d) 504], and in particular the opinion ofFraser C.J.), the institution exists. Parliament enacted these provisions and even amended them quickly to ensure that the decision of thejudge in that case was consistent with the general objectives of sentencing as set out in

section 718.2 Cr. C., thereby settling ajurisprudential conflict about the conditions of incarceration under that provision. They correspond to Parliament's intent to decrease thelevels of incarceration in Canadian society. Whether or not Canadian courts deem conditional sentences to be inappropriate, they may neither refuse to apply them nor neutralizethem by giving them an unduly restrictive

interpretation. Where no minimum sentence is provided, where the prison sentence imposed isless than two years, or where the danger level of the accused permits, the trial judge may choose to impose a conditional sentence, whiletaking care to comply with the general objectives of sentencing. Therefore, the trial judge's decision may be reviewed by an appellatecourt only within the parameters defined by the Supreme Court of Canada in this area.

Under the framework set out by the SupremeCourt, appellate courts may intervene only where there has been an error in principle, a failure to consider a factor, or excessive relianceon inappropriate factors. A sentences may be reviewed only where it appears to be demonstrably unfit (see R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, per Sopinka J. at 11-12).

Moreover, provincial appellate courts may not judicially create categories of offences for which conditional sentences are a prioriprohibited. As the majority of the Supreme Court notes in McDonnell (see opinion of Sopinka J. at 21-22), the creation of such categoriesis the task of Parliament. Indeed, this Court has refused to create an a priori exclusion with regard to various types of offences that aregenerally considered to be serious, such as sexual assault, although it did reject its application in certain specific cases of sexual assault(see, for example, R. v.

L. (J.J.), (QC CA), [1998] R.J.Q. 971 (C.A.); The Queen v. Maheu, (QCCA), [1997] R.J.Q. 410).[18] [42] Prokos does not close the door to conditional sentences for offences involving hard drugs. Rather, it identifies the factors to beconsidered. [43] The appellant also relies on the recent judgments of this Court in R. v. Bériault[19]and R. v. Bernier.[20] [44] In Bériault, this Court intervened and overturned the conditional sentence imposed by the trial judge, replacing it with a prisonsentence due to the specific circumstances of the case.

Doyon J.A. stated the following: [translation] It goes without saying that judges are not obliged to explain everything and that they are presumed to know the law. At the very least,however, the judge needed to consider the very specific circumstances of the numerous repeat offences during the two periods of releaseand ensure that the conditional sentence could nevertheless achieve the above-described objectives.

These repeat offences and breachesof undertaking also had to be considered in the context of public safety, but the judgment provides no indication of how public safetymight be ensured despite the serious risk of re-offending thus demonstrated. I find that, if the trial judge had decided these issues, he would have concluded that a conditional sentence would not adequately fulfilcertain principles set out by Parliament. I am thinking mainly of public safety and the objectives of denunciation, deterrence, and theproportionality of sentences.

While in some cases, conditional sentences may achieve the objectives of denunciation and deterrence, in others only imprisonment cando so. I am of the opinion that such is the case here, especially since the conditional sentence is not proportional to the seriousness of theoffences and the respondent's high degree of liability. The offences, committed in the circumstances described above, involving the trafficking of a number of grams of cocaine and perpetratedin contempt of the release orders, render a conditional sentence unjustifiable in this case.

The respondent's decision to continue to trafficin cocaine despite a first arrest for possession for the purpose of trafficking in that substance is troubling and must be condemned. Hisdecision to ignore the conditions of release, specifically by returning to the place where he sold cocaine over several months, is equallyworrying and also demonstrates his high degree of criminal liability. In actual fact, there is no reason to believe that the respondent willcomply with the conditions of a conditional sentence any more than he did with the conditions of release.

In such circumstances, aconditional sentence is not justified. Finally, his prior convictions cannot be excluded from the analysis, even though they took placeseveral years ago. Moreover, taking into account the mitigating circumstances, and in particular the respondent's collaboration with authorities upon hissecond arrest, I find that sentences totalling eighteen months of imprisonment would meet the ends of justice.

It must also be noted thatthe respondent has already served over one month of the conditional sentence.[21] [Emphasis added.] [45] It is readily apparent that the facts in Bériault[22] are very different from those before us, although the respondent in this casehad been put on probation only recently. [46] Finally, the appellant also refers us to Bernier, where this Court stated the following: [translation] It is true that the respondent pleaded guilty to the charges (conspiracy to traffic in cocaine and trafficking (4 counts)), stopped sellingdrugs, returned to a job he had held in the past, and expressed remorse.

But, under the circumstances, that does not obscure theimportance of the factors of denunciation and deterrence in drug trafficking cases (Bordage v. R., [2000] J.E. 2000-1933 (C.A.) at para.10. The trial judge stated the following on this subject: [translation] [17] Case law is consistent and well established: denunciation and deterrence are the primary objectives in casesinvolving the trafficking of drugs and particularly cocaine.

Generally speaking, social reintegration is a secondary objective butobviously, where a convincing demonstration of rehabilitation has been made, this criterion becomes a primary sentencing objective.

The application of this statement to the present case has the effect of trivializing a recognized principle whereby involvement in anorganized commercial operation distributing hard drugs generally calls for incarceration. The mitigating factors put forward here do not support a conclusion justifying a sentence to be served in the community, given the roleplayed by the respondent, the drug involved, and the relevant period. Prokos, (QC CA), [1998] R.J.Q. 1773 (C.A.)and Lafrance, (QC CA), [1993] J.Q. No. 2065, EYB 1993-64215 (C.A.), on which the respondent relies, are notcomparable with the facts in this case.

It is therefore appropriate to intervene. [23] [Emphasis added.] [47] I have underlined the passage which, according to the appellant, establishes a generally applicable principle to excludeconditional sentences. [48] It seems to me that the appellant has forgotten the Court's words: [translation] "the application of this statement to the presentcase".

As a result, it has lost sight of the profile of the offender at issue in Bernier, which the Court described in the following manner: [translation] The circumstances surrounding the commission of the offences reveal that the respondent began to work as a street dealer and thenquickly rose through the ranks. He soon had his own intermediate distribution network as well as dealers and "packagers" working forhim on a fixed

schedule and under specific instructions; this network distributed significant quantities of cocaine for nearly a year and ahalf. Making a profit was the respondent’s motivation.[24] [49] It is thus easier to understand why the Court found that a conditional sentence was inappropriate in Bernier's case.

The factsare very different here. [50] It is true, as the appellant points out, that a custodial sentence should not be dealt with on the same footing as a conditionalsentence[25] because, it need hardly be said, [translation] "a conditional sentence, even with stringent conditions, will usually be a morelenient sentence than a jail term of equivalent duration".[26] [51] The appellant does not convince me, however, that the conditional sentence imposed by the trial judge is inconsistent with theprinciples set out above with regard to drug-related offences. The case law does not rule out such a sentence.

Indeed, recently in R. v.Veilleux,[27]this Court noted that the [translation] "presence of aggravating circumstances cannot in itself constitute an obstacle barring aconditional sentence".[28] B- Is the sentence appropriate? [52] I shall now address the appellant's claim that the sentence imposed is unreasonably lenient and fails to take into account thenumerous aggravating factors as well as the principle of parity of sentencing. [53] In the appellant's view, the sentence is unreasonably lenient because the trial judge failed to take sufficient account of thenumerous aggravating factors.

The appellant admits that the trial judge identified them correctly but argues that she did not take themsufficiently into account. [54] In my view, the essence of the appeal concerns the trial judge's assessment of the respondent's situation.

In her opinion, therespondent’s level of self-awareness had evolved to a point where she determined that he was on the road to rehabilitation, therebyjustifying the possibility of a conditional sentence. [55] In this case, although the trial judge did not refer specifically to the convincing demonstration test set out in Prokos andLafrance, there can be no doubt that this is the conclusion at which she arrived. [56] In Lafrance, Otis J.A. discussed the issue of rehabilitation in her opinion concurring with that of LeBel J.A., stating thefollowing: [translation] Once there is recognition of the social devastation caused by narcotics and drugs and of the too-frequent correlation between the use ofthese substances and the commission of offences against the person and property rights, it is self-evident that the message of deterrenceand neutralization of such crimes must be loud and clear.

It may happen, however, that the sentencing judge is sincerely convinced that the utilitarian purpose of the sentence – i.e., preventionthrough deterrence – is more likely to achieve its objective through the individualized implementation of the sentence, that is to say,through rehabilitation. ... With regard to offences relating to trafficking and possession for the purpose of trafficking of narcotics, while general deterrence is a

prime consideration, rehabilitation may nonetheless become a major consideration in sentencing where it has been convincinglydemonstrated. The evaluation of the offender's chances of rehabilitating depends on the privileged assessment of the trial judge.

In this matter, thepresence of the interveners in the court room and the climate in which they evolve form the backdrop against which the judge, informedby the parties and having weighed the risks, will decide whether to judicially endorse rehabilitation, accepting the risks harbouredtherein. [29] [Emphasis added.] [57] In this case, a reading of the transcript is revealing. It can be observed that the judge was very concerned by the unfavourableprobation report.

She herself asked the respondent a number of questions, and there can be no doubt that the respondent's answers finallysatisfied her. [58] Thus, the trial judge showed that she was sensitive to the criteria of general deterrence and denunciation with regard to thistype of offence. She also gave adequate consideration to the mitigating and aggravating factors. In her view, the respondent’s self-awareness and sense of responsibility had increased since the pre-sentence report had been drafted.

During his testimony, he stated thathe had shared the details of the offences he had committed with his companion only a year earlier, after the report was written. Thus, hisincreased sense of responsibility is due to the help he receives from his companion (with whom he has started living since the events),the birth of a child, and the nearly full-time responsibilities he has assumed for a child born of an earlier relationship. [59] The record as a whole establishes that the respondent's testimony persuaded the trial judge.

In the absence of an errorjustifying the intervention of this Court, this is a conclusion that was open to her. Her privileged perspective justifies the deference withwhich her conclusion should be treated. [60] The appellant also argues that the trial judge failed to consider the sentences given to the other offenders arrested during thesame police investigation, some of whom were also couriers. [61] The four other persons accused as a result of the same investigation as the one involving the respondent received thefollowing sentences: - Mr. Doyle delivered 1 kg of cocaine for profit. He pleaded guilty.

He had no criminal record and his pre-sentence report was verypositive. Joint suggestion of 30 months' imprisonment. - Mr. Morneau-Lussier transported 1 kg of cocaine. According to the appellant, he had a criminal record. Joint suggestion of 30 months'imprisonment. - Mr. Donelle acted as a courier. He pleaded guilty and had no prior convictions. Joint suggestion of 30 months' imprisonment. - Mr. Gauvin coordinated the transportation of drugs for two years. Although he had no criminal record, he acted out of greed indelivering 3 kg of cocaine and 2 kg of hashish.

He pleaded guilty and received a 5 year prison sentence. [62] The appellant argues that, in the case of Morneau-Lussier, the trial judge recognized that the sentence was lenient butreasonable. It should be added, however, that in Doyle's case, although the trial judge imposed the sentence suggested by the parties, shestated with sufficient clarity that she would have been inclined to impose a less severe sentence than that proposed. [63] It is true that the principle of the parity of sentences should be taken into consideration. [64] This principle is set out in subsection 718.2(

b) of the Criminal Code as follows: A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; [65] This ideal of justice is well summarized in the expression, "Treat like cases alike".[30] This principle is defined in the 12thedition of Smith and Hogan Criminal Law as follows: In principle, in the sentencing exercise the courts need to treat like cases alike and to deal consistently and transparently with relevantdifferences in criminal conduct between offenders.

This is not an exercise in guesswork, nor can it be an exact science.[31] [Emphasis added.] [66] In Canada, however, the parity of sentences is a consideration in the process of determining an individualized sentence for aspecific offender, based on the discretion of the sentencing court. Doherty J.A. of the Court of Appeal for Ontario provided the followingdescription in R. v.

T.(K.): Some criminal justice systems seek to achieve justice in sentencing by the extensive use of mandatory minimum sentences coupled withtightly calculated sentencing grids that all but dictate the sentence to be imposed by the trial judge in any given case. Historically,Canadian criminal law has taken a very different road to justice in sentencing. For the vast majority of offences, Parliament provides nominimum sentence and a broad spectrum of potential dispositions. Trial judges are given a very wide discretion to determine theappropriate disposition in each case.

In exercising that discretion, Parliament provides guidance by way of the broadly worded objectivesand principles in

Part XXIII of the Criminal Code. Trial judges must apply those objectives and principles to the specifics of each caseand, in the exercise of their discretion, fashion a sentence that is tailored to the circumstances of the offence and the circumstances of theoffender. This individualization of the sentencing process through the judicial exercise of a broad discretion by the trial judge is the central featureof the sentencing process in Canada. In R. v. Proulx (2000), 2000 SCC 5 , 140 C.C.C. (3d) 449 at para. 116 (S.C.C.), Lamer

C.J.C. described the central role of the trial judge in the sentencing process: There is no easy test or formula that the judge can apply in weighing these factors. Much will depend on the good judgment and wisdomof sentencing judges, whom Parliament vested with considerable discretion in making these determinations ... The sometimes competing principles that must be weighed by the trial judge in the exercise of his or her sentencing discretion can giverise to difficult problems for trial judges. This trial judge was faced with just such a problem.

On the one hand, the circumstances of thisoffence cried out for a significant jail term. On the other hand, the respondent's personal circumstances strongly suggested thatincarceration was unnecessary. The trial judge tried to balance these competing concerns by imposing a conditional sentence withpunitive terms that included partial house arrest and a curfew.[32] [Emphasis added.] [67] In R. v. M. (C.A.), Lamer C.J. pointed out the inherent limitations of parity in sentencing.

Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similarcrime will frequently be a fruitless exercise of academic abstraction.[33] [68] Therefore, while "[a]ppellate courts...serve an important function in reviewing and minimizing the disparity of sentencesimposed by sentencing judges for similar offenders and similar offences committed throughout Canada",[34] it must be recalled that "acourt of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is insubstantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes'.[35] [69] Here, some of the other sentences were imposed following joint suggestions.

We know that the trial judge may refuse such asuggestion only if it is unreasonable to the point of bringing the administration of justice into disrepute. Consequently, while thesesentences remain relevant reference points, they are not determinative. [70] It would have been preferable for the trial judge to refer to the sentences handed down in the other cases, but this omissiondoes not justify the intervention of this Court.

It was open to the trial judge to impose this sentence, even in light of the other sentencesimposed on offenders convicted as a result of the same police investigation. [71] It is worth noting that, in R. v. Morency, this Court wrote the following: [translation] Concerning the argument of parity of sanctions, it must be pointed out that the role of the court of appeal in such matters is not withoutits limits.

As the Supreme Court has reiterated, this exercise must not be "given priority over the principle of deference to the trial judge’sexercise of discretion...".[36] [72] The principles governing the intervention of an appellate court in sentencing matters must also be borne in mind. They arewell known. LeBel J. reminds us of them in R. v. Nasogaluak:[37] Appellate courts grant sentencing judges considerable deference when reviewing the fitness of a sentence.

In M. (C.A.), Lamer C.J.cautioned that a sentence could only be interfered with if it was “demonstrably unfit” or if it reflected an error in principle, the failure toconsider a relevant factor, or the over-emphasis of a relevant factor (para. 90; see also R. v. L.M., 2008 SCC 31, 2008 SCC 31, [2008] 2S.C.R. 163, at paras. 14-15; R. v. Proulx, 2000 SCC 5, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 123-26; R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, at paras. 14-17; R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227).[38] [73] The discretionary power of judges is described in R. v.

L.M. as follows:[39] Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standard ofreview to be applied by an appellate court is one based on deference. The sentencing judge has “served on the front lines of our criminaljustice system” and possesses unique qualifications in terms of experience and the ability to assess the submissions of the Crown and theoffender (M. (C.A.), at para. 91).

In sum, in the case at bar, the Court of Appeal was required — for practical reasons, since the trier offact was in the best position to determine the appropriate sentence for L.M. — to show deference to the sentence imposed by the trialjudge.[40] [74] In Nasogaluak, LeBel J. specified that a sentence falling outside the range of sentences is not necessarily unfit, given the ruleof the individualization of sentences.

The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft asentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a “fit” sentence is,subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in amanner that best reflects the circumstances of the case (R. v. Lyons, (S.C.C.), [1987] 2 S.C.R. 309; M. (C.A.); R. v.Hamilton (ON C.A.), (2004), 72 O.R. (3d) 1 (C.A.)).

No one sentencing objective trumps the others and it falls to the

sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law. The wide discretion granted to sentencing judges has limits.

It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing.

Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred . [41] [Emphasis added.] [ 75 ] Finally, with regard to the standard of intervention, I share the opinion of Morissette J.A. in R. v.

Lévesque-Chaput [42] whereby the standard of intervention applies equally to comparatively more severe sentences and to comparatively more lenient ones. [ 76 ] He stated his opinion as follows, with which Pelletier J.A. agreed: [ translation ] I now return to the passage quoted by LeBel J. in paragraph [14] of R. v. L.M. , reproduced above. I cannot see how the judgment under appeal can be set aside because it is in error unless we were to trivialize the expression "error of principle" and give it an entirely different meaning from the one it must have.

The trial judge meticulously listed and considered the relevant factors in the record. Undoubtedly, he placed a certain emphasis on the mitigating circumstances, one that the appellant believes to be too great, but it was within his purview to carry out such a balancing exercise, and the reasons he delivered clearly explain his reasoning. Finally, as noted above, a review of the case law considered in Ferland leads to the conclusion that, far from being demonstrably unfit, the sentence was merely one of the more lenient sentences imposed for such offences.

In Ferland , in which Rochon J.A. refers to the criteria I just set out, this Court upheld a sentence that it described as being severe. [22] If such considerations may be used to justify comparatively more severe sentences, I cannot see on what principle they should be ignored when considering whether more lenient sentences are justified.

To act otherwise, in my view, is tantamount to usurping the jurisdiction of the trial judge , and the appellant has not persuaded me that such a determination is in error. [43] [Emphasis added.] [ 77 ] I am of the view that the appellant has not demonstrated that the Court must intervene. [ 78 ] In my opinion, only one question remains, that of whether some of the conditions imposed by the trial judge are appropriate. [ 79 ] For the first eight months of the conditional sentence, the trial judge sentenced him to 24-hour house arrest with certain exceptions (for example, going to and coming from work).

For the next eight months, she imposed a curfew between 11:00 p.m. and 7:00 a.m. For the final eight months, she imposed no curfew. [ 80 ] The respondent's situation could give rise to some concern. Although undeniably part of his effort to lead a productive life, some of the businesses he has launched since committing the offences (hiring dancers for bars, a loan business and a construction business), while undeniably demonstrating his efforts to lead a productive life, risk putting him in contact with a criminogenic environment.

It should also be remembered, however, that the respondent has not been charged with anything for the last five years. [ 81 ] The conditions imposed on the respondent must be analyzed in light of the approach of this Court in R. v. Veilleux . [44] [ 82 ] In that case, the Court noted that [ translation ] "it is important to preserve the restrictive nature of the conditional sentence and thus distinguish it from mere probation". [45] [ 83 ] The Court refers to the comments concerning house arrest in R. v.

Aurelius [46] , stating the following: [ translation ] [T]hat case nevertheless establishes that, while not automatic, the conditional sentence can easily accommodate, for its entire duration, 24-hour house arrest or a mix of complete house arrest and a strict curfew, the whole with some possible exceptions. [47] [ 84 ] In Veilleux , this Court made the following observations, which are applicable to the respondent's case: [ translation ] Given the nature and seriousness of the offences as well as the aggravating and mitigating circumstances in this situation, the conditional sentence must have more restrictive conditions to achieve the objectives of deterrence and denunciation, without, however, hampering rehabilitation. [48] [ 85 ] Finally, the Court, while taking into account the standard of deference, nevertheless justified changes to the conditions in that

case in the following terms: [ translation ] In this case, despite the deference a court of appeal must show in such matters, and despite the broad discretionary power enjoyed by the trial judge, including when the sentence is conditional or intermittent (see R. v. Middleton , supra at para. 52), the conditions of the conditional sentence must be more stringent in order to reflect: (1) the restrictive and prohibitive nature of the measure, which must, as the Supreme Court noted in Proulx , be a sentence of imprisonment in more than just name, and (2) the need for deterrence and denunciation in the circumstances.

On this last point, it should be recalled that " even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration " . [10] Therefore, such objectives are possible for sentences to be served in the community. [49] [ 86 ] Although the appellant did not place much emphasis on this issue, having focused its challenge on the ordering of a conditional sentence itself, I nevertheless find that the conditions imposed by the trial judge should have been more onerous. [ 87 ] It should be borne in mind, however, that the appellant in this case, unlike in Veilleux , did not seek the suspension of the conditional order made by the trial judge.

Had it done so, I would not have hesitated to consider 24-hour house arrest, keeping in mind the businesses set up by the respondent but subject to the evidence adduced by the parties, for at least a substantial initial period. [ 88 ] Since the first eight months of the conditional sentence have expired, however, I believe that it is difficult to go back to the earlier situation and that it is more appropriate to continue the condition of the curfew between 11 p.m. and 7 a.m. for the second eight- month period, until the end of the conditional sentence.

IV - CONCLUSION [ 89 ] The appellant has not persuaded me that there is any reason to intervene save with regard to the conditions. The sentence is not "demonstrably unfit". It should have been harsher, but that does not mean that it is unreasonable. [ 90 ] I would therefore allow the appeal solely to prolong the period of the curfew from 11 p.m. to 7 a.m. until the end of the conditional sentence order.

The respondent shall appear before the clerk of the Court of Quebec, Criminal and Penal Division, at the Montreal courthouse within 10 days of this judgment to sign an undertaking that has been modified accordingly. GUY COURNOYER, J.A. (AD HOC) [44] 2009 QCCA 2374