Her Majesty The Queen Appellant v. Tommy Lacasse, 2015 SCC 64

SUPREME COURT OF CANADA Citation: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 Date: 20151217 Docket: 36001 Between: Her Majesty The Queen Appellant and Tommy Lacasse Respondent - and - Attorney General of Alberta Intervener Official English Translation Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ. Reasons for Judgment: (paras. 1 to 121) Wagner J. (Abella, Moldaver, Karakatsanis and Côté JJ. concurring) Dissenting Reasons: (paras. 122 to 183) Gascon J. (McLachlin C.J. concurring) R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 Her Majesty The Queen Appellant v. Tommy Lacasse Respondent and

Attorney General of Alberta Intervener Indexed as: R. v. Lacasse 2015 SCC 64 File No.: 36001. 2015: May 15; 2015: December 17.

Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ. on appeal from the court of appeal for quebec Criminal law — Sentencing — Appeals — Powers of Court of Appeal — Court of Appeal reducing sentence of imprisonment from six and a half to four years — Whether Court of Appeal erred in substituting sentence it considered appropriate for one imposed by trial judge, primarily on basis that trial judge had deviated from sentencing range established by courts for impaired driving offences — Criminal Code, R.S.C. 1985, c. C-46, s. 687 .

Criminal law — Sentencing — Considerations — Impaired driving causing death — Whether it was open to trial judge to consider frequency of impaired driving in region where offence was committed as relevant sentencing factor — Whether length and other terms of driving prohibition imposed by trial judge were appropriate — Criminal Code, R.S.C. 1985, c. C-46, ss. 259(2) ( a.1 ), 718 to 718.2. On June 17, 2011, at about 4:00 a.m., L lost control of his vehicle while entering a curve on a country road in the Beauce region. He was speeding, and his ability to drive was impaired by alcohol.

Two passengers sitting in the back seat of the vehicle died instantly. Neither the vehicle’s mechanical condition nor the weather contributed to the accident. L is entirely responsible for it, and he pleaded guilty to two counts of impaired driving causing death. The trial judge sentenced L, on each count, to six years and six months’ imprisonment; the two sentences were to be served concurrently. He also prohibited L from operating a vehicle for a period of 11 years starting from the sentencing date. The Court of Appeal replaced the sentence imposed by the trial judge with one of four years’ imprisonment.

It also reduced the length of the driving prohibition to four years commencing at the end of L’s incarceration. Held (McLachlin C.J. and Gascon J. dissenting) : The appeal should be allowed and the sentence imposed by the trial judge restored except as regards the driving prohibition, which should be reduced to two years and four months commencing at the end of L’s incarceration. Per Abella, Moldaver, Karakatsanis, Wagner and Côté JJ.: Sentencing remains one of the most delicate stages of the criminal justice process in Canada.

Although this task is governed by ss. 718 et seq. of the Criminal Code , and although the objectives set out in those sections guide the courts and are clearly defined, it nonetheless involves, by definition, the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing. The Court has on many occasions noted the importance of giving wide latitude to sentencing judges.

Since they have, inter alia , the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives of the Criminal Code . Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit. Proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender.

The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. Both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.

Moreover, if appellate courts intervene without deference to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of the system and the authority of trial courts. Although sentencing ranges are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives.

However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case. There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded.

The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case.

Thus, the fact that a judge deviates from a sentencing range established by the courts does not in itself justify appellate intervention. In this sense, the Court of Appeal erred in this case in basing its intervention on the fact that the sentence fell outside the sentencing range established by the courts, while disregarding the criteria that are normally applied in the determination of a just and

appropriate sentence. Any other conclusion would have the effect of authorizing appellate courts to create categories of offences with no real justification and accordingly intervene without deference to substitute a sentence on appeal. But the power to create categories of offences lies with Parliament, not the courts. The Court of Appeal also erred in failing to address the factor relating to the local situation, that is, to the frequency of impaired driving in the Beauce region, on which the trial judge had relied.

Although the fact that a type of crime occurs frequently in a particular region is not in itself an aggravating factor, there may be circumstances in which a judge might nonetheless consider such a fact in balancing the various sentencing objectives, including the need to denounce the unlawful conduct in question in that place and at the same time to deter anyone else from doing the same thing.

In this case, the mere fact that the trial judge found that impaired driving is a scourge in the Beauce district was in itself sufficient for him to consider this factor in determining what would be a just and appropriate sentence. It was inappropriate for the Court of Appeal to disregard this factor in assessing the fitness of the sentence, as that meant that its analysis was incomplete.

In the context of offences such as the ones at issue, courts from various parts of the country have in fact held that the objectives of deterrence and denunciation must be emphasized in order to convey society’s condemnation, as such offences are ones that might be committed by ordinarily law-abiding people. The Court of Appeal was therefore wrong to reduce the sentence imposed by the trial judge. Even though the trial judge had made an error in principle by considering an element of the offence as an aggravating factor (the fact that L was intoxicated), that error had clearly had no impact on the sentence.

The sentence of six years and six months’ imprisonment imposed by the trial judge, although severe, falls within the overall range of sentences normally imposed in Quebec and elsewhere in the country and is not demonstrably unfit. It must therefore be restored. As to the term of the driving prohibition, the length of the presentence driving prohibition should be subtracted from that of the prohibition imposed in the context of the sentence.

In this case, the driving prohibition of four years and seven months is demonstrably unfit and must be reduced to two years and four months to take account of the recognizance entered into by L under which he was to refrain from driving from his release date until his sentencing date (two years and three months). Finally, the Court of Appeal erred in not admitting the fresh evidence of L’s breaches of his recognizances. That evidence was relevant. It could have affected the weight given to the favourable presentence report and could therefore have affected the final sentencing decision.

In particular, the Court of Appeal might have reached a different conclusion if it had admitted that evidence, which would have helped it in assessing the fitness of the sentence that had been imposed at trial. Per McLachlin C.J. and Gascon J. (dissenting): Sentencing judges must take into consideration, inter alia , the objectives of deterrence and rehabilitation, any relevant aggravating and mitigating circumstances relating to the offence or the offender, and the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

If a judge fails to individualize a sentence and to consider the relevant mitigating factors while placing undue emphasis on the circumstances of the offence and the objectives of denunciation and deterrence, all that is done is to punish the crime. The reconciliation of the different factors requires that the sentence be consistent with the fundamental principle of proportionality. This principle requires that full consideration be given to each of the factors.

Proportionality is a limiting principle that requires that a sentence not exceed what is just and appropriate in light of the moral blameworthiness of the offender and the gravity of the offence. Deterrence can thus work through conditions tailored to fit the offender. This is even more important in the case of a young person with no criminal record.

The standard of intervention to be applied by appellate courts in sentencing matters is well known: a sentence can only be interfered with if it is demonstrably unfit or if it results from an error in principle, the failure to consider a relevant factor or the overemphasis of a relevant factor. If a party shows that the trial judge made an error in principle, failed to consider a relevant factor or overemphasized appropriate factors, there is no requirement that the sentence also be shown to be demonstrably unfit before an appellate court can intervene.

Even if none of these three situations exists, however, intervention may be necessary if the sentence is demonstrably unfit. Where a reviewable error is shown in the reasoning on which a sentence is based, it is appropriate for an appellate court to be able to intervene and assess the fitness of the sentence. The error that is identified thus opens the door to intervention and permits an appellate court to reopen the sentencing analysis.

However, the court of appeal’s role in ensuring consistency in sentencing requires it before intervening to ascertain, among other things, that the sentence represents a substantial and marked departure from the sentences customarily imposed for similar offenders who have committed similar crimes. There is no such thing as a uniform sentence for a particular crime, and sentencing is an inherently individualized process. A sentence must reflect a consideration of all the relevant factors, and it is in this sense that the “process” of sentencing is important.

It is by correctly repeating the analytical exercise that the court can determine whether the sanction imposed on the offender is just and appropriate or whether it should be varied, and the court need not show deference in such a case. The sentencing ranges established by appellate courts are only guidelines, and not hard and fast rules. A judge can therefore order a sentence outside the established range as long as it is in accordance with the principles and objectives of sentencing.

As a corollary, the mere fact that a sentence falls within the range applicable to a certain type of crime does not necessarily make it fit. It is by analyzing the trial judge’s reasoning or thought process that an appellate court can determine whether a sentence that falls within the proper range is tailored to fit the circumstances of the offender and is therefore individualized and proportionate . The Court of Appeal properly justified its intervention in this case.

The trial judge committed a number of errors, and the sentence that resulted from his analysis was thus neither proportionate nor individualized; it also represented a substantial and marked departure from the sentences customarily imposed on similar offenders who have committed similar crimes in similar circumstances. In his analysis, the trial judge began by identifying some aggravating factors that were not really aggravating factors, namely an element of the offence — the fact that L was intoxicated — and the impact on those close to L.

Next, he discounted some relevant factors that are normally characterized as mitigating factors and that must be considered in determining the appropriate sentence — namely the youth of the accused and the facts that he had expressed remorse, that he had no criminal record and that the presentence report was favourable to him. Indeed, the trial judge failed to discuss the presentence report and its positive findings, which represented a mitigating factor that

was relevant to and important for the determination of the appropriate sentence. Finally, his failure to consider certain mitigating factorsthat favoured L’s potential for rehabilitation and the emphasis he placed on exemplarity led him to impose an excessive sentence thatdeparted from the principle of proportionality. The local situation factor clearly magnified the exemplary focus of the sentence with which the Court of Appeal took issue.When considered in the sentencing context, the frequency of a crime in a given region does not help paint a portrait of the accused, butinstead reflects external factors.

The degree of censure required to express society’s condemnation of the offence is limited by theprinciple that an offender’s sentence must be equivalent to his or her moral culpability. Even though courts of appeal have noted that atrial judge can sometimes consider the local situation when imposing a sentence, the judicial notice that judges can take of theircommunities is not without limits, and caution must be exercised in establishing its scope.

Being familiar with the local situation in one’sregion is one thing, but claiming to compare that situation with what happens elsewhere in order to draw conclusions or inferences fromit is something else. Although a court has wide latitude as to the sources and types of evidence upon which to base the sentence to beimposed, it must never lose sight of the importance of procedural fairness and must bear in mind the importance of the facts in questionand the impact on the offender of how they are dealt with.

In this case, there is no indication that the trial judge was in a position to takejudicial notice of the fact that impaired driving is trivialized in the Beauce region more than elsewhere. Knowing the impact onsentencing of that factor, which he considered to be aggravating, and the particular weight he was going to attach to it in imposing a moresevere sanction, he should, in the interest of procedural fairness, have informed L of his concerns on this point and requested submissionsfrom him.

But he did not do so, even though the importance he attached to that aggravating factor ultimately led him to impose a sentencethat favoured exemplarity at the expense of proportionality. Given that the trial judge overemphasized the objectives of exemplarity and deterrence while at the same time overlookingthe principles of similarity of sentences and individualization in sentencing, the Court of Appeal was justified in intervening andreopening the analytical process in order to determine whether the sentence was just and appropriate.

In the name of deterrence andexemplarity, the trial judge focused on the perceived prevalence of the crime in the community and disregarded the individual andcontextual factors, which led him to impose a sentence that was excessive in L’s case. In so doing, he disregarded the principle thatsentences should be similar to other sentences imposed in similar circumstances, which is the corollary of the principle ofproportionality. He provided little if any explanation for the sentence of 78 months’ imprisonment that he ultimately imposed on L,despite the fact that the severity of that sentence is not in any doubt.

Although it would also have been preferable for the Court of Appealto provide a more thorough explanation, the 48-month sentence it imposed is much more consistent with what can be seen in comparabledecisions. Unlike the one imposed by the trial judge, this sentence does not represent a substantial and marked departure from thesentences imposed on similar offenders who committed similar crimes in similar circumstances. Rather, it is consistent with thesentences imposed on offenders with characteristics similar to those of L.

Insofar as the Court of Appeal correctly stated the law beforeintervening, it is not open to the Court to substitute its view for that of the Court of Appeal on the sentence. On the issue of the driving prohibition, the length of the presentence prohibition is a factor to be considered in analyzing thereasonableness and appropriateness of the prohibition to be imposed under s. 259(3.3)(

b) of the Criminal Code. In light of the length ofthe presentence prohibition in this case, it is appropriate to reduce the length of L’s driving prohibition to one year and nine months, plusthe period of 48 months to which he was sentenced to imprisonment. Finally, the Court of Appeal did not make an error warranting intervention when it declined to admit the fresh evidence oftwo breaches by L of his recognizances.

Absent an error of law or a palpable and overriding error of fact, the Court should notreconsider the weight attached by the Court of Appeal to those breaches and substitute its view of what would have been relevant. Cases Cited By Wagner J. Referred to: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Lépine, 2007 QCCA 70; R. v. Brutus, 2009 QCCA 1382;R. v. Stimson, 2011 ABCA 59, 499 A.R. 185; R. v. McIlwrick, 2008 ABQB 724, 461 A.R. 16; R. v. Junkert, 2010 ONCA 549, 103 O.R.(3d) 284; R. v. Ruizfuentes, 2010 MBCA 90, 258 Man. R. (2d) 220; R. v.

Bernshaw, (SCC), [1995] 1 S.C.R. 254; R. v.Comeau, 2008 QCCQ 4804; R. v. Paré, 2011 QCCA 2047; R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227; R. v. L.M.,2008 SCC 31, [2008] 2 S.C.R. 163; R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206;R. v. Lévesque-Chaput, 2010 QCCA 640; R. v. Gavin, 2009 QCCA 1; R. v. Sidhu, 2009 QCCA 2441; R. v. Flight, 2014 ABCA 380, 584A.R. 392; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261; R. v.McKnight (1999), (ON CA), 135 C.C.C. (3d) 41; R. v. Rezaie (1996), (ON CA), 31 O.R. (3d) 713;R. v.

McDonnell, (SCC), [1997] 1 S.C.R. 948; R. v. Keepness, 2010 SKCA 69, 359 Sask. R. 34; R. v. Verreault, 2008QCCA 2284; R. v. Morneau, 2009 QCCA 1496; R. v. Bear, 2008 SKCA 172, 320 Sask. R. 12; R. v. Berner, 2013 BCCA 188, 297C.C.C. (3d) 69; R. v. Smith, 2013 BCCA 173, 296 C.C.C. (3d) 386; R. v. Kummer, 2011 ONCA 39, 103 O.R. (3d) 641; R. v. Wood(2005), (ON CA), 196 C.C.C. (3d) 155; R. v. O. (C.), 2008 ONCA 518, 91 O.R. (3d) 528; R. v. Wright, 2013 ABCA428, 566 A.R. 192; R. v. J.B., 2015 QCCQ 1884; R. v. Tang, 2010 QCCS 5009; R. v. Valiquette, ; R. v. Nguyen, 2007QCCA 1500; R. v.

Morrissette (1970), (SK CA), 1 C.C.C. (2d) 307; R. v. Laurila, 2010 BCCA 535, 296 B.C.A.C. 139;R. v. Woghiren, ; R. v. Z.Z., 2013 QCCA 1498; R. v. Hernandez, 2009 BCCA 546, 277 B.C.A.C. 120; R. v.MacDougall, (SCC), [1998] 3 S.C.R. 45; R. v. Dumais, 2010 QCCA 1030; R. v. St-Germain, 2015 QCCA 1108; R. v.Pelletier, 2008 QCCA 1616; R. v. Laycock (1989), (ON CA), 51 C.C.C. (3d) 65; R. v. Bilodeau, 2013 QCCA 980; R.v. Williams, 2009 NBPC 16, 346 N.B.R. (2d) 164; R. v. Downes (2006), (ON CA), 79 O.R. (3d) 321; R. v. Ijam, 2007ONCA 597, 87 O.R. (3d) 81; R. v. Panday, 2007 ONCA 598, 87 O.R. (3d) 1; R. v.

Sharma, (SCC), [1992] 1 S.C.R. 814;Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759; R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487; R. v. Angelillo,2006 SCC 55, [2006] 2 S.C.R. 728; Lees v. The Queen, (SCC), [1979] 2 S.C.R. 749. By Gascon J. (dissenting) R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. M. (C.A.), (SCC), [1996] 1

S.C.R. 500; R. v. Priest (1996), (ON CA), 30 O.R. (3d) 538; R. v. Paré, 2011 QCCA 2047; R. v. R. (M.), 2010 QCCA16, 73 C.R. (6th) 136; R. v. J.L.M.A., 2010 ABCA 363, 499 A.R. 1; R. v. Hamilton (2004), (ON CA), 72 O.R. (3d) 1;R. v. Hawkins, 2011 NSCA 7, 298 N.S.R. (2d) 53; R. v. Wismayer (1997), (ON CA), 33 O.R. (3d) 225; R. v. Coffin,2006 QCCA 471, 210 C.C.C. (3d) 227; R. v. Leask (1996), (MB CA), 113 Man. R. (2d) 265; R. v. Stone, (SCC), [1999] 2 S.C.R. 290; R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227; R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948; R. v. Gallon, 2006 NBCA 31, 297 N.B.R. (2d) 317; R. v.

Biancofiore (1997), (ONCA), 35 O.R. (3d) 782; R. v. Gagnon (1998), (QC CA), 130 C.C.C. (3d) 194; R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368; R. v. Orr, 2008 BCCA 76, 228 C.C.C. (3d) 432; R. v. Flight, 2014 ABCA 380, 584 A.R. 392; R. v. Stimson,2011 ABCA 59, 499 A.R. 185; R. v. Dass, ; R. v. Dankyi (1993), (QC CA), 86 C.C.C. (3d) 368; R.v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458; R. v. Valiquette, ; R. v. Z.Z., 2013 QCCA 1498; R. v. Hernandez, 2009BCCA 546, 277 B.C.A.C. 120; R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487; R. v.

Witvoet, 2015 ABCA 152, 600 A.R. 200; R. v.Bartlett, 2005 NLCA 75, 252 Nfld. & P.E.I.R. 154; R. v. Joseph, 2012 BCCA 359, 326 B.C.A.C. 312; R. v. Provost, 2006 NLCA 30,256 Nfld. & P.E.I.R. 205; R. v. Alarie (1980), (QC CQ), 28 C.R. (3d) 73; R. v. Junkert, 2010 ONCA 549, 103 O.R.(3d) 284; R. v. Ruizfuentes, 2010 MBCA 90, 258 Man. R. (2d) 220; R. v. Lépine, 2007 QCCA 70; R. v. Brutus, 2009 QCCA 1382; R. v.Charles, 2011 BCCA 68, 10 M.V.R. (6th) 177, aff’g 2009 BCSC 1391; R. v. McIlwrick, 2008 ABQB 724, 461 A.R. 16; R. v. Olsen,2011 ABCA 308, 515 A.R. 76; R. v. Pelletier, 2009 QCCQ 6277; R. v.

Nottebrock, 2014 ABQB 662, 15 Alta. L.R. (6th) 114; R. v.Cooper, 2007 NSSC 115, 255 N.S.R. (2d) 18; R. v. Kummer, 2011 ONCA 39, 103 O.R. (3d) 641; R. v. Cote, 2007 SKPC 100, 300 Sask.R. 194; R. v. York, 2015 ABCA 129, 78 M.V.R. (6th) 4; R. v. Gravel, 2013 QCCQ 10482; R. v. Comeau, 2008 QCCQ 4804, aff’d 2009QCCA 1175; R. v. Côté, ; R. v. Morneau, 2009 QCCA 1496, aff’g 2009 QCCQ 1271; R. v. Bois, ;R. v. Wood (2005), (ON CA), 196 C.C.C. (3d) 155; R. v. R.N.S., 2000 SCC 7, [2000] 1 S.C.R. 149; R. v. Bilodeau,2013 QCCA 980; R. v. Pellicore, [1997] O.J. No. 226 (QL); Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759.

Statutes and Regulations Cited Act to amend the Criminal Code (impaired driving causing death and other matters), S.C. 2000, c. 25. Criminal Code, R.S.C. 1985, c. C-46, ss. 255(3), 259(2)(a), (a.1), (3.3)(b), 687, 718 to 718.2, 718.1, 718.3(1), 719(1), 721(3)(b). Highway Safety Code, CQLR, c. C-24.2. Tackling Violent Crime Act, S.C. 2008, c. 6. Authors Cited Béliveau, Pierre, et Martin Vauclair. Traité général de preuve et de procédure pénales, 22e éd. Montréal: Yvon Blais, 2015. Canada. House of Commons. Standing Committee on Justice and Human Rights. Ending Alcohol-Impaired Driving: A CommonApproach.

Ottawa: Communication Canada, June 2009. Dadour, François. De la détermination de la peine: Principes et applications. Markham, Ont.: LexisNexis, 2007. Davis, Kenneth Culp. Administrative Law Text, 3rd ed. St. Paul, Minn.: West Publishing Co., 1972. Delisle, Ronald Joseph, Don Stuart and David M. Tanovich. Evidence: Principles and Problems, 9th ed. Toronto: Carswell, 2010. Desjardins, Tristan. L’appel en droit criminel et pénal, 2e éd. Montréal: LexisNexis, 2012. Renaud, Gilles. Principes de la détermination de la peine. Cowansville, Que.: Yvon Blais, 2004. Renaud, Gilles.

The Sentencing Code of Canada: Principles and Objectives. Markham, Ont.: LexisNexis, 2009. Ruby, Clayton C., Gerald J. Chan and Nader R. Hasan. Sentencing, 8th ed. Markham, Ont.: LexisNexis, 2012. Thomas, D. A. Principles of Sentencing, 2nd ed. London: Heinemann, 1979. APPEAL from a judgment of the Quebec Court of Appeal (Morissette, Gagnon and Bélanger JJ.A.), 2014 QCCA 1061, [2014] AZ-51076563, [2014] J.Q. no 4929 (QL), 2014 CarswellQue 4930 (WL Can.), varying a sentence imposed by Couture J.C.Q., 2013 QCCQ 11960, [2013] AZ-51009786, [2013] J.Q. no 13621 (QL), 2013 CarswellQue 10490 (WL Can.).

Appeal allowed,McLachlin C.J. and Gascon J. dissenting. Régis Boisvert and Audrey Roy-Cloutier, for the appellant. Alain Dumas and Geneviève Bertrand, for the respondent. Joanne Dartana, for the intervener. English version of the judgment of Abella, Moldaver, Karakatsanis, Wagner and Côté JJ. delivered by Wagner J. — I. Introduction [1] Sentencing remains one of the most delicate stages of the criminal justice process in Canada. Although this task isgoverned by ss. 718 et seq. of the Criminal Code, R.S.C. 1985, c. C-46, and although the objectives set out in those sections guide the

courts and are clearly defined, it nonetheless involves, by definition, the exercise of a broad discretion by the courts in balancing all therelevant factors in order to meet the objectives being pursued in sentencing. [2] For this purpose, the courts have developed tools over the years to ensure that similar sentences are imposed onsimilar offenders for similar offences committed in similar circumstances — the principle of parity of sentences — and that sentences areproportionate by guiding the exercise of that discretion, and to prevent any substantial and marked disparities in the sentences imposedon offenders for similar crimes committed in similar circumstances.

For example, in Quebec and other provinces, the courts have adopteda system of sentencing ranges and categories designed to achieve these objectives. [3] The credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposedon offenders. A sentence that is unfit, whether because it is too harsh or too lenient, could cause the public to question the credibility ofthe system in light of its objectives. [4] One of the main objectives of Canadian criminal law is the rehabilitation of offenders.

Rehabilitation is one of thefundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courtsimpose sentences that are just and appropriate. [5] In the context of offences such as the ones in the case at bar, namely impaired driving causing either bodily harm ordeath, courts from various parts of the country have held that the objectives of deterrence and denunciation must be emphasized in orderto convey society’s condemnation: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 129; R. v. Lépine, 2007 QCCA 70, at para. 21; R. v.

Brutus, 2009 QCCA 1382, at para. 18 ; R. v. Stimson, 2011 ABCA 59, 499 A.R. 185, at para. 21; R. v.McIlwrick, 2008 ABQB 724, 461 A.R. 16, at para. 69; R. v. Junkert, 2010 ONCA 549, 103 O.R. (3d) 284, at paras. 46-47; R. v.Ruizfuentes, 2010 MBCA 90, 258 Man.

R. (2d) 220, at para. 36. [6] While it is normal for trial judges to consider sentences other than imprisonment in appropriate cases, in the instantcase, as in all cases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options otherthan imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society. [7] The increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wantedsuch offences to be punished more harshly.

Despite countless awareness campaigns conducted over the years, impaired driving offencesstill cause more deaths than any other offences in Canada: House of Commons Standing Committee on Justice and Human Rights,Ending Alcohol-Impaired Driving: A Common Approach (2009), at p. 5. [8] This sad situation, which unfortunately continues to prevail today, was denounced by Cory J. more than 20 yearsago: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view ofnumbers alone, it has a far greater impact on Canadian society than any other crime.

In terms of the deaths and serious injuries resultingin hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country. (R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 16) [9] Such is the backdrop to the main issues in the case at bar.

The appellant is appealing a Quebec Court of Appealjudgment that reduced from six and a half to four years a term of imprisonment imposed on the respondent by the trial judge after therespondent had pleaded guilty to two counts of impaired driving causing death. [10] This appeal affords this Court, first of all, an occasion to clarify the standard on the basis of which an appellate courtmay intervene and vary a sentence imposed by a trial judge.

The Court must determine, inter alia, the extent to which a deviation from asentencing range that is otherwise established and adhered to may justify appellate intervention. [11] This Court has on many occasions noted the importance of giving wide latitude to sentencing judges. Since theyhave, inter alia, the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, havingregard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the CriminalCode in this regard.

The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention.Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, anappellate court may not vary the sentence unless it is demonstrably unfit. [12] In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of asentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility,the heavier the sentence will be.

In other words, the severity of a sentence depends not only on the seriousness of the crime’sconsequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As Imentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in theadministration of justice. Moreover, if appellate courts intervene without deference to vary sentences that they consider too lenient or tooharsh, their interventions could undermine the credibility of the system and the authority of trial courts.

With respect, I am of the opinionthat the Court of Appeal was wrong in this case to reduce the sentence imposed by the trial judge by basing its intervention on the factthat he had departed from the established sentencing range. [13] Secondly, this appeal also raises the question whether it is appropriate for a judge to consider the fact that a type ofoffence occurs with particular frequency in a given region as a relevant factor in determining a just and appropriate sentence.

In this case,I am of the opinion that it was open to the trial judge, in balancing the relevant sentencing factors, to consider the frequency of impaireddriving offences in the district where the crime was committed. Moreover, the Court of Appeal failed completely to address this question. [14] Another question raised in this appeal relates to the length and other terms of the driving prohibition imposed by thetrial judge. In this case, the length of the presentence driving prohibition should be subtracted from that of the prohibition imposed in the

context of the sentence. In addition, the driving prohibition of four years and seven months is demonstrably unfit and must be reduced to two years and four months to take account of the recognizance entered into by the respondent under which he was to refrain from driving from his release date until his sentencing date (two years and three months). [ 15 ] Finally, the appeal also concerns the admissibility of fresh evidence. In this case, the evidence in question was of two breaches of recognizances the respondent had entered into. The Court of Appeal found that the fresh evidence was inadmissible.

Unlike the Court of Appeal, I am of the opinion that the evidence was admissible and that it provided information that was relevant to the determination of a just and appropriate sentence. [ 16 ] In short, I respectfully find that the Court of Appeal erred in intervening, without valid grounds, to substitute a sentence it considered appropriate for the one that had been imposed by the trial judge.

Even though the trial judge had made an error in principle by considering an element of the offence as an aggravating factor, that error had clearly had no impact on the sentence, which, moreover, was not demonstrably unfit. In this sense, the Court of Appeal erred in basing its intervention on the fact that the sentence fell outside the sentencing range established by the courts, while disregarding the criteria that are normally applied in the determination of a just and appropriate sentence.

It also failed completely to address the factor relating to the local situation, that is, to the frequency of the type of offence at issue, on which the trial judge had relied. For these reasons, the appeal should be allowed and the sentence of imprisonment imposed by the trial judge should be restored. II. Background and Judicial History A. Facts [ 17 ] The respondent pleaded guilty to two counts of alcohol-impaired driving causing death, an offence under s. 255(3) of the Criminal Code . The parties filed a joint statement of facts.

The following facts taken from it are relevant for the purposes of this appeal. [ 18 ] On June 17, 2011, at about 4:00 a.m., Tommy Lacasse, the respondent in this appeal, lost control of his vehicle while entering a curve on a country road in Sainte-Aurélie in the Beauce region. He was speeding, and his ability to drive was impaired by alcohol. Nadia Pruneau, who was celebrating her 18th birthday that night, and Caroline Fortier, aged 17, were in the back seat of the vehicle. They both died instantly. Neither the vehicle’s mechanical condition nor the weather contributed to the accident.

The respondent is entirely responsible for it. [ 19 ] The respondent admitted to having smoked a joint of cannabis at about 7:00 p.m., after which he had drunk four small beers between 7:30 p.m. and midnight, another between 1:00 and 2:30 a.m. and about 100 mL of a lemonade and vodka mixture between 10:30 and 11:00 p.m. The parties agreed that it was the alcohol and not the cannabis that had impaired the respondent’s ability to drive. [ 20 ] The collision investigation report concluded that the vehicle had been travelling at 130 km/h, whereas the recommended speed for taking the curve was 75 km/h.

The vehicle skidded more than 60 metres before hitting the bottom of a ditch, lifting off the ground and rolling over several times. [ 21 ] The respondent did not testify at the sentencing hearing, although the defence adduced some evidence to show that he had been deeply distressed during the weeks and months following the accident. The evidence also showed that he had become suicidal and had said that he wished he had died instead of the victims. [ 22 ] At the time of the sentencing hearing, the respondent was 20 years old.

He was living with his parents and working as an autobody repairer in his family’s business. He did not have a criminal record, although he had been convicted of offences under the Highway Safety Code , CQLR, c. C-24.2, including three speeding offences. B. Court of Québec, 2013 QCCQ 11960 [ 23 ] In the Court of Québec, the appellant asked for a sentence of six to eight years’ imprisonment followed by a seven-year driving prohibition.

The respondent suggested a sentence of no more than three years’ imprisonment. [ 24 ] Judge Couture began by listing the aggravating factors: the facts that the respondent had been intoxicated and had smoked cannabis, the context in which he had been drinking alcohol, the speed at which he had been driving, his driving record with the Société de l’assurance automobile du Québec, the number of victims and the impact of the accident on the victims’ families.

He also identified a few mitigating factors, but he reduced the weight to be attached to them, except as regards the fact that the presentence report was favourable to the respondent. [ 25 ] More specifically, Judge Couture attached less weight to the fact that the respondent had pleaded guilty on the ground that he had done so relatively late, long after he was in a position to make decisions about the conduct of his trial.

Judge Couture also attached less weight to the fact that the respondent did not have a criminal record, because in his view, the offence was one that was likely to be committed by people who do not have criminal records. He relied in this regard on this Court’s decision in Proulx , at para. 129 . He also noted that the respondent had sustained injuries, but pointed out that this was merely a consequence of the respondent’s own actions.

In addition, Judge Couture reduced the weight attached to the respondent’s youth. [ 26 ] After reiterating the principle of proportionality together with the principle of parity of sentences, Judge Couture stressed the importance of individualizing sentences and the need to emphasize the objectives of deterrence and denunciation where crimes involving impaired driving are concerned. He specified that sentencing ranges are only guidelines, and not hard and fast rules.

He added that, in the case of impaired driving offences, it is the most law-abiding citizens who must be targeted in an approach based on deterrence and denunciation. [ 27 ] Furthermore, Judge Couture emphasized the particular situation in the Beauce region, where approximately one in

five cases involves an impaired driving offence. He even posed the question whether driving while impaired is trivialized more therethan elsewhere. [28] In the end, he found that the aggravating circumstances outweighed the mitigating circumstances in this case. [29] For all these reasons, Judge Couture sentenced the respondent, on each count of impaired driving causing death, tosix years and six months’ imprisonment minus the period of one month the respondent had spent in pre-trial detention; the two sentenceswere to be served concurrently.

He also prohibited the respondent from operating a vehicle for a period of 11 years starting from thesentencing date. C. Quebec Court of Appeal, 2014 QCCA 1061 [30] The Court of Appeal essentially focused its analysis on the application of the sentencing range outlined in R. v.Comeau, 2008 QCCQ 4804, which it had confirmed in R. v. Paré, 2011 QCCA 2047.

According to that range, which is divided intothree categories, sentences are to be imposed as follows: (1) lenient sentences varying between 18 months’ and three years’ imprisonment where the predominant factors favour the accused; (2) harsh sentences varying between three and six years’ imprisonment where the factors of deterrence and denunciation outweigh thepersonal factors of the accused; (3) very harsh sentences varying between six and nine years’ imprisonment where personal factors are unfavourable to the accused, andeven more severe sentences are possible [translation] “when circumstances approach the worst-case situations” (Paré, at para. 21). [31] The Court of Appeal noted that the trial judge had placed the sentence he imposed at the lower end of the sentencesin the third category, adding that personal factors unfavourable to the accused are normally what explain a move from the second to thethird category.

But, it stated, such factors were almost non-existent in this case. [32] The Court of Appeal found that the sentence of six years and five months was excessive because it departed from theprinciple of proportionality. In the court’s opinion, the trial judge should have given greater consideration to the respondent’s potentialfor rehabilitation and placed less emphasis on the objective of making an example of an offender. [33] The Court of Appeal accordingly replaced the sentence imposed by the trial judge with one of four years’imprisonment minus one month for the period of pre-trial detention.

It also reduced the length of the driving prohibition to four yearscommencing at the end of the respondent’s incarceration. [34] In addition, the Court of Appeal held that the fresh evidence the appellant wanted to adduce was inadmissible. Therecord showed that the respondent had breached two recognizances with which he had agreed to comply while awaiting trial. First, hehad failed to comply with the terms of a curfew imposed on him by the court and, second, he had contacted Maxime Pruneau, the brotherof one of the victims, although he was prohibited from doing so.

According to the Court of Appeal, this fresh evidence was inadmissiblebecause the breaches in question had been punished separately, by an additional 15 days’ imprisonment. Moreover, they were notindicative of a risk of the respondent’s reoffending in this case. The Court of Appeal also held that the fresh evidence in question wasunlikely to affect the result of the appeal, because the disparity between the sentence imposed at trial and the one that, in the court’sopinion, had to be substituted for it was too great. III. Issues [35] The appeal raises the following issues: 1.

Was it open to the Court of Appeal to substitute the sentence it considered appropriate for the one imposed by the trial judge,primarily on the basis that the trial judge had deviated from the sentencing range established by the courts for impaired driving offences? 2. Was it open to the trial judge to consider the frequency of impaired driving in the region where the offence was committed as arelevant sentencing factor? If so, was it open to the Court of Appeal to disregard this factor in analyzing the fitness of the sentence? 3.

Were the length and the other terms of the driving prohibition imposed by the trial judge appropriate? 4. Did the Court of Appeal err in holding that the fresh evidence the appellant wished to file was inadmissible? IV. Analysis A. Standard for Intervention on an Appeal From a Sentence [36] Appellate courts generally play a dual role in ensuring the consistency, stability and permanence of the case law inboth the criminal and civil law contexts.

First, they act as a safeguard against errors made by trial courts and are thus required to rectifyerrors of law and review the reasonableness of the exercise of discretion. They must ensure that trial courts state the law correctly andapply it uniformly. [37] Second, appellate courts must ensure the coherent development of the law while formulating guiding principles toensure that it is applied consistently in a given jurisdiction. They must therefore clarify the law where clarification is necessary or whereconflicting decisions have been rendered: T.

Desjardins, L’appel en droit criminel et pénal (2nd ed. 2012), at p. 1. In Quebec, the Courtof Appeal has an additional responsibility in civil cases, since it ensures the harmonious

interpretation of the distinctive rules of Quebeccivil law.

[38] In the criminal law context, appellate courts play this dual role in appeals from both verdicts and sentences. In thecase of an appeal from a sentence, the power of an appellate court to substitute a sentence for the one imposed by the trial judge isprovided for in s. 687 of the Criminal Code: 687.

(1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law,consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive, (

a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or (

b) dismiss the appeal.

(2) A judgment of a court of appeal that varies the sentence of an accused who was convicted has the same force andeffect as if it were a sentence passed by the trial court. [39] This Court has reiterated on many occasions that appellate courts may not intervene lightly, as trial judges have abroad discretion to impose the sentence they consider appropriate within the limits established by law: s. 718.3(1) of the Criminal Code;see also R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, atpara. 14; R. v.

L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, at para. 25; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, atparas. 43-46. [40] In this regard, Iacobucci J. explained in Shropshire that consideration of the fitness of a sentence does not justify anappellate court taking an interventionist approach on appeal: An appellate court should not be given free rein to modify a sentencing order simply because it feels that a different orderought to have been made.

The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage ofhaving seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in thesentence should only be made if the court of appeal is convinced it is not fit.

That is to say, that it has found the sentence to be clearlyunreasonable. [para. 46] [41] In Proulx, this Court, per Lamer C.J., discussed these same principles, which continue to be relevant: In recent years, this Court has repeatedly stated that the sentence imposed by a trial court is entitled to considerabledeference from appellate courts: see Shropshire, supra, at paras. 46-50; M. (C.A.), supra, at paras. 89-94; McDonnell, supra, atparas. 15-17 (majority); R. v. W. (G.), (SCC), [1999] 3 S.C.R. 597, at paras. 18-19.

In M. (C.A.), at para. 90, I wrote: Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriatefactors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliamentexplicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the CriminalCode. [First emphasis added; second emphasis in original.] . . .

Although an appellate court might entertain a different opinion as to what objectives should be pursued and the best wayto do so, that difference will generally not constitute an error of law justifying interference. Further, minor errors in the sequence ofapplication of s. 742.1 may not warrant intervention by appellate courts.

Again, I stress that appellate courts should not second-guesssentencing judges unless the sentence imposed is demonstrably unfit. [paras. 123 and 125] These principles have since been reiterated in L.M. and Nasogaluak. [42] My colleague states that a sentence may be unfit if there is a reviewable error in the thought process or reasoning onwhich it is based (para. 140).

For this reason, in his view, where there is a reviewable error in the trial judge’s reasoning, for examplewhere the judge has characterized an element of the offence as an aggravating factor (para. 146), it is always open to an appellate court tointervene to assess the fitness of the sentence imposed by the trial judge.

Having done so, the court can then affirm that sentence if itconsiders the sentence to be fit, or impose the sentence it considers appropriate without having to show deference (paras. 139 and 142).In other words, any error of law or error in principle in a trial judge’s analysis will open the door to intervention by an appellate court,which can then substitute its own opinion for that of the trial judge. [43] With all due respect for my colleague, I am of the view that his comments on this point need to be qualified.

I agreethat an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor canjustify the intervention of an appellate court and permit that court to inquire into the fitness of the sentence and replace it with thesentence it considers appropriate. However, in my opinion, every such error will not necessarily justify appellate intervention regardlessof its impact on the trial judge’s reasoning. If the rule were that strict, its application could undermine the discretion conferred onsentencing judges.

It is therefore necessary to avoid a situation in which [translation] “the term ‘error in principle’ is trivialized”: R. v.Lévesque-Chaput, 2010 QCCA 640, at para. 31 . [44] In my view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of anaggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge’s decision that such an errorhad an impact on the sentence. [45] For example, in R. v.

Gavin, 2009 QCCA 1, the Quebec Court of Appeal found, first, that the trial judge had erred inconsidering a lack of remorse and the manner in which the defence had been conducted as aggravating circumstances (para. 29). However, it then considered the impact of that error on the sentence and stated the following, at para. 35 : [translation] I find that the lack of remorse was a secondary factor in the trial judge’s assessment. This is apparent in the

wording of the judgment. The judge referred to and considered all of the relevant sentencing factors, and the issue of lack of remorse wasnothing more than incidental. . . . Consequently, unless the Court finds that the sentence imposed was harsher because the judgeerroneously determined that the defence’s conduct (as in R. v. Beauchamp, supra) and the lack of remorse were aggravatingcircumstances, this error in principle had no real effect on the sentence. Essentially, therefore, our task now is to ensure that the sentenceis not clearly unreasonable . . . .

Thus, the Court of Appeal, finding that the error in principle made by the trial judge was not determinative and had had no effect on thesentence, rightly concluded that the error in question could not on its own justify the court’s intervention. This ultimately led the court toinquire into whether the sentence was clearly unreasonable having regard to the circumstances. [46] The Quebec Court of Appeal also adopted this reasoning in R. v. Sidhu, 2009 QCCA 2441.

As in Gavin, the trialjudge had considered lack of remorse as an aggravating factor (para. 23 ), but the Court of Appeal found that this error was notdeterminative and had had no effect on the sentence (para. 24). Since the sentence the judge imposed would not have been different hadthere been no mistake in that respect (para. 26), the error was not reviewable (para. 55).

Thus, rather than simply substituting its opinionfor that of the trial judge because he had made an error in principle, the Court of Appeal limited itself to considering whether,independently of that error, the sentence was unreasonable or demonstrably unfit. On finding that that was not the case, it decided not tointervene (para. 55). [47] On this issue, the impact of two decisions cited by my colleague in support of his opinion that any error of law orerror in principle justifies the intervention of a court of appeal needs to be clarified and qualified. In R. v.

Flight, 2014 ABCA 380, 584A.R. 392, the Alberta Court of Appeal found that the trial judge had erred in considering the consumption of alcohol and the death of avictim as aggravating circumstances where the accused was charged with impaired driving causing death (para. 4). The Court of Appealtherefore intervened to substitute its own opinion for that of the trial judge on the ground that the judge had erred in principle. However,the court explained that it was difficult to determine what weight the trial judge had given to the aggravating factors at issue in herjudgment (para. 5).

And in Stimson, the Alberta Court of Appeal identified at least four errors in principle in the trial judge’s reasons, andthere was no doubt that they had affected his analysis (paras. 20-27). The Court of Appeal’s intervention was therefore clearly warranted. [48] The reminder given by this Court about showing deference to a trial judge’s exercise of discretion is readilyunderstandable. First, the trial judge has the advantage of having observed the witnesses in the course of the trial and having heard theparties’ sentencing submissions.

Second, the sentencing judge is usually familiar with the circumstances in the district where he or shesits and therefore with the particular needs of the community in which the crime was committed: R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 91. Finally, as Doherty J.A. noted in R. v.

Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, theappropriate use of judicial resources is a consideration that must never be overlooked: Appellate repetition of the exercise of judicial discretion by the trial judge, without any reason to think that the second effortwill improve upon the results of the first, is a misuse of judicial resources. The exercise also delays the final resolution of the criminalprocess, without any countervailing benefit to the process. [para. 70] [49] For the same reasons, an appellate court may not intervene simply because it would have weighed the relevantfactors differently.

In Nasogaluak, LeBel J. referred to R. v. McKnight (1999), (ON CA), 135 C.C.C. (3d) 41(Ont. C.A.), at para. 35, in this regard: To suggest that a trial judge commits an error in principle because in an appellate court’s opinion the trial judge gave toomuch weight to one relevant factor or not enough weight to another is to abandon deference altogether. The weighing of relevant factors,the balancing process is what the exercise of discretion is all about.

To maintain deference to the trial judge’s exercise of discretion, theweighing or balancing of relevant factors must be assessed against the reasonableness standard of review.

Only if by emphasizing onefactor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate courtinterfere with the sentence on the ground the trial judge erred in principle. [para. 46] [50] The Quebec Court of Appeal commented to the same effect in Lévesque-Chaput, at para. 31: [translation] There is no doubt that he focused on the mitigating circumstances, overemphasizing them in the appellant’sopinion, but that balancing exercise was within his jurisdiction and the reasons he gave make it easy to follow his reasoning. [51] Furthermore, the choice of sentencing range or of a category within a range falls within the trial judge’s discretionand cannot in itself constitute a reviewable error.

An appellate court may not therefore intervene on the ground that it would have put thesentence in a different range or category. It may intervene only if the sentence the trial judge imposed is demonstrably unfit. [52] It is possible for a sentence to be demonstrably unfit even if the judge has made no error in imposing it.

AsLaskin J.A. mentioned, writing for the Ontario Court of Appeal, the courts have used a variety of expressions to describe a sentence thatis “demonstrably unfit”: “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a“substantial and marked departure” (R. v. Rezaie (1996), (ON CA), 31 O.R. (3d) 713 (C.A.), at p. 720).

All theseexpressions reflect the very high threshold that applies to appellate courts when determining whether they should intervene afterreviewing the fitness of a sentence. [53] This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code,which provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. Asentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle.

Proportionality is determinedboth on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and bycomparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentencesmust be reconciled for a sentence to be proportionate: s. 718.2(

a) and (

b) of the Criminal Code. [54] The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of theCriminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial

judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of thecrime and the circumstances in which it was committed. The principle of parity of sentences, on which the Court of Appeal relied, issecondary to the fundamental principle of proportionality. This Court explained this as follows in M. (C.A.): It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . .

Sentencing is aninherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime willfrequently be a fruitless exercise of academic abstraction. [para. 92] [55] This principle of parity of sentences also means that the deference owed to the sentencing judge must be shownexcept in the circumstances mentioned above.

The Court said the following in this regard in L.M.: This exercise of ensuring that sentences are similar could not be given priority over the principle of deference to the trialjudge’s exercise of discretion, since the sentence was not vitiated by an error in principle and the trial judge had not imposed a sentencethat was clearly unreasonable by failing to give adequate consideration to certain factors or by improperly assessing the evidence(M. (C.A.), at para. 92, quoted in McDonnell, at para. 16; W. (G.), at para. 19; see also Ferris, at p. 149, and Manson, at p. 93). [para. 35] B.

Sentencing Ranges [56] The principle of parity of sentences has sometimes resulted in the adoption of a system of sentencing ranges andcategories. This concern for parity in sentencing did not originate with the codification of the principle in 1996. As early as the 19thcentury, “tariffs” were being used by the English courts: D. A. Thomas, Principles of Sentencing (2nd ed. 1979), at p. 29.

The tariffssynthesized, as it were, the relevant principles applicable to each type of crime in order to standardize sentencing for it: While in certain contexts the Court articulates a principle, or series of principles, in a systematic manner, it isfrequently necessary to identify the operative principles from the examination of a considerable number of cases, none of whichspecifically identifies the relevant criteria, but which, when viewed collectively, clearly conform substantially to a pattern which can bedescribed.

This is particularly true of what is conventionally known as “the tariff”, the principles governing the lengths of sentences ofimprisonment. (Thomas, at p. 5) [57] Tariffs differ from sentencing ranges in that tariff-based sentencing is theoretically the opposite of sentenceindividualization, which the ranges allow: Thomas, at p. 8. On the other hand, the principle underlying the two approaches is the same:ensuring that offenders who have committed similar crimes in similar circumstances are given similar sentences.

The same is true of thestarting-point approach, which is used mainly in Alberta but sometimes also in other Canadian provinces: R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, at para. 69. Ultimately, whatever mechanism or terminology is used, the principle on which it is basedremains the same. Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflectall the principles and objectives of sentencing.

Sentencing ranges are nothing more than summaries of the minimum and maximumsentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives.However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use ofsentencing judges, who must still exercise their discretion in each case: Even when an appellate court has established a range, it may be that a fact pattern will arise, which is sufficiently dissimilarto past decisions that the “range”, as it were, must be expanded.

The fundamental point is that a “range” is not a straitjacket to theexercise of discretion of a sentencing judge. (R. v. Keepness, 2010 SKCA 69, 359 Sask. R. 34, at para. 24) [58] There will always be situations that call for a sentence outside a particular range: although ensuring parity insentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a uniqueprofile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond apurely mathematical calculation.

It involves a variety of factors that are difficult to define with precision. This is why it may happen thata sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is notdemonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specificcircumstances of each case. LeBel J. commented as follows on this subject: A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives ofsentencing.

Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to allthe circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. (Nasogaluak, at para. 44) [59] In Brutus, the Quebec Court of Appeal described the limits of the process of ensuring the similarity of sentences asfollows: [translation] There is no doubt that the sentence imposed in this case differs from certain sentences imposed in other casesfor the same offence. However, as our colleague Rochon J.A. stated in Ferland v.

R, 2009 QCCA 1168, with respect to the principle ofparity of sentences that is set out in

section 718.2(

b) Cr.C., it “has some limits because of the individualized nature of the sentencingprocess” and cannot provide a basis for departing from the principle of deference to the trial judge’s exercise of his or her sentencingdiscretion (R. v. L.M., supra, at para. 35). [para. 12] [60] In other words, sentencing ranges are primarily guidelines, and not hard and fast rules: Nasogaluak, at para. 44. As aresult, a deviation from a sentencing range is not synonymous with an error of law or an error in principle. Sopinka J. stated this clearlyin McDonnell, although he was referring in that case to categories of assault:

. . . in my view it can never be an error in principle in itself to fail to place a particular offence within a judicially createdcategory of assault for the purposes of sentencing. . . .

If the categories are defined narrowly, and deviations from the categorization aregenerally reversed, the discretion that should be left in the hands of the trial and sentencing judges is shifted considerably to the appellatecourts. [para. 32] [61] Any other conclusion would have the effect of authorizing appellate courts to create categories of offences with noreal justification and accordingly intervene without deference to substitute a sentence on appeal.

But the power to create categories ofoffences lies with Parliament, not the courts: McDonnell, at para. 33. [62] It should also be noted that Parliament has regularly raised the level of the minimum and maximum sentencesapplicable to impaired driving offences. For example, in 2000, the maximum sentence for the crime of impaired driving causing deathwas raised from 14 years to imprisonment for life:

An Act to amend the Criminal Code (impaired driving causing death and othermatters), S.C. 2000, c. 25. [63] Similarly, in 2008, the minimum sentences for all crimes related to impaired driving were increased to $1,000 for afirst offence, imprisonment for 30 days for a second offence and imprisonment for 120 days for any subsequent offence: Tackling ViolentCrime Act, S.C. 2008, c. 6. [64] The sentences imposed for such crimes in Quebec have also changed. For example, before 2009, the terms ofimprisonment imposed for impaired driving causing death varied from one to 10 years: R. v.

Verreault, 2008 QCCA 2284, at para. 25; R. v. Morneau, 2009 QCCA 1496, at para. 21 . Since Comeau, however, the Quebec courts have used a newsentencing range divided into three categories. As I mentioned above, the Court of Appeal held in Paré that it was appropriate for thecourts to use that range. [65] The appellant correctly observes that Quebec is the only province in which the courts have subdivided thesentencing range into categories for the crime of impaired driving causing death. Other provinces have also adopted the range system,but without subdividing the ranges into categories.

In those provinces, sentences vary from 18 months to two years in the least serioussituations and from seven to eight years in the most serious: R. v. Bear, 2008 SKCA 172, 320 Sask. R. 12, at para. 59; R. v. Berner, 2013BCCA 188, 297 C.C.C. (3d) 69, at para. 37; R. v. Smith, 2013 BCCA 173, 296 C.C.C. (3d) 386, at para. 60; Stimson, at para. 18;Ruizfuentes, at para. 22. [66] The Ontario Court of Appeal has refused to define a sentencing range for the crime of impaired driving causingdeath, noting that the crime can be committed in an infinite variety of circumstances: Junkert, at para. 40; R. v.

Kummer, 2011 ONCA 39,103 O.R. (3d) 641. This is why there is so much variation in the ranges and why penitentiary sentences much longer than six and a halfyears have been reported almost everywhere in Canada. [67] Like the range itself, the categories it comprises are tools whose purpose is in part to promote parity in sentencing.However, a deviation from such a range or category is not an error in principle and cannot in itself automatically justify appellateintervention unless the sentence that is imposed departs significantly and for no reason from the contemplated sentences.

Absent an errorin principle, an appellate court may not vary a sentence unless the sentence is demonstrably unfit. [68] My colleague finds that the Court of Appeal’s reasons, read as a whole, show that it did not intervene solely becauseof a deviation from the sentencing range (para. 144). With respect, I cannot agree with this

interpretation. As can be seen from the Courtof Appeal’s reasons, it justified its intervention on the basis that it was not open to the trial judge to impose a sentence falling into thethird category of the sentencing range, because personal factors unfavourable to the respondent, which would normally support such asentence rather than one from the second category, were almost non-existent in this case.

It is clear from the Court of Appeal’s reasonsthat it based its intervention primarily on an erroneous determination of the applicable sentencing category by the trial judge. [69] I believe that the Court of Appeal was wrong to apply the sentencing range rigidly.

By saying that the sentenceshould have been in the second category rather than at the lower end of the sentences in the third category, the Court of Appealsubstituted its own assessment for that of the trial judge without first determining that the sentence in question was demonstrably unfit.In doing so, the Court of Appeal erred in applying the sentencing range mechanism as if it were a straitjacket.

The sentencing rangesmust in all cases remain only one tool among others that are intended to aid trial judges in their work. [70] In this case, even though the sentence fell outside one of the categories of sentences that have been established sinceComeau, this did not mean that it was manifestly excessive. Terms of imprisonment of six years or more have in fact been imposed onpeople without criminal records who were convicted of impaired driving causing death.

For example, in Kummer, the Ontario Court ofAppeal upheld an eight-year prison sentence imposed on a driver with no criminal record who had caused the deaths of three peoplewhile driving under the influence of alcohol. In R. v. Wood (2005), (ON CA), 196 C.C.C. (3d) 155, the OntarioCourt of Appeal upheld a nine-year sentence imposed on a person who had no criminal record for impaired driving but had caused thedeaths of three people and caused permanent injuries to another. In Morneau, the Quebec Court of Appeal upheld a six-year term ofimprisonment on a charge of impaired driving causing the death of one person.

Although the offender in that case already had a criminalrecord consisting of three convictions, the convictions all dated back more than 10 years. In light of the foregoing, therefore, thesentence of six and a half years imposed in the instant case on an offender who caused the deaths of two young girls was notdisproportionate. [71] Moreover, by justifying its intervention on the basis of the trial judge’s failure to adhere to the categories ofsentences, the Court of Appeal was acknowledging that a six-year sentence was one of the possible results in this case.

The six-monthdifference between the sentence imposed by the trial judge and the one the Court of Appeal believed should have been imposed on thebasis of the category of sentences it chose does not constitute a marked departure that would have authorized it to intervene. In addition,although the sentence imposed at trial departs somewhat from the sentences applicable to the category the Court of Appeal consideredthe most appropriate, it falls within the overall range established by the Quebec courts, and lies clearly within the range of sentencesimposed elsewhere in the country for similar offences.

[72] In sum, the sentence imposed by Judge Couture is consistent with the sentencing objectives and principles set out inthe Criminal Code. Judge Couture properly emphasized the importance of deterrence and denunciation in this case, but he did notoverlook the objective of rehabilitation (para. 92 ). Indeed, the Court of Appeal acknowledged that [translation] “[t]he trial judgegave extensive reasons for the judgment to which the motion relates, and it is clear that he very carefully weighed the sentencingobjectives and principles set out in sections 718 to 718.2 of the Criminal Code” (para. 5 ).

Because Judge Couture did not makea reviewable error in his judgment, and because the sentence he imposed was not demonstrably unfit, it was not open to the Court ofAppeal to intervene and substitute its own assessment for his. The Court of Appeal nevertheless reduced the sentence imposed at trial,which was indeed severe, without taking account of the principle that deterrence and denunciation must be emphasized in such cases.

Inreducing the sentence imposed by Judge Couture on the basis that it departed from the principle of proportionality, the Court of Appealalso disregarded the local reality, thereby itself departing from the objectives of deterrence and denunciation. C. Deterrence and Denunciation [73] While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevantto offences that might be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will besensitive to harsh sentences.

Impaired driving offences are an obvious example of this type of offence, as this Court noted in Proulx: . . . dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence.These crimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, suchpersons are the ones most likely to be deterred by the threat of severe penalties: see R. v. McVeigh (1985), (ON CA), 22C.C.C. (3d) 145 (Ont. C.A.), at p. 150; R. v. Biancofiore (1997), (ON CA), 119 C.C.C. (3d) 344 (Ont. C.A.), atparas. 18-24; R. v.

Blakeley (1998), (ON CA), 40 O.R. (3d) 541 (C.A.), at pp. 542-43. [para. 129] [74] As I mentioned in the introduction, courts from various parts of the country have adhered to the principle that theobjectives of deterrence and denunciation must be emphasized in imposing sentences for this type of offence. For example, the QuebecCourt of Appeal made the following comments in Lépine: [translation] Sentences imposed for crimes involving dangerous operation of a motor vehicle while under the influence ofalcohol must be aimed at deterring the public generally from driving in that manner.

This Court has therefore upheld significant custodialsentences for such offences: R. v. Kelly, J.E. 97-1570 (C.A.). Very often, the objective gravity of such crimes is based more on their consequences and the extent of those consequencesthan on consciousness of guilt, which is why Parliament has increased the maximum sentences on the basis of the consequences of theoperation of the vehicle.

A loss of human life caused by the operation of a vehicle while impaired is a consequence that cannot be remedied, whichis why it is important for the courts to convey a message of denunciation to those who put themselves in potentially dangerous situations,even if the offender does not have a criminal record and did not wish to cause the tragic accident. [paras. 19-21] [75] Along the same lines, the Quebec Court of Appeal said the following in Brutus: [translation] In closing, it should be borne in mind that the courts have long been sharply critical in discussing thecommission of driving offences of this nature and have asserted that the objectives of denunciation and deterrence must be emphasized inorder to convey their wish to give expression to society’s condemnation of such crimes by means of exemplary sentences, particularly incases (like this one) involving serious consequences for the victims.

Society’s condemnation may be reflected in longer terms ofimprisonment, which have a deterrent effect both on the offender and on all those who might be tempted to imitate the offender. Thesentence imposed in this case is not unreasonable in light of this objective, nor is it unreasonable in light of all the circumstances of thecase. [para. 18] [76] The Quebec Court of Appeal was right to note the importance of the objectives of deterrence and denunciation.

Withrespect, however, it erred in the instant case in departing from those objectives and intervening. [77] My colleague is of the opinion that Judge Couture overemphasized the objective of deterrence (para. 145). He alsomaintains that Judge Couture made several errors of law by considering aggravating factors that were not really aggravating factors andby failing to consider some important mitigating factors, such as the respondent’s youth and the facts that he had expressed remorse, thathe had no criminal record and that the presentence report was favourable to him (ibid.).

For these reasons, my colleague “believe[s] theCourt of Appeal was justified in intervening and reopening the analytical process in order to determine whether the sentence was just andappropriate” (para. 164). [78] Here again, I find that my colleague’s comments need to be qualified. Judge Couture did not fail to consider themitigating factors in question (para. 33), but instead attached less weight to them because of the nature of the offence at issue, as therespondent himself acknowledges (at para. 29 of his factum). In short, what is being criticized is the weight the trial judge attached tothose factors.

As I mentioned above, however, determining the weight to be given to aggravating or mitigating circumstances fallsstrictly within the sentencing judge’s discretion. The decision to weigh such factors in a given way is not in itself an error that opens thedoor to appellate intervention unless the weighing is unreasonable. [79] This being said, the trial judge was justified in attaching less weight to the mitigating factors in this case.

Althoughan offender’s youth is often an important mitigating factor to consider, it should be noted that it is young people who are affected themost by motor vehicle accidents that result from impaired driving.

In light of the importance that must be attributed to the objectives ofdeterrence and denunciation in such cases as well as the dire consequences of the accident in the instant case, for which the respondent isentirely responsible, the trial judge was right to reduce the weight attached to his youth as a mitigating factor. [80] As to the fact that the respondent did not have a criminal record, Judge Couture was right to point out that his drivingrecord was not clean. He had been convicted three times for speeding. This showed that he was irresponsible when behind the wheel,

and his convictions under the Highway Safety Code were all the more relevant given that speeding had played a

part in the accident inthis case. The respondent repeatedly and frequently drove irresponsibly. [81] The trial judge was also right to attach less weight to the remorse expressed by the respondent and to his guilty pleabecause of the lateness of that plea. A plea entered at the last minute before the trial is not deserving of as much consideration as one thatwas entered promptly: R. v. O. (C.), 2008 ONCA 518, 91 O.R. (3d)

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