2011 QCCA 2047, 2011 QCCA 2047

Unofficial English Translation Paré c. R. 2011 QCCA 2047 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002586-100 (200-01-125879-084) DATE: November 7, 2011 CORAM: THE HONOURABLE ANDRÉ BROSSARD, J.A. FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. YVAN PARÉ PETITIONER – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] THE COURT; On appeal from a judgment of the Court of Quebec, Criminal and Penal Division, District of Quebec (the Honourable Judge André Plante), rendered on October 29, 2010, which imposed on the appellant concurrent sentences of five years’ and three years’ imprisonment on charges of impaired driving causing death and dangerous driving causing death, along with orders prohibiting the appellant from driving for ten years and eight years; [ 2 ] For the reasons of Doyon, J.A., with which Brossard and Kasirer, JJ.A. agree: [ 3 ] GRANTS the motion for leave to appeal; [ 4 ] ALLOWS the appeal; [ 5 ] SETS ASIDE the trial judgment; [ 6 ] VARIES the sentences, reducing them to three years' imprisonment on the charge of impaired driving causing death and thirty months' imprisonment on the charge dangerous driving causing death, to be served concurrently as of October 29, 2010; [ 7 ] VARIES the prohibitions against driving, reducing their duration to six years on the charge of impaired driving and five years on the charge of dangerous driving; [ 8 ] ALL other orders remaining in force.

ANDRÉ BROSSARD, J.A. FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. Mtre Denis Bernier Bernier, Vézina For the appellant Mtre Christine Gosselin Criminal and penal prosecutor For the respondent

Date of hearing: September 9, 2011 REASONS OF DOYON, J.A. [ 9 ] It is impossible not to sympathize with the victim's family. The crime and the circumstances in which it was committed were serious, and its consequences were dramatic. [ 10 ] Is this sufficient, however, to justify a sentence of five years' imprisonment? That is the question before the Court and, with the greatest respect for the trial judge, I would answer it in the negative.

BACKGROUND [ 11 ] In the afternoon and early evening of April 25, 2008, the appellant, 36 years old at the time and working as a landscaper, went to two bars to celebrate a contract he had just landed. First, he asked an acquaintance to drive him home because he was inebriated. After she left, however, he decided to drive himself home in his own vehicle, a Dodge Dakota pickup truck. As he pulled out of the parking lot, he squealed his tires. [ 12 ] Around 7:30 p.m., he was heading east along Wilfred-Hamel Blvd. in Quebec City. Witnesses state that his driving was erratic and dangerous.

He switched lanes a many times and crossed into the oncoming lane. He was driving at 120 km/h in a 70 km/h zone. [ 13 ] The victim, Sarah-Dominique Blanchet, a 22-year-old woman, was also driving eastbound at the wheel of her Ford Focus. At the intersection of Wilfred-Hamel Boulevard and Foucault Street, she came to a stop at the red light. Suddenly, the appellant's vehicle appeared behind her and crashed violently into her small car. The pickup truck completely demolished the back of her car, its front bumper pushing all the way into the victim’s seat. No skid marks were detected on the scene.

The impact was so forceful that it propelled the Ford Focus to the other side of the intersection, where it hit another car waiting at the red light. [ 14 ] The victim was taken to hospital, unconscious. She sustained severe head trauma that caused her brain to swell. She was put into a barbiturate coma and underwent surgery to relieve intracranial pressure. She died seventeen days later. [ 15 ] The police officers observed that the appellant's breath smelled strongly of alcohol, that he had trouble speaking, that his mouth was pasty, and that his gait was unsteady.

The appellant asked repeatedly for his wallet and key chain, which had remained in his truck. The police officers told him that he should worry about the victim instead. [ translation ] "Oh, that's right, I'm sorry," the appellant said, but then began to laugh. [ 16 ] At the police station, he was worried about the consequences of the accident on his insurance premiums and claimed that the victim had run a red light on her way from Foucault Street. He said, [ translation ] "She was in the wrong".

He also told the police officers that he had signed a $54,000 contract and that [ translation ] "no matter what happens, it's a [...] fantastic day". Later, still speaking with a police officer, he added, [ translation ] "You have no idea what's at stake for me.

I just signed the contract of a lifetime and I may have screwed it all up." [ 17 ] The breathalyzer test revealed 160 milligrams of alcohol per 100 millilitres of blood, twice the legal limit. [ 18 ] On October 15, 2009, he pleaded guilty to the following two charges: [ translation ] On or around April 25, 2008, at Quebec City, District of Quebec, did operate a motor vehicle while his ability to operate said vehicle was impaired by the effect of or of a drug and did cause the death of Sarah-Dominique Blanchet, thereby committing an indictable offence contrary to section 255(3) of the Criminal Code .

On or around April 25, 2008, at Quebec City, District of Quebec, did operate a motor vehicle in a manner dangerous to the public, having regard to all the circumstances, and did thereby cause the death of Sarah-Dominique Blanchet, thereby committing an indictable offence contrary section 249(4) of the Criminal Code . [ 19 ] The sentencing hearing allowed the trial judge to apprise himself of all of the circumstances of the offences, and he properly understood their seriousness.

The hearing also gave him the opportunity to become aware of the pain felt by the victim's loved ones and the long period during which the victim suffered before she died. [ 20 ] Moreover, the pre-sentence report was favourable and found that the risk of re-offending was weak. The appellant has no criminal record and his driving record indicates no demerit points. His social network encourages pro-social and non-criminal values, and is prepared to support him. Indeed, before the events, he was a volunteer with organizations such as Tolérance Zéro and Nez Rouge. He has not had a drink since the accident.

He accepts full responsibility for the victim's death and expresses sympathy for her family. He hopes to be able to sensitize young people to the dangers of drinking and driving. At the hearing, the appellant read a letter addressed to the victim's parents and expressed remorse that the judge believed to be sincere. JUDGMENT

[21] After summarizing the facts and the submissions of the parties, the trial judge stated the law and referred to the case lawapplicable to sentencing in such cases. He outlined the range of sentences that are generally handed down for impaired driving causingdeath, as formulated by Jean-François Gosselin, J.C.Q., in R. v.

Comeau, 2008 QCCQ 4804 at para. 177.[1] - Lenient sentences varying between 18 months’ and 3 years’ incarceration, where the predominant factors favour the accused - Harsh penalties varying between three to six years in a penitentiary, where the factors of denunciation and deterrence override thepersonal factors of the accused. - Very harsh sentences, varying between six and nine years’ imprisonment, where personal factors are unfavourable to the accused; evenmore severe sentences are possible when circumstances approach the worst-case situations. [22] The judge pointed out, however, that the sentences must be individualized, in accordance with the principles of sentencing setout in sections 718, 718.1 and 718.2 Cr.

C. He noted that in R. v. Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206 at para. 44, theSupreme Court states that the ranges of sentences imposed by the courts are guidelines rather than hard and fast rules.

He also remarkedthat, since the 2001 amendments, the maximum sentence is fourteen years' imprisonment for dangerous driving causing death and lifeimprisonment for impaired driving causing death. [23] He continued his analysis by outlining the aggravating factors. [24] He observed that the appellant took the risk of putting motorists in danger while his ability to drive was impaired by alcohol,that his driving was dangerous, and that the responsibility was entirely his because the victim had committed no fault.

He noted theappellant's erratic driving before the accident, his excessive speed, and his elevated blood alcohol level. [25] The judge found that the appellant's post-offence conduct was also an aggravating factor. [translation] [41] After the collision, the accused showed himself to be insensitive to the victim's situation, worrying more about his house keys, hiswallet, or the consequences of the accident on his insurance premiums, while also rejoicing, despite the situation, in having obtained acontract. [42] The accused tried to induce the police officers into error on two occasions by assigning responsibility for the collision on the victim. [26] He also took into consideration the consequences of the appellant's conduct on the victim and on her family and friends. [27] He then moved on to the mitigating factors. [28] The appellant has no criminal record and a clean driving record.

He expressed sincere remorse and regret at the hearing. Heaccepts full responsibility for his actions and is aware of the seriousness of the crimes he committed. The pre-sentence report isfavourable and leads to the conclusion that he is unlikely to re-offend. The appellant stopped drinking after the events.

Finally, the judgetook note of the accused’s guilty plea but found that, because the evidence was so overwhelming, this plea has only limited value. [29] With respect to the imposition of sentence, the judge recalled the importance of the objectives of denunciation and deterrencewhen the courts are faced with offences of this nature. In his view, the tendency across Canada is to increase sanctions for this type ofbehaviour, even in cases where the offender has no prior convictions.

He wrote: [translation] [59] In short, the message is clear: Parliament intended greater harshness in sentencing to denounce the scourge of drinking and driving,and the courts must take the severity of society’s condemnation of this type of conduct into consideration. [30] He added: [translation] [60] Despite the government's numerous public awareness and advertising campaigns such as Alcofrein, and despite the existence oforganizations like Tolérance Zéro and Nez Rouge, it cannot be denied that there are still irresponsible individuals who choose to drivetheir automobiles while their ability to do so is impaired by alcohol and who thus endanger the safety of others on the road.

Many ofthem are not criminals. Like the accused, they are ordinary citizens [des "monsieur Tout-le-Monde"], who acknowledge their wrongs,who accept responsibility, and whose rehabilitation seems certain. In this case, his social reintegration presents no problem. [31] He then cited with approval an excerpt from a judgment rendered by Claude Provost J. of the Court of Quebec in R. v.Sasseville, (QC CQ), J.E. 2004-1992: [translation] Ordinary citizens need to know that longer prison sentences are not reserved solely for murderers, bank robbers, and drug dealers.

Reasonable men and women have to know that, if they cause death or bodily harm by operating a motor vehicle while their ability todrive is impaired by alcohol or a drug, they will be harshly punished, even if their record is unblemished and they have always beenhonest citizens. [32] Finally, he sentenced the appellant to prison sentences of five years for impaired driving causing death and three years fordangerous driving causing death, to be served concurrently. He also made a number of orders, including a prohibition from driving any

motor vehicle in Canada for ten years on the count of impaired driving and for eight years on the count of dangerous driving. SUBMISSIONS OF THE PARTIES [33] In the view of the appellant, the sentence is unreasonable and greatly exceeds sentences imposed in similar cases. Given themany mitigating factors accepted by both the judge and the author of the pre-sentence report, the sentence should have been within thefirst part of the range described in R. v. Comeau, supra.

Thus, the appellant argues, the judge did not actually take into consideration theappellant's particular situation and punished the crime rather than the offender, making the five-year prison sentence tantamount to aminimum sentence for this type of offence. The judge also erred in characterizing some of the circumstances as aggravating and byfailing to take into consideration some mitigating circumstances which distinguish this case from the judgments on which he basedhimself.

Finally, the appellant argues that the duration of the driving prohibition is excessive because he needs to use an automobile forwork, which is something that the judge did not consider. [34] In the view of the respondent, the seriousness of the offence and the many aggravating circumstances provide amplejustification for the decision, which is in keeping with recently imposed sentences in Canada.

Thus, according to the case law, ordinarycitizens must sometimes receive harsher sentences, and the objective of deterrence must prevail even in such cases because this type ofoffence is frequently committed by ordinary people. As for the guilty plea, the weight it should be assigned falls under the discretionarypower of the judge, who was entitled to find that its value was limited, as the Court of Appeal of Nova Scotia found in R. v. Bryan, 2008NSCA 199. In this case, the plea was entered after eighteen months, and the evidence was overwhelming.

As for the length of thedriving prohibition, the respondent maintains that it is consistent with the case law and that it is based on a thorough and careful analysis. THE POWER OF AN APPELLATE COURT TO INTERVENE [35] It is well known that appellate courts must show great deference when considering the decisions of trial judges in sentencingmatters. R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227 at para. 46, stated the following: An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to havebeen made.

The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seenand heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence shouldonly 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 clearly unreasonable. [36] Later, in R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 90, the Supreme Court noted: Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court ofappeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vestedsentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code… [37] This principle of curial deference was reiterated by the Supreme Court in R. v. L.M., 2008 SCC 31 , [2008] 2 S.C.R.163 at paras. 14–15, R. v.

Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61 at paras. 123–15, R. v. Proulx, (SCC),[1997] 1 S.C.R. 948 at paras. 14–17, and R. v. Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206. In Nasogaluak, LeBel J. wrote: The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in somecircumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions inaccordance with the principle of parity enshrined in the Code.

But it must be remembered that, while the courts should pay heed to theseranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordancewith the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit.

Regard must be had to all of the circumstances of the offence and the offender, and to the needs of the community inwhich the offence occurred. [38] In short, the trial judge has broad discretion, and a court of appeal may intervene only in circumstances indicating an error inprinciple, an overemphasis of an appropriate factor, or a failure to consider a relevant factor, unless the sentence is quite simplydemonstrably unfit or, in other words, clearly unreasonable.

Thus, appellate courts retain the power to ensure that sentences areconsistent with those imposed “for similar offences committed in similar circumstances"; indeed, this is set out in subsection 718.2(

b) Cr.C. It is also articulated as follows in R. v. M.(C.A.), supra: 92 Appellate courts, of course, serve an important function in reviewing and minimizing the disparity of sentences imposed bysentencing judges for similar offenders and similar offences committed throughout Canada. ... But in exercising this role, courts of appealmust still exercise a margin of deference before intervening in the specialized discretion that Parliament has explicitly vested insentencing judges. ...

For these reasons, consistent with the general standard of review we articulated in Shropshire, I believe that a courtof appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial andmarked departure from the sentences customarily imposed for similar offenders committing similar crimes. [Emphasis added.] [39] In sum, where parity in sentencing is at issue, only a marked and substantial departure justifies the intervention of an appellatecourt. [40] In this case, I find that two errors are fatal to the decision. [41] First, the judgment unduly emphasizes the factors related to the objectives of general denunciation and deterrence, therebyleading the judge to ignore the fundamental principle whereby the sentence must be proportionate not only to the gravity of the offencebut also to the degree of responsibility of the offender.

This error of law and principle led the judge to assign undue weight to theaggravating circumstances in comparison to the importance he assigned to the mitigating circumstances.

[42] Second, the sentence represents a marked and substantial departure from sentences customarily handed down for similar crimescommitted by offenders with essentially the same characteristics as the appellant. THE PROPORTIONALITY RULE AND THE UNDUE WEIGHT ASSIGNED TO THE AGGRAVATING CIRCUMSTANCES IN COMPARISON TO THAT ASSIGNED TO THEMITIGATING CIRCUMSTANCES [43] The trial judge assigned a great deal of importance to the objective of general deterrence. Before beginning the analysis of thedecision on this issue, it may be useful to define this term. [44] In R. v B.W.P.; R. v.

B.V.N., 2006 SCC 27 , [2006] 1 S.C.R. 941 at para. 2, Charron J. provided this definition: Deterrence, as a principle of sentencing, refers to the imposition of a sanction for the purpose of discouraging the offender and othersfrom engaging in criminal conduct. When deterrence is aimed at the offender before the court, it is called "specific deterrence", whendirected at others, "general deterrence". The focus of these appeals is on the latter.

General deterrence is intended to work in this way:potential criminals will not engage in criminal activity because of the example provided by the punishment imposed on the offender.When general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or shedeserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity. [45] Thus, general deterrence authorizes a court to impose a harsher sentence to send a message with a view to deterring others fromcommitting a similar offence.

The offender must deserve it, however. The notion that offenders must deserve the sentences they receivenecessarily refers to the fundamental proportionality principle, which Parliament has articulated in

section 718.1 Cr. C.: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [46] Indeed, as the Court of Appeal of Newfoundland and Labrador found, in R. v. Rogers, 2008 NLCA 19 , [2008] N.J.No. 81, a sentence that is increased in length for reasons of deterrence without taking into consideration the proportionality ruleconstitutes an error of law: 42 From the trial judge's reasons, it appears his main emphasis was on specific and general deterrence and denunciation.

The trial judgedid not explain, however, why a sentence within the range established by the cases noted would not achieve this. He did refer to hisprevious sentencing of Rogers in 2005 for causing a disturbance and breach of probation and noted, at para. 15. "It is clear that thatsentence failed to specifically deter the accused from committing other crimes".

The trial judge also noted Roger's lack of insightregarding the risk at which he had placed his son. 43 Increasing the length of a sentence for specific deterrence without regard to whether it is proportionate to the gravity of the offenceand the degree of responsibility of the offender is an error of law.

The proportionality principle may be informed by the requirement thatsentences be similar, in that the sentences in prior similar cases provide a gauge as to the view of various courts concerning the gravity ofa particular offence and the degree of responsibility calling for sanction in particular circumstances. [47] To return to the case before us, after referring to Lamer C.J.'s remarks in R. v.

Proulx, supra, that dangerous driving andimpaired driving may require harsh sentences to have a deterrent effect, the trial judge stated: [translation] [53] Denunciatory and deterrent prison sentences are therefore required in such cases. [54] Indeed, the decisions referred to above support this view.

It is also possible to see in them a tendency to increase sentences for thistype of criminal behaviour, not just in Quebec but elsewhere in Canada. ... [59] In short, the message is clear: Parliament intended greater strictness in sentencing to denounce the scourge of drinking and driving,and the courts must take the severity of society’s condemnation of this type of conduct into consideration. [60] Despite the government's numerous public awareness and advertising campaigns such as Alcofrein, and despite the existence oforganizations like Tolérance Zéro and Nez Rouge, it cannot be denied that there are still irresponsible individuals who choose to drivetheir automobiles while their ability to do so is impaired by alcohol and who thus endanger the safety of motorists.

Many of them are notcriminals. Like the accused, they are ordinary citizens, who acknowledge their wrongs, who accept responsibility, and whoserehabilitation seems certain. In this case, his social reintegration presents no problem. [61] In R. v. Sasseville,[2] Claude Provost, J.C.Q. stated: [translation] Ordinary citizens need to know that longer prison sentences are not reserved solely for murderers, bank robbers, and drug dealers.

Reasonable men and women have to know that, if they cause death or bodily harm by operating a motor vehicle while their ability todrive is impaired by alcohol or a drug, they will be harshly punished, even if their record is unblemished and they have always beenhonest citizens. [48] In short, ordinary citizens ["Monsieur et Madame Tout-le-Monde"] must be deterred from committing such offences and, toensure that the message strikes home, the appellant’s sentence should be harsh, despite the many mitigating circumstances and the factthat his [translation] "social reintegration presents no problem".

In other words, the appellant must be punished harshly so that non-criminals will think twice before driving in that condition. In my opinion, this view of sentencing is inconsistent with the principle of the

individualization of sentences. Moreover, the objectives of denunciation and general deterrence can be achieved without the impositionof increasingly harsh prison sentences. Surely, for example, a penitentiary sentence[3] is dissuasive and sufficient in itself to denouncethe crime and deter an ordinary person from committing it. I doubt that ordinary citizens would remain undeterred if they knew that theycould receive a penitentiary sentence. There is no need to increase the quantum of such sentences for this reason alone.

Indeed, thequantum of the sentence should not be determined solely on the basis of public perception. [49] Moreover, some believe that the deterrent effect of incarceration is yet to be proved, as Lamer C.J. wrote in R. v. Proulx, supra,at para. 107: The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generally Sentencing Reform: A CanadianApproach, supra, at pp. 136-37. ... [50] Also recently, this Court wrote: [translation] [82] Is deterrence greater and more effective with a sentence of six years rather than a lesser sentence?

This matter could be debated atlength....[4] [51] Indeed, it is rather well established that the harshness of a sentence is only a mild deterrent. Rather, this effect is achievedthrough the likelihood of being arrested and punished. For example, in Sentencing in Cases of Impaired Driving Causing Bodily Harmor Impaired Driving Causing Death, an important report prepared for the Canada Safety Council in February 2005, ProfessorsDavid M.

Paciocco and Julian Roberts made the following comment at page 49: However, when a correlational analysis is performed on crime rates and average sentence lengths the same result emerges: no significantrelationship between sentence severity (in the case average sentence length) and crime (impaired driving) rates. If the severity to penalties has little marginal deterrent effect, how then can offenders be deterred?

Consistent with earlier reviews, theauthors of the Cambridge review concluded that the certainty of penalties is most likely explanation for deterrent effect. … In otherwords, making offenders aware of the likelihood of apprehension and conviction is the most effective way of preventing crime throughgeneral deterrence. [52] Valerie Wright, Ph.D., expresses the same perspective in a study she prepared in 2010 for The Sentencing Project inWashington, D.C., entitled Deterrence in Criminal Justice: Evaluating Certainty vs. Severity.

Here are a few excerpts: … Research to date generally indicates that increases in the certainty of punishment, as opposed to the severity of punishment, are morelikely to produce deterrent benefits. ... One problem with deterrence theory is that it assumes that human beings are rational actors who consider the consequences of theirbehaviour before deciding to commit a crime; however, this is often not the case. ... … If there was 100% certainty of being apprehended for committing a crime, few people would do so.

But since most crimes, includingserious ones, do not result in an arrest and conviction, the overall deterrent effect of the certainty of punishment is substantially reduced.Clearly, enhancing the severity of punishment will have little impact on people who do not believe they will be apprehended for theiractions.

Researchers also find an increased likelihood that lower-risk offenders will be more negatively affected by incarceration. ... [53] In Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures, a reportsubmitted to the Department of Justice Canada in 2002, authors Thomas Gabor and Nicole Crutcher wrote the following regardingMMPs (mandatory minimum penalties), at para. 4.3.1: The research on both sentence certainty and severity are relevant to MMS and, on balance, the evidence suggests that severity may beless critical to deterrence than initiatives boosting the certainty of punishment (Miller and Anderson, 1986; von Hirsch et al., 1999). [54] The effectiveness of the very principle of general deterrence is also a matter of debate, as noted by Charron J. in R. v.

B.W.P.; R.v. B.V.N., supra, at para. 3: While general deterrence as a goal of sentencing is generally well understood, there is much controversy on whether it works or not.Those who advocate its abolition as a sentencing principle, particularly in respect of youth, emphatically state that there is no evidencethat it actually works in preventing crime.

Those who advocate its retention are equally firm in their position and, in support, point tosociety’s reliance on some form of general deterrence to guide young people in making responsible choices on various matters, forexample, about smoking, using alcohol and drugs and driving a motor vehicle. ... [55] In R. v. Wismayer (1997), (ON CA), 115 C.C.C. (3d) 18 (Ont.

C.A.), Rosenberg J.A. wrote the following onthis subject: 47 In my view, the enactment of the conditional sentence regime represents a concession to the view that the general deterrent effect ofincarceration has been and continues to be somewhat speculative and that there are other ways to give effect to the objective of generaldeterrence. ... [56] Rosenberg J.A. went on to quote excerpts from the Report of the Canadian Sentencing Commission (1987) on the difficulty ofassessing the true effect of sentencing on deterrence: … The Report of the Canadian Sentencing Commission, 1987 (The Archambault Report) summarized the state of understanding of

general deterrence. The Commission's first three conclusions, at pp. 136-37 were as follows:

a) Even if there seems to be little empirical foundation to the deterrent efficacy of legal sanctions, the assertion that the presence of somelevel of legal sanctions has no deterrent effects whatsoever, has no justification. The weight of the evidence and the exercise of commonsense favour the assertion that, taken together, legal sanctions have an overall deterrent effect which is difficult to evaluate precisely.

b) The proper level at which to express strong reservations about the deterrence efficacy of legal sanctions is in their usage to produceparticular effects with regard to a specific offence. For instance, in a recent report on impaired driving published by the Department ofJustice, Donelson asserts that "law-based, punitive measures alone cannot produce large, sustained reductions in the magnitude of theproblem" (Donelson, 1985; 221-222). Similarly, it is extremely doubtful that an exemplary sentence imposed in a particular case canhave any perceptible effect in deterring potential offenders.

c) The old principle that it is more the certainty than the severity of punishment which is likely to produce a deterrent effect has not beeninvalidated by empirical research. In his extensive review of studies on deterrence, Beyleveld (1980; 306) concluded that "recordedoffence rates do not vary inversely with the severity of penalties (usually measured by the length of imprisonment)" and that "inverserelations between crime and severity (when found) are usually smaller than inverse crime-certainty relations." [emphasis added] [57] As judge Charron recalled in R. v. B.W.P.; R. v.

B.V.N., supra, however, it is still up to Parliament to determine whether thisobjective is relevant. And indeed, under paragraph 718(

b) Cr. C., it is: (

b) to deter the offender and other persons from committing offences. [58] It is not a matter of arguing that general deterrence is not an appropriate objective and can never be achieved through harshsentences. Instead, it must be recalled that the empirical data does not clearly identify the effects of harsh sentences, and, in any event,deterrence cannot be the only objective, the golden rule being the quest for proportionality. [59] It should also be noted that deference is required when detention is based on the objective of general deterrence. That is whatthis Court stated in R. v.

Coffin, 2006 J.Q., No. 3136 at para. 57, which is moreover in keeping with the judgment of the Court of Appealfor Ontario, R. v. Wismayer, supra. In paragraph 48 of that judgment, Rosenberg J.A. stated: This is not to doubt the theory of general deterrence, or its application to the manner of service of the sentence of imprisonment.Requiring some offenders to serve the sentence in a correctional facility as opposed to the community can reasonably be expected todeter some persons from offending: see R. v. Shropshire, supra, at p. 202.

However, these conclusions suggest that general deterrence isnot a sufficient justification for refusing to impose a conditional sentence. In view of its extremely negative collateral effects,incarceration should be used with great restraint where the justification is general deterrence. These effects have been repeatedly notedwith depressing regularity.

Some of the comments have been collected by the Sentencing Commission at pp. 42-44 and bear repeating: ... [60] Rosenberg J.A. made these remarks in the context of a decision to impose a term of imprisonment instead of a conditionalsentence, but they remain relevant for the purposes of analyzing this appeal. [61] Of course, in some cases, driving offences are likely to bring about imprisonment to achieve the objective of general deterrence(see in particular R. v. C.N.H. (2002), (ON CA), 170 C.C.C. (3d) 253 at paras. 35-36 (Ont. C.A.). It is all a matter ofbalancing.

For example, a conditional sentence may be denied for the purposes of achieving general deterrence, or the sentence imposedmay be longer; such a sentence should not, however, for this reason alone, fail to take into account all of the other relevant factors. [62] In short, consideration must be given to denunciation, general deterrence, and even punishment. Failure to do so would becontrary to the intent of Parliament.

I am simply saying, however, that a just balance must be sought, and that if these factors were theonly ones considered, the result would be the erroneous punishment of the crime and not the offender. The individualization of sentencesis an objective that cannot be ignored, as noted by LeBel J. in R. v. Nasogaluak, supra, at para. 43: ... The determination of a "fit" sentence is, subject to some specific statutory rules, an individualized process that requires the judge toweigh the objectives of sentencing in a manner that best reflects the circumstances of the case. ... [63] In R. v.

M. (C.A.), supra, Lamer C.J. wrote that "[s]entencing is an inherently individualized process", [64] This fundamental principle is expressed as follows in

section 718.1 Cr. C.: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [65] In R. v. Proulx, supra, Lamer C.J. stated the following, at para. 82: This Court has held on a number of occasions that sentencing is an individualized process, in which the trial judge has considerablediscretion in fashioning a fit sentence.

The rationale behind this approach stems from the principle of proportionality, the fundamentalprinciple of sentencing, which provides that a sentence must be proportional to the gravity of the offence and the degree of responsibilityof the offender.

Proportionality requires an examination of the specific circumstances of both the offender and the offence so that the"punishment fits the crime". ... [66] He added: My difficulty with the suggestion that the proportionality principle presumptively excludes certain offences from the conditionalsentencing regime is that such an approach focuses inordinately on the gravity of the offence and insufficiently on the moralblameworthiness of the offender. This fundamentally misconstrues the nature of the principle. Proportionality requires that fullconsideration be given to both factors. ...

(Emphasis in original) [ 67 ] It seems to me that, even though the trial judge did acknowledge the existence of mitigating factors, he nevertheless focused exclusively on the gravity of the offences. Indeed, this constitutes the basis of his analysis and what leads him to affirm that the aggravating circumstances are [ translation ] "predominant" and that he therefore determines a fit sentence to be within the three- to six- year range established in Comeau for offences where [ translation ] "denunciation and deterrence prevail over the personal factors of the accused".

In my view, this statement constitutes an overriding error. [ 68 ] It is useful to quote paragraph 177 of Comeau verbatim which, as I have said, was upheld by this Court: [ translation ] The overall state of the case law concerning the principle of parity of sentencing can be summarized as follows: While lenient sentences are always possible in cases where the personal factors of the accused are predominant, such lighter sentences fall within the range of eighteen months to three years of incarceration, while harsher sentences of three to six years in a penitentiary are appropriate in cases where the personal factors of the accused are not sufficient in number or significance to offset the pressing need for denunciation and deterrence in such matters.

As for cases in which the personal factors of the accused are clearly unfavourable, not only is the need for denunciation and deterrence not tempered, it is in fact more pronounced: these cases require the imposition of very harsh sentences of between six and nine years' imprisonment.

Sentences of incarceration greater than nine years are reserved for the worst cases that approach the most serious crimes committed by the most serious offenders. [ 69 ] Gosselin J. added: [ translation ] [180] The application of the principle of parity of sentencing therefore urges the court to impose a sentence at the point of convergence between a harsh and a very harsh sentence. [ 70 ] True, in this case, the aggravating circumstances – the appellant's erratic and dangerous driving before the collision, his very high speed, his excessive consumption of alcohol, and the dramatic consequences of his irresponsible behaviour – are significant. [ 71 ] It should be pointed out, however, that most of these circumstances are necessarily established when a person is found guilty of dangerous driving and impaired driving causing death.

These are serious offences in themselves and involve erratic, dangerous driving or the consumption of alcohol and a death. The commission of these offences calls for harsh punishment, but care must be taken to ensure that certain circumstances that are already a part of the offence and that already justify a harsh sentence are not overemphasized. [ 72 ] I also have difficulty reconciling the statement whereby the appellant's comments after the accident constitute aggravating factors, when his blood alcohol concentration at the time indicated that he was extremely drunk.

In other words, in my view, it is contradictory to consider his high blood alcohol concentration and his advanced state of drunkenness as aggravating circumstances while simultaneously faulting him for behaving like a drunk person, that is to say, for being incoherent and insensitive to others.

Moreover, there was ample evidence not only that he subsequently displayed sensitivity and empathy toward the victim and her family, but that he also felt sincere remorse and regret. [ 73 ] As for the mitigating factors, the judge placed little emphasis on the fact that the appellant's conduct was not characteristic of his usual behaviour.

The author of the pre-sentence report pointed out that [ translation ] "he has always been a hard worker", that he [ translation ] "has been transparent and open, and has answered all of our questions without avoidance", [translation] “that he does not present with criminal personality traits”, that [ translation ] "the guilt he feels is omnipresent", and that [ translation ] "there is little probability he will repeat a similar offence". [ 74 ] All of these statements are confirmed by the evidence.

After adding the other mitigating factors I have already mentioned to this list, I cannot see how it is reasonable to assert, as the trial judge did, that the aggravating circumstances are predominant. If we were to accept this conclusion, it would be difficult to imagine a case in which the aggravating circumstances are not predominant.

Indeed, the only way to arrive at such a conclusion would be to erroneously limit our consideration to the offences and the objectives of denunciation and general deterrence (specific deterrence already having been achieved), and this is, and I say this with the utmost respect, what the judge did. IS THE SENTENCE A MARKED AND SUBSTANTIAL DEPARTURE FROM THE SENTENCES THAT ARE GENERALLY IMPOSED? [ 75 ] The trial judge and the Court both accepted the three categories identified by Gosselin J. in R. v. Comeau , supra .

That judgment was rendered on June 10, 2008, and the categories it outlines are a result of Gosselin J.'s close review of the case law in which he analyzed no less than fifteen judgments rendered in Quebec between 2002 and 2007. [ 76 ] In light of my earlier remarks, it is obvious that the circumstances of this case place it in the first category, that in which the [ translation ] "predominant factors favour the accused". The aggravating circumstances are such, however, that it should fall within the higher range for this category, or in other words, a three-year sentence.

I note that it could also be claimed that the sentence should instead fall within the lower end of the scale for cases in which [ translation ] "the factors of denunciation and deterrence prevail over the personal factors of the accused", which also happens to be three years' imprisonment. [ 77 ] I am aware that there is no obligation to fit the sentence into these ranges, which represent nothing more than guidelines.

However, since, in my view, the trial judge failed to apply some of the objectives and principles of sentencing and committed errors undermining the reasonableness of his decision, it is my opinion that a sentence of three years, which falls within the range, is an appropriate sentence that permits the Court to play its role in ensuring parity of sentencing. To paraphrase Gosselin J., this sentence is at the point of convergence between a lenient sentence and a harsh sentence. This, in my view, is the only possible outcome of the

circumstances of the case. [78] The trial judge based himself on certain judgments to support his conclusion. All save one were rendered after Comeau.Obviously, every case is different. I am compelled, however, to point out certain differences that distinguish this case from the case lawcited by the judge. [79] He relies on R. v. Sasseville, supra, rendered after the 2001 reform increasing maximum sentences, which emphasizes theimportance of sending a message in driving -cases.

In that instance, Provost J. wrote the following: [translation] [68] It is this grossly irresponsible conduct toward the life and safety of others that must be vigorously denounced. [69] People must stop taking risks after drinking alcohol. Behaviour with respect to drinking and driving must change. It is an issue ofjustice, safety, and public protection. [80] Nevertheless, he imposed an overall sentence of forty-two months' imprisonment for three offences, one causing death and twoothers causing bodily harm to two other victims.

These sentences were ultimately much less harsh than those imposed on the appellant.The order prohibiting the accused from driving was for five years. Therefore, in my opinion, the judgment weighs more in favour of theappellant's point of view. [81] The trial judge also refers to R. v. Ramage, 2010 ONCA 488, where the accused, who caused the death of one person andinjured another, was sentenced to four years’ imprisonment after having contested the charge all the way up to the Court of Appeal andthus did not plead guilty as the appellant has done in this case.

Moreover, his blood alcohol concentration – 229 mg per 100 mL of blood– was higher than that of the appellant. Finally, the prohibition period in that case was five years. [82] In R. v. Junkert, 2010 ONCA 549, the Court of Appeal for Ontario upheld a five-year prison sentence and a ten-year drivingprohibition imposed on an accused who did not have a criminal record. At first glance, the situation was similar to the one before us. Itshould be noted, however, that Mr.

Junkert sought an acquittal all the way up to the Court of Appeal, failed to comply with some of theconditions of his release pending his trial, and did not seriously attempt to find a job during the twenty-eight months before the trialbegan. His personal characteristics were therefore less favourable than those of the appellant. Moreover, the trial judge rejected the pre-sentence report because its author was biased against the accused and the accused did not ask for another report to be prepared, so he didnot have the benefit of a favourable pre-sentence report, as the accused does in this case.

Finally, I note that the Court of Appeal forOntario emphasized essentially the gravity of the offence to explain its dismissal of the appeal. [83] The judge also refers to R. v. Verreault, 2008 QCCA 2284, in which a seven-year sentence was imposed. The accused in thatcase, however, had prior convictions for impaired driving offences and pleaded guilty to the sixteen charges, which included criminalnegligence causing the death of one person and bodily harm to five others, as well as driving without a license. The sentence wastherefore within the range identified in Comeau, in the third category. [84] In R. v.

Ferland, 2009 QCCA 1168, a sentence of forty-two months was handed down for dangerous driving causing death. Theaccused in that case, however, had prior convictions for similar offences. And again, the sentence was within the range identified inComeau. [85] Hakim v. R., 2009 QCCA 25, was a case involving dangerous driving causing bodily harm, and the Court upheld an eighteen-month prison sentence in a situation that is not analogous to the one before us. [86] In

summary, while every case is different, it seems to me that this overview illustrates that the sentence imposed by the trialjudge constituted a marked and substantial departure from sentences imposed in similar circumstances. [87] Realistically, I cannot see what other mitigating circumstances could justify a less severe sentence. If the trial judge's analysisand conclusion were upheld, the minimum sentence in such circumstances would become five years.

There are no minimum sentences insuch cases, however, and this approach cannot be upheld. [88] In conclusion, it is appropriate to refer to two other judgments rendered by the Court of Quebec. The first was rendered byLafrenière J. in R. v. Laflamme, 2010 QCCQ 9355. In that case, the accused's blood alcohol concentration was 258 mg per 100 mL andhe would [translation] "sometimes drive when intoxicated by alcohol", as the author of the pre-sentence report wrote.

Despite theaccused's habitual behaviour and his much higher blood alcohol concentration than that of the accused in the present case, he wassentenced to four years’ imprisonment with a six-year prohibition from driving. Lafrenière J. stated that this sentence was sufficient toachieve the objectives of denunciation and deterrence. In the second case, R. v. Marcoux, 2008 QCCQ 5738, Bélisle J. sentenced theaccused to five years' imprisonment for causing the death of one person and injuring another while impaired by alcohol. Moreover, atthe time of the events, he had a prior conviction and was on probation.

The driving prohibition was for five years. [89] In short, the judgment in this case constitutes a marked and substantial departure from other decisions with respect to thecharges of impaired driving rendered in similar circumstances. What is more, my reading of R. v. Ferland, supra, and paragraphs 46 and47 in particular, has persuaded me that the same is true with regard to the sentence handed down for dangerous driving.

DRIVING PROHIBITION [90] Determining the appropriate length of a driving prohibition is part of the sentencing process and should be seen as another wayto protect society from the appellant's driving. It must also take into consideration the relevant mitigating factors, as Letarte J. noted in R.v. Simoneau, (QC CA), [1999] J.Q. No. 600 (C.A.), a case in which the accused was sentenced to three years'imprisonment for impaired driving causing death:

[ translation ] [17] ... I am of the view that the trial judge failed to consider relevant factors such as the appellant’s youth, his orientation toward a serious career, his obligation, if he wishes to be an active member of society, to use, on the farm that he acquired, the tilling machines, tractors, trucks, and so on that are necessary for its operation. While recognizing the need for a prohibition that in part serves the objectives of denunciation and deterrence, it is my opinion that the length of the suspension imposed goes beyond this objective and renders a serious disservice to the interests of society.

As the pre-sentence report indicates, the prognosis of the appellant's drinking problem is favourable and I am of the view that the prohibition, the length of which risks compromising both the interests of society and the appellant's real chances for social reintegration, was clearly unfit and excessive.

Given the time of the suspension already elapsed, I would reduce the seven-year order to three years. [ 91 ] It should be pointed out, however, that the maximum duration of such an order at the time was ten years. [ 92 ] I am of the view that the error committed by the trial judge in this case with regard to the length of the prison sentence influenced the duration of the prohibition order in that he did not take into account the appellant's personal situation.

In my view, the prohibition should be reduced by the same proportion as the prison sentence. [ 93 ] As in Simoneau , the prognosis is favourable, and it would run contrary to the true interests of society and those of the appellant to make it impossible for him to exercise his trade, which requires him to drive a motor vehicle, for ten years. Nonetheless, when he committed the offences, he displayed serious immaturity, and the length of the driving prohibition should also appropriately reflect the aggravating circumstances described above. In my view, a six-year order is sufficient to meet these requirements.

CONCLUSION [ 94 ] In conclusion, I am of the view that the trial judgment contains overriding errors that led to the imposition of a clearly unreasonable sentence that sought solely to fulfill the objectives of denunciation and general deterrence.

I would therefore allow the appeal, quash the trial judgment, reduce the sentences to three years' imprisonment for the charge of impaired driving causing death and thirty months for that of dangerous driving causing death, to be served concurrently. [ 95 ] Despite the reduction, a three years’ imprisonment remains a harsh sentence, particularly in the case of a person with no criminal record, and it adequately achieves the objectives of denunciation and deterrence while also taking into consideration the appellant's degree of responsibility. [ 96 ] I would also reduce the length of the driving prohibition to six years for the charge of impaired driving causing death and five years for the offence of dangerous driving causing death.

FRANÇOIS DOYON, J.A.