2011 QCCA 2172, 2011 QCCA 2172

Unofficial English Translation Tremblay Lacasse c. R. 2011 QCCA 2172 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002659-113 200-10-002660-111 200-10-002661-119 200-10-002662-117 200-10-002663-115 200-10-002664-113 200-10-002665-110 (655-01-005021-109) (655-01-005258-107) (655-01-005408-108) (655-01-005409-106) (655-01-005410-104) (655-01-005432-108) (655-01-005619-118) DATE: November 23, 2011 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. NICHOLAS KASIRER, J.A. GUY GAGNON, J.A. MATHIEU TREMBLAY LACASSE APPELLANT – accused v.

HER MAJESTY THE QUEEN RESPONDENT – prosecutrix JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on May 6, 2011, by the Court of Quebec, District of Baie-Comeau (the Honourable Judge Michel Dionne), which sentenced the appellant to a twelve-month prison term for various offences, a two-year probation order, and certain ancillary orders. [ 2 ] For the reasons of Kasirer J.A., with which Bich and Gagnon JJ.A. agree, THE COURT : [ 3 ] ALLOWS the appeal in part ; [ 4 ] SETS ASIDE the trial judgment with respect to the prison sentences imposed; [ 5 ] VARIES the sentence imposed on May 6, 2011, and SENTENCES the appellant to an overall sentence of twelve months to be served in the community from this day, which can be broken down as follows: - a twelve-month conditional sentence of imprisonment for the first count of breaking and entering, concurrent to any other sentence imposed, followed by a probation order including the conditions described in the trial judgment, for two years from the end of the prison term;

- a twelve-month conditional sentence of imprisonment for the second count of breaking and entering, concurrent to any other sentence imposed, followed by a probation order including the conditions described in the trial judgement, for two years from the end of the prison term; - a two-month conditional sentence of imprisonment for each of the counts of failure to comply with the conditions of an undertaking and failure to comply with a recognizance to be served concurrently to any other sentence imposed, followed by a probation order including the conditions described in the trial judgment, for two years from the end of this prison term; - a six-month conditional sentence of imprisonment for the count of car theft, to be served concurrently to any other sentence imposed, followed by a probation order including the conditions described in the trial judgment, for two years from the end of this prison term; - a four-month conditional sentence of imprisonment for the count of attempted theft, to be served concurrently to any other sentence imposed, followed by a probation order including the conditions described in the trial judgment, for two years from the end of this prison term; - a three-day conditional sentence of imprisonment for the count of gasoline theft, to be served concurrently to any other sentence imposed, followed by a probation order including the conditions described in the trial judgment, for two years from the end of this prison term; - a three-day conditional sentence of imprisonment for the counts of mischief, to be served concurrently to any other sentence imposed, followed by a probation order including the conditions described in the trial judgment, for two years from the end of this prison term; [ 6 ] IMPOSES the following conditions on the conditional sentence order: A.

Preliminary condition : 1. Report to a supervisor within forty-eight (48) hours of the present judgment; B. Conditions in effect for the duration of the conditional sentence : 2. Keep the peace and be of good behaviour; 3. Appear before the court when required to do so by the court; 4. Report to a supervisor when required; 5. Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; 6.

Live at ... in Ragueneau and notify the Court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation. 7. Enter an addiction treatment program pursuant to the terms set out by his supervisor; 8. Participate in an emotion and impulse management treatment program pursuant to the terms set out by his supervisor; 9. Refrain from going to bars, discotheques or other licensed premises, including licensed restaurants, except, in the case of licensed restaurants, to eat a meal therein; 10.

Refrain from consuming alcohol, drugs or other toxic substances without a validly obtained medical prescription; 11. Refrain from possessing, bearing and acquiring, in any capacity whatsoever, any offensive or restricted weapon, or reproduction of weapons, including start pistols and air guns, firearms, cross-bows, prohibited ammunitions or explosives, knives (except in restaurants or for a legitimate purpose) and bladed weapons; 12.

Follow all the supervisor's directions with respect to the application of the order, condition checks in particular, and comply with any agreement entered into with the supervisor; 13. Be in his domicile twenty-four hours a day, except for one of the following reasons: - to perform legitimate work; - to practice religious worship; - to meet with his supervisor or any other worker identified by the latter; - to purchase medication; - for medical or emergency health reasons; - to purchase food, on Thursdays, between 6 p.m. and 9 p.m.; - to attend court-ordered therapy sessions (items 7 and 8 above);

- with written permission from his supervisor; [ 7 ] MAINTAINS all the other orders in the trial judgment; [ 8 ] ORDERS that this recognizance be noted by a justice of the peace assigned for this purpose. MARIE-FRANCE BICH, J.A. NICHOLAS KASIRER, J.A. GUY GAGNON, J.A. Mtre Jean-Claude Dufour J.-C. DUFOUR AVOCAT INC. For the appellant Mtre Anne-Sophie Blouin-Racine CRIMINAL AND PENAL PROSECUTOR For the respondent Date of hearing: October 7, 2011 REASONS OF KASIRER, J.A. [ 9 ] On February 28, 2011, the appellant pleaded guilty to two counts of theft not exceeding $5000 (s. 334( b )(i)(ii) Cr.

C. ), two counts of breaking and entering into a dwelling-house and committing a theft therein (ss. 348(1)(

b) and (

d) Cr. C. ), one count of attempted theft (ss. 436( d )(

i) and 334(

a) Cr. C .), two counts of mischief to property not exceeding $5000 (ss. 430(1)(

a) and (4)(

a) and 430(1)(

c) and (4)(

b) Cr. C. ), two counts of failing to comply with conditions of an undertaking (s. 145(5.1)(

a) Cr. C. ) and three counts of failing to comply with a recognizance entered into before a justice of the peace (s. 145(3)(

a) Cr. C. ). [ 10 ] On May 6, 2011, the Court of Quebec, District of Baie-Comeau (the Honourable Judge Michel Dionne), rendered a sentencing decision. The judge sentenced the appellant to serve a twelve-month prison sentence for all the offences, with a two-year probation order, follow-ups and conditions. He also made an order prohibiting the possession of weapons and an order authorizing the taking of bodily samples. [ 11 ] The appellant appeals from the sentence. On June 9, 2011, an appellate judge granted the motion for leave to appeal and released the appellant pending the outcome of the appeal.

At the time, he had spent 102 days in detention since his arrest. [ 12 ] The central issue of this appeal is whether the judge committed an error justifying the intervention of the Court by ruling out the possibility for the appellant to serve his sentence in the community. Specifically, it must be determined whether the appellant’s break-ins into the dwelling-houses, because of the intrinsic nature of the offence, involve "serious personal injury" within the meaning of

section 752 Cr. C . Such a finding would place a conditional sentence under

section 742.1 Cr. C. out of reach. * * * [ 13 ] The appellant, who is nineteen years old, committed several offences over a period of several months between May of 2010 and February of 2011. He stole a PT Cruiser vehicle, valued at $4000, and used it for a few days before abandoning it, damaged, in a wooded area. He stole ten dollars' worth of gasoline from a service-station.

After being involved in a bar brawl, he smeared some of his blood inside the police cruiser where he was brought. [ 14 ] In November of 2010, he pleaded guilty to the charge of driving under the influence, an offence he had committed in June of 2010. He was condemned to pay a $1000 fine. [ 15 ] The more serious offences occurred in the night of December 2, 2010, when the appellant broke into two residences while their occupants were home. The doors were unlocked.

In the first residence, where a mother and her two children were sleeping, he took a handbag, a computer, and a set of keys he found on an entranceway table. Oddly, the appellant put the computer and keys in the vehicle parked in the residence's driveway. In the second dwelling-house, he stole a handbag left near the entrance, without the resident noticing his entry. This bag was found in a neighbourhood trash bin, with $150 in cash still in it. [ 16 ] When the resident of the first dwelling-house woke up, she noticed the intrusion and called the police, who found the appellant a short time later, inebriated.

He had the stolen computer’s cord in his pockets. The appellant was brought to the police station where, drunk and angry, he kicked the wall of the interrogation room repeatedly. He was released on a recognizance entered into before a justice of the peace. [ 17 ] On February 25, 2011, the appellant attempted to steal an unlocked pickup truck, while its owner was unloading his tools. It would appear that the appellant was inebriated. He was then detained.

* * * [ 18 ] Following the February 28, 2011 guilty plea, the judge asked that a pre-sentence report be prepared, and ordered the appellant's incarceration pending sentencing. [ 19 ] Submissions on sentencing took place on April 21, 2011. At the time, the appellant had only one prior conviction, for driving under the influence, following a guilty plea entered in November of 2010. [ 20 ] The pre-sentence report explains that the appellant's criminal conduct is fuelled by his alcohol addiction, by his inability to manage his emotions, and by his [ translation ] "search for the easy way out".

The appellant started using marijuana and alcohol at a very early age, and his use of alcoholic beverages intensified when he turned eighteen. He recognizes that he has a problem and says that he is ready to enter a treatment program. The probation officer describes a limited level of awareness and introspection and notes that the appellant minimizes the seriousness of the offences committed. She concludes that there is a risk of re-offending and a medium level of dangerousness in the long-term.

She suggests treatment for the appellant's alcohol and substance abuse and follow-ups to improve his ability to manage conflicts. [ 21 ] During submissions, counsel for the appellant suggested a conditional prison sentence, but first recommended a six-month prison sentence. Counsel changed his mind after the pre-sentence report was filed and suggested a one-month prison sentence, to be added to the three months already served by the appellant.

The Crown, for its part, sought a twenty-month prison sentence. [ 22 ] The judge imposed a twelve-month overall prison sentence, with a two-year probation order, which he broke down as follows: - six months' imprisonment, concurrent, for the gasoline theft; - twelve months' imprisonment, concurrent, for the car theft; - twelve months' imprisonment, concurrent, for each of the two break-ins; - four months' imprisonment, concurrent, for each of the two failures to comply with conditions; - eight months' imprisonment, concurrent, for damaging the wall of the police station; - six months' imprisonment, concurrent, for attempted theft; - four months' imprisonment, concurrent, for each of the three failures to comply with a recognizance; and - four months' imprisonment, concurrent, for smearing his blood in the police cruiser. [ 23 ] There was some confusion during submissions as to the availability of a conditional prison sentence for the convictions of breaking and entering.

On the subject, counsel for the defence and the judge held this exchange: [ translation ] Mtre Jean- Claude Dufour (for the defence) ... As far as I'm concerned, if it weren't for the fact that it appears he did, that he failed to comply with the last conditions because he should have been at home and all that, I would recommend incarceration to be served in the community. He didn't comply with that. I understand that ... I am asking for this nonetheless, but I would not be surprised if you did not order it.

The Court But I am not sure that breaking into a dwelling-house, which has a connotation, although there was no physical violence, of being in itself a crime of violence, that it is one of the crimes that can... that may be served in the community. Mtre Dufour Well, in any event, I... The Court I am telling you, now. Mtre Dufour Yes, yes, yes. The Court We won't be having this debate this afternoon... Mtre Dufour No. The Court ... But I am not sure. Mtre Dufour Well, anyway. The Court Well. Dufour Supposing that, in any event, like you said, you know.

As far as I'm concerned, it seems that overall, you know, it shouldn't exceed six (6) months. It is... ... [ 24 ] The judge's reasons indicate that he did indeed decide that a conditional prison sentence was not available for breaking and entering into a dwelling-house.

In his judgment, the judge stated: [ translation ] Counsel for Lacasse is aware that a conditional prison sentence is no longer available for crimes of violence such as the one to which the accused has pleaded guilty, he suggests a term of imprisonment of approximately seven months' conventional imprisonment [ 25 ] Later, it appears the judge deemed the offence of breaking and entering into a dwelling-house with a criminal purpose to be an

inherently violent crime: [ translation ] These crimes [breaking and entering into dwelling-houses] are violent crimes. Although there was no physical violence, breaking and entering remains a violent crime. [ 26 ] With respect, the judge's error lies precisely in this observation. Contrary to his finding, breaking and entering into a dwelling- house, even when there is also a theft, does not inherently constitute a violent crime placing a conditional sentence out of reach. * * * [ 27 ] Conditional sentences are set out in

section 742.1 Cr. C . When Parliament created the conditional sentence scheme in 1995, [1] this type of sentence was granted only when three preliminary conditions were met: the offence was not punishable by a minimum term of imprisonment, the accused was sentenced to a prison term of less than two years, and the court was satisfied that serving the sentence in the community would not endanger the safety of that community. In 1997, an amendment provided that the judge needed to be satisfied that the conditional sentence was consistent with the fundamental principles set out in sections 718 to 718.2 Cr. C . before it could be granted. [2] [ 28 ]

Section 742.1 Cr.

C. was once again amended on December 1, 2007. [3] On May 6, 2011—the day on which the accused was sentenced—it read as follows: S'il est convaincu que la mesure ne met pas en danger la sécurité de la collectivité et est conforme à l'objectif et aux principes énoncés aux articles 718 à 718.2, le tribunal peut ordonner à toute personne qui, d'une part, a été déclarée coupable d'une infraction autre qu'une infraction constituant des sévices graves à la personne au sens de l'article 752, qu'une infraction de terrorisme ou qu'une infraction d'organisation criminelle, chacune d'entre elles étant poursuivie par mise en accusation et passible d'une peine maximale d'emprisonnement de dix ans ou plus, ou qu'une infraction pour laquelle une peine minimale d'emprisonnement est prévue et, d'autre part, a été condamnée à un emprisonnement de moins de deux ans de purger sa peine dans la collectivité, sous réserve de l'observation des conditions qui lui sont imposées en application de l'article 742.3, afin que sa conduite puisse être surveillée.

If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under

section 742.3. [ 29 ] We find that Parliament has increasingly limited the availability of conditional sentences, and that it now excludes cases where the accused is convicted of an offence constituting "serious personal injury" within the meaning of

section 752, an offence of terrorism or offences relating to criminal organizations, when these offences are prosecuted by indictment and subject to a maximum prison sentence of ten (10) years of more. [ 30 ] The break-ins perpetrated by the respondent, by their very nature, do not involve "serious personal injury", as the judge seems to have assumed by characterizing them as [ translation ] "violent crimes ". The expression "serious personal injury" is defined in

section 752, which is in

Part XXIV of the Criminal Code , titled "Dangerous offenders and long-term offenders":

Les définitions qui suivent s'appliquent à la présente partie. ... "sévices graves à la personne" selon le cas :

a) les infractions - la haute trahison, la trahison, le meurtre au premier degré ou au deuxième degré exceptés - punissables, par mise en accusation, d'un emprisonnement d'au moins dix ans et impliquant : (

i) soit l'emploi, ou une tentative d'emploi, de la violence contre une autre personne, (ii) soit une conduite dangereuse, ou susceptible de l'être, pour la vie ou la sécurité d'une autre personne ou une conduite ayant infligé, ou susceptible d'infliger, des dommages psychologiques graves à une autre personne;

b) les infractions ou tentatives de perpétration de l'une des infractions visées aux articles 271 (agression sexuelle), 272 (agression sexuelle armée, menaces à une tierce personne ou infliction de lésions corporelles) ou 273 (agression sexuelle grave). ... In this Part, ... "serious personal injury offence" means (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, or (

b) an offence or attempt to commit an offence mentioned in

section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). ... [ 31 ] Breaking and entering with theft (s. 348(1) Cr. C. ) is not one of the offences listed in s. 752(

b) Cr. C. , which all include some form of inherent violence. It is therefore necessary to consider ss. 752( a )(

i) and (ii) Cr. C. , which requires an analysis of the circumstances in which the offences were committed. [4] [ 32 ] In actual fact, there must be violence or attempted use of violence against a person for the offence to fall under s. 752( a )(

i) Cr. C . Although the courts have extensively interpreted the concept of violence, [5] there is no factual basis to state that the appellant committed or attempted to commit violent acts against anybody, which was in fact acknowledged by the trial judge when he wrote that [ translation ] "there was no physical violence". The appellant did not come into contact with the residents, who did not even notice that he had been there until the next morning. [ 33 ] Could the appellant's conduct nevertheless be considered to be "endangering or likely to endanger the life or safety of another

person or inflicting or likely to inflict severe psychological damage on another person", within the meaning of s. 752( a )(ii) Cr. C .? [ 34 ] The courts have repeatedly pointed out that breaking and entering poses a significant threat to the life and security of the occupants of the dwelling-house. For example, the Court wrote the following in Lévesque v.

R .: [ translation ] “Breaking and entering is liable to lifetime imprisonment because this crime violates the principle of the sanctity of the home and also entails a risk to human life because of a possible violent confrontation with the occupants". [6] Furthermore, breaking and entering is likely to cause serious psychological harm to the occupants, who may lose the feeling of safety and warmth their home provides. [ 35 ] Nevertheless, the fact remains that an analysis under s. 752( a )(ii) Cr.

C. must consider the facts of the case, and not constitute an abstract assessment of the offence of breaking and entering and its potential consequences. [7] [ 36 ] Finding that breaking and entering with theft is inherently "dangerous conduct" within the meaning of s. 752( a )(ii) Cr. C . runs counter to legislative intent. Indeed,

section 742.1 Cr. C. was amended in 2007 to prohibit conditional sentences for certain offences considered to be violent crimes, not for all indictable offences that carry prison terms of ten years or more, as had been set out in a prior proposed amendment. [8] [ 37 ] Since the judge did not rule on the application of s. 752( a )(ii) Cr. C. , it is up to the Court to decide whether this

section applies in the present case, taking into consideration the overall context in which the offences were committed. [9] While the seriousness of the offences should not be trivialized, it is nonetheless relevant that the evidence reveals that the appellant's intrusion into the residences was rather minimal, since the objects that were stolen were near the door. Also, the appellant did not go any farther into the houses, a fact that supports the finding that the intrusions were probably very brief.

Furthermore, there is nothing in the facts of this case or in the appellant's priors that would suggest that he has a propensity to violence against persons. In addition, during submissions, the respondent did not adduce any evidence of psychological harm suffered by the residents. Although it is reasonable to suspect that the home invasions troubled the peace of mind of these residents, we cannot assume, without evidence of such, that they suffered the serious psychological harm required by the wording of s. 752( a )(ii) Cr. C.

The risk to the life or safety of the residents in the circumstances did not reach the level of seriousness required to meet the definition in s. 752( a )(ii) Cr. C. , which requires more than mere risk. [10] Consequently, the offences committed by the appellant are not "serious personal injury offences". * * * [ 38 ] It is useful to note that, for certain offences committed upon dwelling-houses, including breaking and entering for a criminal purpose,

section 348.1 Cr. C. provides that the sentencing court must consider the fact that the house was occupied at the time of the break-in to be an aggravating circumstance.

Section 348.1 Cr. C. states: Le tribunal qui détermine la peine à infliger à la personne déclarée coupable d'une infraction prévue aux articles 98 ou 98.1, au paragraphe 279(2) ou aux articles 343, 346 ou 348 à l'égard d'une maison d'habitation est tenu de considérer comme une circonstance aggravante le fait que la maison d'habitation était occupée au moment de la perpétration de l'infraction et que cette personne, en commettant l'infraction:

a) savait que la maison d'habitation était occupée, ou ne s'en souciait pas;

b) a employé la violence ou des menaces de violence contre une personne ou des biens. If a person is convicted of an offence under

section 98 or 98.1, subsection 279(2) or

section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence, (

a) knew that or was reckless as to whether the dwelling-house was occupied; and (

b) used violence or threats of violence to a person or property. [ 39 ] Can it be said that the judge implicitly applied

section 348.1 Cr. C. by excluding the conditional sentence?

Section 348.1 Cr. C. does not establish a separate offence but only an aggravating circumstance. Its application depends on the offender's state of mind regarding the fact that the dwelling-house was occupied and his actual use of violence against a person or property. These two conditions are cumulative, as clearly indicated by the use of the word "and" in the English wording of this

section of the Code . [11] Crown counsel conceded at the hearing that the provision does not apply to this case because it requires establishing that the appellant used or threatened violence against a person or property while committing the offence. Indeed, as noted above, it cannot be stated in the present case that the appellant committed acts of violence while breaking and entering. [12] [ 40 ] It cannot be said then, in assessing the facts of the case, that

section 348.1 Cr. C. places conditional sentences out of reach. The trial judge apparently took it for granted that breaking and entering into a dwelling-house is inherently a "crime of violence", which, by its very nature, involves serious personal injury. This is an error of law. With respect, the judge therefore erred by dismissing out of hand the possibility of ordering a conditional sentence when he had a duty to consider this option pursuant to the principles established under paragraphs 718.2(

d) and (

e) Cr. C. * * *

[ 41 ] It is therefore up to the Court to impose the appropriate sentence under the circumstances. [ 42 ] At the hearing before the Court, counsel for the appellant asked that the prison sentence be limited to time already served by his client—102 days, which counsel proposed to increase in light of the circumstances of the incarceration—in addition to a probation order. Basically, he argued that the appellant's youth and the "minor" nature of the break-ins favour this approach.

When questioned by the Court, he acknowledged the importance of the recommendation in the pre-sentence report that the appellant be required to undergo treatment for his substance abuse issues and to take steps to control his emotional issues.

In light of all these elements, counsel agreed that a conditional sentence would not be unreasonable in the present case, even though he felt that a probation order would be better suited to the circumstances. [ 43 ] Crown counsel insisted on a prison sentence because of the objective seriousness of the offences committed, alluding specifically to the objective seriousness of the offences of breaking and entering, theft, and attempted theft. She also noted the unfavourable assessment in the pre-sentence report as to the risk of re-offending and his medium level of dangerousness in the long term.

She did acknowledge, however, that the sentences imposed by the judge for the $10 gasoline theft (six months' imprisonment) and the car theft (twelve months' imprisonment) were harsh, especially considering the fact that the appellant had only one prior conviction at the time.

Furthermore, at the hearing, she agreed that a conditional prison sentence would not be inappropriate since, per Proulx , [13] it would respect the objectives of denunciation and deterrence while aiding the social reintegration of this relatively young offender. [ 44 ] The objective seriousness of break-ins into dwelling-houses must not be trivialized. The judge pointed this out, rightly finding it appropriate to send the message that home invasions, even without physical violence, must be condemned.

A mere probation order would unduly emphasize reintegration, especially when it is recalled that a probation order without imprisonment does not usually denounce or deter. [14] As for the subjective seriousness of the offences, the author of the pre-sentence report accepts, unreservedly, that there is a risk of re-offending and a non-negligible level of dangerousness in the appellant. Even though the appellant pleaded guilty to the alleged charges, the pre-sentence report states that he does not fully acknowledge his offending conduct.

Even taking into consideration the appellant's youth, the time he has already served, and his willingness to enter treatment, the twelve-month prison sentence and probation order the judge imposed for these counts was appropriate. [ 45 ] Since the judge broke down the sentence for the other charges, we propose to do the same. [ 46 ] By weighing the objectives and factors identified in sections 718 et seq. Cr. C. , a short prison sentence with probation should be ordered for the counts of gasoline theft and mischief.

It is worth noting that the previously mentioned mitigating factors are assigned more weight in this case. [ 47 ] The failure to comply with an undertaking and a recognizance, the car theft, and the attempted theft of another car are much more serious. Let us consider. [ 48 ] A breach of conditions, an offence that in itself merits denunciation, suggests that the appellant did not feel any personal responsibility for the offences he committed. We reiterate that this is another fact that the probation officer noted in her report.

A two- month prison sentence for each of the counts of failure to comply with an undertaking and a recognizance, served concurrently, is appropriate in the circumstances. [ 49 ] Crown counsel is right to argue that the offences of car theft and attempted theft are too serious, in light of their objective gravity, to dispose of them with a probation order. Yet, without minimizing the significance of the wrong to the victims of the offences, the circumstances do not command prison sentences of twelve and six months, respectively.

The offender's age and the other mitigating circumstances in his favour, as well as the fact that the car was found shortly after it was stolen, justify a six-month prison sentence for the car theft and a four-month sentence for the attempted theft, to be served concurrently. * * * [ 50 ] It remains to be determined whether the appellant should benefit from a conditional sentence pursuant to s. 742.1 Cr. C. [ 51 ] Are the requirements for a conditional sentence in s. 742.1 Cr.

C. —that is, that the offence not carry a minimum sentence, that the prison sentence imposed be less than two years, and that there be no threat to the safety of the community—met under the circumstances? In this case, the first two conditions are met: the appellant’s offences, including breaking and entering into a dwelling- house, do not carry minimum sentences, and the appellant’s overall sentence is less than two years. The third condition regarding the safety of the community remains.

Once it is confirmed that the conditions have been met, it must be determined whether the measure is in accordance with the principles in ss. 718 to 718.2 Cr. C . [ 52 ] At no point do the judge's reasons suggest that he felt the appellant posed a threat to the safety of the community. Instead, the judge grounded his sentence in the general objectives of denunciation and deterrence.

Indeed, these objectives should not be considered in the assessment of the threat to the safety of the community, which should instead be based on the danger posed by the offender himself. [15] [ 53 ] This assessment of the risk to the community is performed on a case-by-case basis and must take into account two factors: (1) the offender's risk of re-offending, and (2) the seriousness of the harm that could ensue in the event of re-offence. [16] As stated above, in her pre-sentence report, the probation officer considered that there was a risk of re-offending and that the appellant presented a medium level of dangerousness.

Further, the appellant failed to comply with his undertakings and his recognizance, which indicates that he could also breach the conditions of a conditional sentence. Conversely, the appellant has the support of his family, lacks any similar prior convictions, has agreed to enter treatment, and has demonstrated a certain willingness to get his life in order, as shown by the fact that, while in prison, he began to attend Alcoholics Anonymous meetings and to take classes.

Also, the appellant has a job and presently lives with his parents, thus benefiting from what the officer describes as a [ translation ] "supportive family network". These factors must be taken into consideration when assessing the risk of re-offending. [17] As for the seriousness of the harm likely to be caused in the event that he re-offends, it should be kept in mind that the appellant is not a violent offender and that the physical consequences of the offences he committed are, in the larger scheme of things, minimal.

[ 54 ] An assessment of the threat posed by the appellant to the community performed according to the teachings of the Supreme Court leads us to find that a conditional sentence with sufficiently restrictive conditions is one of the available measures in this case. [ 55 ] Once the prerequisite conditions for imposing a conditional sentence have been met, the Court must determine if this measure is consistent with the objectives and principles set out in sections 718–718.2 Cr.

C . [18] [ 56 ] With respect to sentencing objectives, in his reasons, the judge emphasized the objectives of denunciation and deterrence for the crimes committed, which are certainly relevant to deciding whether or not a conditional sentence should be granted but do not preclude such a possibility.

As the Supreme Court explains in Proulx , "... a conditional sentence can still provide a significant amount of denunciation..." and a "conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences". [19] This type of sentence is not at odds with the objectives of denunciation and deterrence identified by the the trial judge. [ 57 ] In the present case, great significance must be given to the objective of reintegration because of the accused's young age and his willingness, however half-hearted it may appear at times, to seek treatment.

The appellant is on the road to reintegration, as the judge himself observed when stating: [ translation ] Whereas Lacasse seems to have realized that he has issues and that he seemed, at least at the hearing, ready to accept an obligation to undergo treatment, which he should have done a long time ago; Whereas this situation marks the awakening of a sense of responsibility in the offender and the beginning of his social reintegration; Whereas the Court has repeatedly stated that an accused should be afforded every chance and should not be stigmatized additionally. [ 58 ] These comments suggest that the judge might very well have imposed a conditional sentence had he not committed an error of principle by setting aside this option for the reasons we have discussed.

The respondent also admitted before this Court that a conditional sentence would not be inappropriate in the circumstances, in particular because of the appellant's young age.

Such a sentence, therefore, along with sufficiently restrictive conditions that should include the obligation to undergo treatment to help the appellant overcome his alcohol and drug addictions, would be likely to meet the objective of social reintegration the appellant, while promoting a sense of responsibility in the appellant. [ 59 ] The principle of proportionality in sentencing also militates in favour of a conditional sentence, since such a sentence would be proportionate to the objective seriousness of the appellant’s offences.

Canadian courts have often granted conditional sentences to persons convicted of breaking and entering with theft, [20] mischief, [21] or theft not exceeding $5000. [22] [ 60 ] The judge identified several mitigating factors likely to lighten the sentence: the appellant's acknowledgement of his alcohol issues and wrongdoings, his guilty pleas, his remorse, and his lack of criminal record for similar offences.

The fact that the appellant has already served three months' detention should be added to this list as it is a relevant factor in assessing the length of the applicable sentence. [23] As previously noted, the appellant is currently employed—his counsel filed a letter from his employer attesting that he has been hired for the winter season—and living with his parents.

The impact of these mitigating factors is tempered, however, by aggravating circumstances such as the presence of occupants in the homes he robbed, the financial motivation of the offences, a certain form of denial of responsibility, the false statements he made to the probation officer, and his failure to take any steps towards treatment while released pending appeal. [ 61 ] The balancing exercise required by the sentencing objectives and principles leads me to find that an overall conditional prison sentence of twelve months (fifteen months minus the three months already served) would be appropriate in the circumstances, adapting the conditions and the probation order in consequence. [ 62 ] Therefore, I would allow the appeal in part and set aside the trial judgment with respect to the prison sentences imposed by varying them.

The varied sentence will be an overall twelve-month sentence to be served in the community, with conditions including an addiction treatment program and an emotion and impulse management treatment program. The conditional sentence will be followed by a two-year probation order including the conditions set out in the trial judgment. NICHOLAS KASIRER, J.A.