r v. Her Majesty the Queen, 2013 QCCA 212

Unofficial English Translation R. c. Perry 2013 QCCA 212 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004899-116 (700-01-082733-083) DATE: February 6, 2013 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. JACQUES A. LÉGER, J.A. CLAUDE C. GAGNON, J.A. (AD HOC) HER MAJESTY THE QUEEN APPELLANT – Prosecutrix and ATTORNEY GENERAL OF QUEBEC APPELLANT – Respondent v. KEVIN PERRY RESPONDENT – Accused – Applicant JUDGMENT [ 1 ] The appellants appeal from a sentence rendered by the Court of Quebec, District of Terrebone, Criminal and Penal Division (the Honourable Judge Valmont Beaulieu), rendered on March 24, 2011, which declared

section 742.1 (as worded between November 20, 2007, and November 20, 2012) and

section 752 of the Criminal Code , when read together, to be constitutionally invalid and accordingly of no force or effect, and ordered the respondent to serve a ten-month conditional sentence of imprisonment on the first count and two years less one day on the second count, followed by a one-year probationary period; [ 2 ] This appeal was heard at the same time as three other files ( Charles-Alexis Boisclair v. Her Majesty the Queen , 500-10- 004831-119; Her Majesty the Queen v. David Beaulieu and Attorney General of Quebec , 500-10-004897-110; and Her Majesty the Queen v.

Andrew Pelletier and Attorney General of Quebec , 500-10-004915-110 [1] ), and the four judgments bear the same date. [ 3 ] All of these cases have a common feature: they were decided on the basis of

section 742.1 of the Criminal Code , as amended on November 30, 2007, [2] which prevented offenders having committed "a serious personal injury offence as defined in

section 752 " from receiving a conditional sentence. [ 4 ] The appeals concern the constitutional validity of the statutory amendments to

section 742.1 Cr. C . in 2007, in light of sections 7 , 9 , and 12 of the Canadian Charter of Rights and Freedoms (the Charter ), as well as the

interpretation to be given to the notion of "serious personal injury offence" as defined in

section 752 Cr. C . Finally, the appropriate sentence will need to be determined in each case, depending on the outcome of these two issues. [ 5 ] The constitutional issues are discussed in this file, while the

interpretation issues are considered in Boisclair . Background [ 6 ] The facts are simple and not disputed. [ 7 ] In the late afternoon of October 20, 2008, the respondent and his friend E.B.-S. were riding their motorcycles in the Sainte- Anne-des-Plaines area. Each was riding his own motorcycle, and each carried a passenger. The respondent's passenger was Mr. Cyr, and his friend's passenger was Ms. E. B. [ 8 ] After riding for a while, the two friends decided to test the power of their bikes.

They rode to the area near the penitentiary because this portion of the road is a straightaway. [ 9 ] They scanned the area. The road was in good condition and had no holes. [ 10 ] The two friends exchanged a look and nodded. The agreement was made; the race could begin.

[ 11 ] Soon, they were moving at 120 km/h in a 50 km/h zone. [ 12 ] As they neared a curve, the respondent slowed down and moved to the right. The other rider passed him, however, even speeding up. He quickly crossed over into the wrong lane and was unable to avoid a vehicle being driven by Ms. Picard, who was coming out of the curve from the opposite direction. [ 13 ] The impact was brutal. The driver of the motorcycle and his passenger were thrown. The driver died at the scene.

The passenger survived, but suffered several injuries, including a double arm fracture, broken ribs, a perforated lung, and cuts and burns to her lower back. [ 14 ] Ms. Picard, for her part, suffered a serious case of nervous shock. [ 15 ] On January 14, 2010, the respondent pleaded guilty to the following two charges: [ translation ] On or about October 10, 2008, at Sainte-Anne-des-Plaines, District of Terrebonne, did, while street racing, operate a motor vehicle in a manner that was dangerous to the public, thereby causing bodily harm to E. B. and committing an indictable offence under

section 249.4(3) of the Criminal Code . On or about October 10, 2008, at Sainte-Anne-des-Plaines, District of Terrebonne, did, while street racing, operate a motor vehicle in a manner that was dangerous to the public, thereby causing the death of E.B.-S. and committing an indictable offence under

section 249.4(4) of the Criminal Code . [ 16 ] The trial judge ordered the preparation of a pre-sentence report. The case was postponed to June 18, 2010, and then again at the respondent's request to August 20, 2010, so that the Attorney General of Quebec could be served with a notice pursuant to

article 95 C.C.P . raising the constitutional invalidity of sections 742.1 and 752 Cr. C. , when read together. [ 17 ] The sentencing hearing took place on August 20, 2010.

Evidence was then filed showing that, at the time of the incident, the respondent was violating three provisions of the Highway Safety Code (the H.S.C. ) in addition to speeding: • He was driving with a licence that had been suspended due to an accumulation of demerit points; • He was not accompanied by the holder of a regular and valid motorcycle licence, as required by his learner's licence; • He was carrying a passenger, which was not permitted under his learner's licence. [ 18 ] His driving record was also entered into evidence, which reveals that he had committed several offences prior to the events of October 10, 2008: • On September 6, 2006, speeding (1 demerit point) • On July 15, 2008, speeding (10 demerit points) and driving without being accompanied (4 demerit points) • On August 10, 2008, speeding (24 demerit points) and driving without being accompanied (4 demerit points) [ 19 ] On the day of the accident, his licence had been suspended since September 3, 2008, for a period of three months (just one month and one week before the tragedy).

His licence would be suspended again on February 24, 2009 (after the tragedy) for a period of six months. [ 20 ] It was also filed into evidence that, on April 15, 2009, the respondent was again stopped on highway 40 while driving his vehicle without a valid licence. He told the judge that he believed he could drive despite his suspended licence because his conditions of release allowed him to drive for the purposes of legitimate work. [ 21 ] The respondent has no criminal record.

He owns a condo where he lives with his mother and, by the time of the trial, had been in a serious relationship with his girlfriend for a year and a half. He is studying business administration at CEGEP. He owns a window- washing business with two employees and has been working part-time for a swimming pool retailer. [ 22 ] His mother testified at the sentencing trial. The sworn statements of Ms. E. B. and Mr. Cyr along with a letter from the mother of E.B.-S. seeking the Court's leniency were also filed as testimony. [ 23 ] The prosecution seeks a sentence to be served in a penitentiary.

In the alternative, subject to the outcome of the constitutional issue, it argues that a conditional sentence of imprisonment would be inadequate. [ 24 ] The defence, for its part and subject to the same qualification, argues in favour of a conditional sentence of imprisonment. JUDGMENT [ 25 ] The sentence was handed down on March 24, 2011. [ 26 ] The judge began with a consideration of the length of the term of imprisonment required in the circumstances. Indeed, under

section 742.1 Cr. C ., a conditional sentence is not an option if the sentence is two years or more, and the constitutional issue no longer arises. He found that the length of the prison sentence required was less than two years. [ 27 ] He then noted that the offence of driving a motor vehicle in a manner that is dangerous to the public and causing death or bodily

harm fits the definition of "serious personal injury offence" within the meaning of

section 752 Cr. C. – something about which the parties were in fact in agreement. [ 28 ] The judge then considered whether a conditional sentence of imprisonment was appropriate. In his view, the respondent would not constitute a danger to society if he were to serve his sentence in the community and, in the circumstances, it would not be contrary to the principles in

section 718 Cr. C . if he received a conditional sentence. [ 29 ] Finally, the judge addressed the constitutional issue. [ 30 ] First he considered the appropriateness of Parliament's decision to limit the discretion of judges in sentencing matters by prohibiting conditional sentences in cases where street racing leads to death or bodily harm. He then pointed out that Parliamentary sovereignty is not without limits and that surely the Charter constitutes one of those limits. He concluded this part of his reasons by referring to the comments of the Supreme Court of Canada on conditional sentencing and on sentencing more generally. [ 31 ] Regarding

section 12 of the Charter (protection against cruel and unusual punishment), the judge found that imposing a custodial sentence as a result of the combined effect of sections 742.1 and 752 Cr.

C . would be extremely disproportionate in the circumstances. [ 32 ] As for sections 7 (protection against any violation of a liberty right that is not consistent with the principles of fundamental justice) and 9 (protection against arbitrary detention) of the Charter , the judge found that ruling out conditional sentences in cases involving "serious personal injury offences" is problematic because it is too broad in scope and forces judges to deprive offenders of their liberty regardless of the circumstances of the case.

Thus, this statutory limitation requires judges to impose arbitrary sentences on offenders, contrary to sections 7 and 9 of the Charter . [ 33 ] Finally, concerning

section 1 of the Charter , the judge began by noting that the Attorney General of Quebec had not adduced any evidence in this respect. He then seemed to conclude – although he did not state it expressly – that Parliament's objective was "of sufficient importance" to warrant an amendment of

section 742.1 Cr. C ., but that the means chosen did not have a "rational connection" with the objective sought and that, in any event, they impinge too much on the rights and freedoms at issue. Their effects on the offender's constitutional rights are too serious to be justified in a free and democratic society. [ 34 ] The judge therefore handed down a ten-month conditional sentence of imprisonment on the first count and a concurrent sentence of two years less one day on the second count, in addition to a probationary order and a prohibition against driving for one year after the end of the conditional sentence. [ 35 ] The conditions of the sentence include, inter alia , (

a) the obligation to perform 240 hours of community service, (

b) the obligation to be in his residence at all times for a period of twelve months, save to carry out certain clearly defined activities, (

c) the obligation to be in his residence between 11:00 p.m. and 6:00 a.m. for an additional eight months, save to carry out certain clearly defined activities, (

d) the obligation to make three contributions of $600 each to La Parenthèse, La Maison des jeunes de Saint-Jérôme, and Maison Pallia-Vie, and finally, (

e) a prohibition against operating a motor vehicle for the duration of the conditional sentence. GROUNDS OF APPEAL [ 36 ] The grounds of appeal are numerous. Boiled down to their essential elements, however, they touch on two points: (1) the fairness of the sentence and (2) the constitutional validity of sections 742.1 (as worded between November 30, 2007, and November 20, 2012) and 752 Cr. C ., when read together. The fairness of the sentence [ 37 ] The trial judge found that the appropriate sentence in the circumstances of this case must be less than two years and that it is appropriate for this sentence to be served in the community, under the conditions set out in

section 742.1 Cr. C . [ 38 ] The appellant does not contest that the respondent meets the first and third criteria of

section 742.1 Cr. C . Its arguments are more concerned with the other two conditions, namely, the impossibility of a penitentiary sentence (two years or more) as an appropriate sentence and the appropriateness of a conditional sentence in light of the sentencing objectives and principles set out in sections 718 Cr. C. and 718.2 Cr.

C. [ 39 ] The crimes to which the respondent has pleaded guilty have existed since December 14, 2006, the date of the coming into force of the Act to amend the Criminal Code (street racing) and to make a consequential amendment to the Corrections and Conditional Release Act . [3] These crimes were committed while street racing, or, in the words of the definition in

section 2 Cr. C ., "operating a motor vehicle in a race with at least one other motor vehicle on a street, road, highway or other public place". [ 40 ] The appellant argues that, by pleading guilty, the respondent recognized that his conduct was a marked departure from the standard of care of a reasonably prudent driver (dangerous operation of a motor vehicle), that he was taking

part in a race (while street racing) and ultimately, that he was responsible for the death of one person and the bodily harm suffered by another (causal link). [ 41 ] The appellant faults the judge for writing that [ translation ] "the tragedy has a single cause: speed" (judgment at para. 250), since he should have taken into consideration the fact that the primary cause of the collision was the fact that the respondent and his friend were in a street race. [ 42 ] This criticism is groundless. [ 43 ] It is an exaggeration to suggest that, when the judge expressed himself on the subject of speed as he did, he failed to consider that the accident had taken place during a street race.

In actual fact, he referred to this fact expressly on more than one occasion as he set out the factors to be weighed. The respondent is correct to say that, in making this observation, the judge never intended to attribute

blame for the fate of the two victims to an external cause (speed) and thus obscure the fact that the two friends were taking

part in a street race and that the offences committed were very serious. In any event, is it not technically accurate to say that the tragedy was due to speed? [ 44 ] Finally, the judge was certainly not wrong to note that E.B.-S's recklessness when approaching the curve also significantly contributed to the accident. In so doing, and contrary to what the appellant states, the judge was not denying the existence of a causal link between the street race and the fate of the victims.

He was merely noting that, at the approach of a sharp turn in the road, one of the two drivers chose to slow down while the other chose to continue racing and even to speed up. [ 45 ] The appellant goes on to fault the trial judge for having placed too much importance on certain circumstances characterized as attenuating and not enough on others characterized as aggravating. Thus, given the nature of the offence, the respondent’s youth should not weigh in favour of leniency, since young drivers are the primary targets of deterrence from this type of crime.

Therefore, taking his age into account to mitigate the seriousness of the sentence would go against Parliament's intent thus making a sentence less than two years unreasonable. With respect to the numerous and serious violations of the H.S.C. committed by the respondent, the appellant argues that the judge merely enumerated them but that the sentence reflected neither their number nor their seriousness. [ 46 ] This argument is not convincing. The assessment of the aggravating and mitigating circumstances is always a delicate exercise.

The appellant does not persuade us that the trial judge erred in assessing the relative weight to be given to these circumstances in this case. [ 47 ] Finally, the appellant faults the trial judge for failing to accord sufficient weight to the objectives of denunciation and deterrence in a case involving the dangerous operation of a motorcycle in a street race. The appellant argues that the sentence imposed on the respondent is clearly unreasonable in that it does not meet the criteria set out by the Supreme Court of Canada with regard to conditional sentencing. [ 48 ] Once again, the criticism is groundless.

The trial judge correctly instructed himself in law, and his application of the conditions in

section 742.1 Cr. C . and the criteria in R. v. Proulx [4] reveals no error justifying the intervention of the Court. The judge did not a commit a reviewable error by concluding, on the one hand, that the respondent would not constitute a danger to society if he served his sentence in the community and, on the other, that it would not be contrary to the objectives and principles in sections 718 to 718.2 Cr. C . to allow him to serve his sentence in the community. [ 49 ] The ground concerning the fairness of the sentence is therefore dismissed.

The trial judge did not commit an error justifying the intervention of the Court by concluding that the appropriate sentence was less than two years and that it could be served in the community, subject to the outcome of the constitutional issue. The constitutional issue [ 50 ] It is useful to reproduce the wording of sections 742.1 [5] and 752 Cr.

C.: 742.1 Octroi du sursis – 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. (Emphasis added.) 742.1 Imposing of conditional sentence – 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.

752. Définitions – 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 infligée, 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). (Nos soulignements) 752. Définitions – 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). And the wording of sections 1 , 7 , 9 and 12 of the Canadian Charter of Rights and Freedoms : 1. Droits et libertés au Canada – La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d’une société libre et démocratique. 1.

Rights and freedoms in Canada – The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 7. Vie, liberté et sécurité – Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale. 7.

Life, liberty and security of person – Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 9. Détention ou emprisonnement – Chacun a droit à la protection contre la détention ou l'emprisonnement arbitraires. 9. Detention or imprisonment – Everyone has the right not to be arbitrarily detained or imprisoned. 12. Cruauté – Chacun a droit à la protection contre tous traitements ou peines cruels et inusités. 12.

Treatment or punishment – Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [ 51 ] The arguments submitted by both sides concerning the constitutional validity of sections 742.1 (as worded between November 30, 2007, and November 20, 2012) and 752 Cr. C. address three aspects: the protection against cruel and unusual punishment (

section 12 of the Charter ), the protection against arbitrary imprisonment (

section 9 of the Charter ), and the protection of liberty rights, which may be infringed only in a manner that is consistent with the principles of fundamental justice (

section 7 of the Charter ). [ 52 ] Before beginning our analysis in earnest, a few words should be said about conditional sentences of imprisonment to properly situate this debate. [ 53 ] Conditional sentences were introduced into the Criminal Code in September 1996 by the Act to amend the Criminal Code (sentencing) and to make consequential amendments to other acts. [6] [ 54 ] This constituted a significant reform to the Canadian sentencing regime. [ 55 ] Parliament was seeking to reduce resorting to prison as a sanction and to expand the use of the principles of corrective justice in sentencing. [7] It was motivated by the general failure of incarceration to rehabilitate offenders and reintegrate them into society.

It hoped that the amendments would reduce incarceration rates and increase the effectiveness of sentencing. [8] [ 56 ] Conditional sentencing is an alternative to incarceration when the offenders do not pose a danger to the safety of the community if they remain at large. Instead of spending time in prison, they serve their sentence under strict supervision in the community. Their freedom is restricted by the conditions imposed with the conditional sentence order (s. 742.3 Cr.

C .). [ 57 ] The sentence is thus designed to integrate some of the aspects of non-custodial measures (the objectives of rehabilitation of offenders, reparation for the harm they have done to the victim and to society, and promotion of a sense of responsibility in the offender)

and some of the objectives of incarceration (denunciation and deterrence). [ 58 ] In Proulx , a seminal case, [9] the Supreme Court set out the analytical framework to be applied in conditional sentencing matters. [ 59 ]

Section 742.1 Cr. C . (at the time) set out three prerequisites to the application of the scheme: (1) the offender has been convicted of an offence other than one punishable by a minimum term of imprisonment, (2) the court is imposing a sentence of imprisonment of less than two years, and (3) the fact that the offender will serve the sentence in the community does not endanger the safety of the community. [ 60 ] Regarding the first prerequisite, Lamer C.J. states that offences with minimum sentences are the only ones excluded by law from the conditional sentencing regime:

(1) The Offender Must be Convicted of an Offence That Is Not Punishable by a Minimum Term of Imprisonment 48 This prerequisite is straightforward. The offence for which the offender was convicted must not be punishable by a minimum term of imprisonment. Offences with a minimum term of imprisonment are the only statutory exclusions from the conditional sentencing regime. [ 61 ] Later, with regard to the tendency of some judges to create a presumption that conditional sentencing is inapplicable in the case of certain offences, he points out that such an approach is pointless and ill-advised as it is inconsistent with the principles of proportionality and the personalization of sentencing. 79

Section 742.1 does not exclude any offences from the conditional sentencing regime except those with a minimum term of imprisonment. Parliament could have easily excluded specific offences in addition to those with a mandatory minimum term of imprisonment but chose not to. As Rosenberg J.A. held in Wismayer , supra , at p. 31: Parliament clearly envisaged that a conditional sentence would be available even in cases of crimes of violence that are not punishable by a minimum term of imprisonment.

Thus, s. 742.2 requires the court, before imposing a conditional sentence, to consider whether a firearms prohibition under s. 100 of the Criminal Code is applicable. Such orders may only be imposed for indictable offences having a maximum sentence of ten years or more “in the commission of which violence against a person is used, threatened, or attempted” (s. 100(1)) and for certain weapons and drug offences (s. 100(2)).

Thus, a conditional sentence is available in principle for all offences in which the statutory prerequisites are satisfied. [ 62 ] In 2007, Parliament made substantial amendments to the conditional sentencing regime by excluding from its application offences constituting "serious personal injury offences" within the meaning of

section 752 Cr.

C . [10] [ 63 ] The history of this statutory amendment is not without interest. [ 64 ] In its initial version, the amendment proposed by the government was worded as follows: 742.1 Octroi du sursis – 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 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. 742.1 Imposing of conditional sentence – If a person is convicted of an offence other than an 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. (Emphasis added.) [ 65 ] The notion of "serious personal injury offence" was absent from the proposed wording. [ 66 ] On May 4, 2006, the day the bill was introduced, the federal Minister of Justice stated, "[t]hose convicted of serious violent and sexual offences, as well as other significant crimes, such as major drug offences, would be ineligible to receive a conditional sentence", adding, "[t]he reforms will help ensure a cautious and more appropriate use of conditional sentences, reserving them for less serious offences that pose a low risk to community safety". [11] [ 67 ] Since the proposed wording was too broad and included offences that could be described as non-violent, the bill was referred to the Standing Committee on Justice and Human Rights for review.

[ 68 ] The version that was finally enacted is the one reproduced earlier. [ 69 ] It is interesting to note that an amendment had been proposed in Committee but was rejected on procedural grounds. Its wording would have had the effect of introducing a certain amount of judicial discretion precisely where the bill was intended to remove it: [12] 742.1

(1) 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 visés aux articles 718 à 718.2, le tribunal peut ordonner à toute personne déclarée coupable d’une infraction — autre qu’une infraction pour laquelle une peine minimale d’emprisonnement est prévue — et condamnée à un emprisonnement de moins de deux ans de purger sa peine dans la collectivité afin que soit surveillée la conduite de cette personne, sous réserve de l’observation des conditions qui lui sont imposées en application de l’article 742.3.

(2) Toutefois, à moins d’être convaincu qu’une telle mesure servirait les intérêts de la justice en raison de circonstances exceptionnelles , le tribunal ne peut rendre l’ordonnance à l’égard de la personne déclarée coupable de l’une des infractions suivantes :

a) infraction constituant des sévices graves à la personne au sens de l’article 752;

b) infraction de terrorisme;

c) infraction d’organisation criminelle;

d) infraction dont la nature et les circonstances de la perpétration sont telles que la dénonciation devrait avoir prépondérance sur les autres objectifs servant à déterminer la peine, afin d’exprimer la réprobation de la société à son égard.

(3) Le cas échéant, le tribunal consigne les circonstances exceptionnelles au dossier de l’instance. 742.1

(1) If a person is convicted of an offence, other than an offence that is 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.

(2) Despite subsection (1), the court shall not order that an offender serve his or her sentence in the community if the offender has been convicted of any of the following offences, unless the court is satisfied that it is in the interests of justice to do so because of exceptional circumstances: (

a) a serious personal injury offence as defined in

section 752; (

b) a terrorism offence; (

c) a criminal organization offence; and (

d) an offence in respect of which, on the basis of the nature and circumstances of the offence, the expression of society’s denunciation should take precedence over any other sentencing objectives.

(3) If the court orders the offender to serve his or her sentence in the community because of exceptional circumstances, the court shall include in the record a statement of those circumstances. (Emphasis added.) [ 70 ] It is clear that Parliament's intent was to emphasize the objectives of denunciation and deterrence for crimes involving violence or endangering the safety or lives of Canadians and that the method it chose was to rule out the very possibility of conditional sentences for such offences. [13] [ 71 ] The question now is whether the measure chosen by Parliament is consistent with the Canadian constitution and, more particularly, whether it complies with the guaranteed protections against an unjustifiable infringement of liberty (

section 7 ), arbitrary detention or imprisonment (

section 9 ), and cruel and unusual punishment (

section 12 ). [ 72 ] For the purposes of the analysis, the Court will address each of the three issues separately, but it must be said that it is not always easy, or even entirely possible, to isolate the issues from one another. In R. v. Lefebvre , [14] the appellant, who had been sentenced to life imprisonment for murdering two police officers, challenged the validity of the mandatory minimum sentence of twenty- five years of imprisonment by raising sections 7 , 9 and 12 of the Charter .

LeBel J., writing for a unanimous Court, pointed out that [ translation ] "[these] issues must be examined correlatively, since it is only with difficulty that the constitutional values at issue may disentangled from each other in a case like this". The same can be said about this case.

Section 12 and the protection against cruel and unusual punishment [ 73 ] The new provisions had the effect of precluding the possibility for a judge to impose a conditional sentence on an offender where street racing has caused the death of a person (section 249.4(4) Cr. C. ) or bodily harm to others (section 294.4(3) Cr. C .) because such offences clearly constitute "serious personal injury offences" as defined in

section 752 Cr. C. [ 74 ] The judge found that, in the circumstances, the imposition of a custodial sentence would nevertheless be "grossly disproportionate" and thereby violate the rights of the respondent to the constitutional protection against cruel and unusual punishment. [ 75 ] Therefore, in light of

section 12 of the Charter , the question is whether sections 742.1 (version of November 30, 2007) and 752. Cr. C. have the effect of compelling the judge to impose a "cruel and unusual" sentence on the offender. If the answer is yes, it must be determined whether this violation is justified under

section 1 of the Charter . [ 76 ] The Attorney General maintains that the impugned provisions do not result in the imposition of a cruel and unusual punishment within the meaning of

section 12 of the Charter . [ 77 ] He argues that the trial judge was offended by this new limitation on the discretionary power of judges in sentencing matters, and that this was one of the reasons he found that Kevin Perry's sentence was cruel and unusual. A sentence, however, may be considered cruel and unusual only if it is so excessive as to outrage the standards of decency or so disproportionate that Canadians would consider it to be odious and intolerable. [ 78 ] The test is stringent, and it is only exceptionally that a sentence will be found to violate

section 12 of the Charter . [ 79 ] The Attorney General notes that there are two stages to a

section 12 analysis: a detailed consideration of the offender's situation and then, if the court does not find a Charter violation, a consideration of reasonable hypothetical circumstances. It was incumbent on the respondent Perry (and each of the other accused) to demonstrate how the application of the impugned provisions would lead in his own case to a cruel and unusual sentence.

None of the accused has done so, however. [ 80 ] Regarding the actual effect of the sentence, the Attorney General notes that the duration of the custodial sentence remains entirely at the discretion of the court, since Parliament has set no minimum requirement.

In fact, the Attorney General characterizes the trial judge's recognition that he could order a sentence of ninety days of discontinuous detention (an option he rejected, however, because in his view it would have been too lenient) as inconsistent with his finding that a continuous custodial sentence, the duration of which was entirely at his discretion, would be grossly disproportionate. [ 81 ] The Attorney General maintains that Parliament is free to specify a harsher punishment for a particular type of offence and that this is what it decided to do in cases of offences constituting "serious personal injury offences".

It is a political choice that judges must respect. He states that the judge confused the principles of sentencing with the analysis required under

section 12 . He was wrong to consider the constitutional validity of sections 742.1 and 752 Cr. C. in light of the principles and objectives in

section 718 Cr. C . and following. [ 82 ] Finally, the Attorney General argues that the Court is not required to consider the second stage of the analysis (the consideration of reasonable hypothetical situations) since the respondent Perry (like all of the other accused) did not find it useful to raise it at trial. [ 83 ] As for the respondent, he argues that the impugned provisions infringe

section 12 of the Charter by ruling out the possibility of a conditional sentence of imprisonment even if the judge finds that it would be the appropriate measure. Therefore, a custodial sentence based solely on the effect of the impugned provisions, when not justified pursuant to the principles and objectives in sections 718 Cr. C . and following, would be cruel and unusual. [ 84 ] The respondent defends the trial judge's analysis. The offences are serious, but he points out that it was E.

B.-S.'s excessive recklessness in refusing to slow down when approaching the curve that was the primary cause of the accident. He adds that his personal characteristics and the specific circumstances of the case justified the judge's conclusion that, in his case, the effect of a custodial sentence was grossly disproportionate to what would have been appropriate and was therefore cruel and unusual. [ 85 ] Let us consider. [ 86 ] The leading case on

section 12 of the Charter is R. v. Smith . [15] [ 87 ] Smith had pleaded guilty to a charge of importing seven and a half ounces of cocaine into Canada, contrary to subsection 5(1) of the Narcotics Control Act . [16] He challenged the constitutional validity of the mandatory seven-year minimum sentence required under the Act , arguing not that this provision was constitutionally invalid in his case, but that it might be so in some cases (for example, in the case of an offender importing a single marijuana cigarette into Canada). [ 88 ] Although the appellant argued sections 7 , 9 and 12 of the Charter , the analysis focused essentially on

section 12 . [ 89 ] Lamer J., for the majority, wrote that "the protection afforded by s. 12 governs the quality of the punishment and is concerned with the effect that the punishment may have on the person on whom it is imposed", "[t]he criterion ... is ... 'whether the punishment prescribed is so excessive as to outrage standards of decency'", "the effect of that punishment must not be grossly disproportionate to what would have been appropriate", and "the test... is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive". [17] [ 90 ] A majority of the Supreme Court found that the seven-year mandatory minimum sentence did not meet the "grossly disproportionate" test and that this violation of

section 12 of the Charter was not justified under

section 1 . Although the sentence in itself was not cruel and unusual, it could be qualified as such given the scope of subsection 5(1) of the Act . The problem was the certainty that any offender contravening the Act would be punished by a seven-year sentence, regardless of the circumstances.

[ 91 ] There are two stages to the

section 12 analysis: [18] First, there must be a detailed consideration of the offender's situation, requiring an examination of several contextual factors (the seriousness of the offence, the personal characteristics of the offender, the specific circumstances of the case, the practical effect of the sentence on the offender, the penological objectives and principles of sentencing on which the sentence is based, the existence of viable alternatives, and a comparison with sentences imposed for other crimes [19] ), although none of these factors are determinative.

Second, if a Charter violation is not found, there must be a consideration of any reasonable hypothetical circumstances. [20] [ 92 ] Finally, if the sentence imposed on the offender violates the

section 12 standard, the analysis must of course be continued under

section 1 to determine whether this breach of a protected constitutional right may be overlooked in the interest of a socially important objective. [21] [ 93 ] In Ferguson , the Supreme Court, per McLachlin C.J., states that it is up to the offender to raise reasonable hypotheticals, failing which the court will not decide this issue. [22] [ 94 ] In this case, the respondent (like all of the other accused) did not raise and still has not raised the argument based on reasonable hypothetical circumstances.

He relies only on the first stage of the analysis, that is, the assessment of the impugned sanction in terms of his personal situation, in light of all of the circumstances.

The Court will therefore analyze the issue from this perspective alone. [ 95 ] The first stage of the analysis essentially involves comparing the sentence imposed on the offender under the impugned provisions with the sentence that would have been appropriate considering the objectives and principles of sentencing, and then to decide whether the sentence is grossly disproportionate in light of the various contextual factors set out previously. [ 96 ] Here, however, the analysis involves comparing a custodial sentence of unknown duration with a conditional sentence of imprisonment of two years less one day with restrictive conditions impeding the offender's freedom of movement, which distinguishes this case from those where the court is asked to compare two custodial sentences. [ 97 ] Dangerous driving causing bodily harm to another person or death in a street race now constitutes an offence in its own right and is punishable by a maximum of 14 years or life in prison, as the case may be ( subsections 249.4(3) and

(4) Cr. C. ).

The offence requires evidence of (1) conduct that is a marked departure from the standard of care that would be upheld by a reasonable person in the same circumstances as the accused, (2) the consequences (death or injury), (3) a causal link between the dangerous conduct and the consequences, and (4) an offence committed while street racing. [ 98 ] While it is of course an objective mens rea offence, we should recall that it does not target persons who have simply caused death or injury to others unintentionally; the Crown must also prove that the accused acted in a way that was a marked departure from the reasonable person standard. [23] [ 99 ] It is obvious that the offences to which Perry pleaded guilty are very serious.

One person is dead, another suffered serious bodily harm, and a third suffered serious nervous shock. The fact that E.B.-S. was also reckless and that his behaviour contributed to the sad results in no way mitigates the seriousness of the respondent's conduct. [ 100 ] He was driving his motorcycle at 120 km/h in a 50 km/h zone while street racing. His driver's licence was suspended. This was not his first transgression as the operator of a motor vehicle. On three separate occasions prior to the accident, he had accumulated 35 demerit points for speeding and 8 for driving without accompaniment.

On two occasions, the offences were for speeding while not being accompanied. The day of the accident, he was once again driving while not accompanied, even though his driving privileges had been temporarily taken away. His conduct was made all the more damning by the fact that he was carrying a passenger, which he was prohibited from doing. [ 101 ] But the respondent was only 19 years old. In addition to being the owner of a window-washing business, he was a student in business administration and worked part-time for a pool retailer. He had no criminal record.

Young E.B.-S.'s mother asked the court to be lenient.

After the events, the respondent showed himself to be sincere. [ 102 ] Although he assumes responsibility for his actions, he still seeks to downplay the importance of his role, asking the Court to accept his assertion that the other motorcyclist was very reckless by continuing at full speed when he himself slowed down as he approached the curve. [ 103 ] He also displays remorse, but as these are offences that do not require a subjective intent to cause death, this is not surprising; it is normal for the respondent to feel remorse and regret what had happened. [ 104 ] On the whole, the Court finds that the circumstances of the case are particularly damning for the accused. [ 105 ] As for the actual effects of the sentence, the Court must consider how the offender will be personally affected by the sentence imposed upon him. [ 106 ]

Section 742.1 Cr. C. requires no mandatory minimum sentence. It grants the judge full discretion to determine the terms of the sentence in accordance with the objectives and principles in sections 718 to 718.2 Cr. C. and, in the event of a sentence of imprisonment, its duration. It excludes only one option, a conditional sentence of imprisonment. [ 107 ] In this context, it is wrong to find that the impugned provisions violate the respondent's constitutional rights by obliging the judge to impose a custodial sentence instead of a conditional sentence to be served in the community.

A custodial sentence – even one that is two years less one day – would, in the specific case of the accused, certainly not be "so excessive as to outrage the standards of decency" or "grossly disproportionate to what would have been appropriate". [ 108 ] The threshold for breach of

section 12, as the Supreme Court reminded us again in Charkaoui , [24] is high .

[ 109 ] In such matters, Parliament commands deference. [25] [ 110 ] In this case, the conditions imposed of the conditional sentence – 240 hours of community service, house arrest for 12 months, save for the purpose of carrying out very specific activities, and house arrest between 11:00 p.m. and 6:00 a.m. for an additional 8 months – were very strict. [ 111 ] It is difficult to argue that such a sentence is appropriate when a custodial sentence of the same length (or shorter) would be "grossly disproportionate" and therefore "cruel and unusual", at the risk of trivializing the meaning of these words. [ 112 ] Custodial sentences are penological measures the lawfulness and value of which are recognized.

In particular, they make it possible to achieve the objective of denunciation set out in

section 718 Cr. C. [26] The measure adopted by Parliament to sanction the perpetrators of "serious personal injury offences", therefore, is based on recognized sentencing principles, particularly since the impugned provisions do not prevent judges from relying on other measures to meet the regular sentencing objectives. The issue here is not whether another measure would be more consistent with the principles of sentencing. [ 113 ] In conclusion, the combined effect of sections 742.1 (as worded between November 30, 2007, and November 20, 2012) and 752 Cr. C. does not violate

section 12 of the Charter . The same can be said in the cases of the other offenders – Boisclair, Beaulieu and Pelletier – none of whom have demonstrated that the application of the challenged provisions resulted in grossly disproportionate sentences in their cases.

Section 9 and the protection against arbitrary detention [ 114 ] This ground of appeal concerns whether, given the prohibition against conditional sentences in cases of "serious personal injury offences", the judge is compelled to make an arbitrary order of a custodial sentence, contrary to

section 9 of the Charter . If the answer is yes, it must be determined whether this violation is justified under

section 1 of the Charter . [ 115 ] The trial judge answered this question in the affirmative.

He found that ruling out the possibility of a conditional sentence in all cases of "serious personal injury" offences arbitrarily deprives the judge of the possibility of imposing such a sentence, even when the judge has found that it would be the most appropriate way to meet the objectives of sentencing. [ 116 ] Let us consider. [ 117 ] The issue here is solely the manner in which the prison sentence will be served, i.e., in a detention centre or in the community, because the impugned provisions limit the judge's ability to order that the offender serve his sentence in the community in cases of "serious personal injury offences" within the meaning of

section 752 Cr. C . By this stage of the analysis, the judge will have already determined that the offence corresponds to the definition of "serious personal injury offence", that it is not an offence with a minimum prison sentence and, in particular, that it is appropriate to sentence the offender to a term of imprisonment of less than two years.

Thus, the issue here concerns residual freedom, since a conditional sentence of imprisonment already constitutes a sometimes significant restriction of liberty. [ 118 ] The analysis of the arbitrariness of the measure being challenged is carried out on the basis of the factors set out in Lyons , [27] Luxton , [28] and Charkaoui : [29] • Is the incarceration authorized by law? • Does the limitation on the possibility of a conditional sentence order target a restricted category of offenders? • Is the limitation based on criteria that are rationally connected with the objective sought by Parliament? [ 119 ] The Attorney General argues that incarceration resulting from the combined effect of sections 742.1 and 752 Cr.

C . is not arbitrary.

It is authorized by law, it applies to a restricted category of offenders (those guilty of "serious personal injury offences"), and there is a rational connection between the obligation of judges to impose a prison sentence (the duration of which is left entirely to their discretion) and the nature of the crimes indicated by the expression "serious personal injury offences". [ 120 ] The respondent, for his part, argues that the impugned provisions lead to arbitrary imprisonment of the offenders because they apply to all , without regard to the personal situation of each individual or the particular circumstances of the offence. [ 121 ] The position put forward by the Attorney General should prevail. [ 122 ] A custodial sentence that results from denying judges the possibility of ordering a conditional sentence in certain cases is authorized by law (sections 742.1 and 752 Cr.

C .) in situations where the judge has already found, further to an analysis based on the clearly defined parameters in sections 718 Cr. C . and following, that the offender should receive a prison sentence. [ 123 ] The measure concerns a restricted category of offenders, namely, those convicted of "serious personal injury offences", that is, indictable offences for which the offender may be sentenced to imprisonment for ten years or more imprisonment (but with no minimum sentence) and involving (

a) the use or attempt to use violence against another person, or (

b) conduct that is dangerous or likely to be dangerous to the life or safety of another person or conduct that has inflicted or is likely to inflict serious psychological damage on another person, as well as sexual assault, armed sexual assault, threats to a third party or bodily harm or aggravated sexual assault. [ 124 ] The targeted offences involve the use of violence against another person or dangerous conduct threatening the lives or safety of others. These are not harmless situations.

This is a restricted, circumscribed category of individuals in relation to the offenders contemplated in the Criminal Code as a whole. [ 125 ] This leaves the issue concerning the connection between the criteria on which the prohibition against conditional sentences for

"serious personal injury offences" is based and Parliament's objective. [ 126 ] Here, Parliament's intention is clearly to favour the objectives of denunciation and deterrence in cases involving violent crimes or crimes that endanger the safety or lives of Canadians, and the method chosen was to ensure that, in the context of sentencing, conditional sentences of imprisonment are no longer an option for these offenders. [ 127 ] In making this choice, Parliament wishes to emphasize society's opprobrium for this type of offence. [ 128 ] Case law has already recognized a connection between a custodial sentence and a number of the objectives and principles of sentencing in

section 178 Cr. C . and following, even when the incarceration of the offender is not absolutely necessary to ensure the safety of the community. In many cases, the objectives of denunciation and deterrence explain the court's decision to order incarceration, even if the offender does not present a danger to the community. [ 129 ] In R. v.

M. (C.A.) , [30] Lamer C.J. noted that retribution is "an accepted, and indeed important, principle of sentencing" and that "retribution bears little relation with vengeance", since "vengeance has no role to play in a civilized system of sentencing". [31] In all cases, it must be a "just sanction" [32] or a "just and appropriate punishment". [33] He adds the following: Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender .

The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct . In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. ... Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated.

In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code . [ 130 ] In Proulx , the Supreme Court states that a conditional sentence was an alternative to incarceration for some non-dangerous offenders.

It points out, however, that "there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct" [34] and that "there may be circumstances in which the need for deterrence will warrant incarceration". [35] [ 131 ] Here, Parliament considers that the need for retribution for offences meeting the definition of "serious personal injury offences" is so pressing that, in cases where the judge finds that a sentence of imprisonment is in order, it must be a custodial sentence and not a conditional sentence. [ 132 ] Thus, there is a rational connection between the measure adopted by Parliament and the objective of denouncing certain crimes that are especially abhorrent to society and dissuading those who might be tempted to engage in similar conduct. [ 133 ] In conclusion, the combined effect of sections 742.1 (as worded between November 30, 2007, and November 20, 2012) and 752 Cr.

C. does not violate

section 9 of the Charter .

Section 7 and the protection of liberty rights [ 134 ]

Section 7 of the Charter states that everyone has the right not to be deprived of their right to liberty except in accordance with the principles of fundamental justice, that is to say, "the basic principles that underlie our notions of justice and fair process". [36] [ 135 ] This argument maintains that sections 742.1 (as worded between November 30, 2007, and November 20, 2012) and 752 Cr.

C . infringe on the liberty of offenders in a way that is not in accordance with the principles of fundamental justice because it compels judges to impose a custodial sentence, when the principle of proportionality (s. 718.1 Cr.

C .) – a principle of fundamental justice – would make them more inclined to order a conditional sentence to be served in the community instead. [ 136 ] Let us consider. [ 137 ] In Reference re Motor Vehicle Act (B.C.) , [37] the Supreme Court stated that sections 8 to 14 of the Charter are specific deprivations of the "right to life, liberty and security of the person" that violate the principles of fundamental justice.

"They are designed to protect, in a specific manner and setting, the right to life, liberty and security of the person set forth in s. 7 ". [38] [ 138 ] In matters involving liberty rights, the same can be said with respect to the arbitrary detention of an offender (

section 9 ) and the imposition of a cruel and unusual prison sentence (section 12). [ 139 ] According to the last argument submitted, it would not be sufficient to analyze the impugned provisions from the perspectives of sections 9 and 12 of the Charter , as they must also be considered from the broader angle of the right to liberty, which cannot be violated except in accordance with the principles of fundamental justice ( s. 7 ), which in sentencing matters include the principle of proportionality. In other words, the impugned provisions would be invalid because the resulting custodial sentence, although perhaps not grossly disproportionate within the meaning of

section 12 of the Charter , would at least be disproportionate. [ 140 ] Although seductive, this argument must fail. [ 141 ] In Smith , Lamer J. states the following: [39] "In addition to the protection afforded by s. 12 , our Charter provides express protection against arbitrary imprisonment ( s. 9 ) and against deprivations of the right to life, liberty and security of the person in breach of the principles of fundamental justice ( s. 7 )", adding that, "In Canada, the protection of one's liberty is to be found in various provisions of the Charter and the content of each of those sections must be determined in light of the guarantees enunciated in the other sections and the content the courts will be putting into those sections.

Thus, any comments on the meaning of s. 12 must be made with s. 9 in mind and, as whenever ss. 8 to 14 are at issue, in light of s. 7 ".

[142] In Malmo-Levine,[40] Gonthier and Binnie JJ., noting the interrelationship amongst the various guarantees in sections 7 to 14 ofthe Charter, write the following: "To find that gross and excessive disproportionality of punishment is required under s. 12 but a lesserdegree of proportionality suffices under s. 7 would render incoherent the scheme of interconnected 'legal rights' set out in ss. 7 to 14 ofthe Charter by attributing contradictory standards to ss. 12 and 7 in relation to the same subject matter.

Such a result, in our view, wouldbe unacceptable".[41] In both cases, the standard applicable is that of gross disproportionality in the sentence. [143] In other words, to reiterate the remarks of Brun, Tremblay and Brouillet, [translation] "within the specific areas contemplated insections 8 to 14,

section 7 cannot be used as a way of broadening the meaning of the protected rights". Thus, [translation] "the right toprotection against cruel and unusual treatment or sentences set out in

section 12 cannot for its part receive a broader

interpretation undersection 7 that it would under

section 12 ...".[42] [144] For a

section 7 challenge to succeed, the applicant must therefore demonstrate that the arbitrariness or the cruel and unusualnature of the sentence is due to elements that have not yet been considered under sections 9 and 12. But that has not been done here. Theargument still deals with the proportionality of the sentence and its arbitrariness. It should therefore be rejected. [145] What is more, the argument is based on the rather fragile premise that the judge is compelled to render a custodial sentencebecause the law obliges the judge to ignore the principle of proportionality.

The impugned provisions, however, come into play onlyonce the judge has found, after applying the objectives and principles of sentencing, including the principle of proportionality, that theoffender should receive a substantial sentence shorter than two years. Once the option of a conditional sentence has been ruled out, thesesame objectives and principles enable the judge to determine the specific duration of a custodial sentence. [146] In conclusion, sections 742.1 (as worded between November 30, 2007, and November 20, 2012) and 752 Cr.

C. do not violatesections 7, 9 and 12 of the Charter. [147] It is wrong to deny the validity of this limitation on the power of judges to order conditional sentences of imprisonment, just as itis wrong to deny the validity of mandatory minimum sentences.[43] [148] There is no difference in principle between these two statutory measures, although the second has a considerably more restrictiveeffect on the discretionary power of judges in sentencing matters than the first. [149] Parliament's legitimate right to limit the discretion of judges in sentencing matters has been recognized by the Supreme Court forsome time. [150] As early as 2000, in Proulx, Lamer J. wrote the following:[44]

Section 742.1 does not exclude any offences from the conditional sentencing regime except those with a minimum term ofimprisonment.

Parliament could have easily excluded specific offences in addition to those with a mandatory minimum term ofimprisonment but chose not to. (Emphasis added.) [151] More recently, in Nasogaluak,[45] the Supreme Court, per LeBel J., reiterated this teaching: [44] 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 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 the circumstances of the offence and the offender, and to the needs of the community inwhich the offence occurred. [45] The discretion of a sentencing judge is also constrained by statute, not only through the general sentencing principles and objectivesenshrined in ss. 718 to 718.2 articulated above but also through the restricted availability of certain sanctions in the Code. For instance, s.732 prohibits a court from ordering that a sentence of imprisonment exceeding 90 days be served intermittently.

Similar restrictions existfor sanctions such as discharges (s. 730), fines (s. 734), conditional sentences (s. 742.1) and probationary terms (s. 731). Parliament hasalso seen fit to reduce the scope of available sanctions for certain offences through the enactment of mandatory minimum sentences. Arelatively new phenomenon in Canadian law, the minimum sentence is a forceful expression of governmental policy in the area ofcriminal law.

Certain minimum sentences have been successfully challenged under s. 12 of the Charter on the basis that they constitutedgrossly disproportionate punishment in the circumstances of the case (R. v. Smith, (SCC), [1987] 1 S.C.R. 1045; R. v.Bill (BC SC), (1998), 13 C.R. (5th) 125 (B.C.S.C.)), while others have been upheld (R. v. Morrisey, 2000 SCC 39, 2000 SCC 39, [2000] 2 S.C.R. 90). Absent a declaration of unconstitutionality, minimum sentences must be ordered where soprovided in the Code.

A judge’s discretion does not extend so far as to override this clear statement of legislative intent (Emphasis added.) [152] The addition of an exclusion for "serious personal injury offences" within the meaning of

section 752 Cr. C. to

section 742.1 Cr.C. constitutes merely one more limitation on the judge's sentencing power. One may lament this choice and feel that Parliament ismisguided. But that is not sufficient. The choice was a political one, and its appropriateness may not be questioned by judges so long itdoes not violate the offender's constitutional rights, as is the case here. The vagueness of the impugned provisions [153] The final argument concerns the vagueness of sections 742.1 and 752 Cr. C.

[ 154 ] It must be rejected. [ 155 ] A provision "will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate". [46] [ 156 ] That is clearly not the case here. [ 157 ] The impugned provisions are stated in very concrete terms, and it is established that a statutory term may be subject to various

interpretations without being constitutionally vague. [47] [ 158 ] The appropriate sentence pursuant to 742.1 and 752 Cr. C. remains to be determined. THE APPROPRIATE SENTENCE [ 159 ] The trial judge imposed a ten-month prison sentence on the first count and two years less one day on the second count, followed by a one-year probation order. [ 160 ] The Supreme Court of Canada urges appellate courts to show great deference towards trial judges in sentencing matters.

"... [A] sentence could only be interfered with if it was 'demonstrably unfit' or if it reflected an error in principle, the failure to consider a relevant factor, or the over-emphasis of a relevant factor". [48] [ 161 ] Since there is no error tainting the judge's assessment of the applicable mitigating and aggravating circumstances in light of the principles of sentencing, it is appropriate to conclude, as he did, that a sentence of less than two years is appropriate in the circumstances. [ 162 ] We note – for informational purposes only, since in this case the dangerous driving took place in the specific and aggravating context of street racing (which Parliament has now defined as a separate offence) – such a punishment falls within the range of sentences generally imposed in cases involving dangerous driving causing death or bodily harm. [ 163 ] On this subject matter, let us recall the remarks of our colleague Rochon J.A. in R. v.

Ferland : [49] [ translation ] [41] These are appeals from sentences imposed further to charges of dangerous driving causing bodily harm or death. The accused are young and have no prior convictions. Alcohol is not at issue. The risk of re-offending is found to be low. The accused are sincerely remorseful. The individuals do not lead a criminal lifestyle.

The sentences range between 18 months and 3 years of detention. [42] It should be recalled that in Proulx , supra , the Supreme Court re-established an 18-month prison sentence for a young person without a criminal record who felt sincere remorse and who pleaded guilty to charges of dangerous driving causing death and dangerous driving causing bodily harm. In that case, the Manitoba Court of Appeal had intervened on the grounds that the trial judge had placed "too much weight on deterrence".

According to the Supreme Court, this was an error because, in this type of crime, the factors of denunciation and general deterrence are particularly important. (Citation omitted.) [ 164 ] More recently, the Court of Appeal for Ontario confirmed thirty-month sentences imposed on three individuals charged with dangerous driving causing death committed during a high-speed race on a suburban Toronto highway in rush-hour traffic.

The race involved three vehicles which endangered the safety of a large number of drivers over a distance of forty kilometres and ended tragically in the fatal crash of one of the cars. [50] [ 165 ] These sentences also fall within the limits that Rochon J.A. discusses in Ferland . [ 166 ] Consequently, considering the respondent's troubled past as a driver, his positive behaviour since the crime, and the need to give denunciation and deterrence their due in sentencing, the Court finds that twenty-three months of detention would have been an appropriate punishment in this case. [ 167 ] At the hearing, however, it was made clear that the obligation to serve the conditional sentences that were rendered by the trial judge and that are now under appeal has, quite astonishingly, not been suspended. [ 168 ] Therefore, to date, the respondent has served the ten-month sentence in its entirety, as well as more than twenty months of the sentence of two years less one day, including the first twelve months during which he was under nearly complete house arrest. [ 169 ] He has also served two-thirds (2/3) of the 240 hours of community service he was ordered to perform. [ 170 ] Although the conditional sentences were imposed despite a valid statutory provision prohibiting them, the Court must nevertheless take account of the fact that the respondent has already served them almost in their entirety when it determines which sentences should have been rendered. [ 171 ] Therefore, in light of this exceptional circumstance, it is appropriate that the respondent be ordered to serve a ninety-day prison sentence on each of the two counts, to be served discontinuously and concurrently.

The respondent should also submit to a three-year probation order, including, in addition to the compulsory conditions set out in the Criminal Code , an obligation to complete the 240 hours of community service within the probationary period. FOR THESE REASONS, THE COURT: [ 172 ] ALLOWS the appeal;

[ 173 ] SETS ASIDE the sentence rendered on March 24, 2011, and, given the circumstances referred to above, [ 174 ] ORDERS the respondent to serve a sentence of ninety days in prison on each count, to be served discontinuously and concurrently, from Saturday morning at 9:00 a.m. to Sunday evening at 5:00 p.m., as of Saturday, February 23, 2013, for 45 consecutive weekends; and [ 175 ] ORDERS the respondent to submit to a three-year probation order including the period during which he will serve his prison sentence, including, in addition to the compulsory provisions set out in the Criminal Code (

section 732.1(2) ), an obligation to complete, within the probationary period, the 240 hours of community service already begun. JACQUES CHAMBERLAND, J.A. JACQUES A. LÉGER, J.A. (AD HOC) Mtre Virginie Leblond Director of criminal and penal prosecutions For the Appellant Mtre Jean-François Paré CHAMBERLAND, GAGNON (JUSTICE-QUÉBEC) For the appellant Mtre Julie Dassylva Mtre Marie-Catherine Bolduc PUBLIC LAW DIRECTORATE DEPARTMENT OF JUSTICE OF QUEBEC For the appellant Mtre Louis Gélinas DUBÉ LECLERC TEOLIS, ATTORNEYS For the respondent Dates of hearing: October 23 and 24, 2012