File 31577

IpsofactoJ.com: International Cases [2008] Part 14 Case 9 [SCC]


SUPREME COURT OF CANADA

Coram

Canada

- vs -

L.M.

McLACHLIN CJ

ABELLA J

BASTARACHE J

BINNIE J

CHARRON J

DESCHAMPS J

FISH J

LEBEL J

ROTHSTEIN J

29 MAY 2008


Judgment

Lebel J

(with whom McLachlin C.J. and Bastarache, Binnie, Deschamps, Abella, Charron and Rothstein JJ. joined)

I. INTRODUCTION

A. Nature of the Case

  1. In this appeal, the Court must reconsider certain sentencing principles, and in particular those relating to maximum sentences. The case also raises difficulties flowing from the relationship between the procedure of the application for a finding that an offender is a long‑term offender under s. 753.1 of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”), and the process for determining the appropriate sentence.

  2. The respondent, L.M., was convicted of sexually assaulting his daughter and of making, distributing and possessing child pornography. The trial judge imposed the maximum sentence on him for the count of sexual assault and a consecutive sentence for the counts of making, distributing and possessing child pornography. She also found him to be a long‑term offender and ordered him to be supervised in the community for a period of 10 years. L.M. appealed the sentence to the Court of Appeal. The majority of that court allowed the appeal and reduced the global sentence imposed by the trial judge. For the reasons that follow, I would restore that sentence.

    B. Origin of the Case

  3. In 2002, Switzerland’s federal police were investigating an international ring of pedophiles that included groups suspected of distributing child pornography on the Internet. In the course of this investigation, Swiss police officers contacted the Sûreté du Québec (“S.Q.”) after identifying two Quebeckers in Internet user groups whose names included the root “sampi” (for “sans pilosité”, meaning “hairless”). The first of these men revealed L.M.’s identity to the S.Q. Upon entering L.M.’s home, S.Q. officers noted that several items found there confirmed the origin of photographs discovered on the Internet, not to mention that the child who opened the door, R.M., the daughter of the accused, L.M., appeared in some of those photographs.

  4. The investigation and trial revealed that the childhood of R.M., one of the respondent’s four children, had been nightmarish. R.M. was her father’s principal victim, having been sexually assaulted between the ages of two and four. The evening of L.M.’s arrest, R.M. was questioned by police. According to her highly candid testimony, related in the words of a four‑year‑old child, this little girl had been regularly photographed in the nude by her father, who periodically touched her sexually, penetrated her and spent the night with her in what they referred to as the [translation] “love room”.

  5. During that time, L.M. made money distributing child pornography on the Internet. At the time of his arrest, his computer contained approximately 5,300 pornographic photographs and 540 pornographic videos involving children. Many of the photographs were either of R.M. or A., a four‑year‑old child who regularly visited L.M.’s home, or of both of them. For example, one of the hard drives seized by the S.Q. contained a series of 33 pictures of R.M. in which she first appears dressed as a princess, after which the final photographs are close‑up shots of her genitals.

  6. L.M.’s arrest was not the first time he had been in trouble with the law. At the age of 17, he had been convicted of sexually assaulting a six‑year‑old girl. At 24, he was charged with sexually assaulting a minor, but the proceedings were terminated when he entered into a recognizance under s. 810.1 Cr. C. (sentencing decision, [2005] Q.J. No. 15934 (QL), at para. 38; judgment on long‑term offender designation, [2005] Q.J. No. 15933 (QL), at para. 30).

    C. Judgments of the Courts Below

    (1) Court of Québec

    (a) Conviction

  7. L.M. pleaded guilty on the counts of possessing and distributing child pornography but contested the charges of making child pornography and sexual assault. At the end of the trial, Judge Wilhelmy found that the Crown had proven L.M.’s guilt on these counts. Regarding the sexual assault charge, Judge Wilhelmy found R.M.’s testimony highly reliable and credible because of what she said and the circumstances in which she said it ([2005] Q.J. No. 1215 (QL), at paras. 151‑52). Furthermore, according to Judge Wilhelmy, virtual conversations on an ICQ chat site traced back to the computer of the accused confirmed the assault against R.M. (paras. 104, 123‑24 and 155). The conviction is not contested in this Court.

    (b) Sentence

  8. Eight months later, Judge Wilhelmy rendered her sentencing decision. In her opinion, there were several aggravating factors in the circumstances of the case. They included the repeated assaults on a very young child; the parental relationship with and position of authority over her; the creation of pornographic images and their distribution over the Internet or, in other words, around the world; and the criminal record of the accused (sentencing decision, at paras. 59 and 61). The trial judge then stated that the accused had committed the [translation] “worst crime .... in the worst circumstances” (para. 65). For these reasons, Judge Wilhelmy sentenced L.M. to the maximum penalty of 10 years’ imprisonment on the count of sexual assault and to 3, 5 and 5 years respectively on those of possessing, making and distributing child pornography. The global sentence was 15 years, as the sentences on the pornography‑related counts were to be served concurrently with each other, but consecutively to the sentence for sexual assault. Finally, Judge Wilhelmy reduced the sentence for sexual assault by 16 months to give the accused credit for time spent in remand custody.

  9. That same day, in a separate judgment, the trial judge ruled on a motion by the Crown for a finding that the accused is a long‑term offender and an order that he be supervised in the community for a period of 10 years under s. 753.1 Cr. C. In her opinion, the imposition of a period of supervision such as this cannot affect the length of the period of deprivation of liberty, as determined at the time of sentencing (judgment on long‑term offender designation, at para. 18). According to Judge Wilhelmy, in setting the length of the period of supervision that was to follow the sentence, she had to consider in particular the risk that the offender would reoffend, which she thought to be substantial, and the fact that his sexual deviance was deeply rooted (paras. 27 and 30). She therefore ordered a 10‑year supervision period, the maximum permitted by law.

    (2) Court of Appeal, [2006] R.J.Q. 1354, 2006 QCCA 735

  10. L.M. appealed the sentence to the Quebec Court of Appeal. The appeal was allowed in part by the majority of that court. I will now summarize the reasons of the majority and those of the dissent.

    (a) Reasons of the Majority

  11. For reasons written primarily by Côté J.A., the majority of the Court of Appeal allowed L.M.’s appeal and reduced the sentence imposed by the Court of Québec, which they found inappropriate. In Côté J.A.’s view, certain facts, the acts of penetration in particular, had not been proven. After weighing the factors she considered to have been proven and the holdings in cases she considered to be comparable, Côté J.A. concluded that the maximum sentence for sexual assault was unwarranted. In her opinion, this was not the worst crime committed in the worst circumstances. She therefore reduced the sentence for sexual assault to 6 years. Côté J.A. also reduced the concurrent sentences for making and distributing child pornography to 3 years. The global sentence imposed on L.M. was thus reduced from 15 to 9 years, less 16 months for the time spent in remand custody. However, Côté J.A. upheld the 10‑year supervision period. Nuss J.A. concurred with his colleague’s proposed disposition, but expressed reservations about adopting the concept of the [translation] “worst crime committed in the worst circumstances”.

    (b) Reasons of the Dissent

  12. Morin J.A., dissenting, would have upheld the sentence imposed by the Court of Québec. In his view, the majority’s intervention in the trial judge’s assessment of the facts was unwarranted, as was their interference with the exercise of her sentencing discretion. He added that following Côté J.A.’s line of reasoning, it would never be possible to impose the maximum sentences provided for in the Criminal Code (para. 83).

    II. ANALYSIS

    A. Issues

  13. This appeal raises three issues with regard to sentencing. The first two have been addressed often by the courts, but in light of the position of the majority of the Court of Appeal, it may be helpful to review the relevant principles in this area of criminal law and procedure. The third issue is a newer one. I will discuss the following issues in turn:

    1. What principles are applicable to intervention in an appeal against sentence?

    2. What principles are applicable to the imposition of a maximum sentence? Is it necessary to imagine the worst crime committed in the worst circumstances?

    3. Must a long‑term offender’s period of community supervision be taken into account in determining the appropriate term of imprisonment?

    B. Intervention by the Court of Appeal

    (1) Principles

  14. In its past decisions, this Court has established that appellate courts must show great deference in reviewing decisions of trial judges where appeals against sentence are concerned. An appellate court may not vary a sentence simply because it would have ordered a different one. The court must be “convinced it is not fit”, that is, “that .... the sentence [is] clearly unreasonable” (R. v Shropshire, [1995] 4 S.C.R. 227, at para. 46, quoted in R. v McDonnell, [1997] 1 S.C.R. 948, at para. 15). This Court also made the following comment in R. v M. (C.A.), [1996] 1 S.C.R. 500, at para. 90:

    .... absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

    (See also R. v W. (G.), [1999] 3 S.C.R. 597, at para. 19; A. Manson, The Law of Sentencing (2001), at p. 359; and F. Dadour, De la détermination de la peine: principes et applications (2007), at p. 298.)

  15. Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standard of review to be applied by an appellate court is one based on deference. The sentencing judge has “served on the front lines of our criminal justice system” and possesses unique qualifications in terms of experience and the ability to assess the submissions of the Crown and the offender (M. (C.A.), at para. 91). In sum, in the case at bar, the Court of Appeal was required – for practical reasons, since the trier of fact was in the best position to determine the appropriate sentence for L.M. – to show deference to the sentence imposed by the trial judge.

    (2) Violation of the Principles

  16. The majority of the Court of Appeal did not meet this requirement of deference. In effect, they reassessed L.M.’s sentence without showing it to be clearly unreasonable. They even varied certain findings of fact, in particular with respect to the acts of penetration, despite Judge Wilhelmy’s conclusions concerning the quality of the evidence, which she found to be clear. In assessing the overall seriousness of the offences committed by L.M., the Court of Appeal also disregarded the close connection between the sexual assault charges and the charges of making child pornography and distributing it on the Internet. In so doing, it substituted its own assessment for that of the trier of fact and reviewed the exercise of her discretion without a valid reason. Moreover, as we will now see, the majority of the Court of Appeal misinterpreted the principles applicable to maximum sentences.

    C. Maximum Sentences

    (1) General Sentencing Principles

    Determining the Appropriate Sentence

  17. Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge’s competence and expertise. The trial judge enjoys considerable discretion because of the individualized nature of the process (s. 718.3 Cr. C.; R. v Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46, at para. 22; R. v Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, at para. 82). To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code:

    • the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgement of and reparations for the harm they have done (s. 718 Cr. C.);

    • the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 Cr. C.); and

    • the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (s. 718.2 Cr. C.).

    (2) Maximum Sentences and Cheddesingh

  18. This individualized sentencing process is part of a system in which Parliament has established a very broad range of sentences that can in some cases extend from a suspended sentence to life imprisonment. The Criminal Code provides for a maximum sentence for each offence. However, it seems that the maximum sentence is not always imposed where it could or should be, as judges are influenced by an idea or viewpoint to the effect that maximum sentences should be reserved for the worst cases involving the worst circumstances and the worst criminals. As can be seen in the case at bar, the influence of this notion is such that it sometimes leads judges to write horror stories that are always worse than the cases before them. As a result, maximum sentences become almost theoretical:

    In the end the difficulty with maximums is that they may be seen as almost theoretical rather than as an indication of how seriously an offence is to be treated in the “ordinary” case.

    (T.W. Ferris, Sentencing: Practical Approaches (2005), at p. 292)

  19. As Morin J.A. noted in his dissenting reasons, human nature is such that it will always be possible for a court to imagine a worse case than the one before it. Morin J.A. rightly pointed out that it is important for a judge, when deciding whether the maximum sentence can or should be imposed for a given offence, to avoid contemplating fictitious situations in this way. This approach is consistent with this Court’s recent case law.

  20. In R. v Cheddesingh, [2004] 1 S.C.R. 433, 2004 SCC 16, the Court acknowledged the exceptional nature of the maximum sentence, but firmly rejected the argument that it must be reserved for the worst crimes committed in the worst circumstances. Instead, all the relevant factors provided for in the Criminal Code must be considered on a case‑by‑case basis, and if the circumstances warrant imposing the maximum sentence, the judge must impose it and must, in so doing, avoid drawing comparisons with hypothetical cases.

    .... terms such as “stark horror”, “worst offence” and “worst offender” add nothing to the analysis and should be avoided. All relevant factors under the Criminal Code .... must be considered. A maximum penalty of any kind will by its very nature be imposed only rarely .... and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. As is always the case with sentencing, the inquiry must proceed on a case‑by‑case basis.

    [para. 1]

  21. Even where a maximum sentence is imposed, therefore, regard must be had to the trial judge’s discretion, the individualized nature of sentencing and the normative principles set out by Parliament in ss. 718, 718.1 and 718.2 Cr. C. There is still a place in criminal law for maximum sentences in appropriate circumstances.

  22. Thus, the maximum sentence cannot be reserved for the abstract case of the worst crime committed in the worst circumstances. The trial judge’s decision will continue to be dictated by the fundamental principle that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (s. 718.1 Cr. C.). Proportionality will be achieved by means of a “complicated calculus” whose elements the trier of fact understands better than anyone. The trial judge’s position in the sentencing process justifies the respect owed to the reasoned exercise of his or her discretion and the deferential approach that appellate courts should take in such matters (see Manson, at p. 86). As is noted in one commentary on sentencing principles [translation]:

    [The] objectives of denunciation, deterrence, separation from society, rehabilitation, reparations and retribution are all quite general, and there is no precise standard that can be applied to rank them. At first glance, this is desirable, since the sentencing process is fundamentally an individualized one in that sentences will necessarily vary from one offender to another in light of the particular emphasis that will be placed on one or the other of the objectives in order to arrive at the appropriate sentence, having regard to all the circumstances, in each case.

    [Dadour, at p. 17.]

  23. In the case at bar, the Court of Appeal should have asked whether, in light of Judge Wilhelmy’s findings of fact, imposing the maximum sentence was reasonable having regard to the circumstances and the objectives of sentencing rather than digging deeper to find something horrible. A review of the Court of Québec’s judgment in light of the principles stated above confirms that the sentence imposed was lawful and reasonable. This is clear from the reasons given by Judge Wilhelmy for her sentencing decision.

    (3) Application of the Sentencing Principles by the Trial Judge

    Objective and Subjective Seriousness

  24. Judge Wilhelmy began her analysis by considering the objective seriousness of the offences of which L.M. had been convicted. She noted the lengths of the maximum sentences provided for by Parliament: 10 years for sexual assault (s. 271(1)(a) Cr. C.), 10 years for making child pornography (s. 161(2)(a) Cr. C.), 10 years for distributing child pornography (s. 163.1(3)(a) Cr. C.) and 5 years for possessing child pornography (s. 163.1(4)(a) Cr. C.).

  25. On the subjective seriousness of the offences, Judge Wilhelmy referred to a number of aggravating factors that led her to conclude that a long period of incarceration was necessary. She noted L.M.’s record of similar acts, the repeated nature of the acts and their impact on the victims, his parental relationship, position of authority and position of trust with respect to the principal victim, the quantity of pornographic materials seized, the central role played by the accused in supplying the distribution network and in facilitating the production of the materials, the children’s ages, the nature of the scenes shown in the photographs and videos, and the medium – the Internet – used to distribute the pornographic photographs and videos (see in particular para. 61 of the sentencing decision).

  26. In addition to the violence inherent in repeated sexual assaults on such a young child, the list of aggravating circumstances could include the fact that R.M. was unquestionably subjected to psychological violence. According to a report by the Centre jeunesse de Montréal dated April 19, 2005 that was filed in the Court of Québec, the little girl had been scarred for life by her father’s acts and was having difficulty fitting in with children her own age (A.R., at pp. 108‑9; sentencing decision, at para. 28).

  27. Moreover, the gravity of L.M.’s acts is clear from his modus operandi. A portion of the collection of pornographic photographs and videos he posted on the Internet were the product of sexual assaults on his own little girl. His acts must be considered as a whole.

  28. Finally, I note that L.M. disseminated his pornography around the world over the Internet. The use of this medium can have serious consequences for a victim. Once a photograph has been posted on the Web, it can be accessed indefinitely, from anywhere in the world. R.M. will never know whether a pornographic photograph or video in which she appears might not resurface someday.

  29. The only mitigating circumstance identified by Judge Wilhelmy was L.M.’s recent acknowledgement of his sexual deviance. Whether his admission was sincere is open to question. According to the pre‑sentence report prepared for the Court of Québec by probation officer Isabelle Mailloux on May 3, 2005, L.M. at no time used [translation] “negative language in referring to child pornography or acknowledged the unacceptable nature of that act” (A.R., at p. 125). In a psychiatric assessment submitted to the Court of Québec on June 13, 2005, Dr. Louis Morissette noted that L.M. had admitted [translation] “the inadequacy of his fantasies” in a second interview only after having read the pre‑sentence report (A.R., at p. 140). Judge Wilhelmy made the following comment: [translation] “However, [the] reversal occurred after the accused had read the pre‑sentence and psychological reports, which mentioned that he had acknowledged nothing and shown no regret whatsoever” (judgment on long‑term offender designation, at para. 22).

  30. L.M.’s acts were highly reprehensible, and the evidence convinced Judge Wilhelmy that they were sufficiently serious, and L.M. sufficiently blameworthy, to warrant the maximum sentence. Judge Wilhelmy rightly wanted to denounce L.M.’s conduct, deter sex offenders from committing such offences and separate L.M. from society because of his lack of remorse, especially since his acts included the abuse of a person under 18 in relation to whom he was in a position of trust. Similarly, the offence had been committed in the context of the abuse of a position of authority in relation to the victim.

  31. The judge also correctly understood the close relationship between the offences, the overall situation they gave rise to and the need to impose a global sentence suited to that situation. Viewed as a whole, the crime was complex. The offence of sexual assault was closely connected with three other offences of making, possessing and distributing child pornography that are subject to express sanctions under the Criminal Code. Each aspect of the offender’s conduct could be considered only in light of all these charges, viewed as a whole. As Judge Wilhelmy concluded, the global sentence was the crucial factor in determining the sentence in the case at bar.

  32. From this perspective, the sentence imposed by Judge Wilhelmy was not unreasonable. The trial judge had a broad discretion, was in a privileged position as the trier of fact and certainly had the expertise to assess L.M.’s character, the heinous nature of his acts and the impact that a longer or shorter sentence might have on the chances of his reoffending and on his prospects for rehabilitation.

    (4) Unwarranted Intervention by the Court of Appeal

  33. As I mentioned above, the majority of the Court of Appeal erred in varying a sentence that was not unreasonable. Their finding that penetration had not been proven beyond a reasonable doubt constitutes an improper reassessment of the evidence in the absence of a reviewable error in the Court of Québec’s assessment of the facts.

  34. Moreover, the majority of the Court of Appeal attached great importance to the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (paras. 41 et seq.), which is one of the normative sentencing principles provided for in the Criminal Code (s. 718.2 Cr. C.). Although this principle permits an appellate court to temper the discretionary aspect of the sentencing process, it was applied incorrectly by the majority of the Court of Appeal.

  35. This exercise of ensuring that sentences are similar could not be given priority over the principle of deference to the trial judge’s exercise of discretion, since the sentence was not vitiated by an error in principle and the trial judge had not imposed a sentence that was clearly unreasonable by failing to give adequate consideration to certain factors or by improperly assessing the evidence (M. (C.A.), at para. 92, quoted in McDonnell, at para. 16; W. (G.), at para. 19; see also Ferris, at p. 149, and Manson, at p. 93). This Court has clearly confirmed the “trial judge’s traditionally broad sentencing discretion” (M. (C.A.), at para. 56). Furthermore, this principle has been codified in s. 718.3 Cr. C.

  36. Owing to the very nature of an individualized sentencing process, sentences imposed for offences of the same type will not always be identical. The principle of parity does not preclude disparity where warranted by the circumstances, because of the principle of proportionality (see Dadour, at p. 18). As this Court noted in M. (C.A.), at para. 92, “there is no such thing as a uniform sentence for a particular crime”. From this perspective, an appellate court is justified in intervening only if the sentence imposed by the trial judge “is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes” (M. (C.A.), at para. 92).

  37. The case at bar can be distinguished from each of the cases cited by the majority of the Court of Appeal. The case before this Court is markedly different as regards the quantity of materials seized and the scope of the network of Internet users having access to them, not to mention the connection between the sexual assaults committed by L.M. and his making, possession and distribution of child pornography. I will give one example of this. The majority of the Court of Appeal stressed the similarity between R. v P. (M.), [2005] Q.J. No. 78 (QL), 2005 QCCA 7, and the instant case (see para. 73). Their aim in doing so was to bring L.M.’s sentence in line with the one imposed in P. (M.). But in that case the pornographic materials were not posted on the Internet; they were sent only to two friends of the abused child’s father. Having disregarded L.M.’s wide distribution of the materials, made possible by the Internet, the Court of Appeal failed to demonstrate any real similarity between P. (M.) and the case at bar. Consequently, this attempt at achieving parity in sentencing, based as it was on an incorrect analogy, was itself inappropriate.

    D. Finding that the Offender is a Long‑Term Offender

  38. This appeal also raises the issue of the relationship between sentencing and the procedure for finding an offender to be a long‑term offender. When the Crown applies to have an offender found to be a long‑term offender, must the judge, in determining the length of the term of imprisonment, take the subsequent period of community supervision into account? I do not think so. In my view, a distinction must be made between sentencing per se and the procedure for imposing a period of post‑sentence supervision.

    (1) Description of the System of Supervision

  39. As this Court did with respect to dangerous offenders (R. v Lyons, [1987] 2 S.C.R. 309, at p. 339; R. v Jones, [1994] 2 S.C.R. 229, at p. 297), I note the exceptional nature of the finding that an offender is a long‑term offender. As I will explain below, the strictness and precision of the rules applicable to this supervisory mechanism necessarily limit the number of people to whom it will apply. In 2005, or eight years after the introduction of this new system of supervision, there were 300 long‑term offenders in Canada: 187 of them were incarcerated, and 113 were in the community under supervision. Most of them had committed sexual offences (“Long term offender designation”, Public Safety Canada (online: www.publicsafety.gc.ca/prg/cor/tls/lto‑eng.aspx)).

    Procedure

  40. The Criminal Code provides that the Crown must first of all apply to have an accused found to be a long‑term offender after he or she has been convicted, but before sentence is imposed (ss. 752.1(1), 753.1(1)(a) and 753.1(3.1)(a) Cr. C.). After this application is filed, the court may have experts assess the offender. Their report will be used as evidence in the application (ss. 752.1(1) and 753.1(1) Cr. C.). This report will enable the judge to determine whether the offender poses a serious risk to public safety. The Criminal Code sets out three conditions that must be met before a judge may grant an application for supervision.

    1. First, a sentence of imprisonment of two years or more must be warranted for the offence for which the offender has been convicted (s. 753.1(1)(a) Cr. C.).

    2. Next, the judge must be satisfied beyond a reasonable doubt that there is a substantial risk that the offender will reoffend (s. 753.1(1)(b) Cr. C.; see, for example, Beaulieu v R., [2007] Q.J. No. 2116 (QL), 2007 QCCA 403, at para. 25). In assessing that risk, the judge must determine (s. 753.1(2) Cr. C.):

      1. that the offender has been convicted of a sexual offence under s. 151, 152, 153, 163.1(2), 163.1(3), 163.1(4), 163.1(4.1), 172.1, 173(2), 271, 272 or 273 Cr. C., or has engaged in “serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted” (s. 753.1(2)(a) Cr. C.); and

      2. that the offender has shown a pattern of repetitive behaviour that shows a likelihood of the offender’s causing injury to or inflicting severe psychological damage on other persons, or has, by conduct in any sexual matter, shown a likelihood of causing injury to other persons in the future (s. 753.1(2)(b)(i) and (ii) Cr. C.; see, for example, R. v Corneau, [2001] R.J.Q. 2509 (C.A.)). This assessment of “prospective dangerousness” concerns, in sum, past conduct and the facts relating to the commission of the offences (R. v Ménard, [2002] Q.J. No. 5271 (QL) (C.A.), at para. 23).

    3. Finally, the judge must find that there is a “reasonable possibility” of eventual control of the risk in the community (s. 753.1(1)(c) Cr. C.). It is interesting to note that the expression used in the French version of this provision is possibilité réelle (real possibility) (R. v M. (J.S.) (2003), 173 C.C.C. (3d) 75, 2003 BCCA 66, at para. 27).

  41. This Court has previously stated that a sentencing judge must, if satisfied that a community supervision order will make it possible “to reduce the threat to the life, safety or physical or mental well‑being of other persons to an acceptable level”, consider the option of finding an offender to be a long‑term offender before finding him or her to be a dangerous offender (see Johnson, at para. 40; see also C. Ruby, Sentencing (6th ed. 2004), at p. 541). This is the only situation in which the Criminal Code requires a judge to consider the possibility of supervision before determining the appropriate sentence. The decision is thus based on controlling a serious risk: if this objective can be attained in the community, an offender cannot be found to be dangerous and, as a result, be imprisoned for an indeterminate period (see Ferris, at pp. 301‑3).

  42. Although they both contribute to assuring public safety, the dangerous offender and long‑term offender designations have different objectives. Unlike a dangerous offender (s. 753 Cr. C.), who will continue to be deprived of liberty, since such offenders are kept in prison to separate them from society (s. 718.1), a long‑term offender serves a sentence of imprisonment of two years or more and is then subject to an order of supervision in the community for a period not exceeding 10 years for the purpose of assisting in his or her rehabilitation (s. 753.1(3) Cr. C.). This measure, which is less restrictive than the indeterminate period of incarceration that applies to dangerous offenders, protects society and is at the same time consistent with [translation] “the principles of proportionality and moderation in the recourse to sentences involving a deprivation of liberty” (Dadour, at p. 228).

    (2) Relationship to Sentencing

  43. The respondent relies on an Ontario Court of Appeal decision to argue that the principle of proportionality should apply to the combined effect of the period of community supervision and the sentence of imprisonment. While it was careful to state that a community supervision order is “not a sentence”, the Ontario Court of Appeal made the following comments, on that occasion, regarding the combined effect of the prison sentence and the supervision period (R. v Archer (2005), 193 C.C.C. (3d) 376) [paras. 21‑22]:

    Although it may be argued that a mandatory community supervision order .... is not a sentence, in my view, as a matter of principle, the principles of sentencing in ss. 718 to 718.2 should apply when measuring the combined effect of a mandatory custodial sentence and mandatory community supervision order. This would include the fundamental principle of proportionality in s. 718.1 ....

    .... Assuming that the principle of proportionality applies ..., I find nothing inappropriate about the eight‑year period of community supervision in addition to this sentence. It is necessary to recognize that the custodial sentence for the predicate offences and the community supervision order each serve a discrete purpose. Therefore, in considering the appropriateness of the length of the appellant’s community supervision, it must be considered in the context of the purpose of the dangerous and long‑term offender regime, which is to protect the public.

  44. Of course, a period of community supervision cannot be any longer than is necessary to obviate the risk that the offender will reoffend and thus to protect the public. In my view, however, to adopt the general rule the respondent wishes to draw from Archer would be to disregard the distinction between the sentence of imprisonment and the period of supervision, which have different objectives.

    (3) Distinction Between the Function of the Finding and That of Sentencing

  45. This Court has held that the procedure for finding an offender to be a dangerous offender forms part of the sentencing process (Lyons, at pp. 350 and 374; Jones, at p. 294; Johnson, at para. 23). Can it be said that the procedure for finding an offender to be a long‑term offender also forms part of the sentencing process? Obviously, since the sentencing judge is the same judge who would make the order so finding. However, the similarities between that finding and a sentencing proceeding end there.

  46. These two types of decisions can be distinguished on the basis of the objectives and methods, and certain technical aspects, of the sentencing process. The principal objective of a prison sentence is punishment, although the sentence must be determined in accordance with the principles set out in the Criminal Code. On the other hand, the objectives of and rationale for the supervision of an offender in the community are to ensure that the offender does not reoffend and to protect the public during a period of supervised reintegration into society. The British Columbia Court of Appeal mentioned this distinction in a recent judgment:

    The fixed sentence and supervision orders focus on two different goals: the former on punishment for the predicate offence, the latter on prevention of future criminal conduct. In the latter the predicate offence plays a relevant role as an indicator of risk.

    (R. v Blair (2002), 167 B.C.A.C. 21, 2002 BCCA 205, at para. 37; see R. v J.G.E.S., [2006] B.C.J. No. 3455(QL), 2006 BCSC 2004, at paras. 134 and 137, for another example of this.)

  47. Furthermore, the sentencing judge will not calculate the length of each of these steps in the same way. A number of factors are considered in determining the length of a prison sentence, including, to name but a few, the gravity of the offence, the degree of responsibility of the offender, the parity principle and the possibility of imposing a less restrictive sanction. In contrast, the length of a period of community supervision is based on an offender’s criminal past and on the likelihood that he or she will reoffend, which are addressed in the assessment report.

  48. Finally, in practice, the effect of a sentence is to deprive the offender of his or her liberty, whereas community supervision is aimed at reintegrating the offender into the community under the supervision of the Correctional Service of Canada. Furthermore, the period of community supervision does not begin until after the sentence (imprisonment) has been served. From this perspective, the preferred approach for a judge considering a period of community supervision is very different from the one that must be taken in determining the length of a sentence of imprisonment.

    (4) Relationship to the Determination of the Appropriate Sentence

  49. Nevertheless, the judge determining the length of an offender’s sentence of imprisonment will also receive the application to find the offender to be a long‑term offender before passing sentence. As a result, the judge will quite likely tend to consider both decisions at the same time. He or she may accordingly find it difficult to observe the conceptual distinction between the two decisions. Despite these practical difficulties, it is important to remain faithful to the distinction between sentencing and the imposition of a supervision period. A judge who confuses these two processes risks straying from the normative principles and the objectives of sentencing. A judge who does so would also neglect the specific objective of the procedure for finding an offender to be a long‑term offender, which requires the application of different principles. Parliament intended that the judge determine the appropriate sentence first. After doing so, the judge is to ask, in light of Parliament’s objective of protecting the public, whether a period of supervision is warranted. The period of community supervision cannot therefore be equated with a new period of deprivation of liberty consecutive to the one resulting from the sentence.

    (a) Need to Maintain the Conceptual and Practical Distinction Between the Two Steps

  50. It is therefore my opinion that a long‑term offender’s period of community supervision cannot be taken into account when determining the acceptable length of the offender’s incarceration. I fear that the principle that a sentence should be similar to other sentences imposed in similar circumstances would be seriously undermined if Canadian courts were to compare fixed sentences (for sex offenders who have not been found to be long‑term offenders) with fixed sentences accompanied by supervision orders (for sex offenders who have been found to be long‑term offenders).

    (b) Application to the Case at Bar

  51. Judge Wilhelmy pointed out that protecting society is the fundamental objective being pursued in providing in the Criminal Code for the supervision of offenders. She mentioned that the accused was 31 years old and had never been treated for sexual deviance, although he claimed that he wanted to enter a program for sex abusers. She added that L.M. continued to insist that he had only fondled his daughter (without penetrating her) and to play down the gravity of what he had done to her, whereas the evidence showed that the situation was much more serious. Referring to L.M.’s history of sexual assaults and the recognizance he had entered into under s. 810.1 Cr. C., Judge Wilhelmy concluded that L.M.’s deviance was of long standing. Finally, the experts agreed unanimously that there was a substantial risk that he would reoffend (judgment on long‑term offender designation, at para. 27).

  52. For all these reasons, Judge Wilhelmy ruled in favour of a long supervision period for L.M. as a long‑term offender. She did not take L.M.’s period of incarceration into account when determining the length of his period of community supervision. Instead, she focussed on the future, that is, on the need to protect the public from the risk that L.M. would reoffend. In my view, her analysis was flawless.

    III. CONCLUSION

  53. Judge Wilhelmy imposed an appropriate sentence on L.M. The sentence is proportionate to the gravity of his acts, and the mitigating and aggravating circumstances and the objectives of the Criminal Code have been accounted for. As there was no reviewable error in Judge Wilhelmy’s decision, the Court of Appeal was wrong to vary the sentence. In my opinion, the trial judge correctly applied the law, placing the appropriate emphasis on the specific objectives of the finding that an offender is a long‑term offender.

    IV. DISPOSITION

  54. For the foregoing reasons, I would allow the appeal, set aside the judgment of the Court of Appeal and restore the sentence imposed by the Court of Québec.

    Fish J

    (dissenting)

    I

  55. It is well established that trial judges are entitled to considerable deference in sentencing matters. I take no issue in this regard with the clear and persuasive reasons of my colleague, Justice LeBel. With respect, however, I have reached a different conclusion regarding the application of that rule in this case. I would therefore dismiss the appeal.

    II

  56. On an appeal against sentence, the Court of Appeal is required by s. 687 of the Criminal Code, R.S.C. 1985, c. C-46, to “consider the fitness of the sentence appealed against”. And the Court is expressly empowered to vary the sentence if it finds the sentence unfit.

  57. Here, the trial judge convicted the respondent of sexual assault and found him guilty as well of “making, distributing and possessing”child pornography ([2005] Q.J. No. 1215 (QL)). The respondent was immediately incarcerated pending sentence. Eight months later, the trial judge sentenced him to the maximum punishment for sexual assault – 10 years’ imprisonment – less 16 months on account of the respondent’s pre-sentence custody. On the child pornography counts, the trial judge imposed a total of 5 years’ imprisonment, to be served consecutively to the term for sexual assault. The trial judge also found the respondent to be a “long-term offender” within the meaning of s. 753.1 of the Code and ordered that he be supervised in the community for an additional 10 years, which is again the maximum period provided by law ([2005] Q.J. No. 15933 (QL) and [2005] Q.J. 15934 (QL)).

  58. At the time of sentence, the respondent was 31 years old. This was his first prison sentence. He did, however, have a previous conviction for sexual assault, committed when he was 17. The facts relevant to his convictions in this case, and the details regarding the sentences imposed, are fully set out in the reasons of Justice LeBel.

  59. On an appeal by the respondent, the Court of Appeal reduced his sentence for sexual assault from 10 years to 6 (again, less 16 months on account of pre-sentence custody), and the sentence on the child pornography counts from 5 years to 3 years ([2006] R.J.Q. 1354, 2006 QCCA 735). The long-term offender finding and the 10-year supervision order were left undisturbed.

  60. The only issue in this Court is whether the majority in the Court of Appeal erred in finding that the custodial sentences were “unfit” within the meaning of s. 687 of the Criminal Code. And, in this regard, there is no dispute that a sentence will not be considered unfit if the trial judge, bearing in mind the relevant facts, applied the governing principles correctly and the sentence itself is neither manifestly inadequate nor manifestly excessive.

  61. A governing principle of particular relevance to this appeal is set out in s. 718.2(b) of the Criminal Code, which requires the sentencing court to take into consideration the principle that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. Reading the separate reasons of Nuss and Côté JJ.A. together, as one must, it may properly be said that the majority in the Court of Appeal reduced the respondent’s cumulative sentence from 15 years to 9 years on the ground that the trial judge failed to adequately consider this principle, resulting in a manifestly excessive sentence.

  62. It is true that Côté J.A. disagreed in her reasons with the trial judge’s finding that the maximum sentence for sexual assault was justified on the “worst offender, worst offence” criterion, but her conclusion ultimately rests on an extensive and detailed review of the sentences meted out in sexual assault cases involving child victims, and related cases of child pornography. She considered as well the range of sentences imposed for incest, which is punishable by 14 years’ imprisonment as opposed to 10 for sexual assault. Côté J.A. recognized that the respondent had not been charged with that offence but nonetheless found sentences for incest relevant, bearing in mind the facts of this case. Her conclusion that the sentences imposed by the trial judge were unfit rests, ultimately, on its disparity in relation to the other sentences she reviewed.

  63. In his separate reasons, moreover, Nuss J.A. made it clear that he did not adopt the observations of Côté J.A. regarding the “worst offender, worst offence” branch of the trial judge’s decision. I therefore think it right to conclude, as mentioned earlier, that the majority decision in the Court of Appeal rests essentially on the excessive severity of the impugned sentences in relation to the sentences imposed in reasonably similar cases. In my view, the court did not err in varying the sentence imposed by the trial judge for this reason. Nor did it err in finding that the respondent’s reprehensible conduct warranted a lengthy term of imprisonment – 9 years – followed by 10 years of supervision in the community.

  64. Parliament has now recognized in s. 718.2(b) of the Criminal Code that parity is a principle that trial judges must consider in determining a fit sentence. Failure to do so adequately thus amounts in itself to a reviewable error in principle: appellate intervention does not depend, in my respectful view, on the existence of an additional error in principle as well.

  65. I am aware, of course, that the disparity of an impugned sentence will only justify appellate intervention where the sentence imposed by the trial judge represents a substantial and marked departure from sentences customarily imposed on similar offenders for committing similar crimes: R. v M. (C.A.), [1996] 1 S.C.R. 500, at para. 92. Moreover, appellate scrutiny on a claim of disparity is subject to due regard for the need to individualize sentences. But where a substantial and marked departure has been made out – as the Court of Appeal found was the case here – the sentence may in my view be varied to bring it within the acceptable range: see R. v Shropshire, [1995] 4 S.C.R. 227, at para. 48.

  66. I need hardly add that taking into consideration the principle of parity “does not require the court to apply it without regard to the other principles of sentencing set out in the Code or in binding decisions of the courts”: R. v Larche, [2006] 2 S.C.R. 762, 2006 SCC 56, at para. 35.

  67. Finally, in fairness to the trial judge and to Justice Côté, I pause here to mention that, in the recent past “[i]t has often been remarked that .... maximum sentences ought to be reserved for the worst offender committing the worst type of offence” (per Lamer C.J., speaking for the Court in M. (C.A.) at para. 36). For the reasons given by Justice LeBel in this case, I agree that this criterion ought nonetheless to be abandoned.

    III

  68. A Court of Appeal cannot vary the sentence imposed at trial merely because it might have instead rendered a different sentence: Shropshire, at para. 46. On an appeal by the Crown, it will thus not suffice for the Court of Appeal to conclude that the impugned sentence is lenient; nor, on an appeal by the accused, to find that the sentence is severe. Rather, a sentence may be varied only if it is found to be too lenient or too severe – that is to say, “clearly excessive or inadequate”; and therefore unfit (Shropshire, at para. 48).

  69. In short, as mentioned at the outset, Courts of Appeal are indeed bound to recognize that trial courts enjoy a broad discretion in sentencing matters. But they are required to intervene where the sentence imposed at trial is shown to be unfit, within the meaning of the decided cases. And in reviewing their decisions on a recognized ground, we should remain mindful that provincial Courts of Appeal are endowed in sentencing matters with a supervisory jurisdiction that this Court is not meant to share. As Lamer C.J. put it in M. (C.A.), at para. 92: “Appellate courts .... serve an important function in reviewing and minimizing the disparity of sentences imposed by sentencing judges for similar offenders and similar offences committed throughout Canada.”

    IV

  70. For all of these reasons, with respect for those who see the matter differently, I would dismiss the appeal.

    A p p e n d i x

    Criminal Code, R.S.C. 1985, c. C‑46

    Code Criminel, L.R.C. 1985, ch. C‑46

    718.

    The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

    Le prononcé des peines a pour objectif essentiel de contribuer, parallèlement à d’autres initiatives de prévention du crime, au respect de la loi et au maintien d’une société juste, paisible et sûre par l’infliction de sanctions justes visant un ou plusieurs des objectifs suivants:

     

    (a)

    to denounce unlawful conduct;

    dénoncer le comportement illégal;

     

    (b)

    to deter the offender and other persons from committing offences;

    dissuader les délinquants, et quiconque, de commettre des infractions;

     

    (c)

    to separate offenders from society, where necessary;

    isoler, au besoin, les délinquants du reste de la société;

     

    (d)

    to assist in rehabilitating offenders;

    favoriser la réinsertion sociale des délinquants;

     

    (e)

    to provide reparations for harm done to victims or to the community; and

    assurer la réparation des torts causés aux victimes ou à la collectivité;

     

    (f)

    to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

    susciter la conscience de leurs responsabilités chez les délinquants, notamment par la reconnaissance du tort qu’ils ont causé aux victimes et à la collectivité.

    753.1

    (1)

    [Application for finding that an offender is a long‑term offender]

    The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long‑term offender if it is satisfied that

    [Demande de déclaration – délinquant à contrôler]

    Sur demande faite, en vertu de la présente partie, postérieurement au dépôt du rapport d’évaluation visé au paragraphe 752.1(2), le tribunal peut déclarer que le délinquant est un délinquant à contrôler, s’il est convaincu que les conditions suivantes sont réunies:

    (a)

    it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

    il y a lieu d’imposer au délinquant une peine minimale d’emprisonnement de deux ans pour l’infraction dont il a été déclaré coupable;

    (b)

    there is a substantial risk that the offender will reoffend; and

    celui‑ci présente un risque élevé de récidive;

    (c)

    there is a reasonable possibility of eventual control of the risk in the community.

    il existe une possibilité réelle que ce risque puisse être maîtrisé au sein de la collectivité.


Cases

R. v Cheddesingh, [2004] 1 S.C.R. 433, 2004 SCC 16; R. v P. (M.), [2005] Q.J. No. 78 (QL), 2005 QCCA 7; R. v Shropshire, [1995] 4 S.C.R. 227; R. v McDonnell, [1997] 1 S.C.R. 948; R. v M. (C.A.), [1996] 1 S.C.R. 500; R. v W. (G.), [1999] 3 S.C.R. 597; R. v Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46; R. v Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v Lyons, [1987] 2 S.C.R. 309; R. v Jones, [1994] 2 S.C.R. 229; Beaulieu v R., [2007] Q.J. No. 2116 (QL), 2007 QCCA 403; R. v Corneau, [2001] R.J.Q. 2509; R. v Ménard, [2002] Q.J. No. 5271 (QL); R. v M. (J.S.) (2003), 173 C.C.C. (3d) 75, 2003 BCCA 66; R. v Archer (2005), 193 C.C.C. (3d) 376; R. v Blair (2002), 167 B.C.A.C. 21, 2002 BCCA 205; R. v J.G.E.S., [2006] B.C.J. No. 3455 (QL), 2006 BCSC 2004; R. v Larche, [2006] 2 S.C.R. 762, 2006 SCC 56

Legislations

Criminal Code, R.S.C. 1985, c. C‑46: s.151, s.152, s.153, s.161, s.163, s.172, s.173, s.271, s.272, s.273, s.687, s.718, s.752, s.753, s.810

Authors and other references

Canada. Public Safety Canada. “Long term offender designation”, updated October 2006 (online: http://www. publicsafety.gc.ca/prg/cor/tls/lto‑eng.aspx).

Dadour, François. De la détermination de la peine: principes et applications. Markham, Ont.: LexisNexis, 2007.

Ferris, Thomas Wayne. Sentencing: Practical Approaches. Markham, Ont.: LexisNexis Butterworths, 2005.

Manson, Allan. The Law of Sentencing. Toronto: Irwin Law, 2001.

Ruby, Clayton C. Sentencing, 6th ed. Markham, Ont.: LexisNexis Butterworths, 2004.

Representations

Benoît Lauzon, Michel Pennou and Lori Renée Weitzman (m/s Poursuites criminelles et pénales du Québec, Montréal), for the appellant.

Yves Gratton (m/s Des Longchamps, Bourassa, Trudeau & LaFrance, Montréal), for the respondent.


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