R. v. R.A.R., [2000] 1 S.C.R. 163
Her Majesty The Queen Appellant
v.
R.A.R. Respondent
and
The Attorney General of Canada and
the Attorney General for Ontario Interveners
Indexed as: R. v. R.A.R.
Neutral citation: 2000 SCC 8.
File No.: 26377.
1999: May 25, 26; 2000: January 31.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory,* McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for manitoba
Criminal law -- Sentencing -- Conditional sentences -- Accused convicted of one count of sexual assault and two counts of common assault -- Sentencing provisions and relevant facts changing after trial but prior to sentence appeal -- Whether Court of Appeal erred in substituting conditional sentence for jail term -- Review of sentence imposed by Court of Appeal -- Criminal Code, R.S.C., 1985, c. C-46, s. 718.2.
Criminal law -- Sentencing -- Legislative amendments -- Accused convicted of one count of sexual assault and two counts of common assault -- Sentencing provisions changing after trial but prior to sentence appeal -- Whether accused entitled to benefit from new sentencing provisions -- Interpretation Act, R.S.C., 1985, c. I-21, s. 44(e).
The accused was convicted of one count of sexual assault and two counts of assault committed against a former employee. He was sentenced to one year of incarceration followed by three years of supervised probation for the count of sexual assault and to fines for the two counts of assault. He appealed the convictions and the sentences. After trial but prior to the appeal, amendments to the sentencing provisions in the Criminal Code came into force and the conditional sentence became an option for offenders sentenced to less than two years of imprisonment. In addition to this change in the law, shortly before the appeal, a different panel of the Manitoba Court of Appeal quashed two prior convictions of the accused for sexual assault.
The Court of Appeal upheld the convictions on the three counts. However, it found that the accused was entitled to the benefit of the new sentencing provisions. Given the changes in the law and the relevant facts, the Court of Appeal considered that in a real sense, this was an appeal de novo. It allowed the sentence appeal and imposed a nine-month global sentence made up of six months for the sexual assault, two months for the first common assault, and one month for the second common assault to be served consecutively in the community.
Held (Lamer C.J. and Iacobucci J. dissenting): The appeal should be allowed.
Per L’Heureux-Dubé, Gonthier, McLachlin, Major, Bastarache and Binnie JJ.: The Court of Appeal was correct in holding that the accused was entitled to the benefit of the conditional sentencing regime on appeal. The court erred, however, in imposing the six-month conditional sentence for the sexual assault. The sentence was unfit in light of the gravity of the offences committed and the accused’s moral blameworthiness given his abuse of a position of authority. This aggravating factor, combined with the demeaning and violent nature of the assaults, make the punitive objectives of denunciation and deterrence particularly pressing in this case. The Court of Appeal erred in failing to give significant weight to these objectives and in imposing a short conditional sentence, where a sentence of incarceration was the preferable sanction. Accordingly, the one-year sentence of incarceration for the sexual assault imposed by the trial judge is restored, to be followed by a three-month conditional sentence for the common assaults and three years probation imposed by the trial judge for the sexual assault. The service of the sentences should be stayed, however, as the offender has now served his nine-month conditional sentence in full.
Per Lamer C.J. and Iacobucci J. (dissenting): The Court of Appeal was correct in holding that the accused was entitled to the benefit of the conditional sentencing regime on appeal. The accused is entitled to the benefit of any amendments to sentencing provisions in force at the time of the appeal that provide for a lesser penalty. Since a conditional sentence is less restrictive of liberty than incarceration, it constitutes a mitigation of punishment within the meaning of s. 44(e) of the Interpretation Act.
Sentencing decisions of courts of appeal are entitled to some deference from this Court. The degree of deference to be given appellate courts is an issue that will arise only in exceptional cases, given that this Court rarely hears appeals relating to sentences. Accordingly, although the sentence imposed by the Court of Appeal appears to be somewhat lenient, it should not be interfered with given the Court of Appeal’s careful analysis of the relevant sentencing principles and review of the evidence.
Cases Cited
By L’Heureux-Dubé J.
Applied: R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v. Dunn, [1995] 1 S.C.R. 226; referred to: R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. Boudreau, [1996] N.W.T.J. No. 107 (QL); R. v. Audet, [1996] 2 S.C.R. 171; Janzen v. Platy Entreprises Ltd., [1989] 1 S.C.R. 1252; R. v. R.N.S., [2000] 1 S.C.R. 149, 2000 SCC 7.
By Lamer C.J. (dissenting)
R. v. Dunn, [1995] 1 S.C.R. 226; R. v. Proulx, [2000] 1 S.C.R. 132, 2000 SCC 5; R. v. L.F.W., [2000] 1 S.C.R. 149, 2000 SCC 6; R. v. R.N.S., [2000] 1 S.C.R. 000, 2000 SCC 7; R. v. Bunn, [2000] 1 S.C.R. 183, 2000 SCC 9; R. v. M. (C.A.), [1996] 1 S.C.R. 500.
Statutes and Regulations Cited
An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22.
Criminal Code, R.S.C., 1985, c. C-46, Part XXIII [repl. 1995, c. 22, s. 6], ss. 718, 718.1, 718.2 [am. 1997, c. 23, s. 17], 742.1(a), (b) [repl. 1997, c. 18, s. 107.1].
Criminal Law Improvement Act, 1996, S.C. 1997, c. 18, s. 107.1.
Interpretation Act, R.S.C., 1985, c. I-21, s. 44(e).
Authors Cited
Marshall, Patricia. “Sexual Assault, the Charter and Sentencing Reform” (1988), 63 C.R. (3d) 216.
APPEAL from a judgment of the Manitoba Court of Appeal (1997), 125 C.C.C. (3d) 558, 123 Man. R. (2d) 91, 159 W.A.C. 91, [1998] 2 W.W.R. 707, [1997] M.J. No. 539 (QL), allowing the accused’s appeal from a sentence of one year of imprisonment followed by three years of probation, and fines imposed by Schwartz J. Appeal allowed, Lamer C.J. and Iacobucci J. dissenting.
Matthew Britton, for the appellant.
James E. McLandress, for the respondent.
S. Ronald Fainstein, Q.C., for the intervener the Attorney General of Canada.
Kenneth L. Campbell and Gregory J. Tweney, for the intervener the Attorney General for Ontario.
The reasons of Lamer C.J. and Iacobucci J. were delivered by
1 The Chief Justice (dissenting) -- This is a Crown appeal from a decision of the Manitoba Court of Appeal substituting a conditional sentence for the jail term imposed by the sentencing judge. This case was heard together with the appeals in R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v. L.F.W., [2000] 1 S.C.R. 132, 2000 SCC 6; R. v. R.N.S., [2000] 1 S.C.R. 149, 2000 SCC 7, and R. v. Bunn, [2000] 1 S.C.R. 183, 2000 SCC 9. At issue in all of these appeals are the principles governing the pronouncement of conditional sentences in the new legislative scheme. These reasons are concerned primarily with the application of the principles set out in Proulx, supra. In addition, this case raises questions about the effects of changes in the law and in the facts between the pronouncement of the sentence by the trial judge and the hearing of the appeal.
I. Factual Background
2 The respondent was convicted on May 2, 1996, of one count of sexual assault and two counts of assault committed against a former employee in her early twenties, who worked on his farm. I will rely on the Court of Appeal’s statement of facts ((1997), 123 Man. R. (2d) 91, at p. 96) which was endorsed by the parties in their written submissions before this Court:
In November of 1990, the [respondent] was harnessing a horse in his barn when he cornered the complainant, placed his hands inside her pants and pulled her pubic hair. He then directed her into a box stall where he ordered her to lie down on the straw. He then proceeded to take off her pants and inserted his finger in her vagina, told her not to tell anyone and departed for breakfast.
The second incident occurred in February of 1991 in the barn when the complainant was putting a halter on a horse. The [respondent] pulled on the halter so that she stumbled and fell. He placed one arm around her neck and put a finger up each of her nostrils and pulled quite hard causing her nose to bleed.
The third assault occurred in the summer of 1991, when the [respondent] came into the garden where the complainant was working, telling her it was time to eat. He then grabbed her from behind by her wrists, had his two sons and a friend grab her feet and carry her to the house. When she struggled, the boys let go of her feet but the [respondent] dragged her by her wrists across a gravel driveway. During this incident, he told the [complainant] that she was fat and he laughed. He also told her that she had to go to eat when he told her.
3 The respondent was sentenced in June 1996 to one year of incarceration for the count of sexual assault and to fines for the two counts of assault. The respondent appealed the convictions and the sentences. After trial but prior to the appeal, the amendments to Part XXIII of the Criminal Code, R.S.C., 1985, c. C-46 (An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 (“Bill C-41”)), came into force.
II. Relevant Statutory Provisions
4 Criminal Code, R.S.C., 1985, c. 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:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or child,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, or
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court
(a) imposes a sentence of imprisonment of less than two years, and
(b) is satisfied that serving 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 complying with the conditions of a conditional sentence order made under section 742.3.
III. Judgments Below
A. Manitoba Court of Queen’s Bench (Reasons for Sentence), C.R. 94-03-0028, June 6, 1996
5 The respondent was sentenced on June 6, 1996. At the time of sentencing, Bill C-41 was not yet in force. Accordingly, Schwartz J., the sentencing judge, did not have the option of imposing a conditional sentence.
6 Schwartz J. began by noting that the case had attracted a considerable amount of interest because of the high visibility of the respondent in his local community and the horse-racing community. He stated that the respondent was a valued and involved member of the community in which he resided. The respondent had a sound marriage and was a successful entrepreneur. In considering the appropriate sentence, Schwartz J. reviewed the various principles of sentencing. He found that in this case, the elements of general deterrence and denunciation seemed to be more important than the others. He was satisfied that the respondent would likely never re-offend, and that he was rehabilitated. If that were the only concern, he would not have been sent to prison. In order to deter others and to show the rest of the community that the respondent’s conduct was reprehensible, however, he found that a prison sentence was required. On the sexual assault count, Schwartz J. imposed a sentence of one year’s incarceration to be served consecutively to a term to which the respondent had already been sentenced for a prior conviction on two counts of sexual assault. The term of imprisonment was to be followed by three years of supervised probation. On the assault charges, the respondent was sentenced to pay fines of $10,000 and $2,000, and in default thereof, to serve one year and three months in jail respectively.
B. Manitoba Court of Appeal (1997), 123 Man. R. (2d) 91
7 The respondent appealed the convictions and the sentences. The convictions on the three counts were upheld by the Court of Appeal.
8 Prior to the hearing of the appeal, Bill C-41 came into force. The conditional sentence was now an option for offenders sentenced to less than two years of imprisonment. In addition to this change in the law, there was also a change in the relevant facts. At the time of the original sentencing, the respondent had just been convicted on two other counts of sexual assault in an unrelated case, for which two 10-month concurrent sentences of incarceration had been imposed. Shortly before the appeal, a different panel of the Manitoba Court of Appeal quashed these convictions: (1997), 118 Man. R. (2d) 37. In addition, by the time the appeal in this case was heard, the respondent had paid $10,000 to the complainant pursuant to a Manitoba Human Rights Board settlement.
9 The Court of Appeal found that the respondent was entitled to the benefit of the new sentencing provisions which came into force after his original sentencing. Given changes in both the law and the relevant facts, the Court of Appeal considered that in a real sense, this was an appeal de novo.
10 The court reviewed the various decisions under the conditional sentencing regime, and concluded that because of the confusion surrounding the provisions, they had been applied inconsistently. According to the Court of Appeal, the further amendment to s. 742.1(b) (Criminal Law Improvement Act, 1996, S.C. 1997, c. 18, s. 107.1), which came into force on May 2, 1997, appeared to clarify that judges should consider the principles of sentencing twice: first when determining if and for how long incarceration was required, and then again when determining whether that sentence should be served in the community. The court noted that notwithstanding the amendment, the main thrust of the legislation as a whole remained the crafting of sentences that treat imprisonment as a last resort, and that no offenders or offences were automatically precluded from the benefits of the new conditional sentencing regime, provided they met the benchmark of time and non-danger to the community.
11 In this case, the court felt that the respondent was a good candidate for a conditional sentence. He was unlikely to re-offend, and rehabilitation was not an issue. Most importantly, denunciation and deterrence would be effectively achieved if he were forced to live in his own small community, conspicuously confined by strict limitations as to his movement and endeavours. The only reason to put the respondent in prison would be to seek revenge or retribution for the totally unacceptable manner in which he treated his young and vulnerable employee. Nothing in the evidence suggested that the respondent was likely to be a danger to his community. In so finding, the court kept in mind all of the principles of sentencing set out in the Criminal Code, including the principle that an offender should not be deprived of his liberty if less restrictive sanctions are appropriate. The court concluded that the shame, the loss of respect, and the condemnation of the community, as well as the strict conditions to which the respondent would be subject, would be sufficient to forcefully impress upon him that his conduct was totally unacceptable and that there was a need for immediate and drastic change.
12 The court allowed the sentence appeal and imposed a nine-month global sentence made up of six months for the sexual assault, two months for the first common assault, and one month for the second common assault, to be served consecutively. The court found that this case warranted the application of s. 742.1 and therefore ordered the respondent to serve his sentence in the community. In addition to the mandatory conditions, the court ordered that the respondent complete 100 hours of community service within the first six months, that he complete a sexual offender course chosen by his supervisor, and that he be confined to his farm property at all times, subject to limited exceptions.
IV. Issue
13 At issue in this appeal is whether the Court of Appeal erred in substituting a conditional sentence for the jail term imposed by the trial judge.
V. Analysis
A. Benefit of the Conditional Sentencing Regime on Appeal
14 The Court of Appeal was correct in holding that the respondent was entitled to the benefit of the conditional sentencing regime on appeal. I rely on s. 44(e) of the Interpretation Act, R.S.C., 1985, c. I-21, which provides that:
44. Where an enactment, in this section called the “former enactment”, is repealed and another enactment, in this section called the “new enactment”, is substituted therefor,
. . .
(e) when any punishment, penalty or forfeiture is reduced or mitigated by the new enactment, the punishment, penalty or forfeiture if imposed or adjudged after the repeal shall be reduced or mitigated accordingly;
15 As my colleague Major J. held in R. v. Dunn, [1995] 1 S.C.R. 226, at para. 27:
I conclude that s. 44(e) of the Interpretation Act resolves the question raised by this appeal. Where an amendment to a sentencing provision has been passed after the conviction and sentence by the trial judge, but before the appeal has been “decided”, the offender is entitled to the benefit of the lesser penalty or punishment.
The same reasoning applies here. The respondent is entitled to the benefit of any amendments to sentencing provisions in force at the time of the appeal that provide for a lesser penalty, or, in the language of s. 44(e), a reduction or mitigation of punishment.
16 At trial, the respondent was sentenced to a term of imprisonment of one year. Pursuant to s. 742.1(a), a conditional sentence is now an option in circumstances where a sentence of imprisonment of less than two years is imposed, provided the other statutory prerequisites are met. Had the conditional sentencing regime and the additional sentencing provisions in Bill C-41 been in force at the time of sentencing, the trial judge would have given the possibility of a conditional sentence some consideration. This follows from s. 718.2(e) which provides that a court should consider all alternatives to incarceration that are reasonable in the circumstances. Since a conditional sentence is less restrictive of liberty than incarceration, it constitutes a mitigation of punishment within the meaning of s. 44(e) of the Interpretation Act. Accordingly, the respondent should be entitled to the benefit of the conditional sentencing regime on appeal.
B. Review of Sentence Imposed by Court of Appeal
17 As a result of the intervening changes to both the applicable law and the relevant facts between trial and appeal, the Court of Appeal re-sentenced the respondent, as it was entitled to. This raises the issue of what standard of review this Court should apply to the sentence imposed by the Court of Appeal.
18 In Proulx, supra, the Court considered the standard of appellate review applicable to sentences imposed by trial judges. The Court reaffirmed its holding in R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 90, that
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.
19 As explained in M. (C.A.), supra, at para. 91, this deferential standard of review has “profound functional justifications”. Two of the justifications set out in M. (C.A.) are that sentencing judges, serving on the front lines of the criminal justice system, generally have more day-to-day experience in sentencing matters than many appellate court judges. Second, and more importantly, the sentencing judge will generally have a better knowledge of the community in which the offences occurred and is therefore in a better position to craft an appropriate sentence.
20 In light of the foregoing, it is my view that a sentence imposed by a court of appeal is not entitled to the same level of deference as that imposed by a sentencing judge. However, this is not to say that such a sentence is entitled to no deference whatsoever. Provincial appellate courts deal with appeals from sentence more frequently than this Court, which, as noted in Proulx, supra, at para. 2, rarely hears such appeals. And while a court of appeal is generally further removed from the community in which the offences occurred than a sentencing judge, it will almost invariably be closer to the community than this Court.
21 Therefore, I am of the opinion that sentencing decisions of courts of appeal are entitled to some deference from this Court. I hasten to add that the degree of deference to be given appellate courts is an issue that will arise only in exceptional cases, given that this Court rarely hears appeals relating to sentences.
C. Application of the Principles Set Out in Proulx to the Case at Hand
22 I would not interfere with the sentence imposed by the Court of Appeal. I say this despite the fact that the Court of Appeal seems to have adopted a rigid two-step approach, in deviation from the approach set down in Proulx, supra. In reaching its decision, the Court of Appeal carefully considered the evidentiary record, noting that since the original sentencing, the respondent’s previous sexual assault convictions had been quashed and he had paid $10,000 to the complainant pursuant to a Manitoba Human Rights Board settlement. The court concluded that the safety of the community would not be endangered by the respondent’s presence there, as the respondent was unlikely to re-offend and his rehabilitation was not an issue. It considered the application of the principle of restraint in the use of incarceration and addressed the relevant objectives of sentencing. It found that the shame, the loss of respect, the condemnation of his community which the respondent has brought upon himself, together with the strict conditions to which he would be subject pursuant to his sentence would sufficiently vindicate objectives such as denunciation and deterrence. The Court of Appeal acknowledged the demeaning conduct of the respondent towards his employee, but decided that this did not constitute an absolute bar to a conditional sentence in the circumstances. It imposed a nine-month sentence with stringent conditions such as house arrest, community work and treatment for sexual offenders (to be chosen by the respondent’s supervisor). Although this sentence appears to be somewhat lenient and, had I been the sentencing judge, I might have imposed a longer conditional sentence or a term of incarceration, I am reluctant to substitute my opinion for that of the Court of Appeal for the reasons set out at paras. 20 and 21.
VI. Disposition
23 Given the Court of Appeal’s careful analysis of the relevant sentencing principles and review of the evidence, I do not feel that I can interfere. I would dismiss the appeal.
The judgment of L’Heureux-Dubé, Gonthier, McLachlin, Major, Bastarache and Binnie JJ. was delivered by
24 L’Heureux-Dubé J. -- This appeal turns on whether the Court of Appeal erred in sentencing the respondent, who was the complainant’s employer, to a global nine-month conditional sentence for one count of sexual assault and two counts of common assault. Specifically, the sentence comprised: six months for the sexual assault, and two months and one month for the respective counts of common assault. With respect, I find that the Court of Appeal erred in imposing the six-month conditional sentence for the sexual assault. In doing so, it substituted a short conditional sentence for the one-year sentence of incarceration imposed at trial. Based on the sentencing principles set out in the companion appeal of R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, I find that the Court of Appeal’s sentence was unfit in light of the gravity of the offences committed and the respondent’s moral blameworthiness given his abuse of a position of authority.
25 I adopt the statement of facts and the judgments below set out by the Chief Justice and I agree with the law on the principles of sentencing as set out in Proulx, supra. In addition, I recognize that the respondent was entitled to the benefit of the new sentencing provisions enacted in Bill C-41 (now S.C. 1995, c. 22) in light of the majority’s decision in R. v. Dunn, [1995] 1 S.C.R. 226.
26 While the Court of Appeal was entitled to review the respondent’s sentence, it ought to have recognized that the trial judge’s finding that the fit and proper sentence for the sexual assault under the old provisions – one year’s incarceration plus three years’ probation – was a relevant reflection of the gravity of the acts in question and the need for denunciation and general deterrence in this case. (On the gravity of sexual assault as an offence and its pervasiveness in Canadian society more generally, see: R. v. Osolin, [1993] 4 S.C.R. 595, at p. 669; R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 68 to 75, per L’Heureux-Dubé J.; on problems relating to sentencing in sexual assault cases, see: P. Marshall, “Sexual Assault, the Charter and Sentencing Reform” (1988), 63 C.R. (3d) 216.)
27 The Court of Appeal substituted a six-month conditional sentence for the one-year sentence of incarceration imposed at trial, thereby imposing a significantly more lenient sentence (see Proulx, supra, at para. 44). In my opinion, this showed a serious disregard for the need to give significant weight to denunciation and deterrence in cases such as this one.
28 The court suggested that, in this case, these objectives could be “effectively achieved if this prominent [respondent] is forced to live in his own small community, conspicuously confined by strict limitations as to his movement and his endeavours” ((1997), 123 Man. R. (2d) 91, at p. 99). In my opinion, while service of the sentence in the community and house arrest might well achieve an appropriate measure of denunciation and deterrence in some circumstances, it did not send a sufficiently strong message in this case.
29 Schwartz J. recognized that there was little or no risk of re-offence and that with the support of family and friends, the offender would rehabilitate himself. Nevertheless, the record also shows that the trial judge was aware that many members of the respondent’s community supported him and tended to deny that the respondent could have committed the offence of which he was convicted. Taking into account these factors, he emphasized that in light of the gravity of the sexual assault and other assaults committed, the court needed to send the message to the community that this type of conduct was reprehensible and would not be tolerated. In his view, this meant that the objectives of denunciation and general deterrence were more important than the objective of rehabilitation in this case. In fact, he viewed the one-year sentence requested by the Crown for the sexual assault conviction as being at the “low end of the scale” and stated:
The Court, on behalf of the community, denounces [conduct such as sexual assault] in fixing the sentence. The more worthy of denunciation, the higher the sentence to show that the community will not accept that type of conduct by its members.
(Man. Q.B., C.R. 94-03-0028, June 6, 1996, at p. 4 (transcript).)
30 The changes in the sentencing regime brought about by Bill C-41 entitled the Court of Appeal to re-weigh the objectives of denunciation, deterrence and rehabilitation in light of the new emphasis on restorative objectives. They also entitled the court to consider the possibility of imposing a conditional sentence. Although the Court of Appeal made no finding that the respondent showed voluntary signs of remorse or acknowledged responsibility for his acts, it did note that since the imposition of the original sentence, he had made a payment of $10,000 to the complainant pursuant to a settlement of the complainant’s proceedings before the Manitoba Human Rights Commission relating to the same incidents. This weighed in favour of restorative objectives and therefore of a conditional sentence. (See s.. 718(f) of the Criminal Code, R.S.C., 1985, c. C-46, and Proulx, supra, at para. 113.) In my view, however, this factor was not so important as to outweigh the need for a one-year sentence of incarceration in order to provide sufficient denunciation and deterrence, as found by the trial judge.
31 I am mindful of the fact that the respondent’s prior convictions for sexual assault in two separate cases had been quashed by the Court of Appeal before it heard the appeal in this case. This removed one of the aggravating factors the trial judge weighed in his sentencing decision. However, I note that there were several other aggravating factors which remained, including: the abuse of a position of authority by an employer against his employee (see s. 718.2(a)(iii) of the Criminal Code); the violent and demeaning nature of the acts committed; the naïveté and vulnerability of the complainant; and the harm done to her career and family life. In my opinion, these remaining aggravating factors were sufficient to militate against the short conditional sentence imposed by the Court of Appeal.
32 The Court of Appeal erred in failing to take sufficient account of the key aggravating factor in this case: the offender’s abuse of his position of authority by assaulting the complainant in the workplace. (For an appropriate recognition of similar conduct as an aggravating factor, see: R. v. Boudreau, [1996] N.W.T.J. No. 107 (QL) (S.C.), at para. 18; for a general discussion of the meaning of “position of authority” and “position of trust”, see: R. v. Audet, [1996] 2 S.C.R. 171, at paras. 33-45; for recognition of the relationship of power and authority between employer and employee in the context of sexual harassment, see: Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, at p. 1281.)
33 In Proulx, supra, at para. 114, this Court stated:
Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence.
The respondent’s abuse of his position of authority, combined with the demeaning and violent nature of the assaults, make the punitive objectives of denunciation and deterrence particularly pressing in this case. The Court of Appeal therefore erred in imposing a short conditional sentence, where a sentence of incarceration was the preferable sanction.
34 For these reasons, I find that a six-month conditional sentence for the sexual assault was unfit in the circumstances of this case. As was the case in R. v. R.N.S., [2000] 1 S.C.R. 149, 2000 SCC 7, the Crown conceded in oral argument that it was not seeking further punishment now that the respondent has served his conditional sentence in full. Thus, I do not have to decide whether a longer conditional sentence with more stringent conditions might also have satisfied the new sentencing principles, as this would have no practical effect for this respondent. With respect to the common assaults, the Crown conceded on appeal that the fines imposed at trial were not appropriate. I would therefore defer to the Court of Appeal’s finding that conditional sentences of two months and one month respectively were appropriate for the common assaults.
35 I would therefore allow the appeal, set aside the six-month conditional sentence imposed by the Court of Appeal for the sexual assault, and restore the one-year sentence of incarceration imposed by Schwartz J. for this offence, to be followed by a three-month conditional sentence for the common assaults and three years’ probation imposed by the trial judge for the sexual assault. I would nevertheless stay the service of the sentences in this case, based on the Crown’s concessions in oral argument before this Court.
Appeal allowed, Lamer C.J. and Iacobucci J. dissenting.
Solicitor for the appellant: Manitoba Justice, Winnipeg.
Solicitors for the respondent: Taylor, McCaffrey, Winnipeg.
Solicitor for the intervener the Attorney General of Canada: The Deputy Attorney General of Canada, Ottawa.
Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.