R. v. L.M., (2008) 374 N.R. 351 (SCC)

JudgeMcLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
CourtSupreme Court (Canada)
Case DateMay 29, 2008
JurisdictionCanada (Federal)
Citations(2008), 374 N.R. 351 (SCC);2008 SCC 31;[2008] 2 SCR 163;293 DLR (4th) 1;231 CCC (3d) 310;56 CR (6th) 278;374 NR 351;AZ-50494138;EYB 2008-133843;JE 2008-1117;[2008] SCJ No 31 (QL);[2008] ACS no 31;77 WCB (2d) 463

R. v. L.M. (2008), 374 N.R. 351 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2008] N.R. TBEd. MY.022

Her Majesty The Queen (appellant) v. L.M. (respondent)

(31577; 2008 SCC 31; 2008 CSC 31)

Indexed As: R. v. L.M.

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

May 29, 2008.

Summary:

The accused was convicted of sexually assaulting his daughter and making child pornography. He had pleaded guilty to distributing and possessing child pornography. The trial judge sentenced the accused to the maximum sentence of 10 years' imprisonment for sexual assault and sentences of three, five and five years' imprisonment respectively for possessing, making and distributing child pornography. The pornography sentences were concurrent with each other, but consecutive to the sexual assault sentence, for a global sentence of 15 years' imprisonment. The accused was given 16 months' credit against the sexual assault sentence for pre-trial custody. In a separate judgment, the Crown's motion to have the accused designated a long-term offender was allowed and the maximum 10 year community supervision order was imposed, to commence upon his release. The accused appealed.

The Quebec Court of Appeal, Morin, J.A., dissenting, allowed the appeal. Côté, J.A., on the basis that this was not "the worst crime committed in the worst circumstances", reduced the sentence for sexual assault from 10 to six years' imprisonment. The sentences for making and distributing child pornography were reduced from five to three years' imprisonment. Accordingly, the global sentence was reduced from 15 to nine years' imprisonment, less 16 months' credit for pre-trial custody. Nuss, J.A., agreed with the sentence reduction, but expressed reservations about adopting the concept of "worst crime committed in the worst circumstances". The 10 year supervision order was upheld. The Crown appealed. The issues on appeal were: "(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?

The Supreme Court of Canada, Fish, J., dissenting, allowed the appeal and restored the sentences imposed at trial. The Court of Appeal failed to give proper deference to the sentencing judge, effectively reassessing the sentence without showing it to be clearly unreasonable.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 5801.1

Sentencing - General - Proportionality - [See Criminal Law - Topic 6577 ].

Criminal Law - Topic 5806.1

Sentencing - General - Sentence parity - General - The Supreme Court of Canada discussed the principle of sentence parity, which provided that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances" - Sentence parity was not to be given priority over a trial judge's exercise of discretion - The court stated that "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 ... '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'" - See paragraphs 34 to 36.

Criminal Law - Topic 5830

Sentencing - Considerations on imposing sentence - General - The Supreme Court of Canada stated that "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 ... 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.)" - See paragraph 17.

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5849.10

Sentencing - Considerations on imposing sentence - When maximum sentence available - The Supreme Court of Canada stated that "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 a result, maximum sentences become almost theoretical ... In R. v. Cheddesingh [SCC] 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. ... 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'" - See paragraphs 18 to 22.

Criminal Law - Topic 5874

Sentence - Manufacture, distribution or possession of obscene matter (incl. child pornography) - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - The 31 year old accused was convicted of sexually assaulting his daughter when she was between two and four years of age, and making child pornography - He previously pleaded guilty to distributing and possessing child pornography - The accused made money distributing pornography on the Internet, including pornography involving his daughter and a four year old friend - Police seized 5,300 pornographic pictures and 540 pornographic videos - The accused had a prior conviction for sexually assaulting a six year old girl - The trial judge sentenced the accused to the maximum sentence of 10 years' imprisonment for sexual assault and sentences of three, five and five years' imprisonment respectively for possessing, making and distributing child pornography -  The pornography sentences were concurrent with each other, but consecutive to the sexual assault sentence, for a global sentence of 15 years' imprisonment - The trial judge noted the record for similar acts, the frequency and impact of the acts, the parental breach of trust, the quantity of pornographic materials, the central role of the accused in supplying the distribution network, the age of the children, the nature of the scenes depicted and the medium used to distribute the pornography - The only mitigating factor was the accused's recent acknowledgment of his sexual deviancy, even though there was some question as to his sincerity - Given the high reprehensibility and seriousness of the acts and the accused's moral blameworthiness, the judge determined that the maximum sentence for sexual assault was warranted - The Supreme Court of Canada held that the Court of Appeal erred in reducing the sentence for sexual assault to six years' imprisonment and the sentences for making and distributing child pornography to three years' imprisonment (reduced global sentence of nine years' imprisonment) - The trial judge's sentence was not unreasonable and the Court of Appeal erred in varying it - The maximum sentence was not reserved for the hypothetical worst crime committed in the worst circumstances - The maximum sentence for this accused was proportionate to the  gravity of the offence and the degree of responsibility of the offender - See paragraphs 24 to 37.

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - The Supreme Court of Canada stated that "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' ... '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.' ... 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" - In the case at bar, the court held that the Court of Appeal failed to give proper deference to the sentencing judge, effectively reassessing the sentence without showing it to be clearly unreasonable - See paragraphs 14 to 16.

Criminal Law - Topic 6577

Dangerous or long-term offenders - Detention - Sentencing - Community or long-term supervision order - The Supreme Court of Canada stated that where an accused was convicted of an offence and subsequently found, before sentencing, to be a long-term offender, the sentencing judge could not take into account the period of community supervision imposed in determining the appropriate the length of the accused's incarceration - The court stated that "a distinction must be made between sentencing per se and the procedure for imposing a period of post-sentence supervision" - The principle of proportionality did not apply to the combined effect of the period of community supervision and the sentence of imprisonment - Such a general rule would disregard the distinction between the sentence of imprisonment and the period of community supervision, which had different objectives - The principle objective of a sentence was punishment - The objective of a community supervision order was the supervision of an accused in the community to ensure that the accused did not re-offend and to protect the public during a period of supervised reintegration into society - See paragraphs 38 to 50.

Cases Noticed:

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 14].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 14].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 14].

R. v. G.W., [1999] 3 S.C.R. 597; 247 N.R. 135; 181 Nfld. & P.E.I.R. 139; 550 A.P.R. 139, refd to. [para. 14].

R. v. Johnson (J.J.), [2003] 2 S.C.R. 357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161; 2003 SCC 46, refd to. [para. 17].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 17].

R. v. Cheddesingh (D.M.), [2004] 1 S.C.R. 433; 319 N.R. 94; 186 O.A.C. 184; 2004 SCC 16, refd to. [para. 20].

R. v. M.P., [2005] Q.J. No. 78; 2005 QCCA 7, dist. [para. 37].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 39].

R. v. Jones (S.), [1994] 2 S.C.R. 229; 166 N.R. 321; 43 B.C.A.C. 241; 69 W.A.C. 241, refd to. [para. 39].

R. v. Beaulieu, [2007] Q.J. No. 2116; 2007 QCCA 403, refd to. [para. 40].

R. v. Corneau, [2001] R.J.Q. 2509 (C.A.), refd to. [para. 40].

R. v. Ménard, [2002] Q.J. No. 5271 (C.A.), refd to. [para. 40].

R. v. Muir (J.S.) (2003), 177 B.C.A.C. 246; 291 W.A.C. 246; 173 C.C.C.(3d) 75; 2003 BCCA 66, refd to. [para. 40].

R. v. Archer (D.C.) (2005), 193 O.A.C. 344; 193 C.C.C.(3d) 376 (C.A.), refd to. [para. 43].

R. v. Blair (C.M.) (2002), 167 B.C.A.C. 21; 274 W.A.C. 21; 2002 BCCA 205, refd to. [para. 46].

R. v. J.G.E.S., [2006] B.C.T.C. 2004; 2006 BCSC 2004, refd to. [para. 46].

R. v. Larche (J.-P.), [2006] 2 S.C.R. 762; 355 N.R. 48; 2006 SCC 56, refd to. [para. 66].

Authors and Works Noticed:

Canada, Public Safety Canada, Long term offender designation (October 2006 Update), online: http://www.publicsafety.gc. ca/prg/cor/tls/lto-eng.aspx, generally [para. 39].

Dadour, Franུois, De la détermination de la peine: principes et applications (2007), pp. 17 [para. 22]; 18 [para. 36];  228 [para. 42];

298 [para. 14].

Ferris, Thomas Wayne, Sentencing: Practical Approaches (2005), pp. 292 [para. 18]; 301 to 303 [para. 41].

Manson, Allan, The Law of Sentencing (2001), pp. 86 [para. 22]; 359 [para. 14].

Ruby, Clayton C., Sentencing (6th Ed. 2004), p. 541 [para. 41].

Counsel:

Benoཾt Lauzon, Michel Pennou and Lori Renée Weitzman, for the appellant;

Yves Gratton, for the respondent.

Solicitors of Record:

Poursuites criminelles et pénales du Québec, Montreal, Que., for the appellant;

Des Longchamps, Bourassa, Trudeau & LaFrance, Montreal, Que., for the respondent.

This appeal was heard on November 14, 2007, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada.

On May 29, 2008, the judgment of the Court was delivered in both official languages and the following opinions were filed:

LeBel, J. (McLachlin, C.J.C., Bastarache, Binnie, Deschamps, Abella, Charron and Rothstein, JJ., concurring) - see paragraphs 1 to 54;

Fish, J., dissenting - see paragraphs 55 to 70.

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