In criminal matters, sentencing ranges are established to indicate the maximum and minimum sentences that have been imposed for a particular crime. Such ranges act as guidelines for the sentencing judge and may provide a sense of certainty for the convicted. However, in R. v. Lacasse, the Supreme Court of Canada held that the Quebec Court of Appeal erred in reversing a sentence imposed on the Respondent, Mr. Lacasse, for deviating from the sentencing range for impaired driving causing death.
The case is noteworthy for the Court’s discussion on the standard for appellate intervention on sentencing appeals and the relevance of sentencing ranges.
Mr. Lacasse was driving under the influence of alcohol when he lost control of his vehicle and careened into a ditch. Two of his passengers died immediately upon impact. The incident was entirely Mr. Lacasse’s responsibility, and he plead guilty to two counts of impaired driving causing death. The only issue before the Court of Quebec was to determine the appropriate sentence.
The Court of Quebec
In Quebec, sentences for impaired driving causing death are generally divided into three categories:
(1) lenient sentences between 18 months to three years’ imprisonment where the predominant factors weigh in favour of the accused;
(2) harsh sentences between three and six years’ imprisonment where the factors of deterrence and denunciation outweigh the personal factors of the case; and
(3) very harsh sentences between six and nine years’ imprisonment where personal factors are unfavourable to the accused, with even more severe sentences possible “when circumstances approach the worst-case situations”.
Mr. Lacasse requested a sentence of no more than three years’ imprisonment, which would have fallen within the lenient category. In contrast, the Crown asked for a sentence of six to eight years’ imprisonment, followed by a seven-year driving ban: Well within the “very harsh” category.
After reviewing each parties’ submissions, the Sentencing Judge found that the aggravating factors outweighed the mitigating and sentenced Mr. Lacasse to six years and six months’ imprisonment on each count of impaired driving causing death, to be served concurrently. The Sentencing Judge also prohibited Mr. Lacasse from operating a vehicle for a period of 11 years starting from the sentencing date.
The Quebec Court of Appeal
The Quebec Court of Appeal reduced Mr. Lacasse’s sentence to four years’ imprisonment and reduced the length of his driving prohibition to four years commencing at the end of his incarceration.
The Court of Appeal’s decision primarily rested on its conclusion that the Sentencing Judge had deviated from the sentencing ranges established by courts for impaired driving offences. It noted that the Sentencing Judge had imposed a sentence at the lower end of “very harsh” category, but that the unfavourable personal factors which would normally explain a move from the “harsh” to “very harsh” categories simply were not present. The Court of Appeal also noted that the Sentencing Judge should have given greater consideration to Mr. Lacasse’s potential for rehabilitation and placed less emphasis on making an example of him.
The Supreme Court’s Decision
On appeal to the Supreme Court, the Majority overturned the Quebec Court of Appeal’s decision and restored the sentence imposed by the Sentencing Judge.
Standard for Intervention on an Appeal from a Sentence
Justice Wagner, for the Majority, and Justice Gascon, for the Minority, agreed that the standard for intervention on a sentencing appeal is high:
“…a sentence [can] only be interfered with if it [is] ‘demonstrably unfit’ or if it reflect[s] an error in principle, the failure to consider a relevant factor, or the over-emphasis of a relevant factor.” (R. v. Nasogaluak, 2010 SCC 6 at 46, quoted by Justice Gascon at 136 and referred to by Justice Wagner at 39).
However, the Justices disagreed on the proper application of that standard.
For the Minority, Justice Gascon read Nasogaluak as establishing two alternative considerations justifying appellate intervention: If a party can establish that the sentencing judge erred in principle, failed to consider a relevant factor, or over-emphasized a relevant factor, a court of appeal may intervene in the sentence without the party further needing to establish that the sentence was “demonstrably unfit”. In that same vein, an appellate court may intervene in a demonstrably unfit sentence even if the sentencing judge did not err in his reasoning.
On this approach, Justice Gascon held that where a reviewable error is shown in the sentencing judge’s reasoning, it will be appropriate for an appellate court to intervene and, at that point, assess the fitness of the sentence on its own accord. Such an error does not necessarily mean that the court will vary the sentence, but it “opens the door to intervention and permits an appellate court to reopen the sentencing analysis.” (at 139).
The Majority took a markedly different approach to the standard of intervention. For Justice Wagner, allowing appellate intervention simply on the showing of an error in reasoning without further establishing that the error affected the sentence itself risked undermining the discretion afforded sentencing judges. Rather, Justice Wagner held that:
“an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impact on the sentence” (at 44).
As such, a mere showing that the sentencing judge erred in his reasoning is insufficient to open the doors to full appellate review, without further proof that the error affected the sentence itself.
Despite their different approaches to the standard for appellate intervention, Justices Wagner and Gascon each agreed that sentencing ranges are merely guidelines and that a judge will not have committed a reviewable error simply for deviating from them. As Justice Wagner wrote:
…sentencing ranges are primarily guidelines, and not hard and fast rules. As a result, a deviation from a sentencing range is not synonymous with an error of law or an error in principle…
Any other conclusion would have the effect of authorizing appellate courts to create categories of offences with no real justification and accordingly intervene without deference to substitute a sentence on appeal. But the power to create categories of offences lies with Parliament, not the courts”. (at 61-62)
While both Justices agreed that deviating from sentencing ranges is not, on its own, sufficient to justify appellate intervention on a sentencing appeal, they disagreed on whether that deviation was the sole reason for the Quebec Court of Appeal’s intervention in this case. For Justice Wagner, it was. And since both the Majority and Minority agreed such a deviation is not, on its own, a reviewable error, Justice Wagner found the intervention inappropriate and restored the Sentencing Judge’s sentence.
In contrast, Justice Gascon found the Court of Appeal’s reasoning to be more nuanced and its decision based more on a finding that the Sentencing Judge imposed a sentence that was neither proportionate nor individualized. As such, he would have dismissed the Crown’s appeal and let the Court of Appeal’s sentence stand.
Although perhaps of limited relevance outside of the criminal context, R c. Lacasse provides an interesting example of judges approaching the same standard of review from rather different angles. In the context of an appeal, the decision is also noteworthy for Justice Wagner’s opening comments, in which he summarizes the dual role appellate courts play in ensuring the consistency, stability and permanence of case law in criminal and civil contexts:
- Appellate courts act as safeguards against errors made by trial courts and are required to rectify errors of law and review the reasonableness of exercises of discretion. They must ensure trial courts state the law correctly and apply it uniformly.
- Appellate courts must ensure the coherent development of the law while formulating guiding principles to ensure that it is applied consistently in a given jurisdiction. They must clarify the law where clarification is needed and, in Quebec, they must ensure the harmonious interpretation of the distinctive rules of Quebec civil law (at 36 and 37).