Conditional sentence not available for a crime of violence

Today's decision in R. v. Lebar, 2010 ONCA 220 holds that a conditional sentence is not an available sentence for a robbery conviction in which it is found that the underlying conduct involved the use or attempted use of violence:

b. Judicial discretion under s. 742.1

[53] This takes me to the other major issue raised in this appeal, namely, whether the determination of an offence as a serious personal injury offence involves a two-fold analysis – first, whether the offence involves the use or attempted use of violence, and second, whether the violence of the offence was committed with an objective degree of severity such that it comes within the meaning of a "serious personal injury offence".

[54] This issue forms the appellant's main argument. The appellant submits that Parliament intended that conditional sentences be prohibited for all indictable offences that carry sentences of 10 years or more if the commission of the offence involved the use of any degree of violence no matter how significant.

[55] The respondent argues that even if the trial judge's determination that this was an offence where violence or the use of violence was involved is sustainable, she correctly proceeded to the next step of examining whether the violence was sufficiently serious so as to preclude a conditional sentence and then correctly determined that it was not.

[56] In my view the respondent's position is not supported by the statutory history or context, or by the jurisprudence.

[57] First, there is nothing in the statutory history to suggest that Parliament intended to allow for a category of less seriously violent crimes for which conditional sentences may be available.

[58] In terms of the case law, as the trial judge noted, two lines of authority have developed around the issue of whether an objective degree of severity must be found to exist before an offence involving violence can be said to be a serious personal injury offence.

[59] By way of preliminary remark I caution that in turning to the jurisprudence for guidance in the resolution of this issue, it is important to bear in mind that the consideration of whether an offence is a serious personal injury offence initially arose in the realm of dangerous offender proceedings and many, if not most, of the cases consider the concept of violence and the definition of a serious personal injury offence in that context.

[60] Such is the case in R. v. Neve (1996), 40 Alta. L.R. (3d) 18 (C.A.), where an 18-year old accused was convicted of robbery. She had taken a fellow prostitute to a desolate area, cut her clothes off with a knife, and left her naked in 5 degree weather. She was charged with assault with a weapon, and robbery (of the clothes). The Alberta Court of Appeal, after canvassing several definitions of "violence" and finding that "violence in its everyday usage contemplates an element of severity to the physical force that constitutes the violent act", interpreted s. 752(a)(i) to require that the violence be objectively serious.

[61] It is clear that the meaning given to violence in Neve was coloured by the context of its being considered a gateway to the dangerous/long-term offender provisions. The Alberta court concluded that Parliament intended that only objectively serious violence and endangerment that involved a likelihood of material harm (physical or psychological) could constitute the predicate offence for a dangerous offender designation. The court considered the serious consequences of the designation, and the requirement in s. 753(1)(a) that the predicate offence form part of a repetitive pattern of behaviour that established that the offender constituted a danger to the public. Further, the court had regard to the reasons of La Forest J. in R. v. Lyons, [1987] 2 S.C.R. 309, who concluded at para. 43 that the dangerous offender provisions did not constitute cruel and unusual punishment in part because the provisions referred to conduct that satisfied a high standard of seriousness.

[62] In the opposing line of cases represented by Goforth, the Saskatchewan Court of Appeal rejected the so-called "objective seriousness test" endorsed in Neve. In Goforth, the accused, without provocation, attacked a woman with a wine bottle. She went to hospital. She had no broken bones, and the hospital staff put her arm in a sling, gave her Tylenol, and discharged her. The trial judge ruled that this "violence" did not meet the objective level of seriousness necessary for the long-term offender provisions.

[63] The Saskatchewan Court of Appeal rejected the argument that "violence" in the s. 752 definition meant "[serious] violence". The Court found that the words of the section do not invite a qualitative assessment of the degree of violence or endangerment in the predicate offence. It also found that requiring a threshold of "seriousness" or "very serious" was not consistent with the interpretation of the section made by the Supreme Court of Canada in R. v. Currie, [1997] 2 S.C.R. 260, a case where the Supreme Court considered the sexual offences caught by the definition of "serious personal injury offence", in the context of the dangerous offender designation: see Currie, para. 22. Other courts have agreed with the Goforth analysis. See R. v. Naess (2005), 64 W.C.B. (2d) 278 (Ont. S.C.), and R. v. Reed, 2009 BCPC 201.

[64] The respondent argues that the trial judge was correct in following the reasoning in Neve. He points out that Parliament chose not to specifically exclude robbery from the conditional sentence provisions. Yet, absent a qualitative analysis of the severity of the violence, virtually all robberies may be caught by the wording of the sections, given the requirement for violence or a threat of violence in the definition of robbery under s. 343(a).

[65] I agree with the appellant that the preferable line of reasoning is that represented by Goforth. The plain wording of the section is that an offence meets the definition if it is a serious offence, described as one that proceeds by indictment and carries a maximum sentence of 10 years or more, and involves the use or attempted use of violence against a person, or endangerment of life or safety. There are clearly ways in which robbery may be committed without the use or attempted use of violence against a person, such as the use of violence or a threat of violence to property under s. 343(a).

[66] Furthermore, the Alberta Court of Appeal has explicitly recognized Neve's limited application. I refer to the decision in R. v. Ponticorvo (2009), 246 C.C.C. (3d) 48. There, the Court of Appeal rejected the argument of the respondent (accused) relying on Neve, that the violence or endangerment on which the Crown relied to constitute a serious personal injury offence must be objectively serious. The Court specifically held, at para. 15, that the approach set out in Neve does not apply when considering the availability of a conditional sentence:

In our view, the restrictive definition adopted by the Court in Neve does not apply in the context of s. 742.1 which authorizes the imposition of a conditional sentence. The considerations that led the Court in Neve to adopt the restricted definition of serious personal injury offence are not present here. In the context of s. 742.1, the use or attempted use of violence suffices and does not require any overlay of objective seriousness.

[67] Faced with the legislative history of the sections in question, the persuasive authority of other jurisdictions, and the plain meaning of the words in s. 752, I disagree with the trial judge's reasoning that the conduct underlying the offence, once identified as including violence or the use of violence, must rise to a level of serious violence so as to be identified as a serious personal injury offence. In my view, a court is obliged by the s. 752 definition of "serious personal injury offence" to determine whether the circumstances of the case demonstrate violence or attempted violence. Once demonstrated, there is no obligation to go further and measure the degree of violence.

[68] My response to the concern about the loss of discretion is two-fold. First, it is clear from the legislative and committee debates that Bill C-9 was intended to remove a degree of judicial discretion in the use of conditional sentences. Second, the factual determination as to whether a particular set of actions constituted the use or attempted use of violence will always be within the interpretive discretion of the court.

[69] In short, I conclude that for the purposes of the availability of a conditional sentence, Parliament created a divide between crimes where violence is or is not used, not between crimes of serious violence and less serious violence.

[70] For these reasons, I am of the view that the trial judge erred in examining the seriousness of the violence used in the context of the robbery. The premise that if the violence in question did not rise to a sufficient level, then a conditional sentence remained available was an error in law, rendering the sentence she imposed illegal.