R. v. WOURNELL, 2023 NSCA 53, JULY 27, 2023.
FACTS: The accused as sentenced to a period of two years less a day of incarceration for having committed a number of firearm offences, contrary to sections 88(1), 94(1) and 94(5) of the Criminal Code. The accused had been found by the police in possession of a “loaded magazine with ammunition for a .22 calibre firearm…a sawed off .22 calibre rifle and a black Airsoft BB gun”.
The accused appealed from sentence arguing that the sentencing judge “did not properly consider whether a conditional sentence was appropriate, failed to follow the guidance…in R. v. Anderson and made only passing note of an Impact of Race and Culture Assessment (IRCA)”. He asked the Court of Appeal “to allow his appeal and impose a Conditional Sentence Order of 12 to 18 months, less credit for the time he was incarcerated”. While on judicial interim release, the accused breached his release conditions on four occasions.
HELD: The appeal was allowed. The Nova Court of Appeal set aside the sentence, applied a credit for time served under strict release conditions and in jail, and imposed “a Conditional Sentence Order of 4 months followed by 12 months’ probation”.
The Court of Appeal concluded that the sentencing judge’s analysis “lacked essential components: he rejected the option of a conditional sentence order without applying Proulx and he failed to apply, let alone even mention, this Court’s decision in Anderson. I am satisfied each of these errors had an impact on the sentence the judge imposed on the appellant” (at paragraph 54).
The Court of Appeal held that the sentencing judge “should have addressed the provisions of s. 742.1 and the focus in Proulx on” (at paragraph 59):
• Parliament’s objective in instituting conditional sentencing as a means for reducing “the problem of overincarceration in Canada”. (As the Supreme Court of Canada and Parliament have recognized since Proulx, overincarceration, particularly of Indigenous and Black offenders, has become an even more pressing societal issue.)
• The doubt that has been cast on the effectiveness of incarceration in achieving the goals intended by traditional sentencing principles, including the goals of denunciation and deterrence.
• Parliament’s intention, by way of the 1996 amendments to the Criminal Code that included conditional sentencing, “to give increased prominence to the principle of restraint in the use of prison as a sanction through the enactment of s. 718.2(d) and (e) which provide, respectively, that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances” and “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders…”
• The ability of a conditional sentence to provide “a significant amount of denunciation” and “…significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences”.
The Offender’s Heritage:
The Court of Appeal concluded that the sentencing judge erred in failing to give “proper attention” to the offender’s “circumstances in the crafting of a proportionate sentence. Guidance from this Court for sentencing an African Nova Scotian offender is found at paragraphs 112 to 124 of Anderson. Its application where a conditional sentence option is in play is found in paragraphs 126 to 163. There was specific information made available to the judge about the appellant, a racialized offender, that was relevant to his obligation to determine an individualized sentence. There is nothing in the judge’s reasons to indicate he went beyond his awareness of the information to applying it in the course of discharging the delicate task of contextualized sentencing” (at paragraph 62).
The Court of Appeal concluded that this was an appropriate case for the imposition of a conditional sentence (at paragraphs105, 106 and 112):
I am satisfied the appellant’s risk of re-offending can be managed in the community under a conditional sentence order. I am also satisfied that, as is statutorily required, a conditional sentence order in this case will serve the fundamental principle of proportionality set out in s. 718.1 of the Criminal Code. The gravity of the appellant’s offence and his moral culpability for it must be assessed in the context of historic factors and systemic racism. In re-sentencing the appellant we are to “take into account the impact that social and economic deprivation, historical disadvantage, diminished and non-existent opportunities, and restricted options may have had on the offender’s moral responsibility”.
The sentencing principles of denunciation and deterrence can also be served by the imposition of a conditional sentence on the appellant. As Anderson held: “…a properly crafted conditional sentence with appropriate conditions can achieve the objectives of denunciation and deterrence”. In sentencing African Nova Scotian offenders these objectives must be assessed contextually and “cannot be regarded as static principles to be applied rigidly in what is a highly individualized process”. And there is the potent consequence of breaching a conditional sentence—the “real threat of incarceration”.
A conditional sentence for the appellant ensures we do not lose sight of the sentencing principles of rehabilitation and restraint, particularly in this case of a first time offender. It acknowledges Proulx’s observation that Parliament mandated the “expanded use…of restorative principles in sentencing as a result of the general failure of incarceration to rehabilitate offenders and reintegrate them into society”. A conditional sentence for the appellant represents a restrained, restorative sanction, one that is responsive to the disproportionate incarceration of African Nova Scotians.