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R. v. Proulx 2000 SCC 5

Facts:

18 at time. Was drunk driving. Hit a car. Injured and killed occupants. Trial – 18 months. CA – 18 month conditional sentence

Issue(s):

When is it appropriate for a conditional sentence to be imposed?

Ratio:

Criteria that a court must consider before deciding to impose a conditional sentence:
**1. The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment.
**2. The court must impose a term of imprisonment of less then two years.
**3. The safety of the community would not endangered by the offender serving the sentence in the community; and
**4. A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss.718 to 718.2.

Analysis:

All in s.742.1 - A conditional sentence is available to offenders sentenced to less then 2 years for offences with no minimum term if imprisonment, if the safety of the community is not in danger, and the conditional sentence is consistent with fundamental purpose or sentencing in ss. 718. To 718.2.

Restorative justice seeks to remedy the adverse effects of crime in a manner that addresses the needs of all parties involved. (Recently added to s.718).

Conditional Sentence – it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is a sentence of imprisonment.
**Should generally include punitive conditions that are restrictive of the offender’s liberty.

First 3 are prerequisites to any conditional sentence (from the test)
**3rd part: If the sentencing judge is not satisfied that the safety of the community can be preserved, a conditional sentence must never be imposes (R. v. Brady).
***To assess the danger to the community posed by offender = must be a real risk – look at:
****The risk of the offender re-offending (probability of re-offending)
****The gravity of the damage that could ensue in the event of re-offence
**4th part: Look at the purposes and principles of sentencing.

Conditional sentences would rarely be appropriate for such offences as: Sexual offences against children, aggravated sexual assault, manslaughter, serious fraud or theft, serious morality offences, impaired or dangerous driving causing death or bodily harm, and trafficking or possession of certain narcotics.

If these factors appear then restorative justice is important – then conditional sentence appropriate.
**Offender’s prospects of rehabilitation.
***Including: whether the offender has proposed a particular plan of rehabilitation.
**Availability of appropriate community service and treatment programs.
**Whether the offender has acknowledges their wrongdoing and express remorse.
**Victim’s wishes as revealed in victim impact statement.

Holding:

Where combination of both punitive and restorative objectives may be achieved a conditional sentence will likely be more appropriate then incarceration


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