Canadian Criminal Sentencing/Purpose and Principles of Sentencing

Introduction The purpose and principles of sentencing provide a guidance to judges in applying the available sentences for particular offenders. The sentencing regime in the criminal code and case law sets out the goals at play in all sentences. These goals can come in conflict with each other and so must be balanced against each other in every case. The principles of sentencing guide a judge in determining how these goals are balanced and how to achieve the most appropriate disposition. Sections 718 to 718.2 codify the objectives and principles of sentencing and are intended to “bring greater consistency and clarity” to sentencing.R v Nasogaluak, 2010 SCC 6 at 39 The system of sentencing is not simply a method of imposing penalties or costs upon an offender to prevent harmful conduct, but rather the system is to impose sentences which "positively instills the basic set of values shared by all Canadians as expressed by the Criminal Code." R. v. C. A. M., 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para 81 The courts must bring the law, including sentencing, into harmony with the prevailing social values and so must reflect changes in these values.R. v. Stone, 134 C.C.C. (5d) 353 citing R. v. C.A.M., supra 2 Purpose of Sentencing The purposes of sentencing are laid out in section 718 of the Criminal Code: Purpose 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. CCC As stated, the fundamental purpose is that there be "respect for the law" and the maintenance of a "just, peaceful and safe society". R. v. Whicher, 2002 BCCA 336; R. v. Priest 1996 CanLII 1381 (ON CA) There is no single "sentencing objective [that] trumps the other". It is to "the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case."R v Nasogaluak, 2010 SCC 6 at para. 43 2 Denunciation - s.718(a) Section 718(a) sets out the objective of "denounc[ing] unlawful conduct". The principle of denunciation "mandates that a sentence should communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law."R v M(CA) 1996 CanLII 230, [1996] 1 SCR 500 at 81 The principles of denunciation and deterrence can sometimes be satisfied without incarceration. One of these circumstances is where the publicity of the case provides for public humiliation. R v Ewanchuk, 2002 ABCA 95 at 65; R v Ambrose, 2000 ABCA 264 at 134; R v Kneale, [1999] OJ No 4062 at para. 35 2 Deterrence - 718(b) Section 718(b) sets out the objectives of "deter[ing] the offender and other persons from committing offences" We refer to these as the twin objectives of "general deterrence" and "specific deterrence". The objective of general deterrence as a factor will normally result in the offender being “punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity.” R v BWP 2006 SCC 27 When general deterrence is emphasized, the deterrent effect of incarceration can be somewhat speculative and so should be used with great restraint.R. v. Biancofiore, 1997 CanLII 3420 (ON CA), (1997), 119 C.C.C. (3d) 344 at para. 23 (ONCA) A lengthy sentence is not the only way of achieving the objective of general deterrence.See R. v. Morrissette (1970), 1 C.C.C. (2d) 307 (Sask. C.A.) at 310 2 Separation from Society - 718(c) Where a person with mental illness poses a risk to the public the court may need to resort to separating the offender from society, rather than focus on treatment.see R. v. Desjardins-Paquette, 2012 ONCA 674 (CanLII) R. v. Virani, [2012] A.J. No. 507 (C.A.), at para. 16 Treatment in the community is generally preferred over incarceration.R v Lundrigan, [2012] NJ No 231 (NLCA) at para. 20 However, this is less so for serious offences.see R. v. J.M., [2008] N.J. No. 262 (P.C.) R. v. Taylor, [2012] N.J. No. 251 (P.C.)) 2 Rehabilitation - s.718(d) Section 718(d) sets out the objective of "assist[ing] in rehabilitating offenders".see also R. v. Gill (2006), 2006 BCCA 127 Rehabilitation can be seen to achieve the objective of protecting the public as it assists in preventing further offences.R. v. Simmons, Allen and Bezzo (1973), 13 CCC 65 (Ont.C.A.) In certain cases, where there is a realistic possibility of rehabilitation, the courts may opt not to impose a jail sentence where it would otherwise be appropriate.R. v. Preston (1990), _____ (BCCA) Effective rehabilitation has been seen by some courts as requiring an acceptance of responsibility, likely by way of a guilty plea, and an understanding of the harm done.See R v Lee 2011 NSPC 81 at 83 R v Seguin [1997] OJ No 5439 at 18 An offender's "positive potential for rehabilitation" should be to the benefit of the accused on sentence.R. v. Gouliaeff, 2012 ONCA 690 (CanLII) at para. 12 2 Principles of Sentencing Fundamental Principle: Proportionality No matter what the balance between objectives, the sentence must always satisfy the fundamental principle of sentencing under s. 718.1.R v Nasogaluak at 40 Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. CCC Where the sentence is not proportionate it is not just. R v Arcand, 2010 ABCA 363 at para 52 (proportionality is “the overarching principle since a disproportionate sanction can never be a just sanction.”) Thus, it is central to the sentencing process. R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309, at para. 12 R. v. Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC) The sentence must be no greater than the offenders moral culpability. R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 40 to 42 However, the “severity of sanction for a crime should reflect the...seriousness of the criminal conduct.” R. v. Arcand, 2010 ABCA 363, para. 48 And when the sentence is not adequate to address the seriousness of the offence then it is not proportionate. R v Arcand, at para 54 From this, it is well established that sentencing is a highly discretionary endeavour. Each sentence is to be custom tailored to match the particular offender. R. v. Bottineau, 2011 ONCA 194(sentencing “is a fact-sensitive process. Imposing a sentence depends very much on the facts of a particular case and the circumstances and culpability of the particular offender. That said, the sentence imposed must be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”) Based on the purposes and principles set out in 718 and 718.2, sentencing is a highly individualized process that takes into account the offence, as well as the offender.R. v. Angelillo 2006 SCC 55, (2006), 274 D.L.R. (4th) 1 R. v. Briand, [2010] N.J. No. 339 (C.A.) R. v. Shoker, [2006] S.C.J. No. 44, 2006 SCC 44 R v Hamilton, [2004] O.J. No. 3252, 2004 CanLII 5549 (ON CA) at 87 ("Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint-by- numbers landscape is to the real thing. The fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence and the unique attributes of the specific offender.") R. v Grady(1971), 5 N.S.R. (2d) 264 at p. 266:("It would be a grave mistake, it appears to me, to follow rigid rules for determining the type and length of sentence in order to secure a measure of uniformity, for almost invariably different circumstances are present in the case of each offender. ...") There is no "one size fits all" penalties.R. v. Lee, 2012 ABCA 17 at para. 12 Sentencing is “an inherently individualized process.”R. v. M.(C.A.), [1996] S.C.J. No. 28, para. 92 It is also a "profoundly subjective process."R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46 Gravity of an offence can be measured in part by the lasting emotional effects of the offence upon the victim.R. v. Butler, 2008 NSCA 102 (CanLII) When crafting a sentence for multiple offences, proportionality can be achieved either "by imposing concurrent sentences" or "by applying the totality principle to consecutive sentences".R. v. Guha, 2012 BCCA 423 (CanLII) at para. 39 2 Aggravating and Mitigating Factors See also Canadian Criminal Sentencing/Factors of Sentencing Section 718.2 is a non-exhaustive list of secondary principles in sentencing.R v Nasogaluak at 40 Other objectives and principles are listed at s. 718.2 of the Criminal Code: Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances;... CCC Take note that certain offences have their own additional factors to consider that are found throughout the code. For example, fraud offences under s. 380.1. Other Principles 718.2... (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; R. v. Hamilton, 2004 ONCA __; R. v. D.L. (1990), 53 CCC 365 (BCCA) and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. CCC Judges are not permitted to apply their own personal belief or views that are contrary to the principles of sentencing.R .v. Song 2009 ONCA __ Totality - s.718.2(c) See Canadian Criminal Sentencing/Purpose and Principles of Sentencing/Totality Principle Parity (s.718.2(b)) The parity principle means that a sentence should be "similar to sentences imposed on similar offenders for similar offences committed in similar circumstances". see s. 718.2(b) Criminal Code Sentencing, 7th ed. (Markham: LexisNexis, 2008), at ss.2.21 A judge has a responsibility to "impose sentences in line with precedent, noting always that for each offence and each offender some elements are unique." R. v. Oake, [2010] N.J. No. 94 (NLCA) To fulfil this requirement sentencing judges must consider the range of sentences of "similar offenders for similar offences committed in similar circumstances".R. v. Tuglavina, [2011] N.J. No. 25 (NLCA) The principle ensures fairness between similarly situated cases.R. v. Rawn, 2012 ONCA 487 at para. 18 It does not however override the individualized approach to sentencing. R. v. Knife (1982), 16 Sask. R. 40 (C.A.) at p. 43 One of the goals of the provincial courts of appeal is to maintain parity in sentence and minimize the differences in sentencing approaches.R v Arcand 2010 ABCA 363 Nasogaluak 2010 SCC 6 However, the judges must also be sensitive to the needs of local community.R v Nasogaluak Parity to Co-Accused In a situation of co-accused, the roles of the parties will be considered as well as their personal circumstances. R. v. Knife (1982), 16 Sask. R. 40 (C.A.) at p. 43 The principle of parity does not require equal sentences for participants in the same offence. Rather, they must "only [be] understandable sentences when examined together."R. v. Issa (T.), (1992), 57 O.A.C. 253 at para. 9 R. v. Rawn, 2012 ONCA 487 at para 30 Where accomplices who commit the crime at the orders of a principal and agree to testify against he principal can be afforded lesser sentences than the principal.R v Ellahib, 2008 ABCA 281 -- 20 years for the principal and the 16 and 15 year sentences accomplices justified because the principal was the instigator and the accomplices entered guilty pleas and testified against him. 2 Restraint - s. 718.2(d),(e) For first time offenders, the principle of restraint "requires that the sentencing judge consider all sanctions apart from incarceration" and where necessary ensure the term be as "short as possible and tailored to the circumstances of the accused".R v Battise 2009 ONCA 114 at 32 R v Priest 1996 CanLII 1381 (ONCA) 30 OR (3d) 538 at p. 545 The principle also requires the judge to consider rehabilitation in setting the length of the sentence. "General deterrence cannot be the sole consideration. Appropriate consideration must be given to the rehabilitation of the offender."R. v. Blanas, 2006 CanLII 2610 (ON CA), (2006), 207 O.A.C. 226, at para 5 Restraint not only means that prison should be a sanction of last resort, but also means that the court should "seek the least intrusive sentence and the least quantum which will achieve the overall purpose of being an appropriate and just sanction."R. v. Hamilton 2004 CanLII 5549 (ON CA) at para. 96 Where other dispositions have been tried and failed, and jail has not previously been imposed, the imposition of a "short, sharp" sentence can be appropriate, particularly where the offence is related to property and not violence.R. v. Vandale (1974), 21 C.C.C. (2d) 250, per Martin JA citing McKenna J. of the English Court of Appeal in R. v. Curran (1973), 57 Crim. App. R. 945 ("As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity of the offence and imposed as this sentence was for reasons of general deterrence, that is, as a warning to others.") 2 Aboriginal Offenders - s. 718.2(e) See Canadian Criminal Sentencing/Aboriginal Principles and Factors Step-up Principle The "step-up" principle is where an offender is convicted of a similar or identical offence to one he's been convicted and sentenced in the past for, it can be concluded that the prior sentence was not sufficiently deterrent and so the sentence for the new offence should be increased to focus on specific deterrence. Jump Principle The "jump" principle stated that subsequent sentences passed should not be disproportionate to the prior offence (ie. a "jump" in sentence). A subsequent offence should have an incremental increase proportionate to frequency of the repeated offences.R. v. White, 2007 NLCA 44 R. v. Muyser, 2009 ABCA 116 R. v. Murphy, [2011] N.J. No. 43 (C.A.) In other words a dramatic increase in sentence due to a recent prior similar record would violate this rule.R. v. Borde 2003 CanLII 4187 (ON CA), (2003), 63 O.R. (3d) 417, at para. 39 However, this rule does not apply where the index offence is greatly more serious than the prior offences.R. v. Borde 2003 CanLII 4187 (ON CA), (2003), 63 O.R. (3d) 417, at para. 39 R. v. Courtney, 2012 ONCA 478 at 10-11 The jump principle is of "less utility" when dealing with an accused "with a lengthy criminal record on multiple convictions".Frigault v. R., 2012 NBCA 8 (CanLII) A jump would be inconsistent with rehabilitation where that is a significant factor in sentence.R. v. White, supra, at paragraphs 5 to 8 2 Gap Principle The "gap principle" directs courts to take into consideration the gaps of time between offences.R. v. Smith, 2006 NSCA 95 (CanLII) at para. 36: extensive citation from Ruby on Sentencing It gives credit to someone who has made an effort to avoid criminal charges. see §8.83 of Clayton Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008) 2 "Starting Points" on Sentence A "starting point" for sentences are set as guides and are factors to consider the appropriate sentence. They are meant to achieve greater uniformity and consistency. They are "most useful in circumstances where there is a large disparity between sentences imposed". R. v. McDonnell [1997] S.C.J. No. 42, 1997 CanLII 389 A starting point of sentence will be raised and lowered after considering the aggravating and mitigating factors on sentence.R. v. Ostertag, 2000 ABCA 232 A starting point cannot be artificially lowered by examination into prior case law that shows lower sentences than the designated "starting point" and deem it to be the "correct" starting point. R. v Marchesi, 2009 ABCA 304 at para. 7 A judge would does not mention starting points in sentence where one exists is not committing an error in principle.R. v. Lee, 2012 ABCA 17 at 58 R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290 R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, L.M., 2008 SCC 31, [2008] 2 S.C.R. 163 2 Ranges on Sentence A range of sentence is not all sentences between the minimum and maximum for the offence charged. Rather, it is narrowed by the specific offence and offender. The variations of punishment when weighing aggravating and mitigating factors creates the continuum of the range. R v Cromwell 2005 NSCA 137 at 26 Ranges "are guidelines rather than hard and fast rules".R. v. Nasogaluak 2010 SCC 6 at para. 44 A range of sentence can be deviated as long as it is "in accordance with the principles and objectives of sentencing" and are not necessarily unfit.Nasogaluak at para. 44 c.f. R v Doerksen, (1990) 62 Man.R. 2d 259 (CA): A set range of sentence can be deviated from in “exceptional circumstances” However, factors such as a “good record” and remorse do not amount to exceptional circumstances to deviate from the accepted range.R. v. Henderson, 2012 MBCA 9 2 Effect of Election on Sentence A sentence is not scaled based on the election made. Thus, an offence prosecuted summarily should not be scaled to less than the maximum only because it would not have been a maximum sentence by indictment. R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309 at 15 Sentences for breach of court orders is a gradual process without a sudden, substantial increase in penalty.R. v. Murphy, [2011] N.J. No. 43 (C.A.) at 34 2 Purpose and Principles of Specific Types of Offences Canadian Criminal Sentencing/Offences/Drug Offences Canadian Criminal Sentencing/Offences/Sexual Offences