Concurrent and Consecutive Sentences

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General Principles

Cumulative punishments arising from a single sentencing hearing on multiple offences are known as consecutive sentences. This only applies to jail sentences, all other sentences run concurrently.

The recommended procedure for dealing with multiple offences suggests that the sentencing judge must first determine whether the sentences should be served consecutively or concurrently. If consecutive, appropriate sentence for each offence is calculated, following this, the totality principle is applied which would adjust the sentence as needed.[1]

All sentences are presumed to be served concurrently. The Code provides for cumulative punishments at section 718.3:

718.3
...
Cumulative punishments
(4) The court that sentences an accused shall consider directing

(a) that the term of imprisonment that it imposes be served consecutively to a sentence of imprisonment to which the accused is subject at the time of sentencing; and
(b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, including when
(i) the offences do not arise out of the same event or series of events,
(ii) one of the offences was committed while the accused was on judicial interim release, including pending the determination of an appeal, or
(iii) one of the offences was committed while the accused was fleeing from a peace officer.

Cumulative punishments — fines
(5) For the purposes of subsection (4), a term of imprisonment includes imprisonment that results from the operation of subsection 734(4).

Cumulative punishments — youth
(6) For the purposes of subsection (4), a sentence of imprisonment includes

(a) a disposition made under paragraph 20(1)(k) or (k.1) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985;
(b) a youth sentence imposed under paragraph 42(2)(n), (o), (q) or (r) of the Youth Criminal Justice Act; and
(c) a sentence that results from the operation of subsection 743.5(1) or (2).

Cumulative punishments — sexual offences against children
(7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct

(a) that a sentence of imprisonment it imposes for an offence under section 163.1 be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another section of this Act committed against a child; and
(b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under section 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under section 163.1.

1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182; 2015, c. 23, s. 17.


CCC

Generally, sentences for offences that occur at separate occasions will be served consecutively.[2] While where the offences arise out of the same transaction, the sentences will be typically concurrent.[3] If the court does not indicate whether sentences are concurrent or consecutive it is presumed concurrent.[4]

A judge may order a sentence to be consecutive despite the offences arising from the same transaction or incident, such as where the offences "constitute invasions of different legally protected interests, although the principles of totality must be kept in mind"[5], where the offences "protect different societal interests" or the gravamen of the two offences are different.[6]

Nevertheless, the decision of consecutive sentences is a discretionary one and is entitled to deference.[7]

Sentences may be imposed consecutively in relation to a single transaction where the punishments protect "different societal interests" or "different legal interests".[8] A judge should consider the time frame within which the offences occurred, the similarity of the offences, whether a new intent or impulse initiated each of the offences and whether the total sentence is fit and proper under the circumstances.[9]

When deciding whether a sentence should be consecutive or concurrent, the court should consider 1) the time frame of the offences, 2) the similarity of the offences, 3) whether a new intent broached each offence, and 4) whether the total sentence is fit and proper.[10]

Where offences "protect different social interests" the principle requiring concurrency of sentence when the offences arise from the "same transaction or incident" does "not necessarily apply when the offences constitute invasions of different legally protected interests".[11]

Generally offences that occur on separate occasions against separate victims will result in consecutive sentences.[12]

Judges should be cautious not to "slavishly impose consecutive sentences merely because offences are... committed on different days." Instead, where there is a "reasonably close" nexus, concurrent sentences can be imposed. [13]

It has been observed that the “proper approach to sentencing an offender for multiple offences is unsettled.”[14]

Consecutive Sentences by Type of Offences
Where offences are committed in prison "must be consecutive", particularly when it involves violence against correctional officers.[15]

Offences committed while out on bail awaiting trial will be consecutive even where the latter offence may be part of an ongoing spree.[16]

Where an offender is convicted of a possession offence and then an offence involving "using or dealing with it". The sentences should be concurrent.[17]

Crime Sprees
Where a judge is sentencing an offender for a series of alike offences, he may order that the individual sentences be all served concurrently to each other and sentence the series of offences as a whole amounting to a "crime spree" or simply a "single" criminal transaction.[18] For the sentences be concurrent as a "crime spree" the acts must be "similar, continuous and recurring" with "the same gravamen within a sustained and relatively short period of time".[19]

Life Sentences
At common law, sentencing judge may not impose consecutive life sentences.[20]

Appellate Review
The decision to give a concurrent or consecutive sentence should be given the same deference as the judge's decision on the length of sentence.[21]

  1. R v Draper (T.G.), 2010 MBCA 35 (CanLII) at paras 29 to 31
  2. R v Dube 2006 QCCA 699 (CanLII)
  3. R v Mascarenhas, 2002 CanLII 41625 (ON CA) at para 31
    R v Veysey, 2006 NBCA 55 (CanLII)
    R v Desmarest (1986), 2 Q.A.C. 151 (*no link)
    R v Charchuk (1973), 6 N.S.R. (2d) 519 {{NOCANLII}
  4. c.f. R v S.P.M., 2005 NLCA 36 (CanLII), at para 11
  5. Mascarenhas, at para 31
    R v Gummer (1983), 1 O.A.C. 141 at p. 144, 25 M.V.R. 282 (*no link)
  6. R v Berezowsky, 2006 CanLII 7030 (ON SC), at para 20
    R v Dua, [1999] OJ No 5068 (SCJ) (*no link)
  7. R v M.(T.E.), 1997 CanLII 389 (SCC), [1997] 1 SCR 948 at para 46
    R v Maroti, 2010 MBCA 54 (CanLII)
  8. R v Gillis, 2009 ONCA 312
    R v Clarke, 1994 CanLII 4071 (NS CA), (1994), 94 CCC 249 (NSCA)
  9. R v GAW, 1993 CanLII 5618 (NS CA), (1993), 125 N.S.R. (2d) 312 (NSCA)
    R v Naugle, 2011 NSCA 33 (CanLII)
  10. GAW, supra
    Maroti, supra
    Naugle, supra
  11. R v Clouthier, 2016 ONCA 197 (CanLII) at para 55 - failing to stay at scene of accident consecutive to impaired driving causing bodily harm
    Gummer, supra at para 13
    R v Van Puyenbroek, 2007 ONCA 824 (CanLII), 226 CCC (3d) 289, at para 63
  12. R v Leroux, 2015 SKCA 48 (CanLII)
  13. R v Hatch, [1979] NSJ 520 (*no link)
  14. R v Wozny, 2010 MBCA 115 (CanLII)
    R v Ahmed, 2017 ONCA 76 (CanLII), at paras 85
  15. Ruby, Sentencing (7th ed.) Markham:LexisNexis Canada Inc. 2008 at p.524
    R v Healey, 2016 CanLII 26778 (NLPC) at para 15
  16. R v McKinney, 1963 CanLII 360 (SK QB), [1963] SJ No 17
    Healey, supra at para 16
  17. Healey, supra at para 18
    Ruby, supra at p. 530
    R v KDH, 2012 ABQB 471 (CanLII) at paras 13 to 54
  18. e.g. R v Arbuthnot, 2009 MBCA 106 (CanLII) at paras 19 and 24
    R v Osachie, [1973] NSJ 112 (NSCA) at para 10
  19. Arbuthnot, ibid. at para 24
  20. R v Hawkins, 2011 NSCA 7 (CanLII) at para 39
  21. R v McDonnell, 1997 CanLII 389 (SCC), [1997] 1 SCR 948

History

The previous version of 718.3(4) read:

718.3.
...
Cumulative punishments
(4) The court or youth justice court that sentences an accused may direct that the terms of imprisonment that are imposed by the court or the youth justice court or that result from the operation of subsection 734(4) or 743.5(1) or (2) shall be served consecutively, when

(a) the accused is sentenced while under sentence for an offence, and a term of imprisonment, whether in default of payment of a fine or otherwise, is imposed;
(b) the accused is found guilty or convicted of an offence punishable with both a fine and imprisonment and both are imposed;
(c) the accused is found guilty or convicted of more than one offence, and
(i) more than one fine is imposed,
(ii) terms of imprisonment for the respective offences are imposed, or
(iii) a term of imprisonment is imposed in respect of one offence and a fine is imposed in respect of another offence; or
(d) subsection 743.5(1) or (2) applies.

1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182.


Mandatory Consecutive Sentences

Certain sentences must be ordered to be served consecutively:

  1. Possession of Explosive Substance in association with criminal organization (s. 82 and 82.1)
  2. offences under s. 83.02 to 83.04 and 83.18 to 83.23
  3. Commission of indictable offence to advantage a terrorist group (s. 83.2 and s. 83.26)
  4. Instructing activity for terrorist group (s. 83.21(1) and s. 83.26)
  5. Instructing terrorist activity (s. 83.22(1) and s. 83.26)
  6. Using Firearm in Commission of Offence (s. 85(4))
  7. offences under s. 270(1), 270.01(1) or 270.02 committed against a law enforcement officer (270.03)
  8. Killing or injuring certain animals (445.01)
  9. Instructing commission of offence for criminal organization (s. 467.13(1) and s. 467.14)

The decision on whether a sentence should be concurrent or consecutive "should be treated with the same deference owed by appellate courts to sentencing judges concerning the length of sentences ordered."[1]

  1. R v McDonnell, 1997 CanLII 389 (SCC), [1997] 1 SCR 948 at para 17