Full Text:Volume 5

From Criminal Law Notebook
Jump to: navigation, search

Contents

Volume V: Sentencing

Sentencing Introduction

Preface

This text was written as a reference on the law of sentencing for Canadian criminal offences. The audience for this text will be mostly criminal law practitioners, police officers, and law students, who need a convenient way to look up principles and case law. Where possible there are links to cited cases on CanLII for ease of reference.

As of this writing this text remains a work in progress. Errors and omissions should be expected and so it is always recommended that source materials be consulted to confirm the contents of this reference.

Organization of the Section

The section is organized into six parts. The part begins covering the principles and factors of sentencing that apply to just about every sentencing hearing.

The second part reviews the available sentences to a sentencing judge. There are the obvious tools of jail, probation and fines, as well as the many additional options available from ancillary sentencing orders.

The next part covers the procedural elements of sentencing, much of it focusing on the evidential rules that set out what the judge can consider when crafting an appropriate sentence.

The fourth part covers the principles and case law associated with specific offences. Certain offences include lengthy tables of prior sentences as references.

The following part cover special issues raised post-sentence by parole as well as the manner of dealing with the most dangerous offenders with Long-Term Orders and Dangerous Offender Orders. The final part deals with the particular rules around sentencing of youths.

See Also

Principles and Factors

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 sentencings. These goals can come in conflict with each other and so must be balance against each other in every case. The principles of sentencing guide a judge to determine how these goals are balanced and how to achieve the most appropriate disposition.

Sentencing is limited to addressing what offender have done in the past and it not per se intended to remove dangerous people merely in anticipation of future harm.[1]

Sentencing is "the fixing of a fit sentence [which] is the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender".[2]

Sections 718 to 718.2 codify the objectives and principles of sentencing and are intended to “bring greater consistency and clarity” to sentencing.[3]

Sections 718 to 718.2 are to be interpreted as "remedial" and be "given such fair, large and liberal" interpretation to obtain its objectives.[4]

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."[5]

The courts must bring the law, including sentencing, into harmony with the prevailing social values and so must reflect changes in these values.[6]

The purpose of sentencing is not uniformity of sentence as that would be impossible and undesireable. Rather, the goal is the ensure uniformity of approach.[7]

The process of sentencing involves consideration of the following principles with each decision:[8]

  • the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment of and reparations for the harm they have done (s. 718) (see Appendix);
  • the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1); and
  • the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (s. 718.2).

Judges are not permitted to apply their own personal belief or views that are contrary to the principles of sentencing.[9]

  1. R v Knoblauch, [2000] 2 SCR 780, 2000 SCC 58 (CanLII), per Arbour J, at para 16 ("There is no mechanism in criminal law to remove dangerous people from society merely in anticipation of the harm that they may cause. The limit of the reach of the criminal sanction is to address what offenders have done.")
  2. R v Hamilton, 2004 CanLII 5549 (ON CA) at para 87
  3. R v Nasogaluak, 2010 SCC 6 (CanLII) at para 39
  4. section 12 of the Interpretation Act
    considered in R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC) at para 26 per Cory and Iacobucci JJ
  5. R v C. A. M., 1996 CanLII 230 (SCC), [1996] 1 SCR 500, at para 81
  6. R v Stone, 1999 CanLII 688 (SCC) citing R v C.A.M.
  7. R v Christie, 2004 ABCA 287 (CanLII) at para 42, 52
  8. R v L.M., [2008] 2 SCR 163, 2008 SCC 31 (CanLII), at para 17
  9. R v Song 2009 ONCA 896 (CanLII)

Determining a Fit and Proper Sentence

Sentencing of often referred to as "art" rather than science.[1] It is a "profoundly subjective process".[2] It is also a "profoundly contextual" process with wide discretion of the judges.[3] They must balance "all the relevant factors in order to the objectives being pursued in sentencing".[4]

It is "one of the most delicate stages" of a criminal proceedings.[5]

The sentencing process involves balancing "the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence".[6]

Without specific guidance from an appellate level court, the range of possible sentence for an offence is broad.[7]

A sentence should be based on the facts, including the conduct of the accused and not the philosophy or preferences of the judge.[8]

The judge must take into account all the circumstances of the offence and offender.[9]

Where precedent has not established paramount sentencing objectives, "a sentencing court has discretion to determine which sentencing objectives should be considered paramount in the particular circumstances of each case."[10]

A judge should begin by "consider[ing] and assess[ing] the overall gravity of the offence or offences committed and the circumstances in which they were committed. This reflects the basic tenet of fairness that the punishment fit the crime." [11] The nature and gravity of the offence are the "central factor in sentencing".[12]

A mischaracterization of the judicial categorization of the offence does not amount to an error of law or error in principle. It will only be appealable if the analysis results in an unfit sentence.[13]

Judge's Relationship to the Jurisdiction
It is said that a sentencing judge, "by virtue of his proximity to the communities he serves, in well placed to understand how sentencing goals can be achieved with respect to a particular offender in a particular community".[14]

  1. e.g. R v Pilon, 2014 ONCA 79 (CanLII), at para 18
    R v Arganda (J.R.), 2011 MBCA 54 (CanLII), at para 38
  2. R v Shropshire, [1995] 4 SCR 227, 1995 CanLII 47 (SCC) at para 46
  3. R v LM, [2008] 2 SCR 163, 2008 SCC 31 (CanLII) at para 51
  4. R v Lacasse, 2015 SCC 64 (CanLII) at para 1
  5. Lacasse, ibid. at para 1
  6. R v CAM, [1996] 1 SCR 500, 1996 CanLII 230 (SCC) at para 91
  7. Arcand, 2010 ABCA 363 (CanLII) at para 68
  8. Arcand at para 70
  9. R v Nasogaluak, [2010] 1 SCR 206, 2010 SCC 6 (CanLII) at para 44
  10. R v Yau, 2011 ONSC 1009 (CanLII) at para 13
  11. R v F. (D.G.), 2010 ONCA 27 (CanLII) at para 18
  12. F(DG) at para 18
  13. R v J.A.G., 2008 MBCA 55 (CanLII) at para 9
  14. R v Macintyre-Syrette, 2018 ONCA 259 (CanLII), per Juriansz JA, at para 25

Secondary Principles

The secondary principles of sentencing are listed in s. 718.2:

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; [1] and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; 2012, c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16; 2017, c. 13, s. 4.


CCC

The principles stated in s. 718.2(a),(b) and (c) are simply "restatements of the jurisprudence".[2] Sections 718.2(d) and (e) however are more than mere directions from Parliament to consider "sanctions other than imprisonment". They require courts to consider restraint as a principle equal to all other principles found in s. 718.2 and "reduce institutional incarceration".[3]

  1. R v Hamilton, 2004 CanLII 5549 (ON CA)
    R v D.L., 1990 CanLII 5415 (BC CA), (1990), 53 CCC 365 (BCCA)
  2. R v MacDonald (1997), 113 CCC (3d) 418, 1997 CanLII 9710 (SK CA), per Lane JA, at para 146
  3. MacDonald, ibid. at para 147

Topics

Purpose and Principles of Specific Types of Offences

Case Digests

Proportionality

General Principles

No matter what the balance between objectives, the sentence must always satisfy the fundamental principle of sentencing under s. 718.1.[1]

Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
R.S., 1985, c. 27 (1st Supp.), s. 156; 1995, c. 22, s. 6.


CCC

Where the sentence is not proportionate it is not just. [2] Thus, it is central to the sentencing process. [3]

Proportionality is a fundamental principle of sentences that is "the sine qua non of a just sanction".[4]

Proportionality relates to both gravity of the offence and the responsibility of the offender.[5]

The sentence must be no greater than the offenders moral culpability. [6] The severity sanction should reflect the seriousness and gravity of the criminal conduct. [7] And when the sentence is not adequate to address the seriousness of the offence then it is not proportionate. [8]

"Moral blameworthiness" is "measured by the gravity of the offence and the degree of responsibility of the offender."[9] This requires the court to consider the (1) individual offender, (2) the harm to the victim, and (3) the harm to society at large.[10]

A proper sentence is not just about the offender but also about the harm to the victim and community. Harm is one of the "central elements" in proportionality.[11]

Related to this principle, "those causing harm intentionally [should] be punished more severely than those causing harm unintentionally".[12]

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".[13]

A proper sentence consistent with s. 718.1 can become difficult to gauge where the gravity of the offence may operate against the "factors mitigating personal responsibility."[14]

Totality
A component of the principle of proportionality is the principle of totality.[15]

  1. R v Nasogaluak, [2010] 1 SCR 206, 2010 SCC 6 (CanLII), at 40
  2. R v Arcand, 2010 ABCA 363 (CanLII) at para 52 (proportionality is “the overarching principle since a disproportionate sanction can never be a just sanction.”)
  3. R v Solowan, 2008 SCC 62 (CanLII), [2008] 3 SCR 309, at para 12
    R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC)
  4. R v Safarzadeh-Markhali, 2016 SCC 14 (CanLII), at paras 70-71 ("[p]roportionality in the sense articulated at s 718.1 of the Code — that a sentence be proportionate to the gravity of an offence and an offender’s degree of responsibility — is a fundamental principle of sentencing ... proportionality is “the sine qua non of a just sanction")
    R v Ipeelee, 2012 SCC 13 (CanLII) at para 37
  5. R v Lacasse, 2015 SCC 64 (CanLII) at para 51 to 54
  6. R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, at para 40 to 42
    R v C.A.M., at para 40 ("the principle of proportionality in punishment is fundamentally connected to the general principle of criminal liability which holds that the criminal sanction may only be imposed on those actors who possess a morally culpable state of mind")
    R v Martineau, 1990 CanLII 80 (SCC) (“punishment must be proportionate to the moral blameworthiness of the offender”)
  7. Arcand, supra, at para 48 (“severity of sanction for a crime should reflect the...seriousness of the criminal conduct”)
    R v C.A.M., 1996 CanLII 230 (SCC), [1996] 1 SCR 500 at para 40
    Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 SCR 486 at 533, 24 DLR (4th) 536 ("It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system.")
  8. Arcand, supra, at para 54
  9. R v Paradee, 2013 ABCA 41 (CanLII) at para 9
  10. Paradee, ibid. at para 10
  11. Arcand, supra at para 67 ("The process is also about the harm to the victim and the community from the crime. Harm properly occupies a prominent place in the sentencing process, representing as it effectively does one of the central elements in the proportionality principle, the gravity of the offence.")
  12. R v Martineau, 1990 CanLII 80 (SCC), [1990] 2 SCR 633 at 645, 58 CCC (3d) 353
  13. R v Guha, 2012 BCCA 423 (CanLII) at para 39
  14. R v Hamilton, 2004 CanLII 5549 (ON CA), at para 93
  15. R v Sidwell, 2015 MBCA 56 (CanLII) at para 16 ("An important component of the principle of proportionality is the principle of totality, which is embedded in s. 718.2(c) of the Code")

Individualization

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. [1]

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.[2]

There is no "one size fits all" penalties.[3]

Sentencing is “an inherently individualized process.”[4]

It is also a "profoundly subjective process."[5]

The process is considered particularly difficult when "otherwise decent, law-abiding persons persons commit very serious crimes in circumstances that justifiably attract understanding and empathy".[6]

Gravity of an offence can be measured in part by the lasting emotional effects of the offence upon the victim.[7]

The individualization of a sentence to account with the characteristics of a particular offender should not reduce a global sentence to the point where it not proportionate with the misconduct.[8]

While a sentence may occasionally seem "harsh for the individual", but the court must "reflect the degree of injury to our common values as well as to the victim of the offence".[9]

  1. R v Bottineau, 2011 ONCA 194 (CanLII)(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.”)
  2. R v Angelillo 2006 SCC 55 (CanLII), (2006), 274 DLR (4th) 1
    R v Briand and Matthews (No. 3), 2010 NLCA 67 (CanLII), [2010] N.J. No. 339 (C.A.)
    R v Shoker, [2006] S.C.J. No. 44, 2006 SCC 44 (CanLII)
    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(*no CanLII links) 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. ...")
  3. R v Lee, 2012 ABCA 17 (CanLII) at para 12
  4. R v CAM, [1996] 1 SCR 500, 1996 CanLII 230 (SCC), para 92
  5. R v Shropshire, [1995] 4 SCR 227, 1995 CanLII 47 (SCC), at para 46
  6. R v Hamilton, 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252 (Ont. C.A.) at para 1
  7. R v Butler, 2008 NSCA 102 (CanLII)
  8. R v Innes, 2008 ABCA 129 (CanLII), 429 A.R. 164
  9. R v JCK, 2013 ABCA 50 (CanLII) at para 31 ("The unhappy duty of the Courts on occasion is to impose sentences that may seem harsh for the individual, but are driven by the need to reflect the degree of injury to our common values as well as to the victim of the offence.")

Moral Culpability and Blameworthiness

The law does not require foresight into the consequences of the criminal act for a person to be liable for those consequences. Parliament may then treat offences with certain consequences as more serious than others.[1] Consequently, it is incorrect to equate the same level of moral blameworthiness between impaired driving and impaired driving causing death. [2] A more serious consequence then warrants a greater penalty.[3]

  1. R v DeSousa, 1992 CanLII 80 (SCC) at p. 964 ("it is acceptable to distinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused")
  2. e.g. discussion at R v Smith, 2013 BCCA 173 (CanLII) at paras 40 - 46
  3. Smith at para 45

Totality Principle

General Principles

The principle of totality is a component of the principle of proportionality.[1]

Section 718.2(c), states that "where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;"[2]

Application
The principle of totality comes into play where there is a sentence for multiple offences. The principle requires the court to craft a global sentence of all offences that is not excessive. [3] If the total sentence is excessive the court must adjust the sentence so that the "total sentence is proper". [4]

The sentence may violate the totality principle where the global sentence considerably exceeds the "normal" level of the most serious of the individual offences.[5]

The sentence may also violate the principle where the global sentence "exceeds what is appropriate given the offender's overall culpability.[6]

Purpose
The totality principle was "intended to avoid sentences that cumulatively are out of proportion to the gravity of the offences"[7]

In some sense, totality is a "subsidiary" of the principle of proportionality.[8]

The principle is also seen as "in service of" the principle of restraint.[9]

Effect
The only effect of totality should be that the sentence "cannot exceed the overall culpability of the offender".[10]

Totality will have a balancing effect when applied after considering the denunciatory and deterrent objectives.[11]

It should not have the effect of "wip[ing] out punishment for serious aggravating factors".[12]

Single Transaction
Where there are multiple counts arising from a single transaction, the court should consider the sentencing of the worst of the counts "then go on to assess what effect the other collateral or associated crimes has on the overall culpability of the offender". [13] Generally, the other offences are "essentially modifiers or adjectives" that deserve concurrent sentences.[14]

  1. R v Sidwell (KA), 2015 MBCA 56 (CanLII) at para 16 ("An important component of the principle of proportionality is the principle of totality, which is embedded in s. 718.2(c) of the Code.")
  2. see s. 718.2 of the Code: "718.2 A court that imposes a sentence shall also take into consideration the following principles:...(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;...1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; 2012, c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16."
  3. M. (C.A.), [1996] 1 SCR 500, 1996 CanLII 230 (CanLII) at para 42
  4. R v Keshane, 2005 SKCA 18 (CanLII)
    R v Hicks, 2007 NLCA 41 (CanLII)
    R v Murray, 2009 BCCA 426 (CanLII), at para 13
  5. R v E.T.P., 2001 MBCA 194 (CanLII)
  6. R v Wharry, 2008 ABCA 293 (CanLII), 234 CCC 3d 338, 437 AR 148 at para 35
    R v Abrosimo, 2007 BCCA 406 (CanLII), 225 CCC 3d 253 at paras 20 to 31
    see also R v Tiegs, 2012 ABCA 116 (CanLII), 2012 ABCA 116, [2012] AJ No. 378
  7. R v D.F.P., 2005 NLCA 31 (CanLII), (2005), 197 CCC 498 (N.L.C.A.) at para 24
    See also Ruby, Sentencing, 4th edition (Toronto: Butterworths, 1994) ("...The purpose [of the totality principle] is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate "just and appropriate". A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects.”)
  8. R v May, 2012 ABCA 213 (CanLII) at para 7
  9. R v Ranger, 2014 ABCA 50 (CanLII) at para 50
  10. R v Khawaja, 2012 SCC 69 (CanLII) at para 126
    Ranger, ibid. at para 50
  11. e.g. R v Foley, 2013 ONCJ 26 (CanLII) at para 57, 58
  12. R v Ranger, supra at para 50
    R v Lemmon, 2012 ABCA 103 (CanLII), per Martin JA at para 23 (“We must remember that the ultimate objective is a sentence that reflects the gravity of the offence and the degree of responsibility of the offender, not a mindless application of sentencing principles.”)
  13. R v May, 2012 ABCA 213 (CanLII) at para 8 ("this application of totality is primarily in service of the principle of restraint and is secondarily in service of the principle of proportionality. This application does not operate to wipe out punishment for serious aggravating factors")
  14. May at para 8

Procedure

Depending on the jurisdiction, this process can be done either by summing the individual sentences and then adjusting accordingly [1] or by making a global sentence and calculating individual sentences from that number.[2] It is more frequently the former than the latter.[3]

In Newfoundland and Labrador Court of Appeal the "guidelines for the analytical approach to be taken" when considering applying the principle of totality:[4]

  1. "When sentencing for multiple offences, the sentencing judge should commence by identifying a proper sentence for each offence, applying proper sentencing principles."
  2. "The judge should then consider whether any of the individual sentences should be made consecutive or concurrent on the ground that they constitute a single criminal adventure, without consideration of the totality principle at this stage."
  3. "Whenever, following the determinations in steps 1 and 2, the imposition of two or more sentences, to be served consecutively, is indicated, the application of the totality principle is potentially engaged. The sentencing judge must therefore turn his or her mind to its application."
  4. "The approach is to take one last look at the combined sentence to determine whether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender."
  5. "In determining whether the combined sentence is unduly long or harsh and not proportionate to the gravity of the offence and the degree of responsibility of the offender, the sentencing court should, to the extent of their relevance in the particular circumstances of the case, take into account, and balance, the following factors:"
    1. "the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved;"
    2. "the number and gravity of the offences involved;"
    3. "the offender’s criminal record;"
    4. "the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing;"
    5. "such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender’s degree of responsibility."
  6. "Where the sentencing judge concludes, in light of the application of those factors identified in Step 5 that are deemed to be relevant, that the combined sentence is unduly long or harsh and not proportionate to the gravity of the offences and the offender’s degree of responsibility, the judge should proceed to determine the extent to which the combined sentence should be reduced to achieve a proper totality. If, on the other hand, the judge concludes that the combined sentence is not unduly long or harsh, the sentence must stand."
  7. "Where the sentencing court determines that it is appropriate to reduce the combined sentence to achieve a proper totality, it should first attempt to adjust one or more of the sentences by making it or them concurrent with other sentences, but if that does not achieve the proper result, the court may in addition, or instead, reduce the length of an individual sentence below what it would otherwise have been."
  8. "In imposing individual sentences adjusted for totality, the judge should be careful to identify:"
    1. "the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, without considerations of totality;"
    2. "the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and"
    3. "the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are, for this purpose, to be made concurrent or to be otherwise reduced."
  9. "Finally, the sentencing judge should indicate whether one or more of the resulting sentences should be further reduced to reflect any credit for pre-trial custody and if so, by how much."

After all the sentences for each count have been combined, the following step is to determine whether the sentence is "unduly long or harsh".[5]

It has been suggested that where there are multiple counts from a single transaction, the best practice is to first consider the worst of the offences and then assess what affect the collateral offences have on the overall culpability, thus treating the lesser offences as modifiers of the initial sentence.[6]

  1. R v Newhook 2008 NLCA 28 (CanLII)
    R v Li, 2009 BCCA 85 (CanLII) at paras 26-28
    R v Lapointe, 2010 NBCA 63 (CanLII) at para 32
  2. R v Lombardo, 2008 NSCA 97 (CanLII)
  3. e.g. R v Adams, 2010 NSCA 42 (CanLII) at para 23
  4. R v Hutchings, 2012 NLCA 2 (CanLII) at para 83
    Murray at para 13
  5. see s. 718.2(c)
    R v CAM, 1996 CanLII 230 (SCC) at para 42
    R v DJD, 2010 ABCA 207 (CanLII) at para 144
  6. R v May at para 8
    see e.g. R v Fait, 1982 ABCA 148 (CanLII), (1982) 68 CCC 2d 367, 37 AR 273 (CA)
    R v Raber, 1983 ABCA 325 (CanLII), (1983) 57 AR 360
    R v Keough, 2012 ABCA 14 (CanLII), 519 AR 236 at para 17 and paras 26 to 30, but c.f. paras 58 to 63 from dissent

Sprees

Totality can be applied to spree crimes, a string of similar offences over a short period of time. Though they are separate offences, the courts can treat them as a single transaction due to the linkage between them.[1] This form of totality must be considered carefully as it should not give the impression that offences are "cheaper" when done in succession. It has a reduction effect in part due to the frequency that the offender is young and rehabilitation is still a major consideration.

It is wrong to treat "sprees" of crime as a reason to deduct the overall sentence as crime should not be treated as "cheaper by the dozen".[2]

  1. R v May, 2012 ABCA 213 (CanLII) at para 9
    R v Johnas, 1982 ABCA 331 (CanLII), (1982) 2 CCC 3d 490, 41 AR 183
  2. R v May, 2012 ABCA 213 (CanLII) at para 10

Parity Principle

General Principles

The parity principle means that a sentence should be "similar to sentences imposed on similar offenders for similar offences committed in similar circumstances". [1]

Given the subjective nature of the sentencing process it is necessary that all sentences "must respect the parity principle".[2]

Offenders being sentenced to the same or similar offence should not have disparate sentences. The sentences should be approximately the same, taking into account the aggravating and mitigating factors unique to the individual. [3]

The purpose of the parity principle is to ensure fairness "by avoiding disproportionate sentences among convicted persons where, essentially, the same facts and circumstances indicate equivalent or like sentences".[4]

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." [5]

To fulfil this requirement sentencing judges must consider the "range" of sentences of "similar offenders for similar offences committed in similar circumstances".[6]

The principle ensures fairness between similarly situated cases.[7] It does not however override the individualized approach to sentencing. [8]

One of the goals of the provincial courts of appeal is to maintain parity in sentence and minimize the differences in sentencing approaches.[9] However, the judges must also be sensitive to the needs of local community.[10]

It has been suggested that courts have a duty "to impose sentences in line with precedent" while still taking into account the uniqueness of the offender and offence.[11]

The parity principle "does not preclude disparity where warranted by the circumstances, because of the principle of proportionality".[12]

Increases in minimum sentences will have the effect of "shifting" or "inflating" the range of appropriate sentence. This is not considered a violation of the parity rule.[13]

Where the judge deviates from the regular range established by case law the judge "should explain how it is in accordance with the principles and objectives and objectives of sentencing."[14]

Given the individualized process of sentencing, "the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction".[15]

The principle of parity is "secondary to the fundamental principle of proportionality".[16]

  1. see s. 718.2(b) Criminal Code
    Sentencing, 7th ed. (Markham: LexisNexis, 2008), at ss.2.21
  2. Nash v R., 2009 NBCA 7 (CanLII), per Robertson JA at para 54
  3. R v Roche 1990 CanLII 6483 (NL CA), (1990), 84 Nfld. & P.E.I.R. 1, per Goodridge JA, at para 10
  4. R v W.E., 2010 NLCA 4 (CanLII), per Rowe JA at para 33 quoting Clayton C. Ruby, Sentencing, 7th ed. (Markham, ON: LexisNexis, 2008) at page 33:
  5. R v Oake, [2010] N.J. No. 94 (NLCA)(*no CanLII links)
  6. R v Tuglavina, 2011 NLCA 13 (CanLII), [2011] N.J. No. 25 (NLCA), per Wells JA
    Nash at para 54
  7. R v Rawn, 2012 ONCA 487 (CanLII), per Epstein JA at para 18
  8. R v Knife, 1982 CanLII 2569 (SK QB), (1982), 16 Sask. R. 40 (C.A.), per Cameron JA at p. 43
  9. R v Arcand 2010 ABCA 363 (CanLII), per Fraser and Watson JJA
    Nasogaluak 2010 SCC 6 (CanLII), per LeBel J
  10. Nasogaluak, ibid.
  11. Oake, supra
    c.f. R v Day, 2013 BCCA 172 (CanLII), per Kirkpatrick JA, at para 17 (It is “trite law that the sentences imposed in other cases are of limited assistance in determining a fit sentence.”)
  12. R v LM, 2008 SCC 31 (CanLII), [2008] 2 SCR 163, per LeBel J at para 36
  13. R v KDH, 2012 ABQB 471 (CanLII), per Manderscheid J at paras 6-8
  14. R v Cluney, 2013 NLCA 46 (CanLII), per Barry JA
  15. R v M(CA), [1996] 1 SCR 500, 1996 CanLII 230 (SCC), per Lamer CJ at para 92
  16. R v Lacasse, [2015] 3 SCR 1089, 2015 SCC 64 (CanLII), per Wagner J at para 92

Ranges of Sentence

One of the roles of appellate courts is in "maintaining some degree of uniformity in the sentences imposed for crimes of the same general character" by setting direction of appropriate sentences.[1]

A Court referring to a "range" of sentence can be interpreted in multiples ways.[2] It its descriptive sense, considering a range of sentence is simply a "check" to ensure that the sentence is not unduly harsh or lenient when compared against other cases. It "reflects individual cases, but does not govern them".[3]

In a prescriptive sense, a range is set by an appellate court to instruct lower courts on the "appropriate penalty for a category of crime".[4]

When a range is defined prescriptively, care should be taken as problems may arise in defining the parameters.[5]

Regardless of the sense, ranges are considered "guidelines" and not "hard and fast rules". The judge may go outside the range as long as it conforms to the principles and objectives of sentencing.[6]

Some courts have stated that deviation from the range requires something "special" or "unusual" about the case.[7]

  1. R v Robert, 1996 CanLII 1725 (BC CA), per Goldie JA at para 23
  2. R v Johnston, 2011 NLCA 56 (CanLII), per White JA at para 36
    R v O’Flaherty, 1997 CanLII 14649 (NL CA), (1997), 155 Nfld. & P.E.I.R. 150 (NFCA), per Steele JA at para 20
  3. Johnston, supra at para 36
  4. Johnston, supra at para 37
    R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J at para 244
  5. Johnson at para 42
    R v Murphy, 2001 NLCA 16 (CanLII), per Marshall JA
  6. R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J at para 44
  7. Johnston, supra at para 39

Parity to Co-Accused

Co-accused who are equally responsible for the offence should, with all else being equal, expect to have similar sentences.[1]

In a situation of co-accused, the roles of the parties will be considered as well as their personal circumstances. [2]

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."[3]

Where there is disparity between offenders who participated in a "common venture", the judge must show justification.[4]

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.[5]

Uncharged Co-Accused
Uncharged accomplices who sign an immunity agreement in exchange for testimony of the accused is not a relevant factor to sentencing of the accused.[6]

  1. R v Reitmeier, 2016 ABCA 269 (CanLII), per curiam at para. 10
  2. R v Knife (1982), 16 Sask. R. 40 (C.A.)(*no CanLII links) at p. 43
  3. R v Issa (T.), (1992), 57 O.A.C. 253(*no CanLII links) at para 9
    R v Rawn, 2012 ONCA 487 (CanLII), per Epstein JA at para 30
  4. R v Sahota, 2015 ONCA 336 (CanLII), per curiam at para 7
  5. R v Ellahib, 2008 ABCA 281 (CanLII), per Rowbotham JA -- 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.
  6. R v Wilson, 2018 ABPC 54 (CanLII), per Van de Veen J, at para 27 at para 27
    R v Athwal, 2017 ONCA 222 (CanLII), per Juriansz JA
    R v Deol, 2017 ONCA 221 (CanLII), per Juriansz JA
    R v Perciballi, 2001 CanLII 13394 (ON CA), [2001], 54 O.R. (3d) 346, per Charron JA

See Also

Restraint Principle

General Principles

The principle of restraint is found in s. 718.2(d) and (e).[1]

Section 718.2 states, in part:

718.2
...

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; 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.

1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; 2012, c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16.


CCC

Restraint is an important principle that should be "used in an appropriately reasonable but humane manner". It should "invigorat[e] the confidence of the public that sentences imposed are both just and fair".[2]

The principle operates to permit judges to pose "a just and appropriate punishment, and nothing more".[3]

An overly harsh or oppressive sentences that "fail to acknowledge the unique circumstances and facts of a case will not be seen as fair or rational".[4]

The principle also requires the judge to consider rehabilitation in setting the length of the sentence.[5]

"General deterrence cannot be the sole consideration. Appropriate consideration must be given to the rehabilitation of the offender."[6]

Parliament codified the principle of restraint in order to limit the use of incarceration.[7]

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."[8]

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.[9]

Where mental health issues played a central role in the commission of the offence, deterrence and punishment are of less importance.[10]

  1. R v MacDonald, 1997 CanLII 9710 (SK CA), (1997), 113 CCC (3d) 418 at para 147 per Lane JA, concurring with Sherstobitoff JA ("I read s. 718.2(d) and (e) as a clear intention on the part of Parliament to reduce institutional incarceration and to adopt the principle of restraint.")
    R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC), per Cory and Iacobucci JJ at paras 37 to 41
  2. R v May, 2012 ABCA 213 (CanLII)
  3. R v CAM, [1996] 1 SCR 500, 1996 CanLII 230 (SCC), per Lamer CJ at para 80
  4. R v Thompson, 2017 NSPC 18 (CanLII), per Derrick J at para 73
    R v Lacasse, 2015 SCC 64 (CanLII), per Wagner J (5:2) at para 3 ("The credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders. A sentence that is unfit, whether because it is too harsh or too lenient, could cause the public to question the credibility of the system in light of its objectives.")
  5. R v Batisse, 2009 ONCA 114 (CanLII), per Gillese JA (2:1), at para 33
  6. R v Blanas, 2006 CanLII 2610 (ON CA), (2006), 207 O.A.C. 226, per curiam, at para 5
  7. Batisse, supra at para 35
  8. R v Hamilton 2004 CanLII 5549 (ON CA), per Doherty JA at para 96
  9. R v Vandale (1974), 21 CCC (2d) 250 (ONCA), 1974 CanLII 1610 (ON CA), 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.")
  10. Batisse, supra at para 38

First-time Offenders

Where a first-time offender is to be sentenced a judge should consider all possible dispositions other than incarceration. Custody should only be imposed where "the offence is of such gravity that no other sentence is appropriate".[1] It is preferable in most cases that non-violent first time offenders be punished in other ways than incarceration.[2]

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".[3]

Offences of Violence

Certain violent offences will attract a jail sentence despite being a first offence.<ref> R v Perlin, [1977] N.S.J. No. 548, per A Macdonald JA at para. 8 ("In my opinion the over riding consideration in sentencing with respect to crimes of violence must be deterrence and it is for such reason that save for exceptional cases substantial terms of imprisonment must be imposed.")
R v MacNeil, 2009 NSSC 310 (CanLII), per S Macdonald J citing Perlin, supra at para 31

  1. R v Stein (1974), 15 CCC (2d) 376 (ONCA), 1974 CanLII 1615 (ON CA), per Martin JA, at para 4 ("In our view, before imposing a custodial sentence upon a first offender the sentencing Court should explore the other dispositions which are open to him and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate")
    R v Priest, 1996 CanLII 1381 (ON CA), [1996] 30 O.R. (3d) 538, per Rosenberg JA, at para. 20 ("The duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can be avoided merely by invoking the objective of general deterrence. It should be clear from the record of the proceedings, preferably in the trial judge’s reasons, why the circumstances of this particular case require that this first ")
    R v  Pierce, 1996 CanLII 1381 (ON CA), [1996] 30 O.R. (3rd) 538 (Ont. C.A.) - courts should consider non-custodial sentences in appropriate cases of first time offenders
  2. R v Laschalt, (1993), 81 CCC (3d) 154, 1993 CanLII 14689 (MB CA) at p. 59 per Sinclair JA ("The imprisonment of non-violent first offenders is counter-productive. It strains a system already strained by more violence and repeat offenders than it can rehabilitate. It often results in a first offender emerging bitter and more ready to commit further crimes. Better that a non-violent, first offender be punished in another way")
  3. R v Battise, 2009 ONCA 114 (CanLII) at para 32
    Priest, supra at p. 545

See Also

Jump, Step and Gap Principles

General Principles

The "jump", "step", and "gap" principles are principles designed to limit the range of appropriate sentences for offenders who have a prior related records. They are derived from several principles including proportionality, rehabilitation, restraint under s. 718(d), and the totality principle under s. 718.2(c).[1]

  1. R v Bernard, 2011 NSCA 53 (CanLII) at para 26
    Frigault v R., 2012 NBCA 8 (CanLII) at para 17
    R v Robitaille, 1993 CanLII 2561 (BC CA), (1993), 31 BCAC 7 at para 9 ("... the theory that sentences should go up only in moderate steps is a theory which rests on the sentencing principles of rehabilitation. It should be only in cases where rehabilitation is a significant sentencing factor.")

Jump/Step Principle

The "jump" or "step" principle (also called the "principle of incremental sentencing") states 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.[1] The purpose of this rule is to avoid having the accused re-punished for past bad acts.[2]

A significant jump in sentence is inconsistent with rehabilitation where that is a significant factor in sentence.[3]

The subsequent similar sentence must be progressive.[4] A dramatic increase in sentence (ie. a "jump") due to a recent prior similar record would violate this principle.[5]

The jump principle will be violated when a sentence goes from 2 years to 4 years on subsequent conviction.[6] Or where the sentence goes from probation to 8 years.[7]

  1. R v White, 2007 NLCA 44 (CanLII)
    R v Muyser, 2009 ABCA 116 (CanLII)
    R v Murphy, [2011] N.J. No. 43 (C.A.), 2011 NLCA 16 (CanLII)
  2. Muyser, supra at para 8
  3. R v White, at paras 5 to 8
  4. R v Muyser, 2009 ABCA 116 (CanLII)
  5. R v Borde 2003 CanLII 4187 (ON CA), (2003), 63 O.R. (3d) 417, at para 39
  6. Re Morand and Simpson, (1959), 30 C.R. 298 (Sask. C.A.), 1959 CanLII 235 (SK CA)
    See R v Clark, 2005 ABPC 40 (CanLII) citing Ruby on Sentencing
  7. R v Sloane, [1973] 1 N.S.W.L.R. 202 (*no CanLII links)
    See R v Clark citing Ruby on Sentencing

Exceptions

The jump rule does not apply where the index offence is greatly more serious than the prior offences.[1] The jump principle has greater application for sentences on the lower range of seriousness as there is a greater flexibility in what is an appropriate sentence.[2]

The jump principle is of "less utility" when dealing with an accused "with a lengthy criminal record on multiple convictions".[3] And also where rehabilitation is not realistic and record is related to the offence.[4]

A jump in sentence may be permissible where a previously lenient sentence was not effective in deterring the offender.[5]

The jump principle cannot trump the principle of proportionality.[6]

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.

  1. R v Borde 2003 CanLII 4187 (ON CA), (2003), 63 O.R. (3d) 417, at para 39 ("[The jump principle] has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.")
    R v J.G., 2005 CanLII 36170 (ON SC)
    R v Courtney, 2012 ONCA 478 (CanLII) at para 10-11
  2. R v Muyser at para 9
  3. Frigault v R., 2012 NBCA 8 (CanLII)
  4. R v Lohnes, 2007 NSCA 24 (CanLII) at paras 40, 42
    R v Thomson, 2013 BCCA 220 (CanLII) at paras 7 to 8
  5. R v Westerman, 2002 CarswellOnt 1041 (C.J.)(*no CanLII links) at paras 28 to 30, 44 to 49
    R v Ferrigon, 2007 CarswellOnt 3072 (S.C.), 2007 CanLII 16828 (ON SC) at paras 8 to 12
  6. R v Blair, 2005 ABCA 414 (CanLII) at para 10

Step-up Principle

The closely related "step-up" principle (primarily employed in British Columbia) suggests that subsequent sentences should be increased in "moderate steps" or else it may interfere with rehabilitation.[1] This principle however should not be applied where denunciation and deterrence are the primary goals.[2]

  1. R v Bush (D.F), 2006 BCCA 350 (CanLII) at para 9 ("the principle … that is often used to describe the philosophy that sentences should usually increase in moderate steps since a sudden, large increase in the length of a sentence may interfere with the goal of rehabilitation, if that is the focus of the sentence.")
  2. Bush, ibid. at para 9 ("The step-up principle has little application where a sentencing judge determines that the offence in question calls for a sentence in which the primary goals are denunciation and deterrence")

Gap Principle

The "gap principle" directs courts to take into consideration the gaps of time between offences.[1] It gives credit to someone who has made an effort to avoid criminal charges. [2]

  1. R v Smith, 2006 NSCA 95 (CanLII) at para 36: extensive citation from Ruby on Sentencing
  2. see §8.83 of Clayton Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008)

See Also

Aboriginal Sentencing Principles and Factors

General Principles

Section 718.2(e) requires sentencing judges to take into account an offender's aboriginal status. It states that "[a] court that imposes a sentence shall also take into consideration...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."[1]

This provision imposes a different approach to sentencing for aboriginal offenders.[2] It "suggests that there is something different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction."[3]

The section is in part an attempt at providing a form of affirmative action under s. 15(2) of the Charter, but not to the extent of providing an automatic deduction of sentence.[4]

Courts are required to take judicial notice of that Aboriginals have a long-standing disadvantage in Canadian society.[5]

Imposition of Incarceration
The court must consider whether imprisonment to denounce or deter "would be meaningful to the community of which the offender is a member."[6]

Sentencing for aboriginal offenders will tend to take a more restorative approach to sentencing.[7] Denunciation and deterrence can still play a part in sentencing as it is important to the community associated with the offender. [8]

Sentence Reductions
The fact that a person is aboriginal does not automatically warrant a reduction in sentence. The aboriginal factor must be considered among other factors as well and its impact will vary from case-to-case.[9]

The aboriginal sentencing factors (or "Gladue" factors) will play a role in all offences by aboriginal offenders, no matter how serious.[10] However, the factors will play less of a role for the most serious offences where the emphasis must be on the protection of the public, denunciation and deterrence.[11]

Where imprisonment is necessary, the length may be less due to the aboriginal heritage factors, but where the offence is "more violence and serious" it is "more likely" that the terms of imprisonment will be close to or the same length as a non-aboriginal offender. [12]

Non-Aboriginal Disadvantaged Groups
The principles under s. 718.2(e) do not apply analogously to other historically disadvantaged groups including African-Canadians.[13] But issues of race, gender, and poverty can still be considered as mitigating factors.[14]

  1. see s. 718.2(e)states "718.2 A court that imposes a sentence shall also take into consideration the following principles:...(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders."
    First recognized for aboriginal offenders in R v Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688, per Cory and Iacobucci JJ
  2. Gladue, ibid.
    R v Ipeelee 2012 SCC 13 (CanLII), per LeBel J at paras 73, 74
    R v Kakekagamick, 2006 CanLII 28549 (ON CA), [2006] O.J. No. 3346 (C.A.), per LaForme JA
  3. Gladue, supra at para 37
  4. Gladue, supra at para 88
  5. Ipeelee, supra
  6. Gladue, supra at para 69
  7. R v Wells, 2000 SCC 10 (CanLII), [2000] 1 SCR 207, per Iacobucci J
  8. Wells, ibid.
  9. Gladue, supra at para 88
  10. Ipeelee, supra
  11. Gladue, supra at para 78
    R v Harry, 2013 MBCA 108 (CanLII), 303 Man.R. (2d) 39, per Hamilton JA
  12. Gladue, supra at para 79
    R v Carrière, 2002 CanLII 41803 (ON CA), per curiam
    R v Jacko, 2010 ONCA 452 (CanLII), per Watt JA
  13. R v Borde, 2003 CanLII 4187 (ON CA), per Rosenberg JA
  14. R v Hamilton, 2004 CanLII 5549 (ON CA), per Doherty JA overturning 2003 CanLII 2862 (ON SC), per Hill J

Aboriginal Sentencing Factors ("Gladue" Factors)

See also: Pre-Sentence Reports

In sentencing aboriginal offenders, the sentencing judge must:[1]

  1. consider "Gladue factors" unless the offender "expressly waives the right" to have them considered;[2] and
  2. provide "transparent and understandable reasons" as to how, if at all, the "identified Gladue factors impacted" the sentence.

This duty requires the judge to "address explicitly an aboriginal offender's circumstances, and the systemic and background factors that contributed to those circumstances".[3]

Purpose of s. 718.2(e)
The purpose of s. 718.2(e) is the "identification of relevant factors" of the offender's aboriginal heritage that may have played a part in bringing the particular offender".[4]

The factors are not to work as "an excuse or justification for the criminal conduct." They "provide the necessary context to enable a judge to determine an appropriate sentence".[5]

When Factors Apply
The factors apply to all offences, no matter how serious they may be.[6]

Gladue factors are only "one of a group of factors that can affect the level of moral blameworthiness". [7]

Gladue does not "create an entire new system of sentencing" for aboriginal offenders.[8]

Burden
The offender does not have any burden of persuasion.[9] The judge must consider all factors "which may have played a part in bringing the particular offender before the courts".[10]

Effect of Factors
Where Gladue factors are identified they "will not dictate an automatic reduction in the sentence".[11] The factors "do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence".[12]

The factors will only have an impact on penalty where "the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized".[13]

Linking Factors to Offence
There is no need of proving a causal connection between the offence and the accused's aboriginal background.[14] The only linkage needed is by considering which factors "may have played a part in bringing the particular offender before the courts".[15]

Considerations
The aboriginal heritage factors must be considered in light of how they may have played a part in bringing the accused before the Court.[16] There is no discretion on whether to consider these factors. They must be considered in every sentencing hearing relating to an aboriginal offender.[17] Failure to undertake the duty to apply Gladue principles to an aboriginal offender is a reverseable error.[18]

The Court must consider:[19]

  1. the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the Courts (such as systemic disadvantages, discrimination and other factors) and
  2. the effectiveness of the sentencing by looking at the types of sentencing procedures and sanctions which may be appropriate in the circumstances of the offender because of his or her particular aboriginal heritage or connection.

The systemic factors can be evinced in the following statistics:[20]

  • In 1988, aboriginal persons were only 2 percent of the national population but 10 percent of federal inmates
  • In some provinces, 32 percent of the federal inmates were aboriginal persons
  • In one province, 60 percent of the provincial inmates were aboriginal persons

Despite the disproportionate numbers of imprisoned aboriginals, courts are not to artificially reduce the aboriginal prison population for its own sake.[21]

The aboriginal heritage factors include:[22]

  • family circumstances
  • support network
  • residential schools
  • unemployment
  • lack of educational opportunities
  • dislocation from aboriginal communities, loneliness and community fragmentation
  • family involvement in a criminal environment
  • loss of identity, culture and ancestral knowledge
  • substance abuse
  • poverty
  • racism
  • abuse
  • witness to violence

Courts must take judicial notice of the "history of colonialism, displacement and residential schools" and how it has translated to lower education and income, and higher rates of unemployment, suicide and incarceration.[23]

Factors such as poverty, substance abuse, lack of education, loneliness, community fragmentation, and the lack of employment opportunities" create an unbalanced ratio of imprisonment of aboriginal offenders.[24]

  1. R v Laboucane, 2016 ABCA 176 (CanLII), per curiam at para 5
  2. Ipeelee, supra at para 60
  3. R v Napesis, 2015 ABCA 308 (CanLII), per curiam at para 8
  4. Laboucane, supra at para 67
  5. Laboucane, supra at para 71
    Ipeelee, supra at para 83
  6. Ipeelee, supra at para 84
    Gladue, supra at para 79
    R v Wells, 2000 SCC 10 (CanLII), per Iacobucci J at paras 42-44
    Laboucane, supra at para 63
  7. R v Assiniboine, 2016 SKQB 149 (CanLII), per Danyliuk J at par 74
  8. Assiniboine at para 78
    R v Chanalquay, 2015 SKCA 141 (CanLII), per Richards CJ at para 42
  9. Laboucane, supra at para 63
  10. Laboucane, supra at para 63
    Gladue, supra at para 69
  11. Laboucane, supra at paras 2, 63
    Ipeelee, supra at para 74
    R v Holloway, 2014 ABCA 87 (CanLII), per Berger JA at para 42
    R v Popowich, 2013 ABCA 149 (CanLII), per Berger JA at para 24
    R v Guimond, 2016 MBCA 18 (CanLII), per Mainella JA at paras 6-7
    R v Johnny, 2016 BCCA 61 (CanLII), per Newbury JA at para 21 (“The fact that the sentencing judge was required to consider s 718.2(e) does not mean she was to ignore the effects of the offender’s conduct on his community ... or on the various individuals who have suffered and continue to suffer as a result of” the offence)
    c.f. R v Kreko, 2016 ONCA 367 (CanLII), per Pardu JA
  12. Ipeelee, supra at para 83
    Laboucane, supra at para 63
  13. Ipeelee, supra at para 83
    Laboucane, supra at para 63
  14. R v Collins, 2011 ONCA 182 (CanLII), [2011] O.J. No. 978 (Ont. C.A.), per Rosenberg JA, at para 32 ("There is nothing in the governing authorities that places the burden of persuasion on an Aboriginal accused to establish a causal link between the systemic and background factors and commission of the offence.")
    Ipeelee, supra at para 83
    Laboucane, supra at para 63
  15. Gladue, supra at para 69
    Laboucane, supra at para 63
  16. R v Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688, per Cory and Iacobucci JJ at para 69
  17. Laboucane, supra at para 63
  18. Ipeelee, supra at para 87
    Laboucane, supra at para 63
  19. R v Ipeelee, 2012 SCC 13 (CanLII), per LeBel J at paras 73, 74
    Kakekagamick, supra
  20. Ipeelee, supra at paras 57, 60
  21. Ipeelee, supra at para 75
  22. Gladue, supra
  23. Ipeelee, supra at para 60
  24. Gladue, supra at paras 65, 67

See Also

Sentencing Starting Points

General Principles

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". [1]

Generalized offences with a "myriad of factual underpinnings" have been rejected as having a fixed "starting point".[2]

The "starting point" is an effective mid-point within the range of sentence for the offence. [3]

A starting point of sentence will be raised and lowered after considering the aggravating and mitigating factors on sentence.[4]

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. [5]

A judge would does not mention starting points in sentence where one exists is not committing an error in principle.[6]

Starting points assume the accused is of good character with no record.[7]

  1. R v McDonnell [1997] S.C.J. No. 42, 1997 CanLII 389, per Sopinka J
  2. e.g. R v Jefferson, 2008 ABCA 365 (CanLII), per Berger JA
  3. McDonnell, supra at para 60 (“... The starting point may be viewed as the mid-point in the traditional range of sentences for a particular sort of crime.”
  4. R v Ostertag, 2000 ABCA 232 (CanLII), per Viet J
  5. R v Marchesi, 2009 ABCA 304 (CanLII), per curiam at para 7
  6. R v Lee, 2012 ABCA 17 (CanLII), per Berger JA at para 58
    R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J
    R v Wells, 2000 SCC 10 (CanLII), [2000] 1 SCR 207, per Iacobucci J
    L.M., 2008 SCC 31 (CanLII), [2008] 2 SCR 163, per Lebel J
  7. McDonnell, supra

See Also

Sentencing Ranges

General Principles

Sentencing courts are required to apply the ranges of sentences set by the Court of Appeal when considering a fit and proper sentence.[1]

A range of sentence is not the boundary for 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 create the continuum of the range. [2]

A sentencing ranges recommended by the courts of appeal are generally looked at as summaries of the minimum and maximums that have been imposed in the past which can guide judges. The are not "averages" or "straights-jackets" to regular judicial discretion.[3]

Purpose of Ranges
One of the purposes of a range set by a court of appeal is to "minimize disparity of sentences in cases involving similar offences and similar offenders".[4]

Importance of Ranges
The "credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders".[5]

Effect of Ranges
A sentence is not proportionate simply because it is within a range. Likewise, it is not disproportionate when it falls outside of a range "providing it is otherwise in accordance with the principles and objectives of sentencing".[6]

An offender who is charged by the military will generally be expected to receive a harsher sentence than that of a civilian for the same offence.[7]

Exceeding the Range
A sentencing judge's discretion is fettered by general ranges of sentence. These ranges are to encourage consistency between sentences.[8]

Ranges "are guidelines rather than hard and fast rules".[9] 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.[10] However, factors such as a “good record” and remorse do not amount to exceptional circumstances to deviate from the accepted range.[11]

A judge may impose a sentence outside of the recommended range so long as it complies with the principles and objectives of sentencing.[12]

Appellate Review of Ranges
It is an "error in principle" for a judge to misstate the range of sentence for a particular offence. [13]

Sentencing Grids and Sentencing Tables
The use of judge-imposed sentencing grids or tables goes contrary to the intent of parliament and is not permitted.[14]

  1. R v Jafarian, 2014 ONCA 9 (CanLII), per curiam - trial judge refuses to follow appellate direction because they are "ridiculously low"
  2. R v Cromwell 2005 NSCA 137 (CanLII), per Bateman JA at para 26
  3. R v Anderson, 2016 MBPC 28 (CanLII), per Martin J at para 24 citing Lacasse at para 57
  4. R v Stone, [1999] 2 SCR 290, 1999 CanLII 688 (SCC), per Bastarache J at para 244 ("One function of appellate courts is to minimize disparity of sentences in cases involving similar offences and similar offenders")
  5. R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, per Wagner J at paras 3-6
  6. R v Gibson, 2015 ABCA 41 (CanLII), per curiam at para 16
  7. R. v Généreux, (1992) 1992 CanLII 117 (SCC), 1 S.C.R. 259, per Lamer CJ ("To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct.")
  8. R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J at para 44
  9. Nasogaluak, ibid. at para 44
  10. Nasogaluak at para 44
    c.f. R v Doerksen, 1990 CanLII 7329 (SK QB), (1990) 62 Man.R. 2d 259 (CA), per Kyle J: A set range of sentence can be deviated from in “exceptional circumstances”
  11. R v Henderson, 2012 MBCA 9 (CanLII), per Hamilton JA
  12. R v McCowan, 2010 MBCA 45 (CanLII), per Steel JA at para 11
  13. R v Dyke, 2014 SKCA 93 (CanLII), per Jackson JA at para 22
    R v Simcoe, 2002 CanLII 5352 (ONCA), per Feldman JA at para 13
  14. R v Gauvreau, 2017 ABCA 74 (CanLII), per curiam, at para 17

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.[1] Likewise, an election to proceed by indictment should not be a relevant factor.[2]

Sentences for breach of court orders is a gradual process without a sudden, substantial increase in penalty.[3]

  1. R v Solowan, 2008 SCC 62 (CanLII), [2008] 3 SCR 309, per Fish J at para 15
  2. R v Paul, 2014 ABCA 42 (CanLII), per curiam
  3. R v Murphy, 2011 NLCA 16 (CanLII), [2011] N.J. No. 43 (C.A.), per Welsh JA at 34

See Also

Aggravating and Mitigating Factors

General Principles

Section 718.2 provides a non-exhaustive list of secondary principles and objectives in sentencing.[1] This list includes a list of aggravating and mitigating circumstances:

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 gender identity or expression, or on 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,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,
(v) evidence that the offence was a terrorism offence, or
(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act

shall be deemed to be aggravating circumstances;
...
1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; 2012, c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16; 2017, c. 13, s. 4.


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.[2]


Abused a Person Under 18

There is a division in the caselaw of whether s. 718.2(a)(ii.1) applies to possession of child pornography.[3]

There is also suggesiton that it does not apply to luring, even if the young person at issue is a real person.[4]

Absence of Aggravation Does Not Equate to Mitigation and Vice Versa
It is an error of law for a judge to find that the absence of a recognized aggravating factor can be used to mitigate sentence.[5] Thus, it cannot be used as a reason to deviate from a starting point for sentence or consider a sentence on the bottom end of the range of penalties.[6]

Similarly, the absence of mitigation cannot then be used as aggravation warranting a sentence in the upper range of penalty.[7]

Appellate Review
It is an error of law to "over-emphasize" a single factor over all other factors.[8]

  1. R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J at para 40
  2. see Sentencing Fraud
  3. R v Pantherbone, 2018 ABPC 142 (CanLII), per LeGrandeur J - does not apply
    R. v. Harrison, 2016 ABPC 112 (CanLII), per Redman J - does not apply
    R. v. Downing, 2018 ABPC 257 (CanLII), per Collinson J - does apply
    R v Prince, 2018 BCSC 987 (CanLII), per Ker J - does apply
    R v Zhang, 2018 ONCJ 646 (CanLII), per Bentley J - does apply
    see also Child Pornography Sentencing
  4. Pantherbone, supra
    R v Randall, 2018 ONCJ 470 (CanLII), per Wakefield J - does not apply to undercover officer Child Luring (Offence)
  5. R v SJB, 2018 MBCA 62 (CanLII), per Mainella JA, at paras 19 to 25
  6. SJB, ibid. at para 19
    R v Alcantara, 2017 ABCA 56 (CanLII), per curiam at para 69
    R v BM, 2008 ONCA 645 (CanLII), per curiam at para 7
    R v Barrett, 2013 QCCA 1351 (CanLII), per curiam at paras 24 to 25
  7. SJB, ibid. at para 19
    Alcantara, supra at para 69
  8. R v CAM, 1996 CanLII 230 (SCC), [1996] 1 SCR 500, per Lamer CJ at para 90
    R v W.E., 2010 NLCA 4 (CanLII), per Rowe JA at para 26

Factors of Offender and Offence

Prohibited Factors

It is generally considered improper to consider factors such as:

  • comments of the public or media
  • past acquittal or pardons
  • conduct of defence counsel and manner in which the defence was conducted[1]
  • absent a charge for perjury, whether the accused was being honest in the trial proceedings[2]
  • character of the victim or other parties
  • risk of harm while incarcerated
  • costs associated with incarceration[3]

Public Attitudes
The court must at all times be a model of "serene, impartial and exemplary justice." It must keep in mind the perception of the administration of justice by "a reasonable, fair-minded and well-informed member of the public, who is fully knowledgeable about the facts of the case and the applicable legal and constitutional principles". The court should not "react to public clamour or hysteria" or the "visceral and negative reaction to crime and criminals".[4]

  1. R v Bradley, 2008 ONCA 179 (CanLII), [2008] O.J. No. 955, per curiam at paras 15-17
  2. R v Charania, 2014 ONSC 1695 (CanLII), per AJ Goodman JA at paras 15 to 21
  3. R v Hynes, 2016 NLCA 34 (CanLII), per Welsh JA at paras 36 to 37
  4. R v Ellis, 2013 ONSC 908 (CanLII), per Campbell J at para 16 - in context of bail revocation application

Sentencing Factors Relating to the Offender

General Principles

See also: Sentencing Factors Relating to the Offence

Section 718.2(a) provides that "a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender".

Criminal Record

See also: Effect of Criminal Records in Sentencing, Notice of Increased Penalty#Proving Prior Record, and Jump, Step and Gap Principles‎

Age and Youthfulness

Age is relevant to sentencing as a mitigating factor. A youthful person is seen as having a greater chance of reforming and maturing over time. The courts in certain cases recognize young adults as sometimes foolish, inexperienced, irresponsible, immature and have a "greater prospects for rehabilitation". This diminishes their level of responsibility and moral blameworthiness.[1]

Likewise, the principle of restraint is a prominent factor for young offenders.[2]

Youthfulness as a factor is of primary importance for first time offenders.[3] The factor becomes less important when the youthful offender has "considerable amount of experience in the criminal justice system, has been subject to various forms of probationary and correctional supervision, and has not only breached those conditions but has also re-offended".[4]

Where not otherwise required, a judge sentencing of a youthful offender should put more weight on rehabilitation over general deterrence.[5]

The objectives for youthful first offenders should primarily be on rehabilitation and specific deterrence.[6]

The "length of a penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence".[7]

For an older accused, age can factor against rehabilitation and reform.[8]

At a certain age there is a recognized category of offender for which imprisonment would be considered "pointless or an unreasonable burden".[9] However, some cases have also pointed to advanced age being an inappropriate reason for sentence reduction as it should be dealt with during sentence administration.[10]

Advanced Age Offenders
An offender of advanced age can "in some circumstances" be considered a mitigating feature.[11] This has been justified on the basis that prison time is tougher on older persons and that they will have less life expectancy after release.[12]

  1. eg see R v Kunzig, 2011 MBPC 81 (CanLII) at para 54
    R v Scott, 2015 ABCA 99 (CanLII) at para 13
    R v Jackson (2002), 2002 CanLII 41524 (ON CA), 163 CCC (3d) 451 (Ont CA)
  2. See: R v Demeter and Whitmore (1976), 32 CCC (2d) 379 (Ont. C.A.), 1976 CanLII 1413 (ON CA), per Dubin JA
  3. Demeter and Whitmore, ibid.
    R v Ijam, 2007 ONCA 597 (CanLII) at paras 55-6, 87 OR (3d) 81
    R v Hussey (1990), 1990 CanLII 6491 (NL CA), 83 Nfld & PEIR 161 (Nfld CA)
    Scott at para 13
  4. Scott at para 13
    R v Quesnel (1984), 14 CCC (3d) 254 at p. 255, 1984 CanLII 3475 (ON CA), per Thorson JA
  5. R v Turner (1970), 1 CCC (2d) 293 (ONCA), 1970 CanLII 522 (ON CA), per Haines J
  6. R v Priest, 1996 CanLII 1381 (ON CA), [1996] O.J. No. 3369 (C.A.)
    R v Nassri, 2015 ONCA 316 (CanLII), at para 30
  7. R v Borde 2003 CanLII 4187 (ON CA), (2003), 63 O.R. (3d) 417, at para 36
  8. e.g. R v Wiens, 2013 ABPC 15 (CanLII) at para 32
  9. R v Cromwell, 2006 ABCA 365 (CanLII), at para 16
    R v Nezic, [1976] BCJ No 1154 (CA)(*no CanLII links) - 77 year old offender in poor health
    see also R v Schmitt, 2014 ABCA 105 (CanLII)
  10. e.g. R v Bulleyment 1979 CarswellOnt 1325, 46 CCC (2d) 429, 1979 CanLII 2922 (ON CA), per Martin JA
    R v Odgers, 2006 ABPC 163 (CanLII) at para 29
  11. R v Walker, 2016 ABQB 695 (CanLII) at para 74
  12. Walker, ibid. at para 74
    R v AR, 1994 CanLII 4524 (MB CA), [1994] MJ No 89, 92 Man R (2d) 183 (CA)

Employment

In general, a good work history is mitigating as it indicates a prior good character.[1]

The offender's "opportunity for employment" is an important factor to determine if there is a "reasonable prospect for rehabilitation". [2]

  1. R v Johnston, 2011 NLCA 56 (CanLII) at para 21
  2. R v Hunt, 2012 NLCA 5 (CanLII) at para 19

Professionals

Police Officers
Offences committed by persons who are "sworn to uphold the law" such as police officers have a "special duty to be faithful to the justice system" and so sentences require the objectives of denunciation has heightened significance.[1]

Police officer offenders who commit a breach of trust will be subject to "severe sentences" absent exceptional mitigating factors.[2]

A peace officer being sentenced to a period of incarceration is at risk from the general population and will inevitably serve much of the sentence in protective custody, which should warrant mitigating the punishment.[3]

  1. R v Hansen, 2016 ONSC 3583 (CanLII), per Braid J, at paras 28 to 29
    R v Schertzer, 2015 ONCA 259 (CanLII), per Benotto JA, at para 134 to 136 - re "special duty"
  2. Hansen at para 28
    R v Cook, 2010 ONSC 5016 (CanLII), per Hill J
    R v Rudge, 2014 ONSC 241 (CanLII), per Hambly J
    R v Leblanc, 2003 NBCA 75 (CanLII), per Drapeau CJ
  3. Cook, supra at para 43 ("Because an inmate who is known to be, or discoverable as, a former police officer is at risk from general population prisoners, such an offender will almost inevitably serve much or all of the sentence in protective custody. This reality, involving as it does more limited social contact and institutional amenities, ordinarily warrants consideration in mitigation of punishment.")
    Rudge, supra at para 23

Effect on Employment and Status

Loss of professional or social status is not generally a mitigating factor nor is the ability to do a particular job well a mitigating factor.[1]

However, it has been said that the "ruin and humiliation" brought upon the accused and his family as well as the loss of professional status can provide denunciation and deterrence.[2]

  1. R v Ambrose, 2000 ABCA 264 (CanLII) at para 37
  2. R v Bunn, 2000 SCC 9 (CanLII), [2000] 1 SCR 183 at para 23

Degree of Remorse and Attitude

Remorse is a mitigating factor.[1] Remorse is demonstrated by the acceptance of responsibility through word or action as well as demonstrated insight into the offender's actions. A lack of remorse, however, does not make for an aggravating factor, but simply does not allow for the mitigating effect of remorse.[2]

The courts should have "restraint...for persons who spontaneously acknowledge their culpability, have genuine remorse and seek voluntarily to make reparations."[3]

A lack of remorse or acceptance of responsibility generally cannot be taken as an aggravating factor, but rather can only be taken as an absence of mitigating factors.[4] Only in exceptional circumstances can the lack of remorse be taken as aggravating.[5]

Remorse is a "one-way street" and can only have the effect of providing reduction to sentence.[6]

An offender who "continues to maintain his innocence" cannot be found by that fact alone to lack "remorse or insight".[7]

Misconduct Negating Remorse
Where there is misconduct on the part of the accused during the course of proceedings, it will be "much more difficult to perceive the existence of remorse".[8]

  1. R v Anderson 1992 CanLII 6002 (BC C.A.), (1992), 74 CCC (3d) 523, at p. 535-536, 16 BCAC 14
    R v Nash, 2009 NBCA 7 (CanLII), (2009), 240 CCC (3d) 421 (N.B.C.A.) at para 40
    R v Cormier, 1999 CanLII 13118 (NB CA), (1999), 140 CCC (3d) 87 (N.B.C.A.)
  2. See LaForme J.A. in R v Kakekagamick, 2006 CanLII 28549 (ON C.A.), [2006] 81 O.R. (3d) 664, 211 CCC (3d) 289 (C.A.), at para 73 ("[his] failure to accept responsibility for his actions weighs against affording him significant consideration by way of mitigation")
    See also R v Kozy 1990 CanLII 2625 (ON CA), (1990), 58 CCC (3d) 500 (Ont.C.A.) at pp. 505-506
    R v Anderson 1992 CanLII 6002 (BC CA), (1992), 74 CCC (3d) 523 (BCCA) at pp. 535-536
    R v Brown, [1993] O.J. No. 624 (C.A.)(*no CanLII links)
    R v Valentini 1999 CanLII 1885 (ON CA), (1999), 132 CCC (3d) 262 (Ont.C.A.) at para 80-85
  3. R v Arcand 2010 ABCA 363 (CanLII) at para 293
  4. R v Proulx, 2000 SCC 5 (CanLII), [2000] 1 SCR 61
    R v KA, [1999] O.J. No. 2640 (Ont. C.A.), 1999 CanLII 3756 (ON CA), per Rosenberg JA at para. 49
    R v Reid, 2017 ONCA 430 (CanLII), [2017] O.J. No. 2758, at para. 36
    R v Cormier, 1999 CanLII 13118 (NB CA), (1999), 140 CCC (3d) 87 (N.B.C.A.)
    R v S.(E.), 1997 CanLII 11513 (NB CA), (1997), 191 N.B.R. (2d) 3 (C.A.), per Ryan J.A. at para 6
    R v Williams, [2007] OJ No. 1604, 2007 CanLII 13949 (ON SC) at para 32
    Hawkins, supra at para 31 to 34
    see also: R v Henry 2002 NSCA 33 (CanLII) at para 21
    R v Zeek, 2004 BCCA 42 (CanLII)
  5. R v Hawkins, 2011 NSCA 7 (CanLII) at para 33
    Valentini, supra
  6. R v Hawkins, supra
  7. R v Yau, 2011 ONSC 1009 (CanLII), at para 27
    see, e.g. R v Valentini, 1999 CanLII 1885 (ON CA), (1999), 132 CCC (3d) 262 (Ont. C.A.)
    R v Giroux, 2006 CanLII 10736 (ON CA), (2006), 207 CCC (3d) 512 (Ont. C.A.)
    R v B. (C.), 2008 ONCA 486 (CanLII)
  8. R v Sawchyn (1981) 1981 ABCA 173 (CanLII), 124 DLR (3d) 600 (Alta C.A.) at para 34
    R v Nyoni, 2017 BCCA 360 (CanLII) at para 8

Shame and Embarrassment

The resultant shame and scorn suffered by an offender as a result of the offence should generally not warrant a lighter sentence.[1]

When it comes to offences committed in the course of professional work, there should be little impact on sentence as the offender had "consciously chosen [to commit the offence while] they enjoyed a good reputation and a position of trust and status, which they abused to commit their crimes."[2]

  1. R v Marchessault, [1984] J.Q. No. 686 (QCCA)(*no CanLII links)
    R. c. Morency, 2012 QCCQ 4556 (CanLII), at para 85
  2. Morency, supra at para 86
    Quintin Vézina v. R., 2010 QCCA 1457 (CanLII), per curiam
    R. v. Jeannotte, 2005 CanLII 22771 (QC CQ), [2005] R.J.Q. 2425
    R. v. Flahiff, 1999 CanLII 10716 (QC CQ), [1999] R.J.Q. 884
    R. v Harris, [1984] J.Q. No. 102 (C.S.P.)(*no CanLII links)

Repayment and Restitution

Where there has been "full restitution" made in a property offence, this might be a "special circumstance" justifying a conditional sentence where a jail sentence was otherwise appropriate.[1]

It should still take "secondary role" to denunciation and deterrence in large scale frauds involving breach of trust.[2]

  1. R. v. Bogart (2002), 2002 CanLII 41073 (ON CA), 61 O.R. (3d) 75 (C.A.) per Laskin J.A. ( “[r]ecognized that the payment of full restitution before sentencing ‘might’ be a ‘special’ circumstance justifying a conditional sentence where a prison sentence is otherwise appropriate.” )
  2. R v Mathur, 2017 ONCA 403 (CanLII) per Trotter JA

Character

A mitigating factor that may be considered is whether the offence is "out of character".

"Stressors" that "precipitated" the offence rendering the offence "out of character" will have a mitigating effect.[1]

Letters from members of the community and family of the offender can be put into evidence at sentencing. However, the weight may be limited where there is no indication that the writers knew about the circumstances of the offence or prior record.[2]

  1. R v McIntosh, 2012 ONCJ 216 (CanLII) at para 38
  2. e.g. R v Malt, 2016 BCPC 322 (CanLII) at para 10 per Harris PCJ

Risk to Re-Offend

The risk that the accused poses to re-offend is a valid factor for sentencing.[1]

A greater the risk to re-offend the more consideration there will be upon a custodial sentence.[2]

  1. e.g. R v Patton, 2011 ABCA 199 (CanLII), at para 10
  2. R v Carelse, 2013 SKQB 15 (CanLII), at para 28 to 30

Post Offence Conduct

Efforts at rehabilitation and carerr advancement post-offence is a mitigating factor.[1]

Rehabilitation, while the accused has fled to avoid sentencing, is not a mitigating factor.[2]

Post-offence bad behaviour is generally not an aggravating factor.[3] Criminal offences committed after the offence will not be aggravating.[4] However, efforts in attempting to frustrate the investigation, such as telling a victim not to report the offence or attempting to commit further offences, can be used as aggravating.[5]

Failure to Assist in the Investigation
Where an accused fails or refuses to assist police in an investigation it can at best neutralize mitigating factors. It cannot be an aggravating factor.[6]

  1. R v Thompson, 1989 ABCA 212 (CanLII), (1989), 98 A.R. 348 (Alta. C.A.) at para 4
    R v Spina (1997), 200 A.R. 133 (Alta. C.A.), 1997 ABCA 235 (CanLII), per Conrad JA at para 18
  2. Thompson, supra
  3. R v Klok, 2014 ABPC 102 (CanLII), at paras 79 to 88
    R v S.(B), 1994 CanLII 3881 (SK CA), (1994), 125 Sask. R. 303(Sask. C.A.) at para 47
  4. Klok, supra
  5. Klok, supra at paras 87 to 88
  6. R v Gryba, 2016 SKQB 123 (CanLII) at para 35
    R v Leroux, 2015 SKCA 48 (CanLII) at para 62
    R v Araya, 2015 ONCA 854 (CanLII) at para 29
    R v Gwyn, 2009 ABPC 212 (CanLII) at para 16
    R v Deren, 2017 ABCA 23 (CanLII) at para 5

Addiction and Substance Abuse

Substance abuse, by itself, is not ordinarily a mitigating factor.[1] Nor is a history of addiction a mitigating factor to sentence. However, it can suggest a lower level of moral culpability and otherwise good character but for the addiction. It is also helpful for the court to know about to determine whether rehabilitation is a possibility when crafting an appropriate sentence.

Gambling addiction is not generally a mitigating factor.[2] However, some courts have treated it as a reduction to moral culpability as it has the effect of reducing the accused's free will and power of control due to a mental disease.[3]

An offender with issues with substance abuse may be subject to probationary terms requiring them to abstain absolutely from the possession or consumption of the substances. However, some courts will take the view that such restrictions can be counter-productive where there is no belief that they will comply with the conditions.[4]

  1. R v Ayorech, 2012 ABCA 82 (CanLII) at para 10
  2. R v Holmes 1999 ABCA 228 (CanLII)
    c.f. R v Wilson, 2012 NSPC 40 (CanLII)
  3. R v Horvath, 1997 CanLII 9759 (SK CA), [1997] S.J. No. 385
  4. R v Warren, 2012 CanLII 54025 (NL PC) at para 58

Mental Health

Mental health can be a mitigating factor to sentence even where it is not so severe to remove criminal responsibility.[1]

Reduction of sentences due to psychiatric grounds fall into two categories. The mental illness contributed to or caused the commission of the offence or the effect of imprisonment or penalty would be disproportionately sever because of the offender's condition.[2]

An offender's emotional condition due to the personal circumstances of the accused should not be conflated with "mental health problems" that should accord some special treatment in sentence.[3]

Causal Connection
Mental disorders, such as schizophrenia, can be a mitigating factor even when there is no a direct causal connection between the offence and the illness. [4] This is also true where the offender was not suffering from delusions at the time.[5] It is sufficient that the illness contributed in some way to the offence.[6] However, the offender's mental health condition is not a factor in sentencing where there is no connection at all between the offence and the condition.[7]

By contrast, a person who commits a crime of violence "while in a sane and sober condition, unaffected by mental impairment of any kind, has the highest level of responsibility, or moral culpability."[8]

Incarceration
Treatment in the community is generally preferred over incarceration.[9] However, this is less so for serious offences.[10]

Mental illness is often considered a basis to order treatment and supervision over punishment.[11]

Deterrence and Denunciation
General deterrence should be given "very little, if any, weight" since it is not appropriate manner of making an example to others.[12]

Where mental health plays "a central role in the commission of the offence ... deterrence and punishment assume less importance".[13]

However, at times mental illness will be considered an aggravating factor that will increase sentence where it is necessary to protect the public from a dangerous persons who has committed a dangerous offence.[14] Mental illness reduces the importance of denunciation and deterrence and increases the importance of treatment. This includes situations where rehabilitation or cure is impossible.[15]

It is suggested it should be given little if any weight since the punishing of the offender will not make an example to others by way of general deterrence.[16]

The mental condition will attenuate the relative importance of deterrence and denunciation.[17]

Degree of Responsibility
A mental illness diminishes the offender’s degree of responsibility.[18]

Impact of Jail
Incarceration of persons with mental health issues can create a disproportionate impact upon them, which can be a mitigating factor.[19]

An Offenders mental illness can make a jail sentence more severe.[20]

Cognitive Deficits
Diminished intellectual capacity is not a mitigating factor warranting a lesser sentence.[21]

The cognitive deficit from Fetal Alcohol Spectrum Disorder (FASD) results in limited restraints as well as an appreciation of the immorality of their actions. This reduces the impact on deterrence and denunciation and increases the mitigation on sentence.[22]

Systemic failures to treat the offender's mental health are mitigating factors.[23]

  1. R v Peters 2000 NFCA 55 (CanLII), (2000), 194 Nfld. & P.E.I.R. 184 (NLCA), (“the mental illness of an offender will often be considered a mitigating factor in sentencing even though it is not of the sort that would establish a verdict of not criminally responsible on account of mental disorder at the time of the commission of the offence.”)
  2. R v Belcourt, 2010 ABCA 319 (CanLII) at para 8
  3. R v Lausberg, 2013 ABCA 72 (CanLII), 544 A.R. 56 (Alta. C.A.) - Sentencing judge erred by considering the emotional state as being a mental health problem
  4. R v Ayorech, [2012] A.J. No. 236, 2012 ABCA 82 (CanLII), per curiam, at para 10 (“mental disorders, particularly schizophrenia, can significantly mitigate a sentence, even if the evidence does not disclose that the mental illness was the direct cause of the offence or that it was carried out during a period of delusions, hallucinations, or such.”)
  5. R v Resler, 2011 ABCA 167 (CanLII)
    Ayorech, ibid.
  6. Belcourt, supra
  7. R v Shahnawaz, 2000 CanLII 16973, (2000), 149 CCC 97 (Ont.CA)
  8. R v Hagendorf, 2000 CarswellOnt 5245 (S.C.)(*no CanLII links) per Durno J. at para 50
  9. R v Lundrigan, 2012 NLCA 43 (CanLII), [2012] NJ No 231 (NLCA) at para 20
  10. see R v J.M., [2008] N.J. No. 262 (P.C.)(*no CanLII links)
    R v Taylor, 2012 CanLII 42053 (NL PC), [2012] N.J. No. 251 (P.C.)
  11. see R v Valiquette 1990 CanLII 3048 (QC CA), (1990), 60 CCC (3d) 325 (QCCA) at 331 (“most people understand that the mentally ill require treatment and supervision, not punishment”)
  12. Belcourt, supra at para 8
  13. R v Batisse, 2009 ONCA 114 (CanLII)
  14. R v Lockyer, 2000 NLCA 59 (CanLII), [2000] NJ No 306 NLCA
  15. R v Hiltermann, [1993] AJ No 609 (CA) at paras 4-8
  16. R v Newby, 1991 ABCA 307 (CanLII), (1991), 84 Alta. L.R. (2d) 127 (Alta. C.A.)
    R v Rhyno, 2009 NSCA 108 (CanLII)
    R v Dickson, 2007 BCCA 561 (CanLII), 228 CCC (3d) 450
  17. R v Tremblay, 2006 ABCA 252 (CanLII) at para 7
    R v Resler, 2011 ABCA 167 (CanLII) at para 14
  18. R v Ayorech 2012 ABCA 82 (CanLII) at para 12
    R v Resler 2011 ABCA 167 (CanLII) at paras 9-10, 16
    R v Belcourt 2010 ABCA 319 (CanLII) at paras 7-8
    R v Muldoon, 2006 ABCA 321 (CanLII) at paras 9-10
  19. Newby, supra
    Ayorech, supra
  20. Ayorech, supra at 13 (“Ayorech’s mental disorders have left him vulnerable, such that Dr. Santana opined that he ‘was ill equipped to survive in the prison system.’")
  21. R v H.(M.J.), 2004 SKCA 171 (CanLII)
  22. R v Ramsay 2012 ABCA 257 (CanLII)
  23. R v Adamo, 2013 MBQB 225 (CanLII)
    R v Ayorech, supra

Cultural Background

It has been observed that the purposes and principles of sentencing are "sufficiently broad and flexible to enable a sentencing court in appropriate cases to consider both the systemic and background factors that may have played a role in the commission of the offence and the values of the community from which the offender comes".[1]

Cultural and customary differences cannot be considered mitigating where it involves offences of violence or offences of a sexual nature.[2]

However, a lack of facility with English has been treated as mitigating in certain circumstances.[3]

  1. R v Borde, 2003 CanLII 4187 (ON CA), per Rosenberg JA
    R v Rage, 2018 ONCA 211 (CanLII), at para 13
  2. R v Brown 1992 CanLII 2829 (AB CA)
  3. R v Huang, [2005] O.J. No. 1855 (S.C.J.)(*no CanLII links) , at para 21
    R v Shaliwal, [2011] M.J. No. 213(Q.B.)(*no CanLII links) , at para 41
    R v Lim, [1990] O.J. No. 949 (H.C.J.)(*no CanLII links) , per Doherty
    R v JWS, 2013 NSPC 7 (CanLII) at para 41

Sympathy and Compassion

The court may allow for a degree of leniency for sympathetic or compassionate offenders.[1] This will occasionally be done where the accused can show that his "health is so precarious" that the offender may not survive if they are incarcerated. [2] However, simply poor health or age is not usually a reason on its own.[3]

In some cases, sympathy for family members of the accused may be relevant. But it should not "override all other of the considerations for sentencing".[4]

  1. R v Voutsis (1989), 47 CCC 451 (Sask. CA), 1989 CanLII 4477 (SK CA), per Cameron JA
  2. R v Michel 1996, 133 WAC 237 (BCCA), 1996 CanLII 8363 (BC CA), per Proudfoot
  3. R v Shah, 1994 CanLII 1290 (1994), 94 CCC 45 (BCCA)
    R v Maczynski (1997), 120 CCC 221, 1997 CanLII 2491
    R v FDM (1995), 29 WBC 148 (AltaCA)(*no CanLII links)
  4. R v Schmitt, 2014 ABCA 105 (CanLII) at para 11

Effect on Family and Others

The effect of incarceration upon the accused family may sometimes be a factor.[1]

The impact on family cannot override other factors.[2]

  1. R v Schmitt 2014 ABCA 105 (CanLII)
  2. Schmitt, ibid.

Effect on Immigration

See also: Immigration Consequences from a Conviction

Section 64 of the Immigration and Refugee Protection Act states:

64(1) No appeal for inadmissibility
No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
64(2) Serious criminality
For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.


IRPA

Risk of Deportation as Factor
The risk of deportation can be a factor to consider sentencing. [1] It must be weighed and considered with all other factors and circumstances of the case.[2] However, it should not bring the sentence out of the appropriate range.[3] However, the factor is a discretionary one.[4]

Immigration consequences are not aggravating or mitigating factors since they to not inform gravity of the offence or responsibility of the offender. However, it is relevant to "individualization, parity, and rehabilitation".[5]

Suggested Approach
The preferred approach is one where the sentencing judge must first determine a fit and proper sentence and only then consider immigration consequences.[6]

The impact on the ability to get a VISA to places like the US may influence the court to consider an absolute discharge over a conditional discharge due to the treatment of probation to immigration.[7]

The effect of an offender's immigration status on the likelihood of day parole is not a factor in sentence.[8]

Sentence Must Remain in the Appropriate Range
The risk of deportation is a "legitimate consideration for a sentencing judge" however "cannot be used to justify an otherwise unfit sentence" even where the offender has "virtually no connection" with the other country.[9]

A difference of one day custody in sentence will usually have "inconsequential" impact on denunciation, retribution, or deterrence, however, may still have "enormous" consequences on immigration status, in which case a reduction would be warranted.[10]

Children
The judge may consider the impact of deportation on the offender's dependent children as mitigation.[11]

Counsel's Failure to Raise Immigration Status
A failure of counsel to raise the issue of immigration effect can by grounds of appellate intervention.[12]

  1. R v Pham, 2013 SCC 15 (CanLII)
    R v Hamilton 2004 CanLII 5549 (ON CA), (2004), 72 OR (3d) 1 at para 156, 186 CCC (3d) 129 (CA) at para 159
    R v Barkza, 2011 ABCA 273 (CanLII)
    R v Dhura , 2011 ABCA 165 (CanLII)
    R v Koc, 2008 NLTD 97 (CanLII), [2008] N.J. No. 161 (N.L.S.C.T.D.)
    R v Melo (1975), 26 CCC (2d) 510, at p. 516 (Ont. C.A.)
  2. R v B.R.C., [2010] O.J. No. 3571 (Ont. C.A.) at 6
    R v Melo (1975), 26 CCC (2d) 510 at p. 516
    Pham, supra at paras 20 to 22
  3. R v Morgan, 2008 NWTCA 12 (CanLII)
    R v Belenky, 2010 ABCA 98 (CanLII) at para 20: ("the collateral consequence of deportation can be given at most very limited weight. It cannot by itself remove a sentence from what would otherwise be the appropriate range. At most it can serve to move the sentence a small amount, nothing more.")
  4. Pham, supra
  5. Pham, supra
  6. R v Lopez-Orellana, 2018 ABCA 35 (CanLII) at para 24
  7. R v Dzabic, 2008 CanLII 53860 (ON SC)
  8. R v Razmara, 2012 ONCA 13 (CanLII)
  9. R v Spencer, 2015 NSCA 108 (CanLII) at para 8
  10. R v Kanthasamy, 2005 BCCA 135 (CanLII), at para 15
  11. R v Gaurino, 2017 ONSC 4174 (CanLII)
    R v Jiang, 2017 BCPC 111 (CanLII)
    R v Gomez, 2017 BCPC 7 (CanLII)
  12. Pham, supra at para 24
    R v Tmenov, 2017 ONCA 454 (CanLII)
    R v Jamieson, 2011 NSCA 122 (CanLII)

Other Collateral Consequences

Collateral consequences upon the offender, including being victim of vigilante justice, forms part of the offender's personal circumstances and should be taken into account on sentencing.[1]

Relevant collateral consequences include "any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender."[2]

The consequence does not need to "emanate from state misconduct" for it to be mitigating.[3]

An incarcerated offender who is attacked by fellow inmates can be taken as a collateral factor.[4]

After mitigating effects arising from collateral consequences are applied the sentence must still conform with the principle of proportionality.[5]

Vigilante Justice
Judges must avoid giving "too much weight to vigilante violence" at sentencing or else risk giving undue legitimacy to it in the judicial process.[6] Such violence should only be considered to a "limited extent".[7]

  1. R v Suter, 2018 SCC 34 (CanLII) at paras 45 to 59
    R v Pham, 2013 SCC 15 (CanLII), [2013] 1 S.C.R. 739, per Wagner J, at para. 11
  2. Suter, supra at para 47
  3. Suter, supra at para 56
  4. Suter, supra at para 51
    R v MacFarlane, 2012 ONCA 82 (CanLII), 288 O.A.C. 114, per curiam at para 3
  5. Suter, supra at para 56
  6. Suter, supra at para 58
  7. Sutder, supra at para 59

Aboriginal Background

See Aboriginal Sentencing Principles and Factors

During Proceedings

Guilty Plea

A guilty plea is a major mitigating factor.[1]

Reasons for Mitigation
A guilty plea is a mitigating factor in a number of respects:

  • it is evidence of remorse [2],
  • it is a sign of greater chance at rehabilitation.[3]
  • it saves the justice system resources where a trial is not needed[4]
  • it excuses victims from the stress of having to testify and reliving the horrors of the events;[5]
  • it spares victims and their family from the uncertainty of a trial.[6]

Frequently a guilty plea is a product of negotiations with the Crown where another charge may be withdrawn or a lighter recommendation will be made in exchange for the guilty plea.[7]

Not Guaranteed Mitigation
The offender is not entitled to a sentence reduction simply for pleading guilty but rather it is within the discretion of the judge to account for a guilty plea in sentencing.

It does not require a "set standard of mitigation".[8] The effect on sentence will vary depending on the circumstances.[9]

The sentencing judge can consider whether the guilty plea was simply "a recognition of the inevitable" as revealed by the absence of a defence to the charges or compelling and uncontradicted evidence.[10]

Where the victim still is forced to testify at the sentencing, the mitigation should not be based on conservation of judicial resources or giving a degree of finality to the complainant.[11]

The amount of credit given for a guilty plea it not fixed as it can mitigate in several different ways. It has been suggested however that it can often lead to a reduction of sentence by one-third.[12]

Timing of Plea
The timing of a guilty plea is important. An early guilty plea generally deserves "considerable weight" in sentencing.[13] It may entitle the accused to "substantial credit" in sentence.[14]

A guilty plea during trial may still deserve mitigation on sentence.[15]

Lack of Guilty Plea Not Aggravating
A lack of guilty plea is not an aggravating factor. However, related to a lack of a guilty plea, if the accused was convicted after trial where testimony of the accused was determined to be false, the judge may consider that as aggravating.[16]

  1. R v Holder, 1998 CanLII 14962 (ON SC), (1998), 21 C.R. (5th) 277 (Ont. S.C.J.) at 281-2
    R v Beier, [1995] O.J. No. 2552 (C.A.), 1995 CanLII 681 (ON CA), per curiam at para 2 per curiam
    R v Sawchyn, 1981 ABCA 173 (CanLII), (1981), 60 CCC (2d) 200 (Alta. C.A.) at 210
  2. R v Gardiner, [1982] 2 SCR 368, (1982) 68 CCC 477 (SCC), 1982 CanLII 30 (SCC)
    R v Fegan, 1993 CanLII 8607 (ON CA), (1993), 80 CCC (3d) 356 at 360–61, 13 O.R. (3d) 88 (C.A.)
    R v Ticne, 2009 BCCA 191 (CanLII), at para 23
    R v Wisniewski, (1975) 29 CRNS 342 (Ont.)(*no CanLII links)
  3. Holder, supra
    R v Randhawa, 2007 BCCA 598 (CanLII), per Hall J.A. at para 7
  4. R v Johnson and Tremayne, [1970] 4 CCC 64 (Ont. C.A.) at 67 per Gale C.J.O.
    Randhawa, ibid. at para 7
    Ticne, supra at para 23
  5. R v Faulds et al., et al. 1994 CanLII 770 (ON CA), (1994), 20 O.R. (3d) 13 (C.A.) at p. 17
    R v Santos (J.) , (1993), 67 O.A.C. 270 (C.A.)(*no CanLII links) at 270-271
    Randhawa, supra at para 7
  6. Randhawa, supra at para 7
    Ticne, supra at para 23
  7. R v Roberts, [1998] O.J. No. 461 (C.A.), 1998 CanLII 2643 (ON CA), per curiam at para 6
  8. R v FHL, 2018 ONCA 83 (CanLII), at para 22
  9. Holder, supra
    Faulds, supra at 14 and 17 ("[t]he effect of a guilty plea in setting the appropriate sentence will vary with the circumstances of each case. In some cases, a guilty plea is a demonstration of remorse and a positive first step towards rehabilitation. In other cases, a guilty plea is simply a recognition of the inevitable")
    R v Lake, 2008 ABCA 204 (CanLII), 429 A.R. 398, at para 12 (“its significance as [a mitigating] factor is variable”)
    R. v. Carreira, 2015 ONCA 639 (CanLII) at para. 15
  10. FHL, supra at para 22 to 23
  11. FHL, supra at para 23 ("the appellant chose to test the Crown’s evidence relating to the more aggravating aspects of his case. As a result, [the victim] was made to relive the assaults in her testimony and to undergo cross-examination designed to impugn her credibility. The guilty plea, therefore, did not conserve judicial resources or provide a degree of finality to the complainant.")
  12. R v Conlon, 2011 ABPC 259 (CanLII)
  13. R v Patterson, [1998] O.J. No. 937 (C.A.), 1998 CanLII 2154 (ON CA), per curiam at para 1
    R v Pitkeathly, 1994 CanLII 222 (ON CA), (1994), 29 C.R. (4th) 182 (Ont. C.A.) at 184-5
    R v T.(R.), 1992 CanLII 2834 (ON CA), (1992), 17 C.R. (4th) 247 (Ont. C.A.) at 263 per Doherty J.A.
  14. R v Mann, 2010 ONCA 342 (CanLII) at para 21
  15. R v Garofoli et al. 1988 CanLII 3270 (ON CA), (1988), 41 CCC (3d) 97 (Ont. C.A.) at 153 per Martin J.A. aff'd on other issue at 1990 CanLII 52 (SCC)
  16. R v Vickers, 1998 CanLII 14982 (BC CA)

Conduct During Trial

Though not the same as a guilty plea, the making of admissions during trial can be considered as a mitigating factor.[1]

A finding that the accused lied in his testimony cannot be used as an aggravating factor to sentence.[2]

  1. R v Davis, 2012 ONSC 6486 (CanLII) at para 34
    R v White, [2008] OJ No 4511 (ON SC), 2008 CanLII 58421 (ON SC) at para 21 ("Although not the same as a guilty pleas, I do find these significant admissions are a mitigating factor"
  2. R v Bradley, 2008 ONCA 179 (CanLII), [2008] O.J. No. 955, at paras 15 and 16
    R v Kozy, 1990 CanLII 2625 (ON CA), [1990] O.J. No. 1586 (C.A.) at paras. 4-6
    R v Bani-Naiem, 2010 ONSC 1890 (CanLII), [2010] O.J. No. 1234, at para. 13

Bail Conditions

Strict bail conditions are not treated as equivalent to pre-trial detention, and so remand credit is not applicable for strict bail conditions.[1] The court may consider the bail conditions that the offender up to the date of sentencing.[2] If the individual was under house arrest conditions for bail, this may be accounted as a reason to reduce the sentence as the house arrest may have a punitive element to it. This is a discretionary, however, and will usually needed to be justified by showing that the offender's circumstances were particularly tough beyond the average person.[3]

Restrictive bail conditions should be treated flexibly. The amount of credit, if any, is in the discretion of the trial judge to determine.[4]

In Ontario, the following guidelines are suggested:[5]:

  • Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.
  • As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.
  • The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.
  • The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
  • The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender’s liberty; the ability of the offender to carry on normal relationships, employment and activity.
  • Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.
  1. R v Panday, 2007 ONCA 598 (CanLII)
  2. R v Downes, 2006 CanLII 3957 (ON CA) at 23
  3. R v Knockwood, 2009 NSCA 98 (CanLII)
  4. Downes, supra at para 36 (“a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach, ... the amount of credit and the manner in which it is to be taken into account as a mitigating factor is a matter for the trial judge.”)
  5. Downes, supra at para 37
    R v Ijam, 2007 ONCA 597 (CanLII) at para 63

Delay

Delay between the date of the offence and sentence is not usually a reason for mitigation. If the delay is due to flight of the accused from the jurisdiction he is not entitled to any benefit from the passage of time. [1]

Where the breach of s. 11(b) rights to a trial in a reasonable time is insufficient to warrant a stay of proceedings, the delay can still be a mitigating factor on sentence in limited circumstances.[2] Courts are reluctant to give sentence credit for this reason, however.[3]

Dated offences, such as historical sexual assault, do not warrant a significant reduction on penalty simply due to the time that has passed since the offence as the magnitude of the offence and degree of culpability remains the same.[4]

On serious offences, the passage of time between the offence and sentence does not reduce the need for denunciation or deterrence.[5]

Other factors in delay to consider include:[6]

  1. the effect of delay on sentencing is a case‑specific inquiry
  2. deliberate acts to evade detection by the authorities, whether flight or contribution to delayed complaint tend to weigh against assigning mitigating impact to the fact of delay
  3. reform and rehabilitation during the intervening period tend to eliminate the prospect of recidivism and to nullify the need for specific deterrence to be reflected in the court's disposition
  4. certain very serious crimes require sentences with measures of general deterrence and denunciation regardless of the offender's lengthy crime‑free existence subsequent to the crime(s)
  5. objectively speaking, taking into account delay, the court's disposition should not be seen as a reward or benefit eliminating or depreciating the concept of proportionate punishment.
  1. R v Jansons, 2008 YKCA 15 (CanLII)
  2. R v McAulay, 1987 ABCA 44 (CanLII)
    R v Bosley, 1992 CanLII 2838 (ON CA), (1992), 18 CR (4th) 347 at p. 358
    R v Leaver, 1996 CanLII 10223 (ON CA), (1996), 3 CR (5th) 138 (ONCA)
    R v Dwyer, [2000] OJ 3598 (ONSC)(*no CanLII links)
    R v Spencer, [2003] OJ 10 (ONSC), 2003 CanLII 36890 (ON SC)
    Right to a Trial Within a Reasonable Time
  3. R v Glykis, 1995 CanLII 1277 (ON CA), (1995), 41 CR (4th) 310 (ONCA)
  4. R v Archibald 2012 ABCA 202 (CanLII) at para 13
  5. R v Partridge, 2005 NSCA 159 (CanLII)
  6. R v Critton, 2002 CanLII 3240 (ON SC), [2002] O.J. No. 2594 (ONSC) per Hill, J at para 76

Pre-trial Custody

719.
...
Determination of sentence

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

Reasons

(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.


CCC

Section 719(3.1) consists of amendments from 2010 where the practice of giving 2:1 credits was significantly limited. Certain judges have given 1.5:1 credit where warranted for loss of remission.[1]

The judge cannot deny pre-trial custody credit to a sentence simply because of the nature his record.[2]

  1. R v Johnson, 2011 ONCJ 77 (CanLII)
    R v Dann, 2011 NSPC 22 (CanLII)
  2. R v Crawford, 2010 ABCA 290 (CanLII)

Civil Liability

Where the offender is likely to face substantial civil liability and he is not otherwise impecunious, then this should be a factor in sentence.[1]

  1. R v Stone, 2001 BCCA 728 (CanLII) at paras 32-35
    R v Sadler, 2009 BCCA 386 (CanLII) at paras 23-29

Sentencing Factors Relating to the Offence

General Principles

See also: Sentencing Factors Relating to the Offender

Offence-related factors that have been considered include:

  • Degree of Planning and Premeditation;
  • Duration of the Offence;
  • Reasons for the Offence to conclude;
  • Recency of the Offence;
  • Offender's Role in Offence;
  • Breach of Trust;
  • Status of the Victim including:
    • Harm or Risk of Harm on Victim;
    • Victim Under 18 Years of Age;
  • Public Abhorrence of Type of Crime;
  • Prevalence of This Type of Crime in the Community;
  • Degree of Cooperation with Police;
  • State Misconduct (including Police Misconduct).

Section 718.2(a) provides that "a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender".

Other factors 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 gender identity or expression, or on 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,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,
(v) evidence that the offence was a terrorism offence, or
(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act

shall be deemed to be aggravating circumstances;
...
1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; 2012, c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16; 2017, c. 13, s. 4.


CCC

Hate-based Offences

Section 718.2 (a)(i) requires the judge to take as aggravating "evidence that the offence was motivated by hate based on race or colour."

This factor is based on the principle that "crimes of violence increase when respect for the rights of others decreases". [1]

This factor can apply in circumstances where racist commentary accompanies an assault. [2]

  1. R v Ingram (1977), 35 CCC (2d) 376 (ONCA), 1977 CanLII 2018 (ON CA), per Dubin JA at para 8
  2. Ingram
    R v Vrdoljak, 2002 CarswellOnt 1005, [2002] O.J. 1332(*no CanLII links)
    c.f. R v Crowchief, 2016 ABPC 151 (CanLII)

Degree of Planning and Premeditation

A greater degree of planning increases the moral culpability of the offender. Where the offence involved significant preparatory work it suggests that the offender is of bad character due to time on the commission of an offence. The court is more likely to conclude the person is a "career criminal".

Closely related to this is the degree of sophistication of the offence. An offender with a great deal of intelligence and drive is more culpable due to the ability to have insight into their conduct including the harm that would result from it.

Motive for the Offence

Self-Help
Offences committed for the purpose of retaliation or self-help are not mitigating factors. In certain circumstances, they increase the need for deterence. [1]

  1. R v Clayton, 2014 ABCA 27 (CanLII) at para 35

Duration of the Offence

The duration of the offence is a useful measure of the offender's culpability. An offence that is ongoing for a period of time requires that the accused continuously decide to continue in a criminal endeavour. As they continue to decided to commit the offence their responsibility for the outcome increases. Related to this, it is a factor to consider whether the offender stopped the offence by their own accord due to a decision to cease criminal activity or whether they merely stopped because they have achieved their goal or were caught in the act.

Recency of the Offence

Most often seen in the context of historical sexual assault offences, the “antiquity of the offence is not usually a mitigating feature” [1] However, “the offender may be entitled to a somewhat reduced sentence if he has led an exemplary life during the intervening years and demonstrates genuine remorse. Such circumstances would obviate the need for individual deterrence and time for rehabilitation.”[2]

  1. R v R. (A.), 1994 CanLII 4524 (MB CA), [1994] 4 W.W.R. 620 (Man. C.A.),
  2. R v RA 1994 CanLII 4524 at para 34

Role in Offence

The accused's role in the offence will influence the penalty. Typically the greater and more culpable a role the accused played, the greater the penalty. This is particularly the case where the party has less autonomy, control, or awareness of the circumstances.

A "look out" or "driver" may be seen as less serious than those who participated in the offence itself.

Breach of Trust

Where an offender was able to commit an offence by taking advantage of their position of trust, this factor will be treated as aggravating.

Where there is a breach of the public's trust it will be treated as aggravating beyond private breach of trust.[1]

Where the offender held a position of trust in committing the offence the "most important principle" is general deterrence.[2]

An airport baggage handler is in a position of trust when using their position to assist in drug importation.[3]

Relationships of trust will exist in a variety of offences, most typically in sexual offences (particularly child sex offences), fraud/theft offences in employment contexts, and in some drug trafficking or smuggling cases.

There also exists the offences of Breach of Trust (Offence) and Breach of Public Trust (Offence) that create on offence from the act of breaching trust.

  1. R v Gill, 2003 BCCA 208 (CanLII)
    R v Lecourt 2005 QCCA 845 (CanLII)
  2. R. v. McEachern (1978), 42 CCC (2d) 189 (Ont. C.A.), 1978 CanLII 2506 (ON CA), per Howland CJO at p. 191 (“the most important principle in sentencing a person who holds a position of trust is that of general deterrence.”)
  3. see R v Mohamed, 2013 ONCA 704 (CanLII), per curiam

Status of the Victim

See Victims as a Factor in Sentencing

Public Abhorrence of Type of Crime

The public's abhorrence of the type of crime is a factor that enhances the penalties in sentence. Through the principle of denunciation, the courts have an obligation to express the abhorrence of the public of a particular offence such a offences of violence.[1]

  1. R v W.H.M., 1994 CanLII 7583 (NS SC)

Prevalence of This Type of Crime in the Community

See also: Judicial Notice

A judge may take some limited judicial notice to the prevalence of certain types of offences within the community.[1] However, doing so has the tendency to create unfairness to both parties.[2]

If the judge is going to rely upon prevalence of crime in sentencing an offender, he or she should give notice to the parties and an opportunity to reply.[3]

  1. R v VHM, 2004 NBCA 72 (CanLII) ("When imposing a sentence, a judge should be cautious about relying on the incidence of crime in any area serviced by the judge because of the judge’s particular knowledge of cases coming before the judge or from statistics garnered by the judge from court records for that district")
    R v Trachsel, 2010 SKQB 288 (CanLII), at paras 18 to 22
  2. VHM, ibid. ("I ring the bell of caution here because when, figuratively, a judge decides to step down from the bench and infuse into his or her reasons the current experience of the court with an incidence of crime in the community, it injects a body of evidence into the mix that is almost unassailable and, in any event, unfair to the Crown and, more so, to an offender.")
  3. VHM, ibid. ("it was unfair to take judicial notice of the prevalence of the crime in issue in the county without prior warning to the accused and the Crown")

Degree of Cooperation with Police

State Misconduct

Strength of the Crown's Case

The strength of the Crown's case can be a factor to sentence.[1] But not frequently seen in a disputed sentencing context.

The strength and weaknesses of the Crown's case is a considerable factor considering whether to adopt a joint recommendation.[2] Weaknesses in a case are referred to as "special circumstances" that would warrant a joint recommendation for an exceptional sentence.[3]

The strength of the case is more frequently seen as a factor in whether to deny bail on tertiary grounds.

Where the strength of the case is great, the effect of a guilty plea seems to have a lesser impact.[4]

  1. e.g. R v DS, 2011 ONSC 3627 (CanLII), per Pierce J at para 34
    and R v Lonegren, 2009 BCSC 1678 (CanLII), per Barrow J
  2. R v Oxford, 2010 NLCA 45 (CanLII), per curiam
  3. R v GWC, 2001 ABCA 41 (CanLII), per Berger JA, at para 5
  4. e.g. R v Rusk, 2006 ABPC 365 (CanLII), per Hamilton J at para 38 appealed to 2007 ABCA 189 (CanLII), per Hunt JA
    R v JFK, 2011 ABQB 671 (CanLII), per Eidsvik J, at para 31
    See Sentencing Factors Relating to the Offender#Guilty Plea

Uncharged Criminal Conduct

Offenders are only sentenced “in respect of crimes for which they have been specifically charged and of which they have been validly convicted.”[1] The Crown cannot attempt to seek sentences based on uncharged offences. The Crown must choose what is the most appropriate charge to apply.[2]

Prior uncharged conduct cannot be used as an aggravating factor, however, can be relevant to sentencing as it shows character and background.[3]

Even concurrent uncharged conduct, such as a voyeurism sentencing relating to the filming of a sexual assault, would potentially be unfair to the accused if taken into account at sentence.[4]

However, under section 725(1)(d), "In determining the sentence, a court ... (c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge."

An offender cannot be punished for unproven acts.[5]

  1. R v Larche, 2006 SCC 56 (CanLII), [2006] 2 SCR 762, per Fish J
  2. e.g. see R v S. (G. E.), 2007 MBCA 105 (CanLII), per MA Monnin JA at para 13
  3. R v B.M., 2008 ONCA 645 (CanLII), per curiam
  4. R v Truong, 2013 ABCA 373 (CanLII), per curiam (2:1)
  5. R v Gardiner, 1982 CanLII 30 (SCC), [1982] 2 SCR 368, per Dickson J
    R v Lees, 1979 CanLII 43 (SCC), [1979] 2 SCR 749, per Mclntyre J

Pending Changes to the Law

The expectation that the offence will be decriminalized is irrelevant to sentencing. [1]

  1. R v Neary, 2017 SKCA 29 (CanLII), per Ottenbreit JA

Victims as a Factor in Sentencing

General Principles

See also: Sentencing Factors Relating to the Offence

The significance of victims is found in s. 718 regarding objectives of sentencing:

Purpose
718 The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by unlawful conduct;

...

(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 or to the community.

R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6; 2015, c. 13, s. 23.


CCC

The factors for sentencing also reference victims:

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,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

..., or

(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act

shall be deemed to be aggravating circumstances; ...; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; 2012, c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16.


CCC

Consideration of the harm or risk of harm to a victim includes consideration of the extent of violence used.

Vulnerable Classes of Victims

A vulnerable victim will typically be treated as an aggravating factor. A child victim or person with physical or mental disabilities will be considered particularly aggravating.

Sex trade workers are a recognized vulnerable class of victims that may be treated as an aggravating factor to sentence.[1]

  1. R v Yusuf, 2011 BCSC 626 (CanLII) at para 34
    R v DR, 2004 BCSC 336 (CanLII)

Number of Victims

The number of victims will have an impact on the sentence, however, this should not "unduly distort" the appropriate sentence.[1]


  1. R v Mellstrom (1975), 22 CCC (2d) 472, 1975 CanLII 1270 (AB CA), per Allen JA at pp. 486-7
    R v Cloutier, 2017 ABPC 3 (CanLII), at para 161

Specific Offences

Fraud
Section 380.1(1)(c) and (c.1) specifically directs courts to consider aggravating the presence of a "large number of victims" and the impact of the offence upon them.[1]

Victim Under 18 Years of Age

See also: Sexual_Offences_(Sentencing)

Section 718.01 requires that "[w]hen a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct."

In relation to s.718.01, it has been stated that it "has always been the position of this court in dealing with crimes against defenseless children that a strong response was warranted".[1]

Section 718.2 makes any offence that abuses a person under the age of 18 is aggravating.[2]

Offences where young victims must always be considered:

de facto or "ostensible" consent
There should be no recognition in law of a "de facto" consent on the part of the victim as a mitigating factor to sexual offences against young children as it will have the effect of victim blaming.[3]

The "ostensible" consent of a person who is not of legal age to give consent to any sexual act cannot be used to mitigate moral blameworthiness.[4]

Similarly, it is not appropriate to undercut the statutory age limitation outlined in the offence by suggesting that the victim was "mature" for their age.[5]

  1. R v Nickle, 2012 ABCA 158 (CanLII) at para 19
  2. Sentencing Factors Relating to the Offence and Sentencing Factors Relating to the Offender
  3. R v Hajar, 2016 ABCA 222 (CanLII) at para 100 ("Using the “willing participation of the child” as a mitigating factor in sentencing, despite the fact the child is incapable of consenting, must be recognized for what it is – blaming the victim. It also improperly diminishes the offender’s culpability. ...The result of this flawed thinking – the adult offender is treated as if he or she is not actually responsible for their behaviour, but the child victim is. ...The child becomes the perpetrator and the offender becomes the victim.")
    R v Pritchard, 2005 ABCA 240 (CanLII) at para 7 ("While there may well be a difference in degree between a perpetrator who uses force, as opposed to persuasion, on an underage victim to accomplish his objective, the fact remains that the end result is the same – a sexual assault on someone who cannot, in law, give consent. Put simply, a young girl’s willing participation is not a mitigating factor.")
    R v SJB, 2018 MBCA 62 (CanLII), at para 23 ("The judge erred when he characterised the lack of coercion, threat or pressure on the complainant to participate in sexual intercourse as a mitigating circumstance of the commission of the offence. The mere fact the complainant said “sure” to the proposition of the accused to having sexual intercourse does not reduce his moral blameworthiness.")
  4. SJB, ibid. at para 24
  5. Pritchard, ibid. at para 9

See Also

State and Police Misconduct as a Sentencing Factor

General Principles

See also: Sentencing Factors Relating to the Offence

A sentence may “be reduced in light of state misconduct even when the incidents complained of do not rise to the level of a Charter breach.”[1]

Section 7 of the Charter includes "a right to be secure against arbitrary force, especially physical force, by state actors."[2]

  1. R v Nasogaluak, 2010 SCC 6 (CanLII) at para 53
  2. R v Tran, 2010 ONCA 471 (CanLII) at para 48

Police Misconduct

Police misconduct during an investigation can play a factor in sentencing.[1] This includes having a mitigating factor where an accused's Charter rights have been breached.[2]

However, conduct amounting to basic violation of a procedural right under the charter will not usually result in a reduction where the breach does not invoke s. 24(1) of the Charter. [3]

In exceptional cases, the charges may be stayed.[4]

Use of Force by Peace Officers

Protection of persons acting under authority
25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
Idem
(2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction.
When not protected
(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.
When protected
(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if

(a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;
(b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;
(c) the person to be arrested takes flight to avoid arrest;
(d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and
(e) the flight cannot be prevented by reasonable means in a less violent manner.

R.S., 1985, c. C-46, s. 25; 1994, c. 12, s. 1.


CCC

Where a peace officer uses force that is not covered by s.25, a possible violation of the accused’s section 7 Charter rights arises.[5]

There is a violation of the “security of the person” in the context of a criminal prosecution where there is “state interference with bodily integrity and serious state-imposed psychological stress”[6]

Peace officers are expected to use force to effect an arrest or prevent flight from custody. This power is constrained by proportionality, necessity, and reasonableness.[7]

Use of force under s.25(3) is determined on a subjective and objective basis.[8]

Police should not be judged on a standard of perfection. It should be expected that they will be reacting quickly in emergency situations.[9]

Abuse by police may also give rise to a claim of civil damages.[10]

When considering reasonableness of police actions, factors can be considered including:[11]

(a) the nature and seriousness of the offence for which the arrest is being made (one does not engage a bulldozer when a flyswatter is sufficient).
(b) the certitude of the fact of the offence which is the basis of the arrest having taken place (Persons are presumed to be innocent until proven guilty. The more that is known about the circumstances that establish guilt, the more thorough the inquiry, the more complete the objective evidence and the more reasonable the grounds upon which the arrest is made are important considerations which govern necessity and reasonableness).
(c) the need for detention as an aspect of intervention;
(d) the protection of the officers and other persons from violence;
(e) the prospect of flight/escape;
(f) the likelihood of continuation/resumption of offending conduct;
(g) the apparent physical condition of the person being arrested and/or alleged victims;
(h) police modules and training affecting the use of force;
(i) the prospect of escalation and retaliation;
(j) knowledge of the identity and access to the person to be arrested; (A person who is to be arrested does not, of necessity, have to be arrested at that time and place if use of force is contemplated when it is reasonable that this can be accomplished on another occasion without violence or with less violence.);
(k) the nature and extent of the force reasonably contemplated as likely to be necessary;
(l) other exigent circumstances.
  1. R v Pigeon 1992 CanLII 869 (BCCA)
  2. R v Nasogaluak, 2010 SCC 6 (CanLII)
  3. eg. R v Charanek, 2011 ABPC 374 (CanLII)
  4. R v Tran, 2010 ONCA 471 (CanLII)
  5. Section 7 of the Canadian Charter of Rights and Freedoms states that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
  6. R v Morgentaler, [1988] 1 SCR 30, 1988 CanLII 90
  7. R v Nasogaluak, 2010 SCC 6 (CanLII) at para 32
  8. Chartier v Greave, [2001] OJ No. 634 (ONSC) at 29
  9. R v Nasogaluak at para 35
  10. Crampton v Walton, 2005 ABCA 81 (CanLII)
  11. R v Magiskan, [2003] O.J. No. 4490 (S.C.J.), 2003 CanLII 859 (ON SC), per Zelinski J
    R v Tang, 2011 ONCJ 525 (CanLII) at para 81

See Also

Effect of Criminal Records in Sentencing

General Principles

See also: Sentencing Factors Relating to the Offender

A criminal record will be an aggravating factor in sentencing.[1] The criminal record can show that the offender is a "scofflaw", is not rehabilitated or has not "learned from past mistakes".[2]

An offender who has demonstrated an exemplary life since a prior offence and demonstrates remorse may be considered for a reduced sentence and reduce the need for specific deterrence.[3]

It is an error in principle to determine a sentence based only on the sentence from a previous conviction.[4] It is a "relevant consideration" but the sentence must be driven by the facts of the case.[5] It is relevant to whether "the offence is uncharacteristic for the offender...whether the offender demonstrates a continuing attitude of disobedience of the law".[6]

A person who has received a discharge can still be considered a "first time offender".[7]

Over-weighing Criminal Record
The record "should not be given so much weight such that it becomes more influential than the circumstances of the offence".[8]

It is important that the prior criminal record not be over-emphasized such that it amounts "to a re-sentencing of the accused for the previous offence(s)".[9]

This is largely codified in s. 725:

Other offences
725. (1) In determining the sentence, a court

(a) shall consider, if it is possible and appropriate to do so, any other offences of which the offender was found guilty by the same court, and shall determine the sentence to be imposed for each of those offences;
(b) shall consider, if the Attorney General and the offender consent, any outstanding charges against the offender to which the offender consents to plead guilty and pleads guilty, if the court has jurisdiction to try those charges, and shall determine the sentence to be imposed for each charge unless the court is of the opinion that a separate prosecution for the other offence is necessary in the public interest;
(b.1) shall consider any outstanding charges against the offender, unless the court is of the opinion that a separate prosecution for one or more of the other offences is necessary in the public interest, subject to the following conditions:
(i) the Attorney General and the offender consent,
(ii) the court has jurisdiction to try each charge,
(iii) each charge has been described in open court,
(iv) the offender has agreed with the facts asserted in the description of each charge, and
(v) the offender has acknowledged having committed the offence described in each charge; and
(c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.

Attorney General’s consent
(1.1) For the purpose of paragraphs (1)(b) and (b.1), the Attorney General shall take the public interest into account before consenting.
No further proceedings
(2) The court shall, on the information or indictment, note

(a) any outstanding charges considered in determining the sentence under paragraph (1)(b.1), and
(b) any facts considered in determining the sentence under paragraph (1)(c),

and no further proceedings may be taken with respect to any offence described in those charges or disclosed by those facts unless the conviction for the offence of which the offender has been found guilty is set aside or quashed on appeal.

R.S., 1985, c. C-46, s. 725; R.S., 1985, c. 27 (1st Supp.), s. 158, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 6; 1999, c. 5, s. 31.


CCC

An offence committed while on parole is an aggravating factor. By contrast the added consequences of parole revocation should not be mitigating.[10]

Timing of Prior Record
A criminal record can only be considered where the offender had one at the time of the index offence (this is known as the Coke Rule).[11]

However, when a judge sentences for a convicted offence, the judge may take into consideration other criminal acts, and in a limited fashion, such as offences admitted in an agreed statement facts or pending charges.[12]

  1. R v Squires, 2012 NLCA 20 (CanLII), (a criminal record "will be viewed as an aggravating factor leading to a more serious punishment rather than as a factor that tends to limit or lessen punishment.")
  2. R v Barrett, 2012 NLCA 46 (CanLII), at para 35 (a “criminal record is often quite relevant on sentencing in that it may show the offender to be a scofflaw, or lead to an inference that he or she has not been rehabilitated or otherwise learned from past mistakes.”)
  3. R v RA, 1994 CanLII 4524 (MBCA)
    R v Garnet Lee Cole, 2013 NBPC 9 (CanLII) at para 34
  4. Squires, supra para 55
  5. Squires, supra at para 55
  6. R v Presgrave, [2014] QCCA 105(*no CanLII links) at para 32
  7. R v Barclay, 2018 ONCA 114 (CanLII) at para 44, 49
  8. Presgrave, ibid. at para 32
  9. R v Moller, 2012 ABCA 381 (CanLII) at para 11
  10. R v Lavallee, 2006 ABCA 324 (CanLII)
  11. R v Andrade, 2010 NBCA 62 (CanLII)
    see also R v Garcia and Silva, [1970] 1 O.R. 821 at 823, [1970] 3 CCC 124 (C.A.), 1969 CanLII 450 (ON CA)
  12. R v Garcia and Silva
    see also R v Edwards 2001 CanLII 24105 (ON CA), (2001), 54 O.R. (3d) 737 (C.A.)

Coke Rule

The "coke rule" states that a harsher penalty for a subsequent offence cannot be imposed unless the previous conviction was already recorded at the time of the commission of the subsequent offence. [1]

  1. eg. Andrade v R., 2010 NBCA 62 (CanLII) at para 2

First Time Offenders

A first sentence for an offender should be "tailored to the individual circumstances of the individual circumstances of the accused rather than solely for the purpose of general deterrence."[1]

Whether to Impose Custodial Sentence on First-time Offenders
When considering sentence for a first-time offender, incarceration should only be imposed when the gravity of the offence requires it.[2]

  1. R v JH, 1999 CanLII 3710 (ON CA), 135 CCC (3d) 338, at para 22
  2. R v Stein (1974), 15 CCC (2d) 376 (ONCA), 1974 CanLII 1615 (ONCA)
    R v Gaetz, 1992 CanLII 2509 (NSCA)

Uncharged Offences

Section 725(1)(c) permits the court "may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge".

This provision is the only exception to the rule that offenders are only punished "in respect of crimes for which they ahve been specifically charged adn of which they have been validity convicted".[1]

There must be a connection between the offence before the court and the uncharged conduct.[2]

"Forming part of the circumstances of the offence"
Whether uncharged conduct is part of the circumstances of the offences is determined "on a case-by-case basis".[3]

Where the conduct does not "form part of the circumstances of the offence", it may still nonetheless be relevant should it "form part of the circumstances of the offender".[4]

  1. R v Larche, 2006 SCC 56 (CanLII) at paras 1 and 2
  2. Larche, ibid. at para 48
  3. Larche, ibid. at para 50
  4. R v Angelilo, 2006 SCC 55 (CanLII) at para 31

See Also

Position of Trust as a Factor in Sentencing

General Principles

It is an aggravating factor in sentencing for the offender to have been in a position of trust.[1] A position of trust is distinctive from a position of authority and will be determined on the specific facts including the conduct of the offender.[2]

"Position of trust" is not defined in the criminal code. Courts will occasionally resort to the use of dictionary definition to interpret its meaning.[3]

"Trust" refers to "confidence in or reliance on some quality or attribute of a person".[4] In considering whether there is a position of trust, courts must consider parliament's purpose in protecting young persons who are vulnerable and weak in relation to the accused.[5]

The existence will depend on "all the factual circumstances relevant to the characterization of the relationship".[6]

Considerations include:[7]

  • difference in ages
  • evolution of the relationship
  • status of the accused in relation to the victim

Limited Trust Positions
Adult persons who enter into relationships with young persons can put themselves into "qualified positions of trust" or form "low-end trust relationships".[8]

Child Abuse
A person who is a babysitter will generally be considered in a position of trust.[9]

Employees
An aircraft maintenance employee is not in a position of trust with respect to passengers on a plane.[10]

  1. see s. 718.2(a)(iii)
  2. Audet 1996 CanLII 198 (SCC), [1996] 2 SCR 171, per La Forest J
  3. R v MC, 2012 ONSC 2505 (CanLII), per Thorburn J at para 26
  4. Audet at para 35
  5. Audet, supra at para 36
  6. Audet, supra
  7. Audet
  8. see R v Fones, 2012 MBCA 110 (CanLII), [2012] M.J. No. 407, per Hamilton JA, para 68
    R v R. (G.W.), 2011 MBCA 62 (CanLII), [2011] M.J. No. 246, per Steel JA, para 42
  9. e.g. R v A.G.A., 2010 ABCA 61 (CanLII), per curiam
  10. R v Rocha, 2012 ABPC 24 (CanLII), per Groves J - offence of voyeurism by taking photos up the skirt of a passenger

See Also

Sentencing of Organizations

Factors

Additional factors
718.21 A court that imposes a sentence on an organization shall also take into consideration the following factors:

(a) any advantage realized by the organization as a result of the offence;
(b) the degree of planning involved in carrying out the offence and the duration and complexity of the offence;
(c) whether the organization has attempted to conceal its assets, or convert them, in order to show that it is not able to pay a fine or make restitution;
(d) the impact that the sentence would have on the economic viability of the organization and the continued employment of its employees;
(e) the cost to public authorities of the investigation and prosecution of the offence;
(f) any regulatory penalty imposed on the organization or one of its representatives in respect of the conduct that formed the basis of the offence;
(g) whether the organization was — or any of its representatives who were involved in the commission of the offence were — convicted of a similar offence or sanctioned by a regulatory body for similar conduct;
(h) any penalty imposed by the organization on a representative for their role in the commission of the offence;
(i) any restitution that the organization is ordered to make or any amount that the organization has paid to a victim of the offence; and
(j) any measures that the organization has taken to reduce the likelihood of it committing a subsequent offence.

2003, c. 21, s. 14.


CCC

Previous Convictions

Previous conviction
727 (1) ...
Organizations
(4) If, under section 623, the court proceeds with the trial of an organization that has not appeared and pleaded and convicts the organization, the court may, whether or not the organization was notified that a greater punishment would be sought by reason of a previous conviction, make inquiries and hear evidence with respect to previous convictions of the organization and, if any such conviction is proved, may impose a greater punishment by reason of that conviction.
Section does not apply
(5) This section does not apply to a person referred to in paragraph 745(b).
R.S., 1985, c. C-46, s. 727; R.S., 1985, c. 27 (1st Supp.), s. 160; 1995, c. 22, s. 6; 2003, c. 21, s. 16.


CCC

Probation

See also: Probation Orders

732.1
...
Optional conditions — organization
(3.1) The court may prescribe, as additional conditions of a probation order made in respect of an organization, that the offender do one or more of the following:

(a) make restitution to a person for any loss or damage that they suffered as a result of the offence;
(b) establish policies, standards and procedures to reduce the likelihood of the organization committing a subsequent offence;
(c) communicate those policies, standards and procedures to its representatives;
(d) report to the court on the implementation of those policies, standards and procedures;
(e) identify the senior officer who is responsible for compliance with those policies, standards and procedures;
(f) provide, in the manner specified by the court, the following information to the public, namely,
(i) the offence of which the organization was convicted,
(ii) the sentence imposed by the court, and
(iii) any measures that the organization is taking — including any policies, standards and procedures established under paragraph (b) — to reduce the likelihood of it committing a subsequent offence; and
(g) comply with any other reasonable conditions that the court considers desirable to prevent the organization from committing subsequent offences or to remedy the harm caused by the offence.

Consideration — organizations
(3.2) Before making an order under paragraph (3.1)(b), a court shall consider whether it would be more appropriate for another regulatory body to supervise the development or implementation of the policies, standards and procedures referred to in that paragraph.
...
1995, c. 22, s. 6; 1999, c. 32, s. 6(Preamble); 2003, c. 21, s. 18; 2008, c. 18, s. 37; 2014, c. 21, s. 2.


CCC

Fines

See also: Fines

Fines on organizations
735. (1) An organization that is convicted of an offence is liable, in lieu of any imprisonment that is prescribed as punishment for that offence, to be fined in an amount, except where otherwise provided by law,

(a) that is in the discretion of the court, where the offence is an indictable offence; or
(b) not exceeding one hundred thousand dollars, where the offence is a summary conviction offence.

Application of certain provisions — fines
(1.1) A court that imposes a fine under subsection (1) or under any other Act of Parliament shall make an order that clearly sets out

(a) the amount of the fine;
(b) the manner in which the fine is to be paid;
(c) the time or times by which the fine, or any portion of it, must be paid; and
(d) any other terms respecting the payment of the fine that the court deems appropriate.

Effect of filing order
(2) Section 734.6 [ civil enforcement of fines ] applies, with any modifications that are required, when an organization fails to pay the fine in accordance with the terms of the order.
R.S., 1985, c. C-46, s. 735; R.S., 1985, c. 1 (4th Supp.), s. 18(F), c. 23 (4th Supp.), s. 7; 1995, c. 22, s. 6; 1999, c. 5, s. 37; 2003, c. 21, s. 20.
[annotation(s) added]


CCC

Principles by Offence

Violent and Assaultive Offences (Sentencing)

General Principles

A key societal right for all people is the right to be "free from unconsented invasions on his or her physical security or dignity".[1] It is a "central purpose" of the criminal law to protect the public from such invasions.[2]

Provocation will have an effect on sentence for assault. Where the injury occurred while in an initially consentual fight the sentence will be less than where the attack was unprovoked and against a defenceless victim.[3]

In offences of violence involving a weapon, "the primary sentencing objectives to be applied are deterrence and protection of the public."[4]

Random acts of violence upon strangers will often attract jail sentence. [5]

Sports-related violence can frequently allow for discharges.[6]

  1. R v Ogg-Moss, [1984] 2 SCR 173, 1984 CanLII 77 (SCC) ("One of the key rights in our society is the individual’s right to be free from unconsented invasions on his or her physical security or dignity and it is a central purpose of the criminal law to protect members of society from such invasions.")
  2. Ogg-Moss, ibid.
  3. R v Johnson [1998] BCJ NO.2924 (BCCA)
  4. R v Philpott, 2011 NLTD 30 (CanLII)
  5. R v Lewis, 1983 OntCA -- 9 mo for random unprovoked assault
  6. R v Carroll (1995) 38 CR 238 (BCCA)

General Factors

Key Aggravating Factors

  1. History of spousal abuse / previously assaulted same victim
  2. Criminal record for violence or related convictions
  3. Spouse or common law spouse is victim = breach of trust
  4. Serious injuries to complainant
  5. Planned or pre-meditated
  6. Use of weapon
  7. Children witnessed the assault or were present when the assault occurred
  8. Offence occurred in the home
  9. Degradation of victim
  10. Separate acts occurring over a period of time
  11. No remorse
  12. Home invasion
  13. Intoxicated at time of offence

Other Factors

  1. degree of provocation
  2. circumstances that make it desirable to preserve the family relationship
  3. evidence that it was out of character or isolated event

Domestic Violence

Section 718.2(a)(ii) provides that “evidence that the offender, in committing the offence, abused the offender’s spouse or common law partner...shall be deemed to be an aggravating factor." This can include those who are in a sexual relationship but may not be co-habitating.[1]

A spousal connection between the offender and victim is an aggravating factor at common law.[2]

Denunciation and Deterrence are Primary
The primary principles are denunciation and general deterrence for domestic violence offences.[3]

Offences of violence that are between ex-partners would not be considered a case of domestic violence.[4]

Courts are not to tolerate domestic violence within the communities.[5]

Custodial sentences are considered the norm where significant bodily harm has been inflicted in a domestic violence situation.[6] This is in part due to courts recognizing that domestic violence is often part of continuous abuse ongoing in the relationship.[7]

  1. R v Wenc, 2009 ABCA 328 (CanLII) at para 23 to 25
  2. R v Doyle, (1991), 108 N.S.R. (2d) 1 (C.A.), 1991 CanLII 2535 (NS CA), per Hallett JA
    R v Brown, 1992 ABCA 132 (CanLII), (1992), 13 C.R. (4th) 346, 73 CCC 242 (Alta.C.A.)
    R v Pitkeathly 1994 CanLII 222 (ON CA), (1994), 29 C.R. (4th) 182 (Ont.C.A.)
    R v Jackson 1996 ABCA 195 (CanLII), (1996), 106 CCC (3d) 557 (Alta.C.A.)
    R v Edwards, 1996 CanLII 1522 (ON CA), (1996), 28 O.R. (3d) 54, 105 CCC (3d) 21 (C.A.)
    R v Stone, 1999 CanLII 688 (SCC), (1999), 134 CCC (3d) 353 (S.C.C.)
  3. R v McCarthy 2005 NLCA 36 (CanLII)
    R v Dodd 1999 CanLII 18930 (NL CA), (1999), 180 Nfld. & P.E.I.R. 145 at 38
    R v O'Keefe, (1997), 158 Nfld. & P.E.I.R. 138 (NLPC)(*no CanLII links) at p. 252
    R v Rahaman, 2008 ONCA 1 (CanLII) at para 46 (The primary objectives in offences of "violence arising out of an existing or failed domestic or romantic relationship" is denunciation and deterrence.)
    R v Saghier, 2017 ONSC 227 (CanLII) at para 46
    also see R v Dodd, [1999] N.J. No. 262 (Nfld. C.A.), 1999 CanLII 18930 (NLCA)/1999 CanLII 13904 (NL CA), per Marshall JA at para 38 -39
    R v Campbell, 2003 CanLII 48403 (ON CA)
    R v Wishlow, 2013 MBCA 34 (CanLII) ("Domestic violence is a serious problem in our society and the paramount sentencing principle for assaults of this nature should be deterrence and denunciation.")
  4. R v Wesslen, 2015 ABCA 74 (CanLII)
  5. R v Wilhelm, 2014 ONSC 1637 (CanLII) at para 101
    R v Menary, 2012 ONCA 706 (CanLII) at para 7
  6. R v Inwood, [1989] O.J. No. 428 (C.A.), 1989 CanLII 263 (ON CA), per Howland CJO
    Saghier, supra at para 46
  7. R v Bates 2000 CanLII 5759 (ON CA), (2000), 146 CCC (3d) 321 (Ont. C.A.), per Moldaver and Feldman JJA at para 30

Position of Trust

Position of Trust as a Factor in Sentencing

Child Victims

See also: Victims as a Factor in Sentencing

Offences of violence against children by their parents requires a strong response due to their inability to defend themselves and the fiduciary duty towards them.[1]

The most important factors to consider is the child's exposure to harm and the forseeability of the harm.[2]

Certain courts have divided offences involving the assault of children into three categories:[3]

  1. cases involving the application of force with the expectation of causing injury or indifference to it;
  2. cases involving the application of force where a parent was immature and unskilled and acting out of emotional upset, frustration or temper and did not fully appreciate the serious injuries which might result; and
  3. cases involving diminished responsibility through mental disorder where the abnormal mental condition of the accused requires the treatment of the offender to be given priority over the principles of general and individual deterrence.
  1. R v Laberge 1995 ABCA 196 (CanLII) at para 28
  2. R v Nickel, 2012 ABCA 158 (CanLII) at paras 34, 35
  3. R v MacDonald (K.), 2009 MBCA 36 (CanLII), 236 Man.R. (2d) 239 at para 14

Peace Officers

Police officers put themselves in harm's way to protect the community and preserve a just, peaceful and safe society. "Violent attacks upon police officers who are doing their duty are attacks on the rule of law and on the safety and well-being of the community as a whole. Sentences imposed for those attacks must reflect the vulnerability of the police officers, society's dependence on the police, and society’s determination to avoid a policing mentality which invites easy resort to violence in the execution of the policing function."[1]

  1. R v MacArthur, [2004] O.J. No. 721 (ONCA)(*no CanLII links) at para 49

Transit Workers

Aggravating circumstance — assault against a public transit operator
269.01 (1) When a court imposes a sentence for an offence referred to in paragraph 264.1(1)(a) or any of sections 266 to 269, it shall consider as an aggravating circumstance the fact that the victim of the offence was, at the time of the commission of the offence, a public transit operator engaged in the performance of his or her duty.

Definitions
(2) The following definitions apply in this section.
“public transit operator” means an individual who operates a vehicle used in the provision of passenger transportation services to the public, and includes an individual who operates a school bus.
“vehicle” includes a bus, paratransit vehicle, licensed taxi cab, train, subway, tram and ferry.
2015, c. 1, s. 1.


CCC

Offender a Persons in Authority

Factors to offences of violence by police officers:[1]

  1. Was the officer on duty at the time or off duty?
  2. Was the offence committed spontaneously in the heat of the moment or was it committed continually or with time for the officer to consider his actions?
  3. Was there a concern for his personal or fellow officers’ safety at the time of the assault?
  4. Was the victim a prisoner in the officer’s custody in an institution?
  5. What was the nature of the assault?
  6. What were the injuries suffered by the victim?
  7. Was the sentencing at the conclusion of a trial or was it a result of a guilty plea?
  8. Did the officer express or show remorse?
  9. Did the officer impede or assist the resulting police investigation of his actions?
  10. What was the experience and rank of the officer at the time of the offence?
  1. R v Gillian, 2009 BCPC 241 (CanLII) at para 69


Sentencing for Drug Offences

Purpose of Sentencing for Drug Offences

Drug offences have added purpose as stated in section 10 of the Controlled Drugs and Substances Act:

Purpose of sentencing
10. (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.


CDSA

It has further been stated that the purpose of the laws concerning controlled substances is general deterrence.[1]

Dial-a-Dope
A dial-a-dope operation relates to the "ordering delivery of illicit substances by phone".[2] A dial-a-dope operations "enable a pervasive and rapid dissemination of illicit narcotics" that wreak havoc on individuals and communities.[3] Accordingly, denunciation and deterrence are primary goals in sentencing.[4] The operation "facilitates the ease of obtaining drugs in communities and the infiltration of a criminal trade".[5] It also "requires forethought and planning".[6]

  1. U.S.A. v Dynar 1997 CanLII 359 (SCC), (1997), 115 CCC (3d) 481 (S.C.C.) at para 81 (“[T]he purpose of the law of attempt is universally acknowledged to be the deterrence of subsequent attempts”)
  2. R v Dickey, 2016 BCCA 177 (CanLII) at para 28
  3. R v Cisneros, 2014 BCCA 154 (CanLII)
  4. Cisneros, ibid.
  5. Dickey, supra at para 28
  6. Dickey, supra at para 28

General Factors

Under the Controlled Drugs and Substances Act, there are further factors that should be considered:

s. 10
...
Circumstances to take into consideration
(2) If a person is convicted of a designated substance offence, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person

(a) in relation to the commission of the offence,
(i) carried, used or threatened to use a weapon,
(ii) used or threatened to use violence,[1]
(iii) trafficked in a substance included in Schedule I, II, III or IV or possessed such a substance for the purpose of trafficking, in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of eighteen years, or
(iv) trafficked in a substance included in Schedule I, II, III or IV, or possessed such a substance for the purpose of trafficking, to a person under the age of eighteen years;
(b) was previously convicted of a designated substance offence; or
(c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, a designated substance offence.

Reasons
(3) If, under subsection (1), the court is satisfied of the existence of one or more of the aggravating factors enumerated in paragraphs (2)(a) to (c), but decides not to sentence the person to imprisonment, the court shall give reasons for that decision.


CDSA

Section 10(3) suggests that where aggravating factors are found under s.10(2) that there should be a jail sentence unless there are reasons not to do so.

  1. see also Dobbin, 2009 NLCA 52 (CanLII), [2009] N.J. No. 348

Weapons

See also: Definition of Weapons

A weapon that is "in immediate proximity and readily accessible by the person who possessed narcotics" will generally amount to an aggravating factor under s. 10(2) of the CDSA.[1]

  1. R v Oickle, 2015 NSCA 87 (CanLII) at para 25 - relates to offender with weapon in vehicle next to him

Addiction

There is a significant difference between a drug addict trafficking to support habit and the non-addict trafficking for monetary gain.[1]

The onus is on the offender to establish that the offender is trafficking to support a habit. Specifically, there must be a causal connection.[2]

Lower end drug trafficking where the offender is motivated by addiction over profit will have a lower penalty.[3]

  1. see R v Andrews, [2005] O.J. No. 5708 (S.C.)(*no CanLII links)
  2. R v Lively, 2006 NSSC 274 (CanLII) at para 39
  3. R v Matias-Pedro, 2003 BCCA 590 (CanLII) at para 18

Breach of Trust

See also: Sentencing Factors Relating to the Offence#Breach of Trust

Breach of trust will exist when trafficking offences are committed by offenders who use their position of employment to facilitate the crime. Most frequently this is seen in prison staff, sheriffs or lawyers smuggling drugs into jail and prisons. Other circumstances include medical or legal professionals dealing drugs to their clients and transportation professionals facilitating importation of drugs. There also exist cases where law enforcement professionals steal drugs from exhibit lockers.

General Principles and Factors for Trafficking

Some courts distinguish between levels gravity for trafficking. There is (1) social sharing; (2) petty retail operation; (3) full-time commercial operation.[1]

Where the offender is not addict then he is not deserving of sympathy in committing the offence for the support of a habit as part of a disease.[2]

Denunciation and deterrence are the paramount focus in commerical trafficking.[3]

Court make some distinction between commercial and social trafficking.[4] The difference is considered an aggravating factor in sentence and so must be proven beyond a reasonable doubt. The factors of proof include the use of street lingo, cell phones, amount of drugs, method obtained, and method of dealing.[5]

Other factors include:

  • the offender’s level in the drug hierarchy
  • amount and value of the drug
  • number of transactions
  • prior related record
  • trafficking on impulse
  • planned and deliberate trafficking
  • social trafficking (sharing drugs with friends) vs commercial trafficking
  • trafficking in other types of drugs at the same time
  1. R v Fifield, 1978 CanLII 812 (NS CA), (1978) 25 NSR (2d) 407
  2. R v Williams [2010] OJ No 2971 (ONSC)(*no CanLII links) at para 20
    R v Woolcock, [2002] O.J. No. 4927 (C.A.)(*no CanLII links) at para 5
    R v Mandolino, [2001] O.J. No. 289 (C.A.)(*no CanLII links) at para 1
    R v Belenky, 2010 ABCA 98 (CanLII), at para 3
    R v Lau 2004 ABCA 408 (CanLII), (2004), 193 CCC (3d) 51 (Alta. C.A.) at para 33
    R v Nguyen, 2001 BCCA 624 (CanLII) at para 7
  3. R v Bui, 2004 CanLII 7201 (ON CA), [2004] O.J. No. 3452 (C.A.) at para 2
    Woolcock, supra at para 17
    Nguyen, supra, at para 14
  4. see e.g. R v Salame, 1999 ABCA 318 (CanLII) at para 3
  5. e.g. see R v Murray, 2012 ABPC 123 (CanLII)

Ranges

In British Columbia, a trafficker should expect a prison sentence, absent exceptional circumstances.[1]

  1. R v Voong, 2015 BCCA 285 (CanLII) at para 1

Sentencing Ranges by Type of Drug

Sexual Offences (Sentencing)

General Principles

De facto consent of the victim is not an appropriate form of mitigation.[1]

Youthful and Child Victims

See also: Victims as a Factor in Sentencing

Seriousness of Sexual Offences Against Young Victims

It is suggested that "force is inherent in all sexual assaults on children".[1]

Many courts have expressed society's concern for crimes, including sexual offences, against children.[2]

A predatory sexual offence are those class of sexual offences where the offender uses the imbalance of power between himself and a victim, usually children, to satisfy sexual needs by way of a criminal offence.

Absent exceptional circumstances, denunciation, general and specific deterrence, and the need to separate offenders from society, take precedence over all other objectives of sentencing.[3]

Children are recognized as one of the "most valued and most vulnerable assets." They are generally incapable of defending themselves and so are easily targeted.[4] It is for this reason that courts must focus on protecting children.[5]

Children are vulnerable as they cannot protect themselves.[6]

A child is inherently vulnerable. Accordingly, they can be coerced without threats ever being articulated.[7]

Primary objectives
Section 718.01 directs courts to give primacy to denunciation and deterrence for offences that involve "the abuse of a person under the age of 18 years". [8] Nevertheless, rehabilitative factors must still be considered.[9] This section simply codifies already existing principles.[10]

Denunciation and deterrence have the highest priority in sentencing for offences involving the abuse of children.[11]

The principles of restraint and rehabilitation are still a factor but are secondary for offences involving young victims.[12]

  1. R v CT, 2008 NLTD 112 (CanLII) at para 36
  2. see R v Springer, (1988) 88 N.B.R.(2d) 177 (NBCA)(*no CanLII links)
    R v DC and M.G., 2009 NBCA 59 (CanLII)
  3. R v DD (2002), 163 CCC (3d) 471, 2002 CanLII 44915 (ON CA), at paras 33 to 45 per Moldaver JA
    R v Woodward, 2011 ONCA 610 (CanLII) at paras 75 to 77 per Moldaver JA
  4. DD, supra at para 35
  5. R v Nisbet, 2011 ONCA 26 (CanLII) (Child pornography is "an abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence.")
  6. R v D.V.B., 2010 ONCA 291 (CanLII), (2007), 215 CCC (3d) 505 at para 81 ("Children cannot protect themselves. They are generally vulnerable and helpless. When it comes to their safety, we must be vigilant")
  7. R v Taylor, 1995 CanLII 10546 (NL SCTD), (1995), 134 Nfld. & P.E.I.R. 181 (Nfld. T.D.) at para 8 (" the courts have recognized that in a situation involving an adult, particularly where the adult is in a position of trust, the child is in an inherently vulnerable position and threats do not have to be articulated for the child to feel coercion")
  8. NB: this section came into force by 2005, c. 32, s. 24.
  9. R v Michel, 2005 NWTSC 94 (CanLII) at para 63
    See s. 718.01
  10. R v G.J.O., 2006 NLTD 90 (CanLII), at para 26 ("As to general deterrence, s. 718.01, a recent amendment to the Criminal Code, codifies the existing sentencing law in mandating that in sentencing for offences, such as these, which involved the abuse of persons under 18 years of age, primary consideration is to be given to the objectives of denunciation and deterrence.")
    R v Cazon, 2006 NWTTC 11 (CanLII) at para 26
  11. R v Oliver, 2007 NSCA 15 (CanLII), (2007), 250 N.S.R. (2d) 296 (C.A.), at para 20 (“highest ranking among all of the principles of sentencing in cases involving the abuse of children. Parliament's intention is clearly stated.”)
    R v Michel, 2005 NWTSC 94 (CanLII), [2005] N.W.T.J. No. 105 at para 62 ("The priority objectives of a sentence in the case of the sexual violation of a young person must always be denunciation and deterrence. The sentence must be sufficient punishment so as to reflect society's abhorrence of such conduct so as to discourage others who might engage in similar conduct. Courts have long said that those are the important objectives.")
  12. R v BCM, 2008 BCCA 365 (CanLII), (2008), 238 CCC (3d) 174 (BCCA), at para 35 per Neilson JA (“the principles of restraint and rehabilitation, while still operative, are given secondary status in offences involving young victims.”)

Aggravating and Mitigating Factors

Section 718.2(a)(ii.1) creates an aggravating factor circumstances where there is " evidence that the offender, in committing the offence, abused a person under the age of eighteen years".[1]

Any offence where children are the target, should be treated as an aggravating factor to sentence. This is especially so where the perpetrator is a family member.[2]

Violence
Any form of violence or threat of violence beyond the inherent violence to sexual offences against a person under the age of 18 will be treated as an aggravating factor.[3]

Voluntary Participation of the Victim
See Victims_as_a_Factor_in_Sentencing#Victim_Under_18_Years_of_Age

  1. NB: this section came into force by 2005, c. 32. But it can be considered codification of common law.
  2. R v TLB, 2007 ABCA 61 (CanLII) at para 20
  3. R v SJB, 2018 MBCA 62 (CanLII), at para 22
    R v Sidwell, 2015 MBCA 56 (CanLII) at para 53

Grooming

Evidence of "grooming" a youthful victim before or during the commission of the offence is an aggravating factor in sexual offences involving children. [1]

</ref>Grooming can take the form of cultivating a relationship of trust or undertaking a process of relinquishing inhibitions all with a view to advancing a plan to sexually exploit a young person. [2]

  1. R v GCF, 2004 CanLII 4771 (ON CA) at para 21
    R v RJH, 2012 NLCA 52 (CanLII)
    R v SJB, 2018 MBCA 62 (CanLII), at para 26 ("If proven, it is an aggravating factor that the offender groomed the person under age 18 for sexual activity before the commission of the offence...")
  2. Legare, 2009 SCC 56 (CanLII), [2009] 3 SCR 551 at 28, 30

Psychology of Child Sexual Offences

Experts in topics such as pedophelia have given evidence claiming some of the following:

  • pedophilia is a life-long condition. A pedophile is always at risk of re-offence[1]
  1. R v Stuckless, 1998 CanLII 7143 (ON CA) at para 17

Ranges

In Ontario, a person in a position of trust who abuses children over a longer period of time will normally receive a sentence in the upper single digits or more.[1]

In Alberta, the "starting point" for "a single serious sexual assault on a child by a person in a position of trust is 4 years".[2]

In Manitoba, "major sexual assaults [against] a young person within a trust relationship by means of violence, threats of violence or by means of grooming" have starting range of 4 to 5 years.[3]

It has been suggested that sexual abuse of a child, particularly sexual intercourse, by a person in authority is in a range of 3 to 5 years.[4]

Any sort of series of sexual offences against young persons by adults in positions of trust over a long duration should attract sentences in the "high" range single-digit of years.[5]

  1. R v M.D., 2012 ONCA 520 (CanLII)
  2. R v S.(W.B.) (1992), 1992 CanLII 2761 (AB CA), 127 A.R. 65 (Alta. C.A.)
    R v AGA, 1010 ABCA 61 (CanLII) at para 9
  3. R v Sidwell, 2015 MBCA 56 (CanLII) at para 38
  4. see for example R v W.W.M. [2006] OJ No. 440, 2006 CanLII 3262 (ONCA) at para 14
  5. R v Stuckless, 1998 CanLII 7143 (ON CA)

Psychological Harm

It has been recognized by courts that child victims of sexual offences suffer from long lasting damage.[1] They suffer from emotional trauma that is often permanent. As adults they "may become incapable of forming loving relationship, always fearful of re-victimization by sexual partners. Further, the matured victim may become a sexual predator himself. It is often that an offender will report being victimized by other sexual predators as a child."[2]

The judge should consider the "likelihood of psychological harm to the victim".[3] But the judge does not need to take judicial notice of the psychological harm caused by a sexual offence.[4]

  1. R v DD, (2002), 163 CCC (3d) 471, 2002 CanLII 44915 (ON CA) at para 36
  2. R v DD, supra para 37-38
  3. R v Rosenthal, 2015 YKCA 1 (CanLII) at para 6 - the "likelihood is a reason that the principle of general deterrence is significant in sentencing for sexual assault"
    R v McDonnell, 1997 CanLII 389 (SCC), [1997] 1 SCR 948
  4. Rosenthal at para 6

Position of Trust

Position of Trust as a Factor in Sentencing

Historical Sex Offences

Historical Sexual Offences should not have their penalties reduced simply because of the time that has passed between the offence and sentence. The magnitude and culpability remain the same. [1] The importance of denunciation and deterrence as primary sentencing objectives are not diminished.[2]

However, the passage of time can show that the offender is a low risk to re-offend and that the offence is not in the character of the offender.

  1. See Delay as a Factor in Sentencing
  2. R v Spence, 1992 ABCA 352 (CanLII) at para 9 to 14

Case Digests

See Also

Regulatory Offences (Sentencing)

General Principles

Sentencing of corporate offenders for regulatory offences should consider:

  1. the conduct, circumstances and consequences of the offence,
  2. the terms and aims of the relevant enactment or regulation, considered in the larger context of comparable regulation and legitimate corporate functioning in the relevant areas, and
  3. the participation, character and attitude of the corporation offender, considered in the larger context of corporations engaged in relevant industrial or business activity,

all with a view of identifying the aggravating and mitigating factors. [1]

For the most part, the enforcement of the violated regulations can be achieved by the imposition of fines.[2]

The primary objective of the fine is deterrence.[3]

The amount of a fine will be determined based on factors including:[4]

  • the size of the company involved,
  • the scope of the economic activity in issue,
  • the extent of actual and potential harm to the public,
  • the maximum penalty prescribed by the statute,
  • the need to enforce regulatory standards by deterrence.
  1. R v General Scrap Iron & Metals Ltd., 2003 ABQB 22 (CanLII) at para 35
  2. R v Cotton Felts Ltd., (1982), 2 C.C.C (3d) 287 (Ont. C.A.), 1982 CanLII 3695 (ON CA), per Blair JA, at pp. 294-295 ("To a very large extent the enforcement of [regulatory] statutes is achieved by fines imposed on offending corporations.")
  3. see discussion R v Canadian Consoli, 2013 ABPC 120 (CanLII) at para 10
  4. Cotton Felts Ltd.

See Also

Sentencing Fraud

Overview

See also: Fraud (Offence)

Offence Wording

Fraud
380. (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,

(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or
(b) is guilty
(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(ii) of an offence punishable on summary conviction,

where the value of the subject-matter of the offence does not exceed five thousand dollars.
Minimum punishment
(1.1) When a person is prosecuted on indictment and convicted of one or more offences referred to in subsection (1), the court that imposes the sentence shall impose a minimum punishment of imprisonment for a term of two years if the total value of the subject-matter of the offences exceeds one million dollars.
...
R.S., 1985, c. C-46, s. 380; R.S., 1985, c. 27 (1st Supp.), s. 54; 1994, c. 44, s. 25; 1997, c. 18, s. 26; 2004, c. 3, s. 2; 2011, c. 6, s. 2.


CCC

General Principles

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 380(1)(a) [greater than $5,000 and testamentary instrument]
From September 15, 2004
N/A 14 years custody
s. 380(1)(b) Summary Election six months jail and/or a $5,000 fine
s. 380(1)(b) Indictable Election 2 years custody
s. 380(1)(a) [greater than $5,000 or testamentary instrument]
Until September 14, 2004
N/A 10 years custody

Offences under s. 380 [greater than $5,000 or testamentary instrument] are straight indictable. The maximum penalty is 14 years incarceration.

Offences under s. 380 [no greater than $5,000 are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is six months jail and/or a $5,000 fine.

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 380 [no greater than $5,000 and no testamentary instrument] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 380 [over $5,000 or testamentary instrument]
Nov. 20, 2012 onward
N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 380 [over $5,000 or testamentary instrument]
September 15, 2004 to Nov. 20, 2012
N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 380 [over $5,000 or testamentary instrument]
Until September 14, 2004
N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Conditional Sentences

Conditional sentences are available for offences of fraud under $5,000.

Conditional sentences are available for offences of fraud over $5,000 where the offence was committed prior to the amendment to s. 742.1 on November 20, 2012.[1]

Unless prohibited by law, the court should be considered a conditional sentence in all circumstances where incarceration is contemplated.[2]

Custodial sentences are considered preferable "[w]here punitive objectives such as denunciation and deterrence are particularly pressing, such as in cases in which there are aggravating circumstances".[3]

For most courts, the amount defrauded will be sufficient to determine if incarceration is required.[4]

In major frauds involving breach of trust, denunciation and deterrence are to be emphasized and will usually result in jail sentences.[5]

Certain courts have stated that conditional sentence orders should not be granted where there is a breach of trust.[6] However, others suggest that it is not a full prohibition. Rather is it rate where it is a large scale fraud.[7]

Incarceration is often ordered where there is no remorse.[8] Also where there is no acceptance of responsibility.[9]

Where there are exceptional or extreme personal mitigating circumstances, general deterrence can be satisfied by a conditional sentence.[10]

Restitution and community service work are not sufficient to amount to exceptional circumstances to warrant a conditional sentence.[11]

Where the aggravating factors overwhelm the mitigating factors, a sentence of imprisonment is mandated.[12]

The “ruin and humiliation” brought upon the accused and his family due to the offence and professional loss coupled with a conditional sentence can be sufficient to satisfy denunciation and deterrence.[13]

  1. List of Criminal Code Amendments
  2. R v Moulton, (2001) 160 CCC (3d) 407, 2001 SKCA 121 (CanLII)
  3. R v Proulx, 2000 SCC 5 (CanLII) at 114
  4. R v Bogart [2002] OJ No. 3039 2002 CanLII 41073 (ON CA), leave ref'd, [2003] S.C.R. vi, per Laskin JA at para 34
    R v Evans 2003 NBQB 54 (CanLII)
    R v Williams, 2003 CanLII 9650 (ON CA), [2003] OJ No. 2202 (CA)
    R v Kuriya 2002 NBQB 306 (CanLII) aff’d at 2003 NBCA 63
    R v Black [2003] NSJ No 168, 2003 NSSC 99 (CanLII)
  5. R v MacEachern, [1978] O.J. No. 987(*no CanLII links) at para 8, 9 (ONCA)
    R v Tucker, [1988] NSJ No. 33(*no CanLII links) at page 18 (NSCA)
    R v Hill, [1997] NSJ No. 97, 1997 CanLII 9832 (NSSC) at paras 13-15 (N.S.S.C.)
    R v Toews, [2007] A.J. No. 944, 2007 ABPC 235 (CanLII) at para 36, 37 (ABPC)
    R v McKinnon, [2005] A.J. No. 12, 2005 ABCA 8 (CanLII) at paras 60-63, (ABCA)
    R v Reid, [2004] Y.J. No. 3, 2004 YKCA 4 (CanLII) at para 13 (YTCA)
    R v Steeves, 2005 NBCA 85 (CanLII), [2005] N.B. J. No. 351, at para 10 (NBCA)
    R v Cremer, [2007] A.J. No. 989, 2007 ABQB 544 (CanLII) at para 26 (ABQB)
    R v Miller, [2010] A.J. No. 174, 2010 ABPC 37 (CanLII) at para 62
    R v Inglis, 2002 BCPC 242 (CanLII) at para 5 (“the law has made it clear that unless there are exceptional and unusual circumstances, people who find themselves before the court on offences that involve a breach of trust should expect that a period of incarceration is the likely consequence.”)
    R v Howe, 2002 ABCA 277 (CanLII), [2002] AJ No 1443 at para 3 - concerned tax fraud
    c.f. R v Matchett, [1997] NBJ No 176 (CA), 1997 CanLII 9511 (NB CA) at 5
  6. R v Pierce, 1997 CanLII 3020 (ON CA), (1997), 114 CCC (3d) 23 (C.A.)
  7. R v Williams, 2007 CanLII 13949 (ON SC), [2007] O.J. 1604 at paras 26-28 per Hill J ("The sentencing option of a conditional sentence is not excluded from consideration in breach of trust fraud cases")
  8. R v Mastromonaco [2002] OJ No 4612(*no CanLII links) at 28
  9. Bradbury, supra at 28 to 30 and Desormeau at 20
  10. R v Bunn 2000 SCC 9 (CanLII)
    R v Kratky, 1997 CanLII 936 (BC SC)
    R v Anderson-Davis, [2000] BCJ No. 88, 2000 BCSC 42 (CanLII)
  11. R v McEachern (1978), 42 CCC (2d) 189 (Ont.C.A.)(*no CanLII links) at 191
  12. R v Bodnarchuk, 2008 BCCA 39 (CanLII) at 20
    R v Mohebtash, 2007 BCCA 427 (CanLII) at para 10
  13. R v Bunn 2000 SCC 9 (CanLII) per McLaughlin CJ. at para 23

Sentencing Principles

See also: Property and Fraud Offences (Sentencing)

Major instances of fraud over $5,000 require emphasis on general deterrence and denunciation.[1] The same goes for cases involving breach of trust[2] and offences that involve a substantial amount of dishonesty.[3]

The purpose of the general deterrence is to assuage people from engaging in fraud which is often easy to commit and highly profitable. Without sufficient punishment, the temptation of taking the risk of a lesser punishment in exchange for a large sum of money would make it worthwhile.[4]

Denunciation should adequately reflect the public’s condemnation of this offence and the offender’s conduct.[5]

  1. R v Dobis, 2002 CanLII 32815 (ON CA) at 42
    R v Bogart, [2002] OJ No. 3039, 2002 CanLII 41073 (ON CA), leave ref'd, [2003] S.C.R. vi, per Laskin JA, at 29, 33-36
    R v Wismayer, 1997 CanLII 3294 (ON CA), (1997) 115 CCC (3d) 118 (ONCA) at 38
    R v Gray (L.V.) et al. 1995 CanLII 18 (ON CA), (1995), 76 O.A.C. 387 at 398-99
    R v Betram [1990] OJ No 2013(*no CanLII links) at 3 (CA)
  2. R v Howe, [2002] AJ No 1443, 2002 ABCA 277 (CanLII) at para 3
    R v Dobis, supra at 272
    Bogart, supra at 29
    R v Pierce, [1997] OJ No. 715, 1997 CanLII 3020 (ON CA), per Finlayson JA, at 11
  3.   R v Drabinsky and Gottlieb, 2011 ONCA 582 (CanLII), per The Court, at paras 160
    R v Coffin 2006 QCCA 471 (CanLII) , per curiam, at paras 49, 70
  4. Pierce, supra at 5
  5. R v Howe, [2002] AJ No 1443, 2002 ABCA 277 (CanLII), per Hunt JA at para 3
    Dobois, supra at 272

Social Assistance Fraud

It is suggested that the "paramount consideration" whether dealing with fraud against welfare authorities is deterrence.[1] It has also been said that the focus should be upon "protection of the public".[2]

Defrauding publicly funded programs "corrodes the public's attitude to such forms of assistance -- and hence so undermines them".[3]

  1. R v Thurrott (1971), 5 CCC (2d) 129, 1971 CanLII 381 (ON CA), per Gale CJO at p. 129 ("this Court is unanimously of the opinion that the paramount consideration in determining the sentence is the element of deterrence. Welfare authorities have enough difficulties without having to put up with persons who set out to defraud them.")
  2. R v Bates (1972), 9 CCC (2d) 74 (Ont.Co.Ct.), 1972 CanLII 1403 (ON SC), per Moore Co.Ct.J. at p. 74 ("The cardinal principle in the determination of a sentence is the protection of the public.")
  3. R v Wilton, (1991), 93 Sask. R. 184, 1991 CanLII 7961 (SK CA), per Cameron JA
    see also R v Durocher, (1992), 100 Sask. R. 108, 1992 CanLII 8243 (SK CA), per Cameron JA

Factors

Section 380.1 states aggravating factors relating to fraud:

Sentencing — aggravating circumstances
380.1 (1) Without limiting the generality of section 718.2 [factors of sentencing], where a court imposes a sentence for an offence referred to in sections 380, 382, 382.1 and 400, it shall consider the following as aggravating circumstances:

(a) the value of the fraud committed exceeded one million dollars;
(b) the offence adversely affected, or had the potential to adversely affect, the stability of the Canadian economy or financial system or any financial market in Canada or investor confidence in such a financial market;
(c) the offence involved a large number of victims; and
(d) in committing the offence, the offender took advantage of the high regard in which the offender was held in the community.

Aggravating circumstance — value of the fraud
(1.1) Without limiting the generality of section 718.2 [factors of sentencing], when a court imposes a sentence for an offence referred to in section 382 [manipulating stock exchange], 382.1 [insider trading] or 400 [false prospectus], it shall also consider as an aggravating circumstance the fact that the value of the fraud committed exceeded one million dollars.
Non-mitigating factors
(2) The court shall not consider as mitigating circumstances the offender’s employment, employment skills or status or reputation in the community if those circumstances were relevant to, contributed to, or were used in the commission of the offence.
Record of proceedings
(3) The court shall cause to be stated in the record the aggravating and mitigating circumstances it took into account when determining the sentence.
2004, c. 3, s. 3; 2011, c. 6, s. 3.
[annotation(s) added]


CCC

Aggravating

Aggravating factors for major fraud include: [1]

  • breach of trust[2]
  • magnitude or size of the fraud[3]
  • degree of sophistication, planning and deception[4]
  • number of dishonest transactions undertaken in the offence[5]
  • Duration of the dishonesty[6]
  • number of victims[7]
  • vulnerability of the victims[8]
  • impact of the fraud upon the victims
  • nature and extent of the loss
  • efforts to conceal the fraud, including forging of documents
  • personal benefit[9]
  • the number of people involved and the role of the offender
  • greed as sole motivator[10]
  • termination of scheme by arrest or voluntarily
  • prior record[11]

Character of Victim
Any dishonest attainment of money "is a serious crime with its own effects, even though [the victim] institution on its face seems able to bear the loss".[12]

Breach of Trust
Theft of money by persons entrusted with it in the course of his employment amounts to an abuse of trust within the meaning of s.718.2(a)(iii).[13]

"Large number of victims"
The reference to "large number of victims" under s. 380.1 (1)(c) of the code will include a group of more than 50 people.[14]

Groups a low as 13 people have been considered a "large group".[15]

However, numbers in the range of 4 people is not considered "large".[16]

Greed vs Advancement of Business
While greed as a motivation to fraud is recognized as a aggravating factor to sentence, the use of money to keep a business afloat is a moderate-to-high aggravating factor as well.[17]

  1. R v Cunsolo, 2012 ONSC 114 (CanLII) at para 41
    see also R v Levesque, 1993 CanLII 4232 (QC CA), (1993) 59 QAC 307 CA
  2. Evans 2003 NBQB 54 (CanLII)
    see s. 718.2(a)(iii)
  3. R v Kuriya, 2002 NBQB 306 (CanLII), 2002 252 NBR (2d) 247
    R v Evans [2003] NBJ No 47 (QB), 2003 NBQB 54 (CanLII)
  4. R v Howe supra
  5. R v Bjellebo, [2000] OJ No 478 (SC)(*no CanLII links) aff'd 2003 CanLII 26907 (ON CA)
  6. R v Fehr, [2001] SJ No 147 (CA), 2001 SKCA 37 (CanLII)
  7. R v Wheeler, 2001 CanLII 37646 (NL SCTD) and 2001 CanLII 37651 (NL SCTD), [2001] NJ No 240
  8. R v Evans 2003 NBQB 54 (CanLII) at para 12 and R v Adler, 1999 CanLII 9438 (NB CA), [1999] NBJ No 100 (CA)
    R v Desormeau, 2001 CanLII 33851 (NL SCTD), [2001] NJ No 341
    R v Bradbury, 2002 CanLII 61687 (NL SCTD), (2002) 218 Nfld 33 -- institutional victims
  9. R v Bogart, 2002 CanLII 41073 (ON CA)
  10. R v Wisniewski (2002) 166 Man R (2d) 73, 2002 MBCA 93 (CA)
  11. R v Harding [2002] BJ No 2502 (CA), 2002 BCCA 606 (CanLII), per Thackray JA
  12. R v McConnell, 2011 ONCJ 476 (CanLII), per Schnall J, at para 48
  13. Veno v R., 2012 NBCA 15 (CanLII) at para 13
    R v Chaulk, 2005 NBCA 86 (CanLII)
    R v McKinnon, 2005 ABCA 8 (CanLII), [2005] A.J. No. 12 -- embezzlement by a bookkeeper R v Holmes, 1999 ABCA 228 (CanLII) -- bank manager stealing from accounts
    R v Reid, 2004 YKCA 4 (CanLII) -- cashier stealing from employer R v Pierce, 1997 CanLII 3020 (ON CA), [1997] O.J. No. 715 (C.A.) -- comptroller sealing from employer
    R v Dobis, [2002] O.J. No. 646, 2002 CanLII 32815 (ON CA) -- fraud by accounting manager
    R v Clarke, 2004 CanLII 7246 (ON CA), [2004] O.J. No. 3438 (C.A.) -- bank telephone agent stealing from accounts R v Bowes (J.M.), (1994), 155 N.B.R. (2d) 321 (C.A.)(*no CanLII links) -- lawyer stealing trust funds
  14. R v Johnson, 2010 ABCA 392 (CanLII) at para 35 to 36
  15. R v Walker, 2016 ABQB 695 (CanLII) at para 65
    R v deKock, 2008 ABPC 279 (CanLII) (13 victims)
    R v Winter, [2008] NJ No 260, 2008 CanLII 47443 (NL PC), per Hyslop J (15 victims)
    R v Banks, 2010 ONCJ 339 (CanLII), [2010] OJ No 3550 (18 victims)
    R v Penney, 2008 ABPC 339 (CanLII), [2008] AJ No 1353 (20 victims)
    R v Cruz, 2010 ONCJ 640 (CanLII), [2010] OJ No 5735 (29 victims)
    R v Dhanaswar, [2014] OJ No 6388, 2014 CarswellOnt 18873, aff'd at 2016 ONCA 172 (CanLII), (31 victims)
  16. e.g. R v Sanmugam, 2012 ONSC 6663 (CanLII), [2012] OJ No 5647
  17. R v Adams, 2015 ONCJ 161 (CanLII) at para 47
    R v Mazzucco, 2012 ONCJ 333 (CanLII) at paras 58, 60 to 61

Mitigating

Mitigating factors for major fraud include:[1]

  • “substantial recovery” of the proceeds of the dishonest conduct
  • voluntary repayment of restitution before sentencing[2]
  • honest motive, including a medical condition, addiction, or other motivating causes other than greed or financial gain
  • major personal impact from offence, such as loss of job[3]
  • no record[4]

No prior record is a limited factor since it is a common situation and, at least in relation to major fraud, the offender would have been less likely to have been in the position to commit the offence had the offender had a prior record. Further, the lack of a record is usually trumped by the emphasis on general deterrence.[5]

Good Character
Good character is also of a limited factor as the good character will often help facilitate the offence. The person will often have a place in the community and a good reputation and without which they would not have been able to commit the offence itself.[6]

The good character of well-educated persons who commit offences of major fraud are not of great concern since they are the group that tends to commit these offences the most.[7]

The sentencing process for major fraud is "not really concerned with rehabilitation".[8]

Gambling Addiction
Factors such as the presence of gambling addictions cannot be considered mitigating, however, can have the effect of “[reducing] moral blameworthiness”[9]

  1. R v Cunsolo, 2012 ONSC 114 (CanLII) at para 39
  2. R v Inglis, [2002] BCJ No 1551 (PC), 2002 BCPC 242 (CanLII), per Brecknell J
    R v Bogart [2002] OJ No. 3039, 2002 CanLII 41073 (ON CA)
  3. R v Loewen, 2002 CanLII 37336 (MB PC)
  4. R v Bogart, supra
  5. R v Bogart, supra
    R v Bertram and Wood (1990), 40 OAC 317, [1989] O. J. No. 2123 (*no CanLII links) at 319
  6. R v Foran, 1969 CanLII 209 (ON CA), [1970] 1 CCC 336 (ONCA) at 337 (“Any mitigation from [the accused position in the community] would seem to us to be more than offset by the fact that the very nature of this type of crime requires that it be committed by persons who have an established place in the community and are allegedly honourable gentlemen.”)
  7. Bertram and Wood, supra
  8. Bertram, supra
  9. R v Alakija, 2007 ABPC 234 (CanLII) at para 13

Ranges

See also: Fraud (Sentencing Cases)

Ontario cases have set the generally accepted range of sentence of major fraud at 3 to 6 years.[1]

"Large-scale" fraud will typically be penitentiary sentence. A conditional sentence will not be appropriate in these cases.[2]

  1. R v Dobis 2002 CanLII 32815 (ON CA) per MacPherson JA at p. 271 - stating 3 to 5 years
    R v Drakes, 2009 ONCA 560 (CanLII) at paras 24-6 (leave to appeal refused, [2009] S.C.C.A. No. 381)
    R v Bertram, [1990] O.J. No. 2013 (C.A.)(*no CanLII links) at p. 3
    R v Wilson, [2003] O.J. No. 1047, 2003 CanLII 48181 (ON CA) at para 5
  2. R v Cunsolo, 2014 ONCA 364 (CanLII) at para 53

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 380(1)(a) or (2)
Stand-alone Restitution Order - Mandatory consideration under s. 380.3 s. 380
Section 380.2 - Fraud Prohibition Order (section 380.2) s. 380

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay, and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

History of the Offence

See Also

References

Child Pornography Sentencing

General Principles

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences

Sentencing Profile

See also: History of Child Pornography Offences

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 163.1(2) and (3) [making, distributing]
From July 17, 2015
N/A 14 years custody
s. 163.1(4) and (4.1) [poss'n, access]
From July 17, 2015
Summary Election 2 years less a day custody
s. 163.1(4) and (4.1) [poss'n, access]
From July 17, 2015
Indictment Election 10 years custody
s. 163.1(2) and (3) [making, distributing]
August 9, 2012 to July 16, 2015
Summary Election 2 years less a day custody
s. 163.1(2) and (3) [making, distributing]
November 1, 2005 to July 16, 2015
Indictment Election 10 years custody
s. 163.1(4) and (4.1) [poss'n, access]
November 1, 2005 to July 16, 2015
Summary Election 18 months custody
s. 163.1(4) and (4.1) [poss'n, access]
November 1, 2005 to July 16, 2015
Indictment Election 5 years custody
s. s. 163.1(2) and (3) [making, distributing]
November 1, 2005 to August 8, 2012
Summary Election 18 months custody

Offences under s. 163.1(2) and (3) [making, distributing] are straight indictable. The maximum penalty is 14 years incarceration.

Offences under s. 163.1(4) and (4.1) [poss'n, access] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day.

Minimum Penalties

Offence(s) Crown
Election
Minimum Penalty
First Offence
Minimum Penalty
Subsequent Offence
s. 163.1(2) and (3) [making, distributing]
From July 17, 2015
N/A 1 year custody Same
s. 163.1(4) and (4.1) [poss'n, access]
From July 17, 2015
Summary Election 6 months custody Same
s. 163.1(4) and (4.1) [poss'n, access]
From July 17, 2015
Indictment Election 1 year custody Same
s. 163.1(2) and (3) [making, distributing]
August 9, 2012 to July 16, 2015
Summary Election 6 months custody Same
s. 163.1(2) and (3) [making, distributing]
August 9, 2012 to July 16, 2015
Indictment Election 1 year custody Same
s. 163.1(4) and (4.1) [poss'n, access]
August 9, 2012 to July 16, 2015
Summary Election 90 days custody Same
s. 163.1(4) and (4.1) [poss'n, access]
August 9, 2012 to July 16, 2015
Indictment Election 6 months custody Same
s. 163.1(2) and (3) [making, distributing]
November 1, 2005 to August 8, 2012
Summary Election 90 days custody Same
s. 163.1(2) and (3) [making, distributing]
November 1, 2005 to August 8, 2012
Indictment Election 1 year custody Same
s. 163.1(4) and (4.1) [poss'n, access]
November 1, 2005 to August 8, 2012
Summary Election 14 days custody Same
s. 163.1(4) and (4.1) [poss'n, access]
November 1, 2005 to August 8, 2012
Indictment Election 45 days custody Same
s. 163.1(2), (3), (4) and (4.1)
Prior to Nov. 1, 2005
any None Same

For offences under s. 163.1(2) and (3) there is a mandatory minimum penalty of 12 months incarceration.

Offences under s. 163.1(4) and (4.1) have a mandatory minimum penalty of 1 year incarceration when prosecuted by indictment and 6 months incarceration when prosecuted by summary conviction.

Penalty Amendments

Prior to November 1, 2005 there were no mandatory minimum penalties.

On August 9, 2012, s. 163.1 was amended to increase the penalties as follows:

  • Making: Summary 90 days increased to 6 months
  • Distribution: Summary 90 days increased to 6 months
  • Possession: Indictable 45 days increased to 6 months / Summary 14 days increased to 90 days
  • Accessing: Indictable 45 days increased to 6 months / Summary 14 days increased to 90 days
  • Possession: Maximum 18 months increased to 2 years less a day
  • Accessing: Maximum 18 months increased to 2 years less a day

On July 17, 2015 penalties were increased. For making child pornography under s. 163.1(2) and distributing under s. 163.1(3), the maximum penalty by indictment increased from 10 years to 14 years. Both offences were hybrid and are now straight indictable. For possession under s. 163.1(4) and accessing under s. 163.1(4.1) the minimum for summary conviction increased from 90 days to 6 months and for indictable offences increased from 6 months to 1 year. The maximum for summary conviction increased from 18 months to 2 years less a day and for indictable offences increased from 5 years to 10 years.

Available dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 163.1(2), (3), (4), (4.1) any X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png


Offences under s. 163.1 have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences
Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence under s. 163.1 must be consecutive to a sentence "for a sexual offence under another section of this Act committed against a child" (718.3(7)(a)).

Convictions for making child pornography should be treated as a "distinct offence which stands on its own, which addresses a separate and distinct harm to the victim and to society, and which is deserving of a consecutive sentence".[1]

General Principles

Offences related to child pornography are a form of sex offence.[2] They are abhorent and cause extreme harm to its victims.[3]

Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years, shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).

Parliament's intent in s. 163.1 was the "prevention of sexual exploitation of young persons under the age of 18 years".[4]

All offences involving child pornography have a greater emphasis on general deterrence and denunciation.[5]

The initial sentencing response to child pornography offences have been acknowledged as being too lenient.[6]

Section 163.1(4.3) adds an aggravating factor:

163.1
...
Aggravating factor
(4.3) If a person is convicted of an offence under this section, the court that imposes the sentence shall consider as an aggravating factor the fact that the person committed the offence with intent to make a profit.
...
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7; 2012, c. 1, s. 17; 2015, c. 23, s. 7.


CCC

  1. R v DC, 2016 MBCA 49 (CanLII), per Burnett JA at para 44 - relating to offences of sexual touching and making child porn in relation to same victim
  2. R v Dyck, 2008 ONCA 309 (CanLII), per Blair JA at para 19
  3. R v Nisbet, 2011 ONCA 26 (CanLII), per curiam, at para. 1
    R v Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45, per L’Heureux-Dubé, Gonthier and Bastarache JJA, at para. 158 (concurring)
    R v Lynch-Staunton, 2011 ONSC 218 (CanLII), per Ratushny J, at para. 49
    R v Schultz, 2018 ONCA 598 (CanLII), per Brown JA at para 53
  4. R v Rowe, 2011 ONCA 48 (CanLII), per curiam
  5. R v E.O., 2003 CanLII 2017 (ON CA), per Cronk JA at para 7
  6. R v PJB, 2010 ABCA 49 (CanLII), per Watson JA (2:1), at para 10

Purpose of Section 163.1 Generally

The prohibition and criminalization of child pornography arises out of society’s interest to protect children. [1]

Child pornography presents a "profound and present danger to children around the world".[2] The pornography is of "enormous gravity" upon the victims public as a whole.[3] The "existence of child pornography ... is inherently harmful to children and society" irrespective of the risk of dissemination.[4] The material exploits, degrades, objectifies and dehumanizes children, violates their dignity and equality rights.[5] The pornography "hinders children’s own self-fulfilment and autonomous development by eroticising their inferior social, economic and sexual status".[6]

The exposure of child pornography "may reduce paedophiles' defences and inhibitions against sexual abuse of children" by making the "abnormal seem normal and the immoral seem acceptable".[7]

The possession of this material "fuels fantasies", making an offender more likely to commit a hands-on offence.[8]

By criminalizing possession of child pornography, the legislature provides a "useful tool in detecting and prosecuting the production and distribution of child pornography".[9]

These materials are tools that can be used by paedophiles to "groom" and seduce child victims.[10]

The creation of child pornography, in most cases, requires the use and abuse of children by fuelling the market of those who seek to possess the materials.[11]

  1. R v Sharpe, 2001 SCC 2 (CanLII), per McLachlin CJ at para 28
  2. TLB, 2007 ABCA 61 (CanLII), per Fraser CJ at para 27
  3. R v E.O., 2003 CanLII 2017 (ON CA), [2003] O.J. No. 563, 169 O.A.C. 110 (C.A.), per Cronk JA at para 7
  4. Sharpe, supra at para 158
    R v Pecchiarich [2001] OJ No 3940, per Hill J (*no CanLII links) ("Possession of child pornography increasingly menaces our young people and threatens our values as a society.")
  5. Sharpe, supra at para 158
  6. Sharpe, supra at 185
  7. Sharpe, supra at para 88
    R v Miller, 2017 NLCA 22 (CanLII), per Hoegg JA at para 14
  8. Sharpe, supra at para 89
  9. Miller, supra at para 14
    Sharpe, supra at para 90
  10. Miller, supra at para 14
    Sharpe, supra at para 91
  11. Sharpe, supra at para 92
    Miller, supra at para 14

Effect on Victims

Child pornography contributes to the abuse of children who are photographed or filmed by exploiting their vulnerability.[1]

The child is sexually exploited even where they are unaware of their role in the making of child pornography. [2]

Children are recognized as one of the "most valued and most vulnerable assets." They are generally incapable of defending themselves and so are easily targeted.[3] It is for this reason that courts must focus on protecting children.[4] As with all sexual offences, it has been recognized by courts that child victims of sexual offences suffer from long lasting damage.[5] They suffer from emotional trauma that is often permanent. As adults they "may become incapable of forming loving relationship, always fearful of re-victimization by sexual partners. Further, the matured victim may become a sexual predator himself. It is often that an offender will report being victimized by other sexual predators as a child."[6]

Live images of children are particularly serious since it creates a permanent record of abuse.[7] Once an image or video is taken and distributed on the internet it will generally propagate indefinitely.[8] The children are re-victimized with each viewing of the materials.[9]

  1. R v Sharpe, 2001 SCC 2 (CanLII), per McLachlin CJ at para 169 ("...Child pornography plays a role in the abuse of children, exploiting the extreme vulnerability of children.")
    R v Garcia, 2009 BCSC 407 (CanLII), [2009] BCJ No. 581(S.C.), per Griffin J, at paras 14 and 15
  2. Garcia, ibid. at para 14 and 15
  3. R v DD at para 35
  4. R v Nisbet, 2011 ONCA 26 (CanLII), per curiam (Child pornography is "an abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence.")
  5. DD, supra at para 36
  6. DD, supra para 37-38
  7. Sharpe, supra at para 169 ("Pornography that depicts real children is particularly noxious because it creates a permanent record of abuse and exploitation.")
  8. Standing Senate Committee on Human Rights at p. 23
  9. R v Smith, 2008 CanLII 59107 (ON SC), per Clark J
    Garcia, supra at paras 14 and 15
    R v WAE, 2009 CanLII 42861 (NL PC), per Gorman J at para 30

Prevalence

The frequency of these offences has been expanding with technology becoming more sophisticated.[1]

Perpetrators who make child pornography tend to be people known to the child, including family members and people close to the family.[2]

Those who access and possess child pornography encourage others to sexually abuse children and record it.[3] Thus by deterring possession and access will reduce the abuse of children.[4]

  1. R v DGF, 2010 ONCA 27 (CanLII), per Feldman JA at para 22 ("the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution.")
  2. The Sexual Exploitation of Children in Canada, Standing Senate Committee on Human Rights (November 2011) at p. 23
  3. R v Bock, 2010 ONSC 3117 (CanLII), [2010] O.J. No. 2277 (S.C.J.), per Henderson J at para 31
  4. Bock, ibid. at para 31

Danger of Offenders

Some psychiatric experts suggest that collecting child pornography is an addiction.[1] It may result in the offender to becomes desensitized to the harm caused to children.[2]

An offender with a prior record of actual abuse of children, an accumulation of violent materials involving children, image access history will permit the judge to conclude the offender is a danger to the community.[3]

An offender will often have a great insight into his interests and their inappropriateness but will still endulge in them.[4] When the offender has issues with substance abuse he is more likely to be a risk for future offences as the substances will reduce their inhibitions.[5]

The circulation of images and videos "can create a kind of pedophile-peergroup mentality where social inhibitions against sexualization of children are lowered, potentially encouraging child sexual abuse."[6]

Conviction for child pornography related offences is a strong indicator for pedophilia.[7]

Convictions for child pornography carry with it “stigma, public humiliation, and revulsion.”[8]

  1. R v Labre, 2013 ONCJ 116 (CanLII), per Lalande J at para 18
  2. Labre, ibid. at para 18
  3. R v E.O. at para 7
  4. e.g. see R v Saddlemire, 2007 ONCA 36 (CanLII), per MacFarland JA at para 53
  5. Saddlemire, ibid. at para 54
  6. R v Garcia, 2009 BCSC 407 (CanLII), [2009] BCJ No. 581(S.C.), per Griffin J, at paras 14 and 15
  7. http://filecache.drivetheweb.com/np2cr_nca-chapters/12784/download/Peter+Collins+Handouts.pdf
  8. R v Schneider, 2008 ONCJ 250 (CanLII), per Wong J at para 43

Amount of Materials

While the number of illegal files is important to sentence, the amount of files should be not lead to “tariff sentencing”.[1] The difference between file counts are less important as the overall magnitude.[2] The amount of files should not be considered the "most aggravating" factor since it is possible to download hundreds or even thousands of files within 24 hours of internet use.[3]

It is permissible to treat as aggravating the number of images found in association with a single count. There is no "bulk discount" of sentence for the quantity of images.[4]

  1. R v Sputnikoff, 2013 SKPC 57 (CanLII), per Agnew J, at paras 36 to 37
  2. e.g. Sputninoff, ibid. at para 37
  3. R c Von Gunten, 2006 QCCA 286 (CanLII), per Pelletier JA at para 19
  4. R v Andrukonis, 2012 ABCA 148 (CanLII), per curiam at paras 24 to 26

Classification of Materials

The nature of the materials is an important factor to sentencing.[1] It is evidence suggesting the types of fantasies engaged in by the offender. It could be argued that the more explicit the sexual activity depicted, the more fixated the offender is upon that type of behaviour.

The comparison of nature of the materials found in each case is necessary but should not minimize the "great concern that all child pornography justifiably attracts."[2]

Depictions of child pornography can be categorized into one of five categories, from least serious to most serious: [3]

  1. images depicting erotic posing with no sexual activity;
  2. sexual activity between children, or solo masturbation by a child;
  3. non-penetrative sexual activity between adults and children;
  4. penetrative sexual activity between children and adults; and
  5. sadism or bestiality.

The types of content of the files becomes less relevant for larger collection.[4]

Non-CP Materials
Courts will often take into account the amount of child exploitative materials are found on the computer as well.[5]

  1. R v LaGue, 2013 MBQB 32 (CanLII), per Perlmutter J at para 19
    R v Brooks, 2010 MBPC 61 (CanLII), per Lerner J
  2. R v Yau, 2011 ONSC 1009 (CanLII), per MacDonnell J
  3. R v Missions, 2005 NSCA 82 (CanLII), per Roscoe JA at para 14
    LaGue, supra at para 19
  4. R v Stupnikoff, 2013 SKPC 57 (CanLII), per Agnew J at para 35
  5. e.g. R v C.G.L., 2013 ABCA 140 (CanLII), per curiam -- concerning collection of child modelling images

Intersection With Other Sex Offences

There is a close relationship between child pornography offences and those involving hands-on abuse of children. The court must consider each offence in light of its connections with the others.[1]

  1. R v LM, 2008 SCC 31 (CanLII), [2008] 2 SCR 163, per LeBel J at para 31

Possession and Accessing Sentencing Principles

The distinction between a charge of accessing or possessing appears to make little difference in the duration of penalty.[1]

Purpose
The primary objective for sentencing in possession of child pornography is denunciation and general deterrence. [2]

Possession of child pornography contributes to the market for child pornography which drives the production of the materials.[3]

Possession is a "very important contributing element in the general problem of child pornography."[4] It is a "short step" away from being a distributor.[5]

Possession also breaks down inhibitions, and creates cognitive distortions that abuse is not harmful. It normalizes the material, numbing the offender's conscience, and making the immoralities acceptable.[6] In certain individuals, it will fuel fantasies and incite them to commit offences.[7]

The materials encourage potential offenders to groom and seduce children for the purpose of making child pornography.[8]

The sentence for possession of child pornography recognizes the link between possession of the materials and the sexual abuse of children beyond the images themselves.[9]

The offence of accessing should not be considered any less serious an offence as possession.[10]

Constitutionality
There is some suggestion that the 90 day minimum sentence for possessing child pornography is unconstitutional as it is cruel and unusual punishment.[11]

  1. R v Bejasa, 2010 ABPC 249 (CanLII), per Fradsham J at paras 33 to 34
  2. R v Stroemple, 1995 CanLII 2283 (ONCA), 105 CCC (3d) 187, per Morden ACJ at p. 191
    R v Hewlett, 2002 ABCA 179 (CanLII), (2002) 167 CCC (3d) 425, per Fraser CJ at p. 432 (ABCA)
    R v Hunt, [2002] A.J. No. 831, 2002 ABCA 155 (CanLII), per curiam para 41
    R v Missions, 2005 NSCA 82 (CanLII), per Roscoe JA
    R v Cohen, 2001 CanLII 3862 (ON CA), per curiam
  3. R v Sharpe, 2001 SCC 2 (CanLII), per McLachlin CJ at 28
    R v Fisher, [2007] NBJ No. 129, 2007 NBPC 15 (CanLII), per Cumming J at para 16
    Stroempl, supra at page 191
  4. Stroempl, supra
    R v WC, [2004] O.J. No. 5985 (S.C.J.)(*no CanLII links) at paras 20-22
  5. WC, ibid., at paras 20-26
    Stroempl, supra at 191
    R v Lisk, 1998 CanLII 4737 (ON CA), [1998] O.J. No. 1456 (C.A.), per curiam at para 1, per curiam
  6. Sharpe, supra at para 85 to 94
  7. Sharpe, supra at 85 to 94
    R v Steadman, 2001 ABQB 1004 (CanLII), [2001] A.J. No. 1563, per Gallant J at paras 21 and 22
  8. Sharpe, supra at para 93 ("The ability to possess child pornography makes it available for the grooming and seduction of children by the possessor and others. Mr. Sharpe does not deny that some child pornography can play an important role in the seduction of children. Criminalizing the possession of child pornography is likely to help reduce the grooming and seduction of children.")
  9. e.g. R v Durnford, 2006 CanLII 34694 (NL PC), per Gorman J at para 77
  10. R v Hammond, 2009 ABCA 415 (CanLII), per Watson JA, at para 6
  11. R v Swaby, 2017 BCSC 2020 (CanLII), per Marchand J

Ranges

In Alberta, the range for possession of child pornography is around 12 months. [1]

In Saskatchewan, it has been suggested that for a first time offender for possession should receive anywhere from the minimum to 2 years incarceration.[2]

  1. R v Hilderman, 2010 ABPC 183 (CanLII), per Fraser J at para 15
  2. R v Kroeker, 2014 SKQB 137 (CanLII), per Keene J at para 51

Making Child Pornography Principles

The charge of making can apply the same principles as sexual assault or interference offences against children where the accused is effectively a party to the sexual acts committed against the child.

Gravity
The offence can range from "recording reprehensible non-consensual sexual acts to pure voyeurism".[1] While all are forms of abuse, "surreptitious recording" of change rooms is on the lower end of the scale.[2]

There is a "very strong" link between production and harm. There is a "devastating impact" where the child is "traumatized by being used as a sexual object" which lasts with them for their whole life.[3]

Victims are harmed "not only by the initial production of the child pornography, but also perpetually if the materials is made available or distributed." The internet makes it impossible to ever remove the material in circulation.[4]

  1. R v Gryba, 2016 SKQB 123 (CanLII), per Popescul CJ at para 63
  2. Gryba, ibid. at par 63
  3. R v Sharpe, 2001 SCC 2 (CanLII), per McLachlin CJ at para 92 ("The link between the production of child pornography and harm to children is very strong. The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in the course of making the pornography. The child may be sexually abused and degraded. The trauma and violation of dignity may stay with the child as long as he or she lives.")
  4. R v GJM, 2015 MBCA 103 (CanLII), per Mainella JA at para 14

Factors

It is aggravating if the accused was in a position of trust to the subject of the created child pornography.[1]

It is not a mitigating factor that the materials were not made available online for sharing. It simply suggests that creation was for personal use.[2]

  1. R v Gryba, 2016 SKQB 123 (CanLII), per Popescul CJ at para 64, also citing s. 718.01 and 718.2(a)(ii.1) and (iii)
  2. R v GJM, 2015 MBCA 103 (CanLII), per Mainella JA at para 15

Ranges

In Manitoba, the making of child pornography where there is evidence of sharing or making available will result in a sentence in the range of "mid to upper single digits".[1]

  1. R v GJM, 2015 MBCA 103 (CanLII), per Mainella JA at para 15

Distribution and Making Available Sentencing Principles

The primary principles for distribution offences are denunciation and deterrence.[1]

Distribution through the internet is particularly despicable as "it is unbounded once the materials are sent out to one person."[2] Files made available online for circulation will allow the "virtual abuse" to "go on forever".[3]

Even the possibility that distribution "might occur” create harm as to the victim's "have ongoing fear and uncertainty" that the files will remain accessible on the Internet and will revicitimize them. [4]

  1. R v B(TL) , 2007 ABCA 61 (CanLII), (2007) 218 CCC (3d) 11 (ABCA), per Fraser CJ leave to SCC refused
  2. R v Weber, 2003 CanLII 28579 (ON CA), [2003] O.J. No. 3306 (C.A.), per Feldman JA at para 16
  3. R v Kwok, 2007 CanLII 2942 (ON SC), per Molloy J at para 51
  4. R v DGF, 2010 ONCA 27 (CanLII), per Feldman JA, at para 25

Factors

Aggravating factors include: [1]

  1. Where the images were shown or distributed to a child.
  2. the amount of images or videos collected[2]
  3. the level of sophistication of the collection. This is determined by way of how it was organized on a computer. It will sometimes indicate the level of trading or level of personal interest in the material. On the low end would include images viewed but not stored on the computer.
  4. Whether images or videos were posted on public areas of the internet, “or distributed in a way making it more likely they will be found accidentally by computer users not looking for pornographic material”
  5. where the offender is responsible for the original production of the images, in particular where the victims were members of the offender’s family, or drawn from particularly vulnerable groups, or if the offender has abused a position of trust, as in the case of a teacher, friend of the family, social worker, or youth group leader.
  6. The age of the children depicted. The younger the child, the greater the psychological harm, including fear and distress, and the greater likelihood of physical injury. [3]
  7. the degree of intrusion and repulsivity of any sexual acts depicted. This is in part captured by the categories in Missions[4]
  8. the manner in which the images were obtained : simple downloading through file-sharing programs, other non-commerical means versus purchases on websites or international connections.[5]
  9. signs on potential distribution or production.
  10. related criminal record;
  11. evidence that the offender has pedophilic tendencies or diagnosis of paedophilia;
  12. the predatory nature of the offence;[6]

Mitigating factors considered:[7]

  1. the youthful age of the offender;
  2. the otherwise good character of the offender;
  3. the extent to which the offender has shown insight into his problem;
  4. whether he has demonstrated genuine remorse;
  5. whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment;
  6. the existence of a guilty plea; and
  7. the extent to which the offender has already suffered for his crime.

The lack of a profit motive is not a mitigating factor. Most traders are not doing it for money.[8]

In sentencing for making available, there is only minor mitigation if the speed of the connection is set at the lowest setting.[9]

A previous conviction for a child pornography related offence is the "most aggravating" of factors.[10]

Aggravating to sentence would include evidence of any precautions to avoid detection by police.[11] However, the presence of hardware "wiping" software alone may not sufficient by itself to suggest that there was more child pornography than discovered.[12]

  1. R v Saddler, 2009 NSWCCA 83 (AustLII) also referred to Regina v Oliver, Hartrey and Baldwin [2004] UKHL 43; [2003] 1 Cr App R 28
    R v W.A.E., 2009 CanLII 42861 (NL PC), per Gorman J at para 76
    R v Smith, 2008 CanLII 59107 (ON SC), per Clark J
    R v Kwok, 2007 CanLII 2942 (ONSC), per Molloy J
    See also: R v Mallett 2005 CanLII 32927 (ON SC), [2005] OJ No 3868, per Hill J
  2. R v Donnelly, 2010 BCSC 1523 (CanLII), per Schultes J at para 36 Judge discusses the importance of the number of images to the range of sentence
  3. Mallett, supra at para 15
  4. 2005 NSCA 82 (CanLII), per Roscoe JA
    see also Mallett, supra at para 15
  5. Mallett at para 15
  6. R v Innes, 2008 ABCA 129 (CanLII), per curiam at para 12
  7. Kwok, supra
    R v Parise, [2002] O.J. No. 2513 (ONCJ) (*no CanLII links)
    Mallett, supra, at paras 15-16 (ONSC)
    R v Smith, 2008 CanLII 59107 (ON SC), per Clark J
  8. TLB, supra at para 28
  9. Stupnikoff, supra at para 27
  10. R v Schneider, 2008 ONCJ 250 (CanLII), per Wong J at para 43
  11. R c Bertrand, 2014 QCCQ 5233 (CanLII), per Boyer J at para 39
    R c Von Gunten, 2006 QCCA 286 (CanLII), per Gendreau J
  12. R v Bejasa, 2010 ABPC 249 (CanLII), per Fradsham J at paras 16 and 17

Range

See also: Child Pornography (Sentencing Cases)

In Alberta, there is typically a general range of sentence between 3 and 18 months followed by one to three years probation for distribution of child pornography. [1]

  1. R v Shelton 2006 ABCA 190 (CanLII), (2006), 391 A.R. 177 (Alta. C.A.), per Fruman JA at para 12

Other Issues

Probationary terms added as part of sentences for child pornography will often include conditions prohibiting or limiting use of "Computer Systems" as defined in s. 342.1

See Real Evidence#Child Pornographic Images and Video

Constitutionality
The mandatory minimum sentence of 1 year for distribution of child pornography does not violate s. 12 of the Charter for being cruel and unusual punishment.[1]

At least one Court has found that the mandatory minimum for making and possessing child pornography under s. 163.1(2) and (4) is unconstitutional for being cruel and unusual contrary to s. 12 of the Charter.[2]

  1. R v Schultz, 2008 ABQB 679 (CanLII), per Topolniski J
  2. R v Joseph, 2018 ONSC 4646 (CanLII), per McKinnon J at para 94

Kienapple

Possession and making can be the subject of the Kienapple Principle. [1]

  1. R v Brunton, 2014 ONCJ 120 (CanLII), per Harris J, at para 28

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 163.1
SOIRA Orders s. 163.1
  • On conviction under s. 163.1(2) or (3), as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 20 years as the offence has "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b))).
      • There is an option for early termination under s. 490.015 available after 10 years (if 20 year order) or 20 years (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

  • On conviction under s. 163.1(4) or (4.1), as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years where the offence has been "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years" (s. 490.013(2)(a))) or 20 years where the offence has a "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b)).
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order), 10 years (if 20 year order), or 20 year (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Section 161 Orders s. 163.1
  • If convicted under s. 163.1, the judge may make discretionary 161 Order.
Delayed Parole Order s. 163.1
  • Periods of imprisonment of 2 years or more for convictions under s. 163.1 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
Forfeiture Order (s.164.2) s. 163.1

Must be "used" or "owned" by the offender in relation to a conviction of child pornography, child luring or arrange sex offence against a child.

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay, and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

See Also

Weapons Offences (Sentencing)

General Principles

Firearms

Possession of a loaded firearm is inherently dangerous. Death and serious injury are only a "impulse and trigger pull away".[1]

Offences involving handguns is a “serious and growing societal danger”.[2]

There is a strong emphasis on the need to denounce and deter the use of firearms in public places.[3] This is necessary in order to maintain confidence in the administration of justice.[4]

Ontario has set a range of 7 to 11 years for "serious firearm offences".[5]

There has been judicial notice that as of 2007 there has been a national increase in gun violence and gun-related offences.[6]

  1. R v Chin, 2009 ABCA 226 (CanLII), [2009] A.J. No. 711 (C.A.), per curiam
    see also R v Elliston, 2010 ONSC 6492 (CanLII), per Aston J
    Foster v Prince, 2012 ONSC 205 (CanLII), [2012] O.J. No. 89 (O.S.C.), per MacLeod J at para 18
  2. R v Clayton 2005 CaLII 16569 (ONCA), per Doherty JA at 41
  3. R v Danvers [2005] OJ 3532, 2005 CanLII 30044 (ONCA), per Armstrong JA at para 77
    R v Bellamy, 2008 CanLII 26259 (ON SC), [2008] 175 C.R.R. (2d) 241, per Boswell J at para 76
    R v Brown, 2006 CanLII 39311 (ON SC), [2006] O.J. No. 4681 (Ont. S.C.J.), per Trafford J at para 9
    R v Gomes, 2015 ONCA 763 (CanLII), per curiam at para 4 ("...possession of deadly prohibited firearms requires a denunciatory sentence.")
  4. R v Whervin, [2006] O.J. No. 443 (S.C.J.)(*no CanLII links) at para 14
    R v David, [2006] O.J. No. 3833 (S.C.J.)(*no CanLII links)
  5. R v Bellissimo, 2009 ONCA 49 (CanLII), per curiam, at para 3
  6. R v Clayton 2007 SCC 32 (CanLII), per Abella J at para 110

Notice of Increased Penalties

See also: Notice of Increased Penalty

Section 84(5) and (6) state:

84.
...
Subsequent offences
(5) In determining, for the purpose of subsection 85(3), 95(2), 99(2), 100(2) or 103(2), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under section 85, 95, 96, 98, 98.1, 99, 100, 102 or 103 or subsection 117.01(1);
(b) an offence under section 244 or 244.2; or
(c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

Sequence of convictions only
(6) For the purposes of subsection (5), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
R.S., 1985, c. C-46, s. 84; R.S., 1985, c. 27 (1st Supp.), ss. 185(F), 186; 1991, c. 40, s. 2; 1995, c. 39, s. 139; 1998, c. 30, s. 16; 2003, c. 8, s. 2; 2008, c. 6, s. 2; 2009, c. 22, s. 2; 2015, c. 3, s. 45.


CCC

Ranges

Ontario
Where an offender "is an outlaw who carries a loaded firearm as a tool of his or her trade, a penitentiary sentence of 3 or more years is generally appropriate"[1]

Newfoundland'
The lower end of the range for firearm offences is 5 years.[2]

  1. R v Shomonov, 2016 ONSC 4015 (CanLII), per McCombs J at para 12
    R v Nur, 2015 SCC 15 (CanLII), [2015] 1 S.C.R. 773, per McLachlin CJ para 82
  2. R v Marsh, 2017 CanLII 84460 (NL SCTD), per Goodridge J, at para 20

See Also

Tools of Sentencing: Available Sentences

Alternative Measures

General Principles

716
...
"alternative measures" means measures other than judicial proceedings under this Act used to deal with a person who is eighteen years of age or over and alleged to have committed an offence; (mesures de rechange)
...
R.S., 1985, c. C-46, s. 716; R.S., 1985, c. 27 (1st Supp.), s. 154; 1995, c. 22, s. 6; 1999, c. 5, s. 29(E).


CCC

When alternative measures may be used
717. (1) Alternative measures may be used to deal with a person alleged to have committed an offence only if it is not inconsistent with the protection of society and the following conditions are met:

(a) the measures are part of a program of alternative measures authorized by the Attorney General or the Attorney General’s delegate or authorized by a person, or a person within a class of persons, designated by the lieutenant governor in council of a province;
(b) the person who is considering whether to use the measures is satisfied that they would be appropriate, having regard to the needs of the person alleged to have committed the offence and the interests of society and of the victim;
(c) the person, having been informed of the alternative measures, fully and freely consents to participate therein;
(d) the person has, before consenting to participate in the alternative measures, been advised of the right to be represented by counsel;
(e) the person accepts responsibility for the act or omission that forms the basis of the offence that the person is alleged to have committed;
(f) there is, in the opinion of the Attorney General or the Attorney General’s agent, sufficient evidence to proceed with the prosecution of the offence; and
(g) the prosecution of the offence is not in any way barred at law.

Restriction on use
(2) Alternative measures shall not be used to deal with a person alleged to have committed an offence if the person

(a) denies participation or involvement in the commission of the offence; or
(b) expresses the wish to have any charge against the person dealt with by the court.

Admissions not admissible in evidence
(3) No admission, confession or statement accepting responsibility for a given act or omission made by a person alleged to have committed an offence as a condition of the person being dealt with by alternative measures is admissible in evidence against that person in any civil or criminal proceedings.

No bar to proceedings
(4) The use of alternative measures in respect of a person alleged to have committed an offence is not a bar to proceedings against the person under this Act, but, if a charge is laid against that person in respect of that offence,

(a) where the court is satisfied on a balance of probabilities that the person has totally complied with the terms and conditions of the alternative measures, the court shall dismiss the charge; and
(b) where the court is satisfied on a balance of probabilities that the person has partially complied with the terms and conditions of the alternative measures, the court may dismiss the charge if, in the opinion of the court, the prosecution of the charge would be unfair, having regard to the circumstances and that person’s performance with respect to the alternative measures.

Laying of information, etc.
(5) Subject to subsection (4), nothing in this section shall be construed as preventing any person from laying an information, obtaining the issue or confirmation of any process, or proceeding with the prosecution of any offence, in accordance with law.
R.S., 1985, c. C-46, s. 717; 1995, c. 22, s. 6.


CCC

The Criminal Code permits the provincial government to deal with certain criminal charges outside of the court system. This is usually in the form of diversionary programming available to first-time offenders of minor offences where the accused is prepared to accept responsibility.

Records

Records of persons dealt with
717.1 Sections 717.2 to 717.4 apply only in respect of persons who have been dealt with by alternative measures, regardless of the degree of their compliance with the terms and conditions of the alternative measures.
1995, c. 22, s. 6.


CCC

Police records
717.2 (1) A record relating to any offence alleged to have been committed by a person, including the original or a copy of any fingerprints or photographs of the person, may be kept by any police force responsible for, or participating in, the investigation of the offence.
Disclosure by peace officer
(2) A peace officer may disclose to any person any information in a record kept pursuant to this section that it is necessary to disclose in the conduct of the investigation of an offence.
Idem
(3) A peace officer may disclose to an insurance company any information in a record kept pursuant to this section for the purpose of investigating any claim arising out of an offence committed or alleged to have been committed by the person to whom the record relates.
1995, c. 22, s. 6.


CCC

Government records
717.3 (1) A department or agency of any government in Canada may keep records containing information obtained by the department or agency

(a) for the purposes of an investigation of an offence alleged to have been committed by a person;
(b) for use in proceedings against a person under this Act; or
(c) as a result of the use of alternative measures to deal with a person.

Private records
(2) Any person or organization may keep records containing information obtained by the person or organization as a result of the use of alternative measures to deal with a person alleged to have committed an offence.
1995, c. 22, s. 6.


CCC

Disclosure of records
717.4 (1) Any record that is kept pursuant to section 717.2 or 717.3 may be made available to

(a) any judge or court for any purpose relating to proceedings relating to offences committed or alleged to have been committed by the person to whom the record relates;
(b) any peace officer
(i) for the purpose of investigating any offence that the person is suspected on reasonable grounds of having committed, or in respect of which the person has been arrested or charged, or
(ii) for any purpose related to the administration of the case to which the record relates;
(c) any member of a department or agency of a government in Canada, or any agent thereof, that is
(i) engaged in the administration of alternative measures in respect of the person, or
(ii) preparing a report in respect of the person pursuant to this Act; or
(d) any other person who is deemed, or any person within a class of persons that is deemed, by a judge of a court to have a valid interest in the record, to the extent directed by the judge, if the judge is satisfied that the disclosure is
(i) desirable in the public interest for research or statistical purposes, or
(ii) desirable in the interest of the proper administration of justice.

Subsequent disclosure
(2) Where a record is made available for inspection to any person under subparagraph (1)(d)(i), that person may subsequently disclose information contained in the record, but may not disclose the information in any form that would reasonably be expected to identify the person to whom it relates.
Information, copies
(3) Any person to whom a record is authorized to be made available under this section may be given any information contained in the record and may be given a copy of any part of the record.
Evidence
(4) Nothing in this section authorizes the introduction into evidence of any part of a record that would not otherwise be admissible in evidence.
Idem
(5) A record kept pursuant to section 717.2 or 717.3 may not be introduced into evidence, except for the purposes set out in paragraph 721(3)(c), more than two years after the end of the period for which the person agreed to participate in the alternative measures.
1995, c. 22, s. 6.


CCC


Only the province of Manitoba has enacted law relating to Restorative Justice.[1]

  1. Restorative Justice Act, CCSM c R119.6

Extrajudicial Measures Under the YCJA

Extrajudicial Measures for Young Offenders

General Principles

Part I of the YCJA sets out three types of Extrajudicial Measures:

  • warnings,
  • cautions and
  • referrals

Part I on extrajudicial measures states:

Principles and Objectives Declaration of principles
4. The following principles apply in this Part in addition to the principles set out in section 3:

(a) extrajudicial measures are often the most appropriate and effective way to address youth crime;
(b) extrajudicial measures allow for effective and timely interventions focused on correcting offending behaviour;
(c) extrajudicial measures are presumed to be adequate to hold a young person accountable for his or her offending behaviour if the young person has committed a non-violent offence and has not previously been found guilty of an offence; and
(d) extrajudicial measures should be used if they are adequate to hold a young person accountable for his or her offending behaviour and, if the use of extrajudicial measures is consistent with the principles set out in this section, nothing in this Act precludes their use in respect of a young person who
(i) has previously been dealt with by the use of extrajudicial measures, or
(ii) has previously been found guilty of an offence.

Objectives
5. Extrajudicial measures should be designed to

(a) provide an effective and timely response to offending behaviour outside the bounds of judicial measures;
(b) encourage young persons to acknowledge and repair the harm caused to the victim and the community;
(c) encourage families of young persons — including extended families where appropriate — and the community to become involved in the design and implementation of those measures;
(d) provide an opportunity for victims to participate in decisions related to the measures selected and to receive reparation; a


Warnings, cautions and referrals
6. (1) A police officer shall, before starting judicial proceedings or taking any other measures under this Act against a young person alleged to have committed an offence, consider whether it would be sufficient, having regard to the principles set out in section 4, to take no further action, warn the young person, administer a caution, if a program has been established under section 7, or, with the consent of the young person, refer the young person to a program or agency in the community that may assist the young person not to commit offences.
Saving
(2) The failure of a police officer to consider the options set out in subsection (1) does not invalidate any subsequent charges against the young person for the offence.
Police cautions
7. The Attorney General, or any other minister designated by the lieutenant governor of a province, may establish a program authorizing the police to administer cautions to young persons instead of starting judicial proceedings under this Act.
Crown cautions
8. The Attorney General may establish a program authorizing prosecutors to administer cautions to young persons instead of starting or continuing judicial proceedings under this Act.
...
Extrajudicial Sanctions
10. (1) An extrajudicial sanction may be used to deal with a young person alleged to have committed an offence only if the young person cannot be adequately dealt with by a warning, caution or referral mentioned in section 6, 7 or 8 because of the seriousness of the offence, the nature and number of previous offences committed by the young person or any other aggravating circumstances.
Conditions
(2) An extrajudicial sanction may be used only if

(a) it is part of a program of sanctions that may be authorized by the Attorney General or authorized by a person, or a member of a class of persons, designated by the lieutenant governor in council of the province;
(b) the person who is considering whether to use the extrajudicial sanction is satisfied that it would be appropriate, having regard to the needs of the young person and the interests of society;
(c) the young person, having been informed of the extrajudicial sanction, fully and freely consents to be subject to it;
(d) the young person has, before consenting to be subject to the extrajudicial sanction, been advised of his or her right to be represented by counsel and been given a reasonable opportunity to consult with counsel;
(e) the young person accepts responsibility for the act or omission that forms the basis of the offence that he or she is alleged to have committed;
(f) there is, in the opinion of the Attorney General, sufficient evidence to proceed with the prosecution of the offence; and
(g) the prosecution of the offence is not in any way barred at law.

Restriction on use
(3) An extrajudicial sanction may not be used in respect of a young person who

(a) denies participation or involvement in the commission of the offence; or
(b) expresses the wish to have the charge dealt with by a youth justice court.

...
No bar to judicial proceedings
(5) The use of an extrajudicial sanction in respect of a young person alleged to have committed an offence is not a bar to judicial proceedings under this Act, but if a charge is laid against the young person in respect of the offence,

(a) the youth justice court shall dismiss the charge if it is satisfied on a balance of probabilities that the young person has totally complied with the terms and conditions of the extrajudicial sanction; and
(b) the youth justice court may dismiss the charge if it is satisfied on a balance of probabilities that the young person has partially complied with the terms and conditions of the extrajudicial sanction and if, in the opinion of the court, prosecution of the charge would be unfair having regard to the circumstances and the young person’s performance with respect to the extrajudicial sanction.

...


YCJA

Records
Police are required to keep records of extrajudicial measures. (s.115(1.1))

Informing Parties
Where extrajudicial sanctions are imposed, notice must be given to the parents of the young person (s. 11).

If requested by the victim, they must be informed of the identity of the young person and the disposition of the charges (s. 12).

See Also

Sentences

Discharges

General Principles

The granting of a discharge "is a discretionary order based on the weighing and assessing of many factors, including the principles of sentencing and the public interest."[1]

The Criminal Codes describes the discharge as:

Conditional and absolute discharge
730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
Period for which appearance notice, etc., continues in force
(2) Subject to Part XVI, where an accused who has not been taken into custody or who has been released from custody under or by virtue of any provision of Part XVI pleads guilty of or is found guilty of an offence but is not convicted, the appearance notice, promise to appear, summons, undertaking or recognizance issued to or given or entered into by the accused continues in force, subject to its terms, until a disposition in respect of the accused is made under subsection (1) unless, at the time the accused pleads guilty or is found guilty, the court, judge or justice orders that the accused be taken into custody pending such a disposition.
...
Where person bound by probation order convicted of offence
(4) Where an offender who is bound by the conditions of a probation order made at a time when the offender was directed to be discharged under this section is convicted of an offence, including an offence under section 733.1, the court that made the probation order may, in addition to or in lieu of exercising its authority under subsection 732.2(5), at any time when it may take action under that subsection, revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time of discharge, and no appeal lies from a conviction under this subsection where an appeal was taken from the order directing that the offender be discharged.
R.S., 1985, c. C-46, s. 730; 1995, c. 22, s. 6; 1997, c. 18, s. 141; 2003, c. 21, s. 17.


CCC

The discharge was enacted in 1972 to give the courts the power to "relieve against both the fact and stigma of a criminal conviction."[2]

  1. R v Chatur, 2012 BCCA 163 (CanLII), [2012] BCJ No. 759 (C.A.)
    R v Sanchez-Pino, 1973 CanLII 794 (ON CA)
  2. Manson, The Law of Sentencing at p. 211 cited in R v Donovan, 2013 NSPC 83 (CanLII) at para 27

Effect

Section 730 states:

730...
Effect of discharge
(3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence except that

(a) the offender may appeal from the determination of guilt as if it were a conviction in respect of the offence;
(b) the Attorney General and, in the case of summary conviction proceedings, the informant or the informant’s agent may appeal from the decision of the court not to convict the offender of the offence as if that decision were a judgment or verdict of acquittal of the offence or a dismissal of the information against the offender; and
(c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence.

...
R.S., 1985, c. C-46, s. 730; 1995, c. 22, s. 6; 1997, c. 18, s. 141; 2003, c. 21, s. 17.


CCC

The discharge is not a conviction but rather the offence is discharged absolutely or conditionally with probation. In cannot be paired with a fine or jail.[1] The end result is that there is no criminal record.[2] No record may be disclosed to any person by a federal agency, except for the purpose of verifying fingerprints, without the consent of the Solicitor General after 1 year for a absolute discharge or 3 years for a conditional discharge.[3]

  1. R v Hayden, 2002 NSCA 7 (CanLII)
  2. R v Burke, 1996 CanLII 11083 (NL CA)
    R v Montgrand, 2008 SKCA 50 (CanLII)
    s. 730(3)
  3. s. 6.1 of the Criminal Records Act

Requirements

An offence punishable by less than 14 years and without minimum sentence, the offender may apply to the court for a "conditional discharge" if it is in the "best interests of the accused" and "not contrary to the public interest".[1]

  1. R v Gallon 2006 NBCA 31 (CanLII)
    R v Elsharawy (1997), 119 CCC (3d) 565, 1997 CanLII 14708 (Nfld. C.A.) at para 3

Best Interests of Offender

It is wrong to assume it is always be in the best interest of the offender to have a discharge. This requirement has been interpreted as requiring that (1) specific deterrence is of "no concern" and (2) the accused is of good character.[1]

Generally speaking the effect of the criminal record would be disproportionate to the offence, such as where the offender cannot pursue their chosen profession[2], education would be affected[3], etc. The reason for discharge cannot be mere speculation.[4]

The first factor of a discharge presupposes that the offender is of good character and so is without a prior criminal record.[5]

It is generally preferred or sometimes necessary that the court have evidence of the consequence of a criminal record to support a discharge application.[6]

  1. Manson, The Law of Sentencing at p. 211 cited in R v Donovan, 2013 NSPC 83 at para 27
  2. R v Carroll, 1995 CanLII 1123 (BC CA)
  3. R v Abouabdellah, 1996 CanLII 6502 (QC CA)
  4. R v Roberts, 2004 SKCA 153 (CanLII)
  5. R v Elsharawy 1997 CanLII 14708 (NL CA), (1997), 119 CCC (3d) 565 (N.L.C.A.) at para 3
  6. R v Relph, 1991 CanLII 1236 (BC CA), [1991] BCJ No. 298 (BCCA) at 12

Not contrary to public interest

A discharge does not have to be in the public interest, it simply must not be contrary to the public interest.[1] It is not necessary that the accused prove that it is in the public interest.[2]

The concern of this inquiry is whether the consequences of the conviction (either real or potential) upon the particular individual outweighs the value of the stigma.[3]

The factors to determine the "public interest" and the weight "will vary depending on the circumstances of the offence and of the offender".[4]

The "public interest" includes "a consideration of the principle of general deterrence with attention being paid to the gravity of the offence, its incidence in the community, public attitudes towards it and public confidence in the effective enforcement of the criminal law."[5]

The second factor considers:[6]

  • the gravity of the offence;
  • the frequency/prevalence of the offence in the community
  • the public attitudes to the offence
  • amount of planning of the offence
  • value of property (if property-related offence)
  • whether there was personal gain from the offence
  • the effect on the public confidence in the law

It is not necessary that the offence be trivial to not be contrary to the public interest.[7]

  1. R v D'Eon, 2011 NSSC 330 (CanLII), per LeBlanc J, at para 18 to 25
  2. R v Sellars, 2013 NSCA 129 (CanLII), per Beveridge JA, at para 27
  3. Manson, The Law of Sentencing at p. 211
  4. Sellars, supra at para 37
  5. R v Elsharawy, [1997] N.J. No. 249, 1997 CanLII 14708 (NL CA), at para 3
  6. See R v Fallofield (1973), 13 CCC (2d) 450 (BCCA), 1973 CanLII 1412 (BC CA)
    R v Waters, 1990 CanLII 7561 (SK QB), (1990), 54 CCC (3d) 40 (Sask. QB)
    R v MacFarlane, 1976 ALTASCAD 6 (CanLII), (1976) 3 Alta LR (2d) 341 R v Sanchez-Pino, 1973 CanLII 794 (ON CA) at para 19 ("must consider all of the circumstances of the accused, and the nature and circumstances of the offence, against the background of proper law enforcement in the community, and the general criteria")
  7. Sellars, supra at para 34 and 38
    Sachez-Pino, supra at para 18

Where applied

Cases for a variety of offences have been considered:

  • possession of a weapon for a dangerous purpose (s.88)[1]
  • break and enter[2]
  • possession of marijuana (4(1))[3]
  • theft under $5,000 [4]

Factors such as the accused's immigration status are valid considerations but are not determinative.[5]

It is not prohibited to grant a discharge where a prior discharge has already been granted. [6] Nor is it prohibited to grant a discharge where a prior record exists. [7] Nevertheless the granting of a discharge in these cases is exceptional.

It should not be order solely because of adverse immigration consequences where it would otherwise be inappropriate.[8]

  1. R v Chalifoux, 1995 ABCA 444 (CanLII) - denied
  2. R v Kadotchnikov, 2002 SKPC 112 (CanLII) - CD granted
  3. R v Lail, 2007 ABPC 117 (CanLII) - granted
  4. R v Pepper, 2005 ABPC 294 (CanLII) - granted
  5. R v Wisniewski, 2002 MBCA 93 (CanLII)
  6. R v Tan (1974), 22 CCC (2d) 184 (BCCA), 1974 CanLII 1608 (BC CA)
  7. eg: R c Lasania, 2010 QCCS 3446 (CanLII)
  8. see R v Melo (1975), 26 CCC (2d) 510 (ONCA), 1975 CanLII 1299 (ON CA) per Arnup JA
    c.f. Abouabedellah (1996), 1996 CanLII 6502 (QC CA), 109 CCC (3d) 477 (Que. C.A.)

Absolute vs Conditional

An absolute discharge order discharges the offence without any additional requirements of probation. It is usually granted in the cases of lesser seriousness of offences or where the personal circumstances are exceptional.[1]

  1. eg. R v Day, 2011 CanLII 8588 (NL PC)

Offences of violence

Without a prior record, a Court will grant a discharge for common assault. [1] However, it should only be given in extraordinary circumstances.[2] Assault causing bodily harm can be available for discharges in only limited circumstances. [3]

  1. R v Bartlett, 2008 CanLII 1535 (ON SC), [2008] O.J. No. 193
    R v Stevens, 2009 NSPC 46 (CanLII)
    R v Munro, [1994] NSJ No. 693 (S.C.)(*no CanLII links)
    R v Boyle (1990), 100 N.S.R. (2d) 39, 1990 CanLII 4078 (NS SC), [1990] NSJ No. 371 (S.C.T.D.)
    R v Rhynold, 1993 CanLII 3218 (NS CA), [1993] NSJ No. 192 (C.A.)
    R v Sumyk, 2010 ABQB 217 (CanLII)
    R v Teclesenbet, 2009 ABCA 389 (CanLII) - CD denied for domestic assault causing bodily harm
  2. R v MacFarlane (1976), 55 AR 222 (ABCA), 1976 ALTASCAD 6 (CanLII)
  3. Successful:
    R v Sowden, 2011 ONCJ 244 (CanLII)
    R v Batt, 2010 CanLII 18251 (NL PC), [2010] N.J. No. 137 (P.C.) -- Joint Recommendation
    R v Morgan, [2003] N.J. No. 341 (S.C.)(*no CanLII links) -- Joint Recommendation
    unsuccessful:
    R v Gulpin, (1975), 36 CRNS 363 (ONCA)(*no CanLII links)
    R v Wood, (1975), 24 CCC (2d) 79 (ONCA), 1975 CanLII 1410 (ON CA)
    R v Pynn, 2011 CanLII 6161 (NL PC) -- conditional sentence
    R v Sullivan, 2011 CanLII 144 (NL PC), [2011] N.J. No. 4 (P.C.) -- probation

Curative Discharges

Digests

Curative Discharges

General Principles

See also: Discharges

The curative discharge is a category of the discharge in relation to motor-vehicle offences:

255.
...
Conditional discharge
(5) Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under section 253, after hearing medical or other evidence, if it considers that the person is in need of curative treatment in relation to his consumption of alcohol or drugs and that it would not be contrary to the public interest, by order direct that the person be discharged under section 730 on the conditions prescribed in a probation order, including a condition respecting the person’s attendance for curative treatment in relation to that consumption of alcohol or drugs.

s. 255; R.S., 1985, c. 27 (1st Supp.), s. 36; R.S., 1985, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 18; 1999, c. 32, s. 3(Preamble); 2000, c. 25, s. 2; 2008, c. 6, s. 21, c. 18, ss. 7, 45.2.


CCC

This provision has not been proclaimed in BC, Ontario, Quebec, Newfoundland. Failure to proclaim is constitutional.[1]

Requirements
For a discharge to be granted, the following must be present:

  1. Court must hear evidence of a medical or similar nature;
  2. court must be of the opinion that the client is in need of curative treatment in relation to alcohol or drug use;
  3. court must be of an opinion that the discharge would not be contrary to the public interest.

Consideration should be given to:[2]

  1. the circumstances of the offence (whether accident, serious injury, death);
  2. the bona fide motivation of the offender as an indication of probable benefit of treatment;
  3. the availability and calibre of proposed treatment facilities and ability to participate therein;
  4. probability of success of treatment;
  5. the criminal record of the offender

Public Interest
Factors to consider on the issue of public interest include:[3]

  • good faith of the accused
  • past criminal record
  • presence of a driving prohibition at the time
  • whether there was a previous discharge given

Other factors considered:

  • the necessary program is available
  • the program is likely to be successful
  • the accused is motivated to overcome alcoholism

When Not Available
Curative discharges are not appropriate where the charge occurred while the offender was subject to a previous treatment discharge.[4]

  1. R v Alton, (1989) 53 CCC (3d) 252, 1989 CanLII 7221 (ON CA) - failure to proclaim s. 255 does not violate s. 15 of the Charter
    R v Hobbs, 2010 ONCJ 460 (CanLII)
    c.f. R v Pickup, 2009 ONCJ 608 (CanLII)
  2. R v Ashberry, (1989), 68 C.R. (3d) 341(ONCA), 1989 CanLII 7230 (ON CA) per Griffiths J.A.
    R v Brown, 1999 CanLII 13991 (SK PC)
  3. R v Storr, 1995 ABCA 301 (CanLII) at para 17
  4. R v Conn, 2004 MBCA 22 (CanLII), [2004] M.J. No. 413 (MBCA)

Revocation

Section 730(4) permits the Court, on application by the Crown, to revoke a curative discharge order.

The revocation for curative orders applies the same test as would be applied to revoke any type of probation order.[1]

The Court may consider any post-sentence conduct as a factor in deciding whether to revoke the order.[2]

  1. R v Blanchard, 2009 YKSC 3 (CanLII) appealed to 2009 YKCA 15 (CanLII)
  2. R v Blanchard, 2009 YKCA 15 (CanLII), at para 42

Probation Orders

General Principles

An order of probation's primary purpose is to influence the future behaviour of the offender.[1] Probation is "a rehabilitative sentencing tool...It is not considered punitive in nature.” [2] It does not seek to reflect the seriousness of the offence or the offender's degree of culpability.[3] Consequently, it is not considered appropriate to achieve the goals of denunciation and deterrence.[4]

A probation order that comes into force years after its imposition may generally lack any meaningful rehabilitative purpose.[5]

  1. R v Taylor, 1997 CanLII 9813 (SK CA)
    R v Kootenay 2000 ABCA 289 (CanLII)
  2. R v Rawn, 2012 ONCA 487 (CanLII) at para 35
    R v Goeujon, 2006 BCCA 261 (CanLII) at para 49
  3. Taylor, supra
    Kootenay, supra
  4. See R v Dunn, 2011 NBCA 19 (CanLII)
    Taylor, supra
  5. R. v. Knott, [2012] 2 SCR 470, 2012 SCC 42 (CanLII), per Fish J., at para 65

Form of Order

A probation order should conform to Form 46. It should contain the duration of the order.:

732.1
...
Form and period of order
(4) A probation order may be in Form 46, and the court that makes the probation order shall specify therein the period for which it is to remain in force.
...


CCC

Procedure

When the court makes a probation order, the court must follow s. 732.1(5) which states:

732.1
...
Obligations of court
(5) The court that makes a probation order shall

(a) cause a copy of the order to be given to the offender;
(b) explain the conditions of the order set under subsections (2) to (3.1) and the substance of section 733.1 to the offender;
(c) cause an explanation to be given to the offender of the procedure for applying under subsection 732.2(3) for a change to the optional conditions and of the substance of subsections 732.2(3) and (5); and
(d) take reasonable measures to ensure that the offender understands the order and the explanations.

For greater certainty
(6) For greater certainty, a failure to comply with subsection (5) does not affect the validity of the probation order. ...
1995, c. 22, s. 6; 1999, c. 32, s. 6(Preamble); 2003, c. 21, s. 18; 2008, c. 18, s. 37.


CCC

According to s. 732.1(6), a failure to comply with s. 732.1(5) does not invalidate the probation order.

When Probation can be Ordered

A probation order can be made where it is attached to one of the following orders:

  • suspended sentence
  • discharge order
  • prison sentence is 2 years or less
  • fine order

They cannot, however, be combined. There cannot be fine and suspended sentence.[1]

The enabling provision, s. 731, states:

Making of probation order
731. (1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission,

(a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order;
(b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order.

Idem
(2) A court may also make a probation order where it discharges an accused under subsection 730(1).
(3.1) [Repealed, 1997, c. 17, s. 1]
R.S., 1985, c. C-46, s. 731; 1992, c. 1, s. 58, c. 20, s. 200; 1995, c. 22, s. 6; 1997, c. 17, s. 1.


CCC

The period of probation cannot be greater than three years.

Probation should not be imposed where it is impractical to make use of probation.[2]

A probation order cannot be made where the global sentence of imprisonment is greater than two years.[3]

Where the sentence is greater than two years, but remand credit brings it under two years, probation still cannot be ordered.[4]

  1. R v Kelly, 1995 CanLII 9854 (NL CA)
  2. R v Cameron, 2011 ABCA 311 (CanLII) - Probation was removed from sentence on appeal where the offender was working in remote area far from any probation office
  3. R v Kohl, 2009 ONCA 254 (CanLII) - probation struck after appeal court sentenced offender to two years and probation while the accused was already serving 5 year sentence
  4. R v Mathieu, [2008] 1 SCR 723, 2008 SCC 21 (CanLII)

Challenging Validity and Rule Against Collateral Attack

Suspending of Sentence

Under s. 731(1)(a), court may order that the sentence be suspended and the offender be placed on a period of probation.[1]

A judge may not suspend sentence and order a fine for the same charge.[2]

The passing of a suspended sentence is not considered a "punishment".[3] However, the possibility of a revocation of the suspension is possible there is some suggestion that it provides "deterrent value".[4]

  1. see above
  2. R v Kelly, 1995 CanLII 9854 (NL CA)
  3. R v Johnson (1972), 6 CCC (2d) 380 (BCCA), 1972 CanLII 1257 (BC CA) per Bull J.A. at p. 382
  4. R v McGill at para 51
    R v Voong, 2015 BCCA 285 (CanLII), at para. 39 ("Because a breach of the probation order can result in a revocation and sentencing on the original offence, it has been referred to as the "Sword of Damocles" hanging over the offender's head. ")
    R v Scott, 1996 CanLII 5297 (NS CA) per Pugsley JA ("I agree with counsel's submission and add that the approach of the sentencing judge, in addition, ignored the deterrent effect of a suspended sentence, implying that deterrence could only be reflected in a custodial sentence.")

Revoking a Suspended Sentence

See also: Breach of Undertaking, Recognizance, or Probation (Offence)

Under s. 732.2(5)(d), a court may revoke the suspension of sentence:

732.2
...
Where person convicted of offence
(5) Where an offender who is bound by a probation order is convicted of an offence, including an offence under section 733.1, and

(a) the time within which an appeal may be taken against that conviction has expired and the offender has not taken an appeal,
(b) the offender has taken an appeal against that conviction and the appeal has been dismissed, or
(c) the offender has given written notice to the court that convicted the offender that the offender elects not to appeal the conviction or has abandoned the appeal, as the case may be,

in addition to any punishment that may be imposed for that offence, the court that made the probation order may, on application by the prosecutor, require the offender to appear before it and, after hearing the prosecutor and the offender,

(d) where the probation order was made under paragraph 731(1)(a), revoke the order and impose any sentence that could have been imposed if the passing of sentence had not been suspended, or
(e) make such changes to the optional conditions as the court deems desirable, or extend the period for which the order is to remain in force for such period, not exceeding one year, as the court deems desirable,

and the court shall thereupon endorse the probation order accordingly and, if it changes the optional conditions or extends the period for which the order is to remain in force, inform the offender of its action and give the offender a copy of the order so endorsed.
...
1995, c. 22, s. 6; 2004, c. 12, s. 12(E).


CCC

Any revocation of a suspended sentence must be made before the original sentencing judge.[1]

  1. R v Graham (1975), 27 CCC (2d) 475 (Ont. C.A.), 1975 CanLII 1268 (ON CA)
    see generally R v Blanchard, 2009 YKCA 15 (CanLII)

Prison or Fine with Probation

Section 731(1)(b) permits a probation order when it is attached to a sentence of imprisonment of less than 2 years.

The length of sentence is considered going forward from the date of sentence and not the global sentence before subtracting remand credit.[1]

Probation can be ordered with a fine or prison, but it cannot be all three.[2] However, a prison sentence for default on the fine is permissible.[3]

Also, where the prison sentence is intermittent along with a fine, the court must order probation for the duration in which the offender is not imprisoned.[4]

Consecutive Sentences Over 2 years
A probation attached to a jail sentence of under 2 years will continue in effect if the accused is subsequently sentenced to a further consecutive jail term that, in combination with the original jail sentence, equals a term of 2 years or more.[5]

  1. R v Mathieu, 2008 SCC 21 (CanLII), per Fish J
    R v Goeujon 2006 BCCA 261 (CanLII), per Ryan JA
  2. R v Smith (1972), 7 CCC (2d) 468 (NWTC), 1972 CanLII 1455 (NWT TC), at p. 470
    R v St. James (1981), 20 C.R. (3d) 389 (Que. C.A.)(*no CanLII links)
    R v Shimout, [1985] N.W.T.R. 118 (N.W.T.S.C.)(*no CanLII links)
    R v Kavanagh, 1988 CanLII 4927 (SK QB), (1988), 69 Sask.R. 188 (Q.B.), per Hrabinsky J
    R v Biron, 1991 CanLII 3911 (QC CA), (1991), 65 CCC 221 (Que. C.A.), per Rothman JA
  3. R v Ukrainetz, 1995 CanLII 3928 (SK CA), per Jackson JA
  4. R c Cartier, 1990 CanLII 3388 (QC CA), per curiam
  5. R v Conway, 2008 ONCJ 270 (CanLII), per Douglas J

Duration and Commencement

Section 732.2 governs when a probation order will come into effect and the duration:

Coming into force of order
732.2 (1) A probation order comes into force

(a) on the date on which the order is made;
(b) where the offender is sentenced to imprisonment under paragraph 731(1)(b) or was previously sentenced to imprisonment for another offence, as soon as the offender is released from prison or, if released from prison on conditional release, at the expiration of the sentence of imprisonment; or
(c) where the offender is under a conditional sentence order, at the expiration of the conditional sentence order.

Duration of order and limit on term of order
(2) Subject to subsection (5),

(a) where an offender who is bound by a probation order is convicted of an offence, including an offence under section 733.1, or is imprisoned under paragraph 731(1)(b) in default of payment of a fine, the order continues in force except in so far as the sentence renders it impossible for the offender for the time being to comply with the order; and
(b) no probation order shall continue in force for more than three years after the date on which the order came into force.

...
1995, c. 22, s. 6; 2004, c. 12, s. 12(E).


CCC

Section 732.1(4) requires that the probation order contain the duration of the order.

No Consecutive Order
Multiple probation orders cannot be ordered to be applied consecutively.[1]

  1. R v Hunt, (1982) 2 CCC (2d) 126, 1982 CanLII 3716 (NS CA), per MacDonald JA

Terms of Probation

Variation of Probationary Terms

732.2
...
Changes to probation order
(3) A court that makes a probation order may at any time, on application by the offender, the probation officer or the prosecutor, require the offender to appear before it and, after hearing the offender and one or both of the probation officer and the prosecutor,

(a) make any changes to the optional conditions that in the opinion of the court are rendered desirable by a change in the circumstances since those conditions were prescribed,
(b) relieve the offender, either absolutely or on such terms or for such period as the court deems desirable, of compliance with any optional condition, or
(c) decrease the period for which the probation order is to remain in force,

and the court shall thereupon endorse the probation order accordingly and, if it changes the optional conditions, inform the offender of its action and give the offender a copy of the order so endorsed.

Judge may act in chambers
(4) All the functions of the court under subsection (3) may be exercised in chambers.
...
1995, c. 22, s. 6; 2004, c. 12, s. 12(E).


CCC

There is nothing in s. 732.2 that permits a court on its own accord to vary the conditions of probation while the accused is subject to the order.[1]

"change"
Section 732.1 defines "change":

732.1
...
Definitions
732.1 (1) In this section and section 732.2,
"change", in relation to optional conditions, includes deletions and additions; (modification)
...
1995, c. 22, s. 6; 1999, c. 32, s. 6(Preamble); 2003, c. 21, s. 18; 2008, c. 18, s. 37; 2011, c. 7,s. 3; 2014, c. 21, s. 2; 2015, c. 13, s. 27.


CCC

  1. R v H. (P.A.), 1999 BCCA 194 (CanLII)

Change in Circumstances

A change in circumstances must be a change "relevant to [the] probation between the date of the initial sentence and the date of the application for the change".[1]

A change in circumstances does not include the fact that the accused has aged and matured since the date of sentencing.[2]

  1. R v Bennett, 2005 ABCA 119 (CanLII) at para 10 ("precondition to a change in the optional conditions of his probation is that there must be a change in circumstance relevant to his probation between the date of the initial sentence and the date of the application for the change")
  2. Bennett, ibid. at para 10

Procedure

Where any terms of an order have been changed the judge must again comply with the requirements under s. 732.2(5) to properly explain the terms and remind them of their rights.[1]

  1. R v Knott, [2012] 2 SCR 470, 2012 SCC 42 (CanLII) at para 69 ("... as the procedure contemplated by s. 732.2(3) is properly applied where an additional sentence overtakes a probation order, it is appropriate to remind the offender of his or her rights in this regard at the time of the subsequent sentencing."

Transfer of Order

Transfer of order
733. (1) Where an offender who is bound by a probation order becomes a resident of, or is convicted or discharged under section 730 of an offence including an offence under section 733.1 in, a territorial division other than the territorial division where the order was made, on the application of a probation officer, the court that made the order may, subject to subsection (1.1), transfer the order to a court in that other territorial division that would, having regard to the mode of trial of the offender, have had jurisdiction to make the order in that other territorial division if the offender had been tried and convicted there of the offence in respect of which the order was made, and the order may thereafter be dealt with and enforced by the court to which it is so transferred in all respects as if that court had made the order.
Attorney General’s consent
(1.1) The transfer may be granted only with

(a) the consent of the Attorney General of the province in which the probation order was made, if the two territorial divisions are not in the same province; or
(b) the consent of the Attorney General of Canada, if the proceedings that led to the issuance of the probation order were instituted by or on behalf of the Attorney General of Canada.

Where court unable to act
(2) Where a court that has made a probation order or to which a probation order has been transferred pursuant to subsection (1) is for any reason unable to act, the powers of that court in relation to the probation order may be exercised by any other court that has equivalent jurisdiction in the same province.
R.S., 1985, c. C-46, s. 733; R.S., 1985, c. 24 (2nd Supp.), s. 46; 1995, c. 22, s. 6; 1999, c. 5, s. 32.


CCC

Young Offenders

See also: Sentencing Young Offenders

Probationary orders for young offenders may be made under 42(2)(k) for a period of no more than two years.[1]

Conditions available are enumerated in s. 55:

Conditions that must appear in orders
55. (1) The youth justice court shall prescribe, as conditions of an order made under paragraph 42(2)(k) or (l), that the young person

(a) keep the peace and be of good behaviour; and
(b) appear before the youth justice court when required by the court to do so.

Conditions that may appear in orders
(2) A youth justice court may prescribe, as conditions of an order made under paragraph 42(2)(k) or (l), that a young person do one or more of the following that the youth justice court considers appropriate in the circumstances:

(a) report to and be supervised by the provincial director or a person designated by the youth justice court;
(b) notify the clerk of the youth justice court, the provincial director or the youth worker assigned to the case of any change of address or any change in the young person’s place of employment, education or training;
(c) remain within the territorial jurisdiction of one or more courts named in the order;
(d) make reasonable efforts to obtain and maintain suitable employment;
(e) attend school or any other place of learning, training or recreation that is appropriate, if the youth justice court is satisfied that a suitable program for the young person is available there;
(f) reside with a parent, or any other adult that the youth justice court considers appropriate, who is willing to provide for the care and maintenance of the young person;
(g) reside at a place that the provincial director may specify;
(h) comply with any other conditions set out in the order that the youth justice court considers appropriate, including conditions for securing the young person’s good conduct and for preventing the young person from repeating the offence or committing other offences; and
(i) not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized by the order.


YCJA

Section 55(2) provides for residual powers "to impose conditions that ...[are] appropriate, including conditions to secure the young person good conduct and to prevent the young person from repeating the offence or committing other offences."[2]

Communication of order
56 (1) A youth justice court that makes an order under paragraph 42(2)(k) or (l) shall

(a) cause the order to be read by or to the young person bound by it;
(b) explain or cause to be explained to the young person the purpose and effect of the order, and confirm that the young person understands it; and
(c) cause a copy of the order to be given to the young person, and to any parent of the young person who is in attendance at the sentencing hearing.

Copy of order to parent
(2) A youth justice court that makes an order under paragraph 42(2)(k) or (l) may cause a copy to be given to a parent of the young person who is not in attendance at the proceedings if the parent is, in the opinion of the court, taking an active interest in the proceedings.
Endorsement of order by young person
(3) After the order has been read and explained under subsection (1), the young person shall endorse on the order an acknowledgement that the young person has received a copy of the order and had its purpose and effect explained.
Validity of order
(4) The failure of a young person to endorse the order or of a parent to receive a copy of the order does not affect the validity of the order.
Commencement of order
(5) An order made under paragraph 42(2)(k) or (l) comes into force

(a) on the date on which it is made; or
(b) if a young person receives a sentence that includes a period of continuous custody and supervision, at the end of the period of supervision.

Effect of order in case of custody
(6) If a young person is subject to a sentence that includes both a period of continuous custody and supervision and an order made under paragraph 42(2)(k) or (l), and the court orders under subsection 42(12) a delay in the start of the period of custody, the court may divide the period that the order made under paragraph 42(2)(k) or (l) is in effect, with the first portion to have effect from the date on which it is made until the start of the period of custody, and the remainder to take effect at the end of the period of supervision.
Notice to appear
(7) A young person may be given notice either orally or in writing to appear before the youth justice court under paragraph 55(1)(b).
Warrant in default of appearance
(8) If service of a notice in writing is proved and the young person fails to attend court in accordance with the notice, a youth justice court may issue a warrant to compel the appearance of the young person.


YCJA


  1. s. 42(2) states "(k) place the young person on probation in accordance with sections 55 and 56 (conditions and other matters related to probation orders) for a specified period not exceeding two years;"
  2. R v V.R.A., 2007 CanLII 49481 (ON SC) at para 31

Appeals

See also: Appeals

Under s. 683(5), the Court of Appeal may suspend certain sentencing orders, including a probation order, while an appeal is pending.[1]

  1. see Appeals for details

Terms and Conditions of Probation

General Principles

The terms of probation are to be interpreted in light of the language of the term and the policies that it serves.[1]

Territorial Reach
A term of probation will apply to the offender in any jurisdiction. Conditions restricting activities do not lack effect simply because the prohibited conduct occurred outside of Canada.[2] The Order does not need to specifically state that it applies outside of Canada.[3]

  1. R v Stanny, 2008 ABQB 746 (CanLII), at para 18
    R v Greco, 2001 CanLII 8608 (ON CA), at paras 30 to 31
  2. Stanny, supra at para 18 - prohibition against contacting any HSBC institutions applies outside of Canada
    Greco, supra at paras 30 to 31
  3. Stanny, supra at para 3

Compulsory Terms

Compulsory terms of probation are listed at s. 732.1 (2):

732.1
...
Compulsory conditions of probation order
(2) The court shall prescribe, as conditions of a probation order, that the offender do all of the following:

(a) keep the peace and be of good behaviour;
(a.1) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order, except in accordance with the conditions specified in the order that the court considers necessary, unless
(i) the victim, witness or other person gives their consent or, if the victim, witness or other person is a minor, the parent or guardian, or any other person who has the lawful care or charge of them, gives their consent, or
(ii) the court decides that, because of exceptional circumstances, it is not appropriate to impose the condition;
(b) appear before the court when required to do so by the court; and
(c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

Consent
(2.1) For the purposes of subparagraph (2)(a.1)(i), the consent is valid only if it is given in writing or in the manner specified in the order.
Reasons
(2.2) If the court makes the decision described in subparagraph (2)(a.1)(ii), it shall state the reasons for the decision in the record.
...
1995, c. 22, s. 6; 1999, c. 32, s. 6(Preamble); 2003, c. 21, s. 18; 2008, c. 18, s. 37; 2011, c. 7, s. 3; 2014, c. 21, s. 2; 2015, c. 13, s. 27.

CCC

Those terms consist of:

  • keep the peace and be of good behaviour;
  • abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order, except in accordance with the conditions specified in the order that the court considers necessary, unless
    • the victim, witness or other person gives their consent or, if the victim, witness or other person is a minor, the parent or guardian, or any other person who has the lawful care or charge of them, gives their consent, or
    • the court decides that, because of exceptional circumstances, it is not appropriate to impose the condition;
  • appear before the court when required to do so by the court; and
  • notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

Optional Terms

Optional terms of probation are listed at s. 732.1 (3):

732.1
...
Optional conditions of probation order
(3) The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following:

(a) report to a probation officer
(i) within two working days, or such longer period as the court directs, after the making of the probation order, and
(ii) thereafter, when required by the probation officer and in the manner directed by the probation officer;
(b) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;
(c) abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance;
(c.1) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under subsection (9) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the offender has breached a condition of the order that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance;
(c.2) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified by a probation officer in a notice in Form 51 served on the offender, if a condition of the order requires the offender to abstain from the consumption of drugs, alcohol or any other intoxicating substance;
(d) abstain from owning, possessing or carrying a weapon;
(e) provide for the support or care of dependants;
(f) perform up to 240 hours of community service over a period not exceeding eighteen months;
(g) if the offender agrees, and subject to the program director’s acceptance of the offender, participate actively in a treatment program approved by the province;
(g.1) where the lieutenant governor in council of the province in which the probation order is made has established a program for curative treatment in relation to the consumption of alcohol or drugs, attend at a treatment facility, designated by the lieutenant governor in council of the province, for assessment and curative treatment in relation to the consumption by the offender of alcohol or drugs that is recommended pursuant to the program;
(g.2) where the lieutenant governor in council of the province in which the probation order is made has established a program governing the use of an alcohol ignition interlock device by an offender and if the offender agrees to participate in the program, comply with the program; and
(h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender’s successful reintegration into the community.

Optional conditions — organization
(3.1) The court may prescribe, as additional conditions of a probation order made in respect of an organization, that the offender do one or more of the following:

(a) make restitution to a person for any loss or damage that they suffered as a result of the offence;
(b) establish policies, standards and procedures to reduce the likelihood of the organization committing a subsequent offence;
(c) communicate those policies, standards and procedures to its representatives;
(d) report to the court on the implementation of those policies, standards and procedures;
(e) identify the senior officer who is responsible for compliance with those policies, standards and procedures;
(f) provide, in the manner specified by the court, the following information to the public, namely,
(i) the offence of which the organization was convicted,
(ii) the sentence imposed by the court, and
(iii) any measures that the organization is taking — including any policies, standards and procedures established under paragraph (b) — to reduce the likelihood of it committing a subsequent offence; and
(g) comply with any other reasonable conditions that the court considers desirable to prevent the organization from committing subsequent offences or to remedy the harm caused by the offence.

...
1995, c. 22, s. 6; 1999, c. 32, s. 6(Preamble); 2003, c. 21, s. 18; 2008, c. 18, s. 37; 2011, c. 7, s. 3; 2014, c. 21, s. 2; 2015, c. 13, s. 27.


CCC

In order to impose optional terms, it must be established that the conditions are reasonable desirable for "protecting society and facilitating the offender's successful reintegration into the community".[1]

Reviewing Optional Conditions
There is nothing in s. 732.1 that permits a court on its own accord to vary the conditions of probation while the accused is subject to the order.[2] Further, the court has no jurisdiction to delay the imposition of optional conditions until after the completion of the custodial portion of the sentence.[3]

"optional conditions"
The phrase "optional conditions" are defined in s. 732.1:

732.1
...
Definitions
732.1 (1) In this section and section 732.2,
...
"optional conditions" means the conditions referred to in subsection (3) or (3.1). (conditions facultatives)
...
1995, c. 22, s. 6; 1999, c. 32, s. 6(Preamble); 2003, c. 21, s. 18; 2008, c. 18, s. 37; 2011, c. 7,s. 3; 2014, c. 21, s. 2; 2015, c. 13, s. 27.


CCC

  1. R v Coombs, 2004 ABQB 621 (CanLII), 369 A.R. 215 at para 35 (Q.B.)
  2. R v PAH, 1999 BCCA 194 (CanLII)
  3. PAH, ibid. at paras 10 to 12

Purpose of Conditions

The primary goal of these conditions is rehabilitation and reintegration.[1] It should also have the objective of protecting society.[2] Punishment is not a dominant purpose.[3]

These goals concern the future behaviour of the offender and are not shaped by the seriousness of the offence or degree of culpability.[4] Accordingly, the optional condition must have a nexus to the circumstances of the offence or offender's history.[5]

  1. R v Kootenay 2000 ABCA 289 (CanLII), (2000), 271 A.R. 156 at paras 13-14
  2. R v Coombs, (2004), 369 A.R. 215, 2004 ABQB 621 (CanLII), per Veit J at para 35 (Q.B.)
  3. R v Taylor, 1997 CanLII 9813 (SK CA), (1997), 122 CCC (3d) 376 at p. 394
  4. Kootenay, supra
    Taylor, supra at p. 394 (Sask. C.A.)
  5. Kootenay, supra at para 14

Reasonableness of Conditions

The conditions do not necessarily require a connection between the offence and the offender's past history.[1]

Usually there should be a connection "between the offender, the protection of the community and [the offender's] reintegration into the community."[2] To put it another way, there should be a connection between the "probation condition that is imposed and the situation of the offender".[3]

The offender's inability to comply with the condition does not make it unreasonable.[4] However, setting offenders up for future breaches should be of concern.[5]

  1. Kootenay, 2000 ABCA 289 (CanLII), at para 14
  2. Shoker, 2006 SCC 44 (CanLII), [2006] 2 SCR 399
  3. R v Hardenstine, 2008 BCCA 474 (CanLII) at para 10 ("The question, in each case, then, is whether there is an adequate nexus between the probation condition that is imposed and the situation of the offender.")
  4. R v Coombs, 2004 ABQB 621 (CanLII) at para 39
    R v Vena, 2005 ABQB 948 (CanLII) at 9
  5. Coombs, supra at para 39
    R v PAG, [2000] O.J. No. 5837 (Ct. J.)(*no CanLII links)
    R v Forrest, 1992 CanLII 1552 (BC CA), (1992), 20 BCAC 293 (C.A.)
    R v McLeod, [1992] Y.J. No. 96 (Sup. Ct.)(*no CanLII links)
    R v Okeymow, 2012 ABQB 257 (CanLII)

Specific Types of Conditions

The Court has wide discretion to make optional terms of probation. "judicial creativity" in crafting terms is encouraged "as long as it complies with the sentencing menu of options" available in the Code.[1]

  1. R v Wisniewski, 2002 MBCA 93 (CanLII) at para 28

Curfew

A curfew may be imposed for the purpose of "fostering the acute rehabilitation in the protection of the public".[1] there must, however, be a nexus between the curfew and the purpose. It cannot simply be for the purpose of imposing a punishment.[2]

  1. R v Badyal, 2011 BCCA 211 (CanLII)
  2. Badyal, ibid.

Community Service

The judge may impose a requirement to complete up to 250 hours of community service under s.732.1(3)(f) and (h). It must be completed within 1 year.

Alcohol Abstention

Section 732.1(c)(i) permits the addition of a condition requiring the offender to abstain from the "consumption of alcohol or other intoxicating substances".

Where appropriate, conditions preventing the Tuesday from entering into any establishment with a liquor license to serve or sell alcohol is permissible.[1]

Where the offender is an alcoholic, it does not follow that they are unable to abide by the conditions and are being "set up for failure".[2] Certain addicts are almost certainly incapable of abstaining completely and such conditions may be contrary to their rehabilitation.[3]

  1. R v Joy, 2011 BCCA 189 (CanLII) – Offender was convicted of domestic violence and had a long record of violence towards women
  2. R v Okeymow, 2012 ABQB 257 (CanLII) at para 14 to 15
  3. R v Coombs, 2004 ABQB 621 (CanLII), (2004), 369 A.R. 215 (Q.B.)
    R v Omeasoo, 2013 ABPC 328 (CanLII) at para 37 - comparing it to telling a depressed person to "cheer up"

Sexual Behaviour Assessment

Certain jurisdictions have services through the local hospital that include sexual behaviour assessment. This typically includes phallometric testing.[1] The assessment is intended to assist with risk assessment, determine whether there should be a s.161 order, and what treatment if any can be required.

The assessment will either be included as part of a probationary order or else as part of an order for a pre-sentence report prior to sentencing.[2]

Mandatory Searches

It is not possible to include conditions requiring the search of a third-party's residence or vehicle. The consent of the third party would be required. [1]

A court cannot order the offender as part of probation to submit to "a search and seizure of bodily substances". Moreover, the court cannot "predetermine that any positive reading would constitute a breach of probation".[2]

  1. R v Demchuk (R.M.) 2003 MBCA 152 (CanLII)
  2. R v Shoker, 2006 SCC 44 (CanLII), [2006] 2 SCR 399 upholding 2004 BCCA 643 (CanLII)

Mandatory Medications

In rare cases, chemical castration in sex offences can be put on as a condition of probation only as long as it is consented to by the accused.[1]

  1. R v Stuckless, 1998 CanLII 7143 (ON CA) at para 76

Charitable Donations

A requirement of giving a charitable donation as a term of probation is a punitive provision and so is not valid.[1]

  1. R v Choi (J.W.), 2013 MBCA 75 (CanLII) at para 67 - context of conditional discharge, also considers contrary unreported case R v Rivais

Geographical Restrictions

A probation order may include a banishment provision. [1]

Conditions that imposes geographical restrictions on the offender creates a “strong element of deprivation with the attendant curtailment of the freedom of mobility"[2]

Such conditions may result in "harsh" treatment and so can amount to punishment to be deducted from a custodial sentence.[3]

The use of "banishment" provisions should not be encouraged.[4]

  1. R v Malboeuf, 1982 CanLII 2540 (SK CA), (1982), 68 CCC (2d) 544, [1982] 4 W.W.R. 573, 16 Sask. R. 77 (Sask. C.A.)
  2. R v W.B.T., 1997 CanLII 9813 (SK CA), (1997), 15 C.R. (5th) 48 (SKCA)
  3. R v Griffith, 1998 CanLII 5490 (BC CA)
  4. R v Kehijekonaham, 2008 SKCA 105 (CanLII) - ("The case law concerning banishment reveals that it should very much be considered the exception rather than the rule.")

Restrictions on Business Dealings

A probation order may include the requirement that the offender abstain from "seeking, obtaining or continuing any employment, or becoming or being a volunteer in any capacity, that involves having authority over the real property, money or valuable security of another person" with exceptions such as "unless you have made full disclosure to the employer or volunteer supervisor of the reasons for judgment in this case".[1]

  1. R v Kohuch, 2011 ONCJ 620 (CanLII) at para 48
    see also Fraud Prohibition Orders

Restrictions on Personal Relationships

Whatever appropriate, I just may order a restriction that the offender reports any relationships including the name and address of the individual to probation services as well fez consent to notify the individual of the criminal record.[1]

  1. R v Joy, 2011 BCCA 189 (CanLII)

Restrictions on Internet Access

Severing a person's access from the internet has been been considered "tantamount to severing that person from an increasingly indispensable component of everyday life" and is also an "integral component of citizenship and personhood".[1]

  1. R v KRJ, 2016 SCC 31 (CanLII) at para 54 per Karakatsanis J in context of punishment effect of s. 161(1)(d)

Bodily Substances Conditions

732.1
...
Notice — samples at regular intervals
(7) The notice referred to in paragraph (3)(c.2) must specify the places and times at which and the days on which the offender must provide samples of a bodily substance under a condition described in that paragraph. The first sample may not be taken earlier than 24 hours after the offender is served with the notice, and subsequent samples must be taken at regular intervals of at least seven days.
Designations and specifications
(8) For the purposes of paragraphs (3)(c.1) and (c.2) and subject to the regulations, the Attorney General of a province or the minister of justice of a territory shall, with respect to the province or territory,

(a) designate the persons or classes of persons that may take samples of bodily substances;
(b) designate the places or classes of places at which the samples are to be taken;
(c) specify the manner in which the samples are to be taken;
(d) specify the manner in which the samples are to be analyzed;
(e) specify the manner in which the samples are to be stored, handled and destroyed;
(f) specify the manner in which the records of the results of the analysis of the samples are to be protected and destroyed;
(g) designate the persons or classes of persons that may destroy the samples; and
(h) designate the persons or classes of persons that may destroy the records of the results of the analysis of the samples.

Further designations
(9) For the purpose of paragraph (3)(c.1) and subject to the regulations, the Attorney General of a province or the minister of justice of a territory may, with respect to the province or territory, designate persons or classes of persons to make a demand for a sample of a bodily substance.
Restriction
(10) Samples of bodily substances referred to in paragraphs (3)(c.1) and (c.2) may not be taken, analyzed, stored, handled or destroyed, and the records of the results of the analysis of the samples may not be protected or destroyed, except in accordance with the designations and specifications made under subsection (8).
Destruction of samples
(11) The Attorney General of a province or the minister of justice of a territory, or a person authorized by the Attorney General or minister, shall cause all samples of bodily substances provided under a probation order to be destroyed within the periods prescribed by regulation unless the samples are reasonably expected to be used as evidence in a proceeding for an offence under section 733.1.
Regulations
(12) The Governor in Council may make regulations

(a) prescribing bodily substances for the purposes of paragraphs (3)(c.1) and (c.2);
(b) respecting the designations and specifications referred to in subsections (8) and (9);
(c) prescribing the periods within which samples of bodily substances are to be destroyed under subsection (11); and
(d) respecting any other matters relating to the samples of bodily substances.

1995, c. 22, s. 6; 1999, c. 32, s. 6(Preamble); 2003, c. 21, s. 18; 2008, c. 18, s. 37; 2011, c. 7, s. 3; 2014, c. 21, s. 2; 2015, c. 13, s. 27.


CCC

Prohibition on use of bodily substance
732.11 (1) No person shall use a bodily substance provided under a probation order except for the purpose of determining whether an offender is complying with a condition of the order that they abstain from the consumption of drugs, alcohol or any other intoxicating substance.
Prohibition on use or disclosure of result
(2) Subject to subsection (3), no person shall use, disclose or allow the disclosure of the results of the analysis of a bodily substance provided under a probation order.
Exception
(3) The results of the analysis of a bodily substance provided under a probation order may be disclosed to the offender to whom they relate, and may also be used or disclosed in the course of an investigation of, or in a proceeding for, an offence under section 733.1 or, if the results are made anonymous, for statistical or other research purposes.
Offence
(4) Every person who contravenes subsection (1) or (2) is guilty of an offence punishable on summary conviction.
2011, c. 7, s. 4.


CCC

Example Conditions Based on Offences

Online Sexual Offences Against Children

Conditions on probation orders that have accompanied internet child exploitation offences:

  • No contact with persons under age of 18
  • Treatment/Counselling
  • No alcohol or drugs (if alcohol had connection to alcohol)
  • no use or access to computers
    • not to possess or use a digital device or computer system that is capable of connecting with the internet except for the purpose of employment or an educational program.
  • not possess or access child or adult pornography;
  • not possess or access any images or videos of children who are, or appear to be, under the age of 18 years who are naked or who are portrayed in a sexual manner;
  • Not own or possess computers or any similar electronic devices capable of accessing the internet except for a purpose necessary for registered academic studies or for the purposes of employment and in such circumstances as are approved beforehand in writing by the court or the supervisor
  • provide computer service billing information to the authorities[1]
  • not to use or possess any hard driving "wiping" software [2]

In parts of the US there is a practice of requiring the sex offender to have computer monitoring software installed on their home computer for the purposes of having the probation officer supervise activities.[3]

  1. e.g. in R v Ingvaldson, 2012 BCPC 437 (CanLII)
  2. e.g. JDM, 2014 ONCJ 29 (CanLII)
  3. see US v Quinzon - case on the constitutionality of the monitoring

See Also

Restitution

General Principles

Sections 737.1 to 741.2 deal with restitution to victims of crime.

Court to consider restitution order
737.1 (1) If an offender is convicted or is discharged under section 730 of an offence, the court that sentences or discharges the offender, in addition to any other measure imposed on the offender, shall consider making a restitution order under section 738 or 739.
Inquiry by court
(2) As soon as feasible after a finding of guilt and in any event before imposing the sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages, the amount of which must be readily ascertainable.
Adjournment
(3) On application of the prosecutor or on its own motion, the court may adjourn the proceedings to permit the victims to indicate whether they are seeking restitution or to establish their losses and damages, if the court is satisfied that the adjournment would not interfere with the proper administration of justice.
Form
(4) Victims and other persons may indicate whether they are seeking restitution by completing Form 34.1 in Part XXVIII or a form approved for that purpose by the lieutenant governor in council of the province in which the court is exercising its jurisdiction or by using any other method approved by the court, and, if they are seeking restitution, shall establish their losses and damages, the amount of which must be readily ascertainable, in the same manner.
Reasons
(5) If a victim seeks restitution and the court does not make a restitution order, it shall include in the record a statement of the court’s reasons for not doing so.
2015, c. 13, s. 29.


CCC

Appellate Review
A sentencing judge making a restitution order is "entitled to deference". The appellate court should intervene only "on the gasis of error in principle or if the order is excessive or inadequate".[1]

  1. R v Castro, 2010 ONCA 718 (CanLII), at para 22 per Weiler JA.
    Devgan (1999), 1999 CanLII 2412 (ON CA) at para 24 per Labrosse JA

Stand-alone Restitution

A restitution order can be made at the time of sentencing under s. 738:

Restitution to victims of offences
738 (1) Where an offender is convicted or discharged under section 730 of an offence, the court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:

(a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, where the amount is readily ascertainable;


[see below for details on (b) and (c) relating to violent offences and (d) and (e) relating to identity and sexting offences]
...
Regulations
(2) The lieutenant governor in council of a province may make regulations precluding the inclusion of provisions on enforcement of restitution orders as an optional condition of a probation order or of a conditional sentence order.
R.S., 1985, c. C-46, s. 738; 1995, c. 22, s. 6; 2000, c. 12, s. 95; 2005, c. 43, s. 7; 2009, c. 28, s. 11; 2014, c. 31, s. 24.
[annotation(s) added]


CCC

Restitution can be ordered to require the offender to pay a sum of money to compensate a party for a proven loss. Restitution is ordered as either a term of a probation order or else as a stand alone restitution order.[1] A stand alone restitution order has no time limit for repayment and may be registered as a civil judgement[2] which in turn could be used to garnish wages and seize property.

Purpose of Restitution
Restitution is intended to rehabilitate the offender by making him immediately responsible for the loss of the victim. It also gives the victim a speedy means of getting money back.[3]

The purpose of the order is to be part of the sentence, not to compensate for losses.[4]

One of the primary goals of restitution orders is to deprive "offender of the fruits of his or her crime"[5]

Burden
Once an offence of fraud is fully established by the Crown, "the burden to establish that there is no money (and necessarily where it went) falls to the offender".[6]

Effect
Restitution orders are to be treated as "part of the determination of an overall fit sentence, and general sentencing principles apply".[7]

Under s. 178 (1)(a) of the Bankruptcy and Insolvency Act, a restitution order will survive bankruptcy.[8]

Considerations on Ordering Restitution
Whether to grant restitution is considered as part of the "totality" of the punishment.[9] Typically, the offender should have some ability to pay the amount, either at sentencing or in the future.[10]

Objectives and factors for the discretionary ordering restitution are as follows:[11]:

  1. An order for compensation should be made with restraint and caution;[12]
  2. The concept of compensation is essential to the sentencing process:
    1. it emphasizes the sanction imposed upon the offender;
    2. it makes the accused responsible for making restitution to the victim;
    3. it prevents the accused from profiting from crime; and
    4. it provides a convenient, rapid and inexpensive means of recovery for the victim;
  3. A sentencing judge should consider;
    1. the purpose of the aggrieved person in invoking s. 725(1);
    2. whether civil proceedings have been initiated and are being pursued; and
    3. the means of the offender.
  4. A compensation order should not be used as a substitute for civil proceedings. Parliament did not intend that compensation orders would displace the civil remedies necessary to ensure full compensation to victims.
  5. It should not be ordered when the amount is unclear.[13]
  6. A compensation order is not the appropriate mechanism to unravel involved commercial transactions;
  7. A compensation order should not be granted when it would require the criminal court to interpret written documents to determine the amount of money sought through the order. The loss should be capable of ready calculation.
  8. A compensation order should not be granted if the effect of provincial legislation would have to be considered in order to determine what order should be made;
  9. Any serious contest on legal or factual issues should signal a denial of recourse to an order;
  10. Double recovery can be prevented by the jurisdiction of the civil courts to require proper accounting of all sums recovered; and
  11. A compensation order may be appropriate where a related civil judgement has been rendered unenforceable as a result of bankruptcy.

No single factor should be determinative on whether restitution should be ordered.[14]

Where the offence involves a breach of trust, the "paramount consideration must be the victims' claims".[15]

A judge is entitled to conclude that pursuit of a civil judgment by victims would be unfair due to the obstacles in their path to recovery.[16]

Connection Between Offender and Loss
An order under s. 738(1)(a) requires that the loss be "as a result of the commission of the offence". This necessarily requires proof that the accused had was "involved" or had a "role" in the criminal activity.[17]

Recipient
Restitution under section 738(1)(a) can be made payable to the insurance company that paid for repairs. [18]

Quantum
The judge has discretion to order less than the full amount of restitution owed.[19]

Ability to Pay
Section 739.1 states:

Ability to pay
739.1 The offender’s financial means or ability to pay does not prevent the court from making an order under section 738 or 739.
2015, c. 13, s. 30.


CCC

Section 739.1 removes from consideration the "offender's financial means or ability to pay" in assessing an order under s. 738 or 739.[20]

An offender's means has limited importance in cases of fraud.[21]


  1. s. 738
  2. see s. 741
  3. R v Fitzgibbon, 1990 CanLII 102 (SCC), [1990] 1 SCR 1005
    R v Yates, 2002 BCCA 583 (CanLII)
  4. See R v Castro, 2010 ONCA 718 (CanLII) at paras 26 and 43
  5. Johnson at para 29
  6. R v Johnson, 2010 ABCA 392 (CanLII) at para 23 -Fraud for $1.7 million completely on accounted for
  7. R v Castro
  8. Johnston at para 30
  9. R v Siemens, 1999 CanLII 18651 (MB C.A.)
  10. R v Dashner, (1973), 15 CCC (2d) 139 (BCCA), 1973 CanLII 1372 (BC CA)
    R v Biegus, 1999 CanLII 3815 (ON C.A.)
    R v Brown, 1999 BCCA 592 (CanLII)
    R v Fitzgibbon
  11. R v Devgan 1999 CanLII 2412 (ON C.A.)
    See also: R v Zelensky, 1978 CanLII 8 (SCC), [1978] 2 SCR 940 at 111-13
    R v Fitzgibbon at 454-55
    London Life Insurance Co. v Zavitz at 270
    R v Scherer, (1984), 16 CCC (3d) 30 (Ont. C.A.), 1984 CanLII 3594 (ON CA) at 37-38
    R v Salituro, (1990), 56 CCC (3d) 350 (Ont. C.A.), 1990 CanLII 10984 (ON CA), per Blair JA at 372-73
    R v Horne 1996 CanLII 8051 (ON S.C.), (1996), 34 O.R.(3d) 142 (Gen. Div.) At 148-49
    Carter, supra at 75 - 76
  12. R v Zelensky
  13. R v Castro, 2010 ONCA 718 (CanLII) at paras 26 and 43
  14. R v Castro at para 27
  15. Johnson at para 29
    Castro, at para 28
    R v Fitzgibbon, 1990 CanLII 102 (SCC), [1990] 1 SCR 1005 at 1014-1015
  16. Johnson at para 30
  17. R v DeBay, 2001 NSCA 48 (CanLII) at para 3
    R v Brown, 2010 NSPC 38 (CanLII) at paras 17 to 21
  18. R v Popert, 2010 ONCA 89 (CanLII)
  19. Yates
  20. Cases assessing ability to pay prior to 2015: R v Ratt, 2005 SKCA 110 (CanLII)
    R v DeBay, 2001 NSCA 48 (CanLII)
    R v Biegus, 1999 CanLII 3815 (ON CA)
    R v Yates, at paras 12 and 17
  21. Johnson at para 29
    R v Cadieux, 2004 ABCA 98 (CanLII), at para 9

Offences of Violence

Section 738 states:

738 (1) Where an offender is convicted or discharged under section 730 of an offence, the court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:
...

(b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable;
(c) in the case of bodily harm or threat of bodily harm to the offender’s spouse or common-law partner or child, or any other person, as a result of the commission of the offence or the arrest or attempted arrest of the offender, where the spouse or common-law partner, child or other person was a member of the offender’s household at the relevant time, by paying to the person in question, independently of any amount ordered to be paid under paragraphs (a) and (b), an amount not exceeding actual and reasonable expenses incurred by that person, as a result of moving out of the offender’s household, for temporary housing, food, child care and transportation, where the amount is readily ascertainable;


...
R.S., 1985, c. C-46, s. 738; 1995, c. 22, s. 6; 2000, c. 12, s. 95; 2005, c. 43, s. 7; 2009, c. 28, s. 11; 2014, c. 31, s. 24.


CCC


Specific Offences

738 (1) Where an offender is convicted or discharged under section 730 of an offence, the court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:
...

(d) in the case of an offence under section 402.2 [Identity theft] or 403 [Identity fraud], by paying to a person who, as a result of the offence, incurs expenses to re-establish their identity, including expenses to replace their identity documents and to correct their credit history and credit rating, an amount that is not more than the amount of those expenses, to the extent that they are reasonable, if the amount is readily ascertainable; and
(e) in the case of an offence under subsection 162.1(1) [distribution of intimate images], by paying to a person who, as a result of the offence, incurs expenses to remove the intimate image from the Internet or other digital network, an amount that is not more than the amount of those expenses, to the extent that they are reasonable, if the amount is readily ascertainable.

...
R.S., 1985, c. C-46, s. 738; 1995, c. 22, s. 6; 2000, c. 12, s. 95; 2005, c. 43, s. 7; 2009, c. 28, s. 11; 2014, c. 31, s. 24.
[annotation(s) added]


CCC

Restitution to Good Faith Recipients

Restitution can be ordered to the benefit of a third party (non-victim) where the third party receives something of value in good faith that must be returned to the victim.

Restitution to persons acting in good faith
739 Where an offender is convicted or discharged under section 730 of an offence and

(a) any property obtained as a result of the commission of the offence has been conveyed or transferred for valuable consideration to a person acting in good faith and without notice, or
(b) the offender has borrowed money on the security of that property from a person acting in good faith and without notice,

the court may, where that property has been returned to the lawful owner or the person who had lawful possession of that property at the time the offence was committed, order the offender to pay as restitution to the person referred to in paragraph (a) or (b) an amount not exceeding the amount of consideration for that property or the total amount outstanding in respect of the loan, as the case may be.
R.S., 1985, c. C-46, s. 739; R.S., 1985, c. 27 (1st Supp.), s. 163, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 6.


CCC

Payment Due Date and Schedule

Payment under order
739.2 In making an order under section 738 or 739, the court shall require the offender to pay the full amount specified in the order by the day specified in the order, unless the court is of the opinion that the amount should be paid in instalments, in which case the court shall set out a periodic payment scheme in the order.
2015, c. 13, s. 30.


CCC

Multiple Offenders

More than one person
739.3 An order under section 738 or 739 may be made in respect of more than one person, in which case the order must specify the amount that is payable to each person. The order may also specify the order of priority in which those persons are to be paid.
2015, c. 13, s. 30.


CCC

Where a judge finds were "equal participants in a joint in common enterprise" it would not be unfair to order a restitution order that makes both accused fullly liable for the entire amount.[1]

  1. R v Katchatourov, 2014 ONCA 464 (CanLII) at para 67
    R v Gibb, 2014 ONSC 5316 (CanLII), at para 100

Order in Favour of Designated Public Authority

Section 739.4 permits a sentencing judge to order a restitution order to be in favour of a designated public authority who is "responsible for enforcing the order".

What constitutes a proper "public authority" is set out by applicable regulations.

Public authority
739.4 (1) On the request of a person in whose favour an order under section 738 or 739 would be made, the court may make the order in favour of a public authority, designated by the regulations, who is to be responsible for enforcing the order and remitting to the person making the request all amounts received under it.
Orders
(2) The lieutenant governor in council of a province may, by order, designate any person or body as a public authority for the purpose of subsection (1).
2015, c. 13, s. 30.


CCC

Priority of Restitution

Priority to restitution
740 Where the court finds it applicable and appropriate in the circumstances of a case to make, in relation to an offender, an order of restitution under section 738 or 739, and

(a) an order of forfeiture under this or any other Act of Parliament may be made in respect of property that is the same as property in respect of which the order of restitution may be made, or
(b) the court is considering ordering the offender to pay a fine and it appears to the court that the offender would not have the means or ability to comply with both the order of restitution and the order to pay the fine,

the court shall first make the order of restitution and shall then consider whether and to what extent an order of forfeiture or an order to pay a fine is appropriate in the circumstances.
R.S., 1985, c. C-46, s. 740; 1995, c. 22, s. 6.


CCC

Enforcement

Enforcing restitution order
741 (1) An offender who fails to pay all of the amount that is ordered to be paid under section 732.1, 738, 739 or 742.3 by the day specified in the order or who fails to make a periodic payment required under the order is in default of the order and the person to whom the amount, or the periodic payment, as the case may be, was to be made may, by filing the order, enter as a judgment any amount ordered to be paid that remains unpaid under the order in any civil court in Canada that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.
Moneys found on offender
(2) All or any part of an amount that is ordered to be paid under section 738 or 739 may be taken out of moneys found in the possession of the offender at the time of the arrest of the offender if the court making the order, on being satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the offender, so directs.
R.S., 1985, c. C-46, s. 741; R.S., 1985, c. 27 (1st Supp.), s. 164; 1995, c. 22, s. 6; 2004, c. 12, s. 13; 2015, c. 13, s. 31.


CCC

Notice of orders of restitution
741.1 If a court makes an order of restitution under section 738 or 739, it shall cause notice of the content of the order, or a copy of the order, to be given to the person to whom the restitution is ordered to be paid, and if it is to be paid to a public authority designated by regulations made under subsection 739.4(2), to the public authority and the person to whom the public authority is to remit amounts received under the order.
R.S., 1985, c. 24 (2nd Supp.), s. 47; 1992, c. 11, s. 14, c. 20, s. 202; 1995, c. 19, s. 37, c. 22, s. 6; 2015, c. 13, s. 32.


CCC

Civil remedy not affected
741.2 A civil remedy for an act or omission is not affected by reason only that an order for restitution under section 738 or 739 has been made in respect of that act or omission.
1992, c. 20, s. 203; 1995, c. 22, s. 6, c. 42, s. 75.


CCC

Multiple Offenders Pay

Disposal of penalties when joint offenders
807 Where several persons join in committing the same offence and on conviction each is adjudged to pay an amount to a person aggrieved, no more shall be paid to that person than an amount equal to the value of the property destroyed or injured or the amount of the injury done, together with costs, if any, and the residue of the amount adjudged to be paid shall be applied in the manner in which other penalties imposed by law are directed to be applied.
R.S., c. C-34, s. 742.


CCC

Specific Types of Restitution

A Tow-truck bill arising from the seizure of the accused vehicle purchased with proceeds of crime is not the subject of forfeiture.[1]

  1. R v Wellington, 2003 ABQB 12 (CanLII)

See Also

Fines

General Principles

Fines are a form of financial punishment available as a sentencing option for many offences.[1]:

Power of court to impose fine
734 (1) Subject to subsection (2), a court that convicts a person, other than an organization, of an offence may fine the offender by making an order under section 734.1

(a) if the punishment for the offence does not include a minimum term of imprisonment, in addition to or in lieu of any other sanction that the court is authorized to impose; or
(b) if the punishment for the offence includes a minimum term of imprisonment, in addition to any other sanction that the court is required or authorized to impose.

...
R.S., 1985, c. C-46, s. 734; R.S., 1985, c. 27 (1st Supp.), s. 161; 1995, c. 22, s. 6; 1999, c. 5, s. 33; 2003, c. 21, s. 19; 2008, c. 18, s. 38.


CCC

A court may impose a fine order under s. 734.1 where the offence does not include a mandatory minimum.[2] Before a fine can be imposed the court must believe that the accused is "able to pay" the fine[3] and where a pecuniary punishment is considered proportionate to the offence and offender. This focus on ability to pay, found in s. 734(2), prevents "offenders from being fined amounts that they are truly unable to pay, and to correspondingly reduce the number of offenders who are incarcerated in default of payment."[4]

The burden is upon the party seeking the fine to prove that the offender has the ability to pay on a balance of probabilities.[5] The party does not need to identify or locate the specific assets available, rather "may rely on indirect evidence" to prove an ability to pay.[6]

Absent evidence to the contrary, the court may infer an ability to pay where the offender has been in "receipt of illegally-obtained funds". This must take into account the "amount of funds acquired" and "the length of time that has passed between the acquisition of the funds and the imposition of sentence."[7]

To issue a fine a judge must order:

  1. an amount to be paid
  2. the mode of payment
  3. the time(s) that the fine should be paid

The judge may add further requirements as seen fit.

If the offender fails to pay, it is on the offender to show proof that they are unable to pay in the circumstances.[8]

Any money found upon the accused that is not otherwise owned by someone else may be used to pay off the fine imposed.[9]

Fine Defined
For the purposes of the sentencing provisions under Part XXIII of the Code "fine" is defined as follows:

Definitions
716 In this Part,
...
"fine" includes a pecuniary penalty or other sum of money, but does not include restitution. (amende)
R.S., 1985, c. C-46, s. 716; R.S., 1985, c. 27 (1st Supp.), s. 154; 1995, c. 22, s. 6; 1999, c. 5, s. 29(E).


CCC

  1. s. 734
    716 states that a fine "includes a pecuniary penalty or other sum of money, but does not include restitution."
  2. s. 734
  3. 734(2)
  4. R v Topp, 2011 SCC 43 (CanLII), per Fish J
  5. Topp, ibid.
  6. Topp, ibid.
  7. Topp, ibid.
  8. R v Desjardins, 1996 CanLII 4709 (NB CA), per Bastarache JA
    see also R v Wu, 2003 SCC 73 (CanLII), [2003] 3 SCR 530, per Binnie J
  9. s. 734(6)

Ability to Pay

734.
...
Offender’s ability to pay
(2) Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine or discharge it under section 736.
...

R.S., 1985, c. C-46, s. 734; R.S., 1985, c. 27 (1st Supp.), s. 161; 1995, c. 22, s. 6; 1999, c. 5, s. 33; 2003, c. 21, s. 19; 2008, c. 18, s. 38.


CCC

There is no common law duty on a judge to inquire about the offender's ability to pay.[1] The inquiry required under s. 734(2) only applies to fines imposed under s. 734(1).[2]

  1. R v Noseworthy, 2000 NFCA 45 (CanLII), per Wells CJ
  2. Noseworthy, ibid.

Form of Order

Terms of order imposing fine
734.1 A court that fines an offender under section 734 shall do so by making an order that clearly sets out

(a) the amount of the fine;
(b) the manner in which the fine is to be paid;
(c) the time or times by which the fine, or any portion thereof, must be paid; and
(d) such other terms respecting the payment of the fine as the court deems appropriate.

1995, c. 22, s. 6.


CCC

Procedure of Making the Order

Obligations of court
734.2 (1) A court that makes an order under section 734.1 shall

(a) cause a copy of the order to be given to the offender;
(b) explain the substance of sections 734 to 734.8 and 736 to the offender;
(c) cause an explanation to be given to the offender of the procedure for applying under section 734.3 for a change to the optional conditions and of any available fine option programs referred to in section 736 as well as the procedure to apply for admission to them; and
(d) take reasonable measures to ensure that the offender understands the order and the explanations.

For greater certainty
(2) For greater certainty, a failure to comply with subsection (1) does not affect the validity of the order.
1995, c. 22, s. 6; 2008, c. 18, s. 39.


CCC

Procedure for Payment of Fine

Proceeds to go to provincial treasurer
734.4 (1) Where a fine or forfeiture is imposed or a recognizance is forfeited and no provision, other than this section, is made by law for the application of the proceeds thereof, the proceeds belong to Her Majesty in right of the province in which the fine or forfeiture was imposed or the recognizance was forfeited, and shall be paid by the person who receives them to the treasurer of that province.
Proceeds to go to Receiver General for Canada
(2) Where

(a) a fine or forfeiture is imposed
(i) in respect of a contravention of a revenue law of Canada,
(ii) in respect of a breach of duty or malfeasance in office by an officer or employee of the Government of Canada, or
(iii) in respect of any proceedings instituted at the instance of the Government of Canada in which that government bears the costs of prosecution, or
(b) a recognizance in connection with proceedings mentioned in paragraph (a) is forfeited,

the proceeds of the fine, forfeiture or recognizance belong to Her Majesty in right of Canada and shall be paid by the person who receives them to the Receiver General.

Direction for payment to municipality
(3) Where a provincial, municipal or local authority bears, in whole or in part, the expense of administering the law under which a fine or forfeiture is imposed or under which proceedings are taken in which a recognizance is forfeited,

(a) the lieutenant governor in council of a province may direct that the proceeds of a fine, forfeiture or recognizance that belongs to Her Majesty in right of the province shall be paid to that authority; and
(b) the Governor in Council may direct that the proceeds of a fine, forfeiture or recognizance that belongs to Her Majesty in right of Canada shall be paid to that authority.

1995, c. 22, s. 6.


CCC

Variation of Order

Change in terms of order
734.3 A court that makes an order under section 734.1, or a person designated either by name or by title of office by that court, may, on application by or on behalf of the offender, subject to any rules made by the court under section 482 or 482.1, change any term of the order except the amount of the fine, and any reference in this section and sections 734, 734.1, 734.2 and 734.6 to an order shall be read as including a reference to the order as changed under this section.
1995, c. 22, s. 6; 2002, c. 13, s. 74.


CCC

Fine and Imprisonment

718.3
...
Imprisonment in default where term not specified
(3) Where an accused is convicted of an offence punishable with both fine and imprisonment and a term of imprisonment in default of payment of the fine is not specified in the enactment that prescribes the punishment to be imposed, the imprisonment that may be imposed in default of payment shall not exceed the term of imprisonment that is prescribed in respect of the offence.
...
1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182.


CCC

Default

Where an offender has a fine imposed by the court, the court may order that a period of jail time in default may be substituted for the fine:

734.
...
Meaning of default of payment
(3) For the purposes of this section and sections 734.1 to 737, a person is in default of payment of a fine if the fine has not been paid in full by the time set out in the order made under section 734.1.
...
R.S., 1985, c. C-46, s. 734; R.S., 1985, c. 27 (1st Supp.), s. 161; 1995, c. 22, s. 6; 1999, c. 5, s. 33; 2003, c. 21, s. 19; 2008, c. 18, s. 38.


CCC

Licences, permits, etc.
734.5 If an offender is in default of payment of a fine,

(a) where the proceeds of the fine belong to Her Majesty in right of a province by virtue of subsection 734.4(1), the person responsible, by or under an Act of the legislature of the province, for issuing, renewing or suspending a licence, permit or other similar instrument in relation to the offender may refuse to issue or renew or may suspend the licence, permit or other instrument until the fine is paid in full, proof of which lies on the offender; or
(b) where the proceeds of the fine belong to Her Majesty in right of Canada by virtue of subsection 734.4(2), the person responsible, by or under an Act of Parliament, for issuing or renewing a licence, permit or other similar instrument in relation to the offender may refuse to issue or renew or may suspend the licence, permit or other instrument until the fine is paid in full, proof of which lies on the offender.

1995, c. 22, s. 6; 1999, c. 5, s. 34.


CCC

Warrant of committal
734.7 (1) Where time has been allowed for payment of a fine, the court shall not issue a warrant of committal in default of payment of the fine

(a) until the expiration of the time allowed for payment of the fine in full; and
(b) unless the court is satisfied
(i) that the mechanisms provided by sections 734.5 and 734.6 are not appropriate in the circumstances, or
(ii) that the offender has, without reasonable excuse, refused to pay the fine or discharge it under section 736.


Reasons for committal
(2) Where no time has been allowed for payment of a fine and a warrant committing the offender to prison for default of payment of the fine is issued, the court shall state in the warrant the reason for immediate committal.
Period of imprisonment
(2.1) The period of imprisonment in default of payment of the fine shall be specified in a warrant of committal referred to in subsection (1) or (2).
...
Effect of imprisonment
(4) The imprisonment of an offender for default of payment of a fine terminates the operation of sections 734.5 and 734.6 in relation to that fine.
1995, c. 22, s. 6; 1999, c. 5, s. 35.


CCC

Definition of “penalty”
734.8 (1) In this section, “penalty” means the aggregate of

(a) the fine, and
(b) the costs and charges of committing and conveying the defaulter to prison, calculated in accordance with regulations made under subsection 734(7).

Reduction of imprisonment on part payment
(2) The term of imprisonment in default of payment of a fine shall, on payment of a part of the penalty, whether the payment was made before or after the execution of a warrant of committal, be reduced by the number of days that bears the same proportion to the number of days in the term as the part paid bears to the total penalty.
Minimum that can be accepted
(3) No amount offered in part payment of a penalty shall be accepted after the execution of a warrant of committal unless it is sufficient to secure a reduction of sentence of one day, or a whole number multiple of one day, and no part payment shall be accepted until any fee that is payable in respect of the warrant or its execution has been paid.
To whom payment made
(4) Payment may be made under this section to the person that the Attorney General directs or, if the offender is imprisoned, to the person who has lawful custody of the prisoner or to any other person that the Attorney General directs.
Application of money paid
(5) A payment under this section shall be applied firstly to the payment in full of costs and charges, secondly to the payment in full of any victim surcharge imposed under section 737, and then to payment of any part of the fine that remains unpaid.
1995, c. 22, s. 6; 1999, c. 5, s. 36, c. 25, s. 19(Preamble).


CCC


Punishment
787.
...
Imprisonment in default where not otherwise specified
(2) Where the imposition of a fine or the making of an order for the payment of money is authorized by law, but the law does not provide that imprisonment may be imposed in default of payment of the fine or compliance with the order, the court may order that in default of payment of the fine or compliance with the order, as the case may be, the defendant shall be imprisoned for a term not exceeding six months.
(3) to (11) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 171]
R.S., 1985, c. C-46, s. 787; R.S., 1985, c. 27 (1st Supp.), s. 171; 2008, c. 18, s. 44.


CCC

Default time can be imposed in situations such as:

  • default of fine instead of forfeiture under s. 462.37 (1)

Duration of Imprisonment

734
...
Imprisonment in default of payment
(4) Where an offender is fined under this section, a term of imprisonment, determined in accordance with subsection (5), shall be deemed to be imposed in default of payment of the fine.
Determination of term
(5) The term of imprisonment referred to in subsection (4) is the lesser of

(a) the number of days that corresponds to a fraction, rounded down to the nearest whole number, of which
(i) the numerator is the unpaid amount of the fine plus the costs and charges of committing and conveying the defaulter to prison, calculated in accordance with regulations made under subsection (7), and
(ii) the denominator is equal to eight times the provincial minimum hourly wage, at the time of default, in the province in which the fine was imposed, and
(b) the maximum term of imprisonment that the court could itself impose on conviction or, if the punishment for the offence does not include a term of imprisonment, five years in the case of an indictable offence or six months in the case of a summary conviction offence.


...
Provincial regulations
(7) The lieutenant governor in council of a province may make regulations respecting the calculation of the costs and charges referred to in subparagraph (5)(a)(i) and in paragraph 734.8(1)(b).
Application to other law
(8) This section and sections 734.1 to 734.8 and 736 apply to a fine imposed under any Act of Parliament, except that subsections (4) and (5) do not apply if the term of imprisonment in default of payment of the fine provided for in that Act or regulation is

(a) calculated by a different method; or
(b) specified, either as a minimum or a maximum.

R.S., 1985, c. C-46, s. 734; R.S., 1985, c. 27 (1st Supp.), s. 161; 1995, c. 22, s. 6; 1999, c. 5, s. 33; 2003, c. 21, s. 19; 2008, c. 18, s. 38.


CCC

Where the fine is imposed for a summary offence, s. 787(2) limits the maximum sentence for default at 6 months.

Compelling Attendance

Warrant of committal
734.7 (1)
...
Compelling appearance of person bound
(3) The provisions of Parts XVI and XVIII with respect to compelling the appearance of an accused before a justice apply, with such modifications as the circumstances require, to proceedings under paragraph (1)(b).
...
1995, c. 22, s. 6; 1999, c. 5, s. 35.


CCC

Remissions

Remission by Governor in Council
748.1 (1) The Governor in Council may order the remission, in whole or in part, of a fine or forfeiture imposed under an Act of Parliament, whoever the person may be to whom it is payable or however it may be recoverable.
Terms of remission
(2) An order for remission under subsection (1) may include the remission of costs incurred in the proceedings, but no costs to which a private prosecutor is entitled shall be remitted.
1995, c. 22, s. 6.


CCC

Fine in Lieu of Forfeiture

Fine Option Program

Fine option program
736. (1) An offender who is fined under section 734 may, whether or not the offender is serving a term of imprisonment imposed in default of payment of the fine, discharge the fine in whole or in part by earning credits for work performed during a period not greater than two years in a program established for that purpose by the lieutenant governor in council

(a) of the province in which the fine was imposed, or
(b) of the province in which the offender resides, where an appropriate agreement is in effect between the government of that province and the government of the province in which the fine was imposed,

if the offender is admissible to such a program.

Credits and other matters
(2) A program referred to in subsection (1) shall determine the rate at which credits are earned and may provide for the manner of crediting any amounts earned against the fine and any other matters necessary for or incidental to carrying out the program.
Deemed payment
(3) Credits earned for work performed as provided by subsection (1) shall, for the purposes of this Act, be deemed to be payment in respect of a fine.
Federal-provincial agreement
(4) Where, by virtue of subsection 734.4(2), the proceeds of a fine belong to Her Majesty in right of Canada, an offender may discharge the fine in whole or in part in a fine option program of a province pursuant to subsection (1), where an appropriate agreement is in effect between the government of the province and the Government of Canada.
R.S., 1985, c. C-46, s. 736; R.S., 1985, c. 27 (1st Supp.), s. 162, c. 1 (4th Supp.), s. 18(F); 1992, c. 1, s. 60(F); 1995, c. 22, s. 6.


CCC

Civil Enforcement of Fines

Civil enforcement of fines, forfeiture
734.6 (1) Where

(a) an offender is in default of payment of a fine, or
(b) a forfeiture imposed by law is not paid as required by the order imposing it,

then, in addition to any other method provided by law for recovering the fine or forfeiture,

(c) the Attorney General of the province to whom the proceeds of the fine or forfeiture belong, or
(d) the Attorney General of Canada, where the proceeds of the fine or forfeiture belong to Her Majesty in right of Canada,

may, by filing the order, enter as a judgment the amount of the fine or forfeiture, and costs, if any, in any civil court in Canada that has jurisdiction to enter a judgment for that amount.
Effect of filing order
(2) An order that is entered as a judgment under this section is enforceable in the same manner as if it were a judgment obtained by the Attorney General of the province or the Attorney General of Canada, as the case may be, in civil proceedings.
1995, c. 22, s. 6.


CCC

Fined Paid by Money in Possession

734 (1)
...
Moneys found on offender
(6) All or any part of a fine imposed under this section may be taken out of moneys found in the possession of the offender at the time of the arrest of the offender if the court making the order, on being satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the offender, so directs.
...


CCC

See Also

Imprisonment

General Principles

A judge has the power to impose a sentence of imprisonment under the authority of s. 718.3 and 787:

Degrees of punishment
718.3 (1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.
Discretion respecting punishment
(2) Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment.
...
1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182.


CCC

General penalty
787. (1) Unless otherwise provided by law, everyone who is convicted of an offence punishable on summary conviction is liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both.
...
R.S., 1985, c. C-46, s. 787; R.S., 1985, c. 27 (1st Supp.), s. 171; 2008, c. 18, s. 44.


CCC

Under s. 743, anyone convicted of an indictable offence for which no penalty is provided is liable for a term not exceeding 5 years.

Imprisonment when no other provision
743 Every one who is convicted of an indictable offence for which no punishment is specially provided is liable to imprisonment for a term not exceeding five years.
R.S., 1985, c. C-46, s. 743; 1992, c. 11, s. 16; 1995, c. 22, s. 6.


CCC

Commencement of Sentence

Commencement of sentence
719 (1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.
Time at large excluded from term of imprisonment
(2) Any time during which a convicted person is unlawfully at large or is lawfully at large on interim release granted pursuant to any provision of this Act does not count as part of any term of imprisonment imposed on the person.
Determination of sentence
(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
Exception
(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).
Reasons
(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.
Record of proceedings
(3.3) The court shall cause to be stated in the record and on the warrant of committal the offence, the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed.
Validity not affected
(3.4) Failure to comply with subsection (3.2) or (3.3) does not affect the validity of the sentence imposed by the court.
When time begins to run
(4) Notwithstanding subsection (1), a term of imprisonment, whether imposed by a trial court or the court appealed to, commences or shall be deemed to be resumed, as the case may be, on the day on which the convicted person is arrested and taken into custody under the sentence.
When fine imposed
(5) Notwithstanding subsection (1), where the sentence that is imposed is a fine with a term of imprisonment in default of payment, no time prior to the day of execution of the warrant of committal counts as part of the term of imprisonment.
Application for leave to appeal
(6) An application for leave to appeal is an appeal for the purposes of this section.
R.S., 1985, c. C-46, s. 719; R.S., 1985, c. 27 (1st Supp.), s. 157; 1995, c. 22, s. 6; 2009, c. 29, s. 3.


CCC

A sentence is to commence once the sentence is imposed except where otherwise provided.[1]

Anytime where the offender is either unlawfully at large or lawfully at large on release cannot count against the offender's sentence.[2]

Where the accused resumes a sentence they begin their sentence on the day they are taken into custody.[3]

Where a default term of imprisonment is imposed on a fine, the sentence does not begin until the execution of the warrant of committal.[4]

  1. s. 719(1)
  2. S. 719(2)
  3. s. 719(4)
  4. s. 719(5)

Execution of Warrant of Committal

Once a person is sentenced, a warrant of committal must be executed under s. 744, which states:

Delivery of Offender to Keeper of Prison
Execution of warrant of committal
744 A peace officer or other person to whom a warrant of committal authorized by this or any other Act of Parliament is directed shall arrest the person named or described therein, if it is necessary to do so in order to take that person into custody, convey that person to the prison mentioned in the warrant and deliver that person, together with the warrant, to the keeper of the prison who shall thereupon give to the peace officer or other person who delivers the prisoner a receipt in Form 43 setting out the state and condition of the prisoner when delivered into custody.
R.S., 1985, c. C-46, s. 744; R.S., 1985, c. 27 (1st Supp.), s. 166, c. 1 (4th Supp.), s. 18(F); 1992, c. 11, s. 16; 1995, c. 22, s. 6.


CCC


Warrant of Committal

A warrant of committal can be ordered under Part XVI or s. 515 (bail provisions). The judge should use "Form 8" for warrants of committal.

Custody With Probation

See also: Probation Orders

Making of probation order
731 (1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission,

(a) ... or
(b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order.

...
R.S., 1985, c. C-46, s. 731; 1992, c. 1, s. 58, c. 20, s. 200; 1995, c. 22, s. 6; 1997, c. 17, s. 1.


CCC

Custody With Fine

See also: Fines

Power of court to impose fine
734 (1) Subject to subsection (2), a court that convicts a person, other than an organization, of an offence may fine the offender by making an order under section 734.1

(a) if the punishment for the offence does not include a minimum term of imprisonment, in addition to or in lieu of any other sanction that the court is authorized to impose; or
(b) if the punishment for the offence includes a minimum term of imprisonment, in addition to any other sanction that the court is required or authorized to impose.

...
R.S., 1985, c. C-46, s. 734; R.S., 1985, c. 27 (1st Supp.), s. 161; 1995, c. 22, s. 6; 1999, c. 5, s. 33; 2003, c. 21, s. 19; 2008, c. 18, s. 38.


CCC

Intermittent Sentence

A judge may order that an offender serve a jail sentences of 90 days or less intermittently. The judge will set the times that he is to serve the sentence as well as the conditions that are imposed while he is on release during the serving of the conditional sentence.

Section 732 states:

Intermittent sentence
732. (1) Where the court imposes a sentence of imprisonment of ninety days or less on an offender convicted of an offence, whether in default of payment of a fine or otherwise, the court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order

(a) that the sentence be served intermittently at such times as are specified in the order; and
(b) that the offender comply with the conditions prescribed in a probation order when not in confinement during the period that the sentence is being served and, if the court so orders, on release from prison after completing the intermittent sentence.

Application to vary intermittent sentence
(2) An offender who is ordered to serve a sentence of imprisonment intermittently may, on giving notice to the prosecutor, apply to the court that imposed the sentence to allow it to be served on consecutive days.

Court may vary intermittent sentence if subsequent offence
(3) Where a court imposes a sentence of imprisonment on a person who is subject to an intermittent sentence in respect of another offence, the unexpired portion of the intermittent sentence shall be served on consecutive days unless the court otherwise orders.
1995, c. 22, s. 6.


CCC

The maximum limit of 90 days refers to the duration going-forward from the time of sentencing being imposed, after taking into account remand credit.[1]

Intermittent sentences cannot exceed 90 days. This includes consecutive sentences totalling more than 90 days.[2]

Intermittent sentences "strike a legislative balance between the denunciatory and deterrent functions of 'real jail time' and the rehabilitative functions of preserving the offender's employment, family relationships and responsibilities, and obligations to the community."[3]

A court has no authority to vary a sentence from an intermittent sentence to a non-intermittent sentence a once it has been ordered.[4]

There is some suggestion that the court has some jurisdiction to vary the entry and exit time of a conditional sentence.[5]

  1. R v Peebles, 2010 MBCA 47 (CanLII), per Hamilton JA at para 54
  2. R v Balachanoff, 2003 BCCA 433 (CanLII), per Ryan JA
  3. R v Middleton, 2009 SCC 21 (CanLII), [2009] 1 SCR 674, per Fish J at para 45
  4. R v Germaine (1980) 39 NSR (2d) 177(*no CanLII links) at para 5
    R v Jules [1988] BCJ No 1605(*no CanLII links)
  5. R v E.K., 2012 BCPC 132 (CanLII), per Gouge J
    See Role of Trial Judge#Doctrine of Functus Officio

No Contact Orders while in Prison

See also: Terms of Release#Conditions

Under s. 743.21, a court may order that for the duration of serving a sentence that the offender be subject to no-contact conditions.

Non-communication order
743.21 (1) The sentencing judge may issue an order prohibiting the offender from communicating, directly or indirectly, with any victim, witness or other person identified in the order during the custodial period of the sentence, except in accordance with any conditions specified in the order that the sentencing judge considers necessary.
Failure to comply with order
(2) Every person who fails, without lawful excuse, the proof of which lies on that person, to comply with the order

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

2008, c. 18, s. 42.


CCC

Imprisonment for Life

See Also

Conditional Sentences

Introduction

A conditional sentence is a sentence of incarceration which is permitted to be served in the community under strict conditions, typically consisting of house arrest, for up to two years less a day.

The enabling provision states:

Imposing of conditional sentence
742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;
(b) the offence is not an offence punishable by a minimum term of imprisonment;
(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life;
(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more;
(e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that
(i) resulted in bodily harm,
(ii) involved the import, export, trafficking or production of drugs, or
(iii) involved the use of a weapon; and
(f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions:
(i) section 144 (prison breach),
(ii) section 264 (criminal harassment),
(iii) section 271 (sexual assault),
(iv) section 279 (kidnapping),
(v) section 279.02 (trafficking in persons — material benefit),
(vi) section 281 (abduction of person under fourteen),
(vii) section 333.1 (motor vehicle theft),
(viii) paragraph 334(a) (theft over $5000),
(ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house),
(x) section 349 (being unlawfully in a dwelling-house), and
(xi) section 435 (arson for fraudulent purpose).

1992, c. 11, s. 16; 1995, c. 19, s. 38, c. 22, s. 6; 1997, c. 18, s. 107.1; 2007, c. 12, s. 1; 2012, c. 1, s. 34.

CCC


A Conditional Sentence Order (CSO) is a form of incarceration.[1]

The purpose of the conditional sentence is to reduce the reliance on incarceration as a sanction and increase restorative justice objectives.[2]

A CSO is not the same as probation. The former being punitive and rehabilitative while latter being only for rehabilitation.[3]

CSOs are usually better at achieving "the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community".[4]

Constitutionality
The restrictions on conditional sentences for offences with maximum penalty of 14 years does not violate s. 12 of the Charter for being cruel and unusual punishment.[5]

Appellate Review
The decision to order a conditional sentence is entitled to "considerable deference".[6]

  1. R v L.F.W. 1997 CanLII 10868 (NL CA), (1997), 155 Nfld. & P.E.I.R. 115(Nfld. C.A.)
    R v Oliver (E.M.), 1997 CanLII 14631 (NL CA), (1997), 147 Nfld. & P.E.I.R. 210 (Nfld. C.A.)
    R v Quality (R.), 1997 CanLII 14660 (NL CA), (1998), 156 Nfld. & P.E.I.R. 320 (Nfld. C.A.)
    R v J.M. 1998 CanLII 18034 (NL CA), (1998), 160 Nfld. & P.E.I.R. 38 (Nfld. C.A.)
  2. R v Proulx, [2000] 1 SCR 61, 2000 SCC 5 (CanLII) at para 127
  3. Proulx, ibid. at para 127
  4. Proulx, ibid. at para 127
  5. R v Neary, 2016 SKQB 218 (CanLII) - related to drug trafficking offences
  6. R v Peterson, 2005 CanLII 37972 (ON CA) at para 58
    R v Rage, 2018 ONCA 211 (CanLII), para 10 ("It is well established in the jurisprudence that a trial judge’s decision regarding the appropriateness of a conditional sentence is entitled to considerable deference")

Statutory Exempt Offences Under s. 742.1(f)(i)

Offences enumerated under s. 742.1 that are entirely exempt from CSOs when prosecuted by indictment consist of:

See Offences by Penalty for a complete list of offences that would be subject to exemption due to maximum penalties of 10 (with bodily harm, weapons or drugs) or 14 years.

Eligibility

The requirements for a conditional sentence are summarized as follows:[1]

  1. the offence has no mandatory minimums
  2. the offence does not have a maximum penalty of 14 or life
  3. the offence does not have a maximum penalty of 10 years that
    1. is a terrorism offence, or a criminal organization offence,
    2. involves bodily harm,
    3. involves the import, export, trafficking or production of drugs, or
    4. involves the use of a weapon
  4. the offence is not enumerated in s. 742.1(f)
  5. the appropriate sentence is one of less than two years
  6. a sentence in the community would not endanger the safety of the community
    1. in consideration of the risk of the offender reoffending; and,
    2. in consideration of the gravity of the damage that could follow a re-offence.
  7. the appropriate sentence consistent with the fundamental purpose and principles of sentencing

A conditional sentence, being a period of incarceration, can satisfy the principles of denunciation and deterrence. However, there is a comparative leniency in a conditional sentence when compared “to a jail term of equivalent duration.”[2]

A conditional sentence can be available to a person who is on parole.[3]

There is no presumption for or against CSOs.[4] However, it is considered "likely more appropriate" where a "combination of both punitive and restorative objectives" are to be achieved.[5]

Constituionality
The restrictions on conditional sentences for certain classes of offences does not violate s. 7 or 12 of the Charter.[6]

  1. R v Proulx, 2000 SCC 5 (CanLII), per Lamer CJ at para 46 - citing the old test pre 2012 amendments
  2. Proulx, ibid. at para 102
  3. R v Harris, 2000 BCCA 599 (CanLII), per Ryan JA
  4. Proulx, supra at para 127
  5. Proux, supra at para 127
  6. R v Barrons, 2017 NSSC 368 (CanLII), per Arnold J
    R v DeYoung, 2017 NSCA 13 (CanLII), per Farrar JA
    R v Sawh, 2016 ONSC 7797 (CanLII), per Garton J

Mandatory Minimums

See also: Maximum and Minimum Sentences

Mandatory minimum offences are not eligible for a conditional sentence. The offences with minimums are identifiable by the presence of the minimum within the definition of the offence.

Less Than Two Years

Before a judge can impose a conditional sentence the judge must be satisfied that both prison and probation are not appropriate.[1]

  1. R v Proulx, 2000 SCC 5 (CanLII), per Lamer CJ at para 58

Safety of Community

The sentencing judge should undertake a "risk assessment" to determine if the offender is a risk to the safety to the community.[1]

Assessing risk to the community is divided into two dimensions: 1) the risk of re-offence and 2) the gravity of the danger in the event of a re-offence.[2]

Risk of re-offence should be considered in light of potential "conditions attached to the sentence". Where there is a risk to the community, the risk may be minimized by imposing "appropriate conditions in the sentence." [3] Thus, a risk is acceptable as long as it is containable within the sentence.

Previous non-compliance with court orders is a "weighty factor" against the availability of a conditional sentence. They can be evidence that the offender is unlikely to comply and the sentence will not likely have a deterrent or rehabilitative effect.[4]

  1. see R v Soldat, 2012 MBCA 39 (CanLII), per M Monnin JA at para 14
    R v Eckert, 2006 MBCA 6 (CanLII), per Steel JA
  2. see R v Knoblauch, 2000 SCC 58 (CanLII), [2000] 2 SCR 780, per Arbour J (5:4)
  3. Knoblauch, ibid. at para 27
  4. R v Wright, 2011 ABCA 42 (CanLII), per McDonald JA at para 12
    see also R v Wilson 2009 ABCA 257 (CanLII), per curiam at 37
    R v Melvin, 2010 NSCA 5 (CanLII), per Bateman JA at para 9
    R v Viscomi, 2012 ABCA 135 (CanLII), per curiam
    R v A.B., 2012 MBCA 25 (CanLII), per Chartier JA

Procedure

Imposing Conditions

Conditional Sentence Breaches

Effect of Custody on Other Matters

If person imprisoned for new offence
742.7 (1) If an offender who is subject to a conditional sentence order is imprisoned as a result of a sentence imposed for another offence, whenever committed, the running of the conditional sentence order is suspended during the period of imprisonment for that other offence.
Breach of condition
(2) If an order is made under paragraph 742.6(9)(c) or (d) to commit an offender to custody, the custodial period ordered shall, unless the court considers that it would not be in the interests of justice, be served consecutively to any other period of imprisonment that the offender is serving when that order is made.
Multiple sentences
(3) If an offender is serving both a custodial period referred to in subsection (2) and any other period of imprisonment, the periods shall, for the purpose of section 743.1 and section 139 of the Corrections and Conditional Release Act, be deemed to constitute one sentence of imprisonment.
Conditional sentence order resumes
(4) The running of any period of the conditional sentence order that is to be served in the community resumes upon the release of the offender from prison on parole, on statutory release, on earned remission, or at the expiration of the sentence.
1995, c. 22, s. 6; 1999, c. 5, s. 42; 2004, c. 12, s. 16(E).


CCC

Sentence Variations

The Sentence Supervisor can recommend changes in the optional conditions of the Order where there is a change in circumstances. Notice of the proposed change must be provided to the court and counsel. It is generally understood that the changes should not be of a substantial nature that may change the purpose of the initial order. The application should not be initiated by the offender.[1]

Supervisor may propose changes to optional conditions
742.4 (1) Where an offender’s supervisor is of the opinion that a change in circumstances makes a change to the optional conditions desirable, the supervisor shall give written notification of the proposed change, and the reasons for it, to the offender, to the prosecutor and to the court.
Hearing
(2) Within seven days after receiving a notification referred to in subsection (1),

(a) the offender or the prosecutor may request the court to hold a hearing to consider the proposed change, or
(b) the court may, of its own initiative, order that a hearing be held to consider the proposed change,

and a hearing so requested or ordered shall be held within thirty days after the receipt by the court of the notification referred to in subsection (1).
Decision at hearing
(3) At a hearing held pursuant to subsection (2), the court

(a) shall approve or refuse to approve the proposed change; and
(b) may make any other change to the optional conditions that the court deems appropriate.

Where no hearing requested or ordered
(4) Where no request or order for a hearing is made within the time period stipulated in subsection (2), the proposed change takes effect fourteen days after the receipt by the court of the notification referred to in subsection (1), and the supervisor shall so notify the offender and file proof of that notification with the court.
Changes proposed by offender or prosecutor
(5) Subsections (1) and (3) apply, with such modifications as the circumstances require, in respect of a change proposed by the offender or the prosecutor to the optional conditions, and in all such cases a hearing must be held, and must be held within thirty days after the receipt by the court of the notification referred to in subsection (1).
Judge may act in chambers
(6) All the functions of the court under this section may be exercised in chambers.
1995, c. 22, s. 6; 1999, c. 5, s. 39.


CCC

A change of address cannot be done merely be calling and leaving a voicemail message on the supervisors machine.[2]

There is no mechanism within the Code to permit a CSO to be transferred to a jurisdiction outside of Canada.[3]

  1. R v Kobsar, 2004 ABQB 817 (CanLII)
  2. R v Sullivan 2009 CanLII 59436 (NL PC)
  3. R v Goett, 2012 ABCA 215 (CanLII)

Transfer CSOs to different Provinces

Transfer of order
742.5 (1) Where an offender who is bound by a conditional sentence order becomes a resident of a territorial division, other than the territorial division where the order was made, on the application of a supervisor, the court that made the order may, subject to subsection (1.1), transfer the order to a court in that other territorial division that would, having regard to the mode of trial of the offender, have had jurisdiction to make the order in that other territorial division if the offender had been tried and convicted there of the offence in respect of which the order was made, and the order may thereafter be dealt with and enforced by the court to which it is so transferred in all respects as if that court had made the order.
Attorney General’s consent
(1.1) The transfer may be granted only with

(a) the consent of the Attorney General of the province in which the conditional sentence order was made, if the two territorial divisions are not in the same province; or
(b) the consent of the Attorney General of Canada, if the proceedings that led to the issuance of the conditional sentence order were instituted by or on behalf of the Attorney General of Canada.

Where court unable to act
(2) Where a court that has made a conditional sentence order or to which a conditional sentence order has been transferred pursuant to subsection (1) is for any reason unable to act, the powers of that court in relation to the conditional sentence order may be exercised by any other court that has equivalent jurisdiction in the same province.
1995, c. 22, s. 6; 1999, c. 5, s. 40.


CCC

History

Terms and Conditions of a Conditional Sentence Order

General Principles

For the conditional sentence regime to maintain the public's confidence the terms must "have teeth" by including restrictions upon liberty.[1]

  1. R v Hirnschall, 2003 CanLII 46450 (ON CA), per Laskin JA at para 28

Mandatory Conditions

Compulsory conditions of conditional sentence order
742.3 (1) The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following:

(a) keep the peace and be of good behaviour;
(b) appear before the court when required to do so by the court;
(c) report to a supervisor
(i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and
(ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;
(d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and
(e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.

Abstain from communicating
(1.1) The court shall prescribe, as a condition of a conditional sentence order, that the offender abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order, except in accordance with the conditions specified in the order that the court considers necessary, unless

(a) the victim, witness or other person gives their consent or, if the victim, witness or other person is a minor, the parent or guardian, or any other person who has the lawful care or charge of them, gives their consent; or
(b) the court decides that, because of exceptional circumstances, it is not appropriate to impose the condition.

Consent
(1.2) For the purposes of paragraph (1.1)(a), the consent is valid only if it is given in writing or in the manner specified in the order.
Reasons
(1.3) If the court makes the decision described in paragraph (1.1)(b), it shall state the reasons for the decision in the record.
...
1995, c. 22, s. 6; 2008, c. 18, s. 40; 2011, c. 7, s. 5; 2014, c. 21, s. 3; 2015, c. 13, s. 33.


CCC

Optional Conditions

742.3
...
Optional conditions of conditional sentence order
(2) The court may prescribe, as additional conditions of a conditional sentence order, that the offender do one or more of the following:

(a) abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance;
(a.1) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, the supervisor or someone designated under subsection (7) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to suspect that the offender has breached a condition of the order that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance;
(a.2) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified by the supervisor in a notice in Form 51 served on the offender, if a condition of the order requires the offender to abstain from the consumption of drugs, alcohol or any other intoxicating substance;
(b) abstain from owning, possessing or carrying a weapon;
(c) provide for the support or care of dependants;
(d) perform up to 240 hours of community service over a period not exceeding eighteen months;
(e) attend a treatment program approved by the province; and
(f) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.

...
1995, c. 22, s. 6; 2008, c. 18, s. 40; 2011, c. 7, s. 5; 2014, c. 21, s. 3; 2015, c. 13, s. 33.


CCC

It is generally expected that the terms of a CSO will include a restriction on liberty such as house arrest.[1]

  1. R v Proulx, [2000] 1 SCR 61, 2000 SCC 5 (CanLII), per Lamer CJ at para 127

Bodily Substance Terms

Notice — samples at regular intervals
(5) The notice referred to in paragraph (2)(a.2) must specify the places and times at which and the days on which the offender must provide samples of a bodily substance under a condition described in that paragraph. The first sample may not be taken earlier than 24 hours after the offender is served with the notice, and subsequent samples must be taken at regular intervals of at least seven days.
Designations and specifications
(6) For the purposes of paragraphs (2)(a.1) and (a.2) and subject to the regulations, the Attorney General of a province or the minister of justice of a territory shall, with respect to the province or territory,

(a) designate the persons or classes of persons that may take samples of bodily substances;
(b) designate the places or classes of places at which the samples are to be taken;
(c) specify the manner in which the samples are to be taken;
(d) specify the manner in which the samples are to be analyzed;
(e) specify the manner in which the samples are to be stored, handled and destroyed;
(f) specify the manner in which the records of the results of the analysis of the samples are to be protected and destroyed;
(g) designate the persons or classes of persons that may destroy the samples; and
(h) designate the persons or classes of persons that may destroy the records of the results of the analysis of the samples.


Further designations
(7) For the purpose of paragraph (2)(a.1) and subject to the regulations, the Attorney General of a province or the minister of justice of a territory may, with respect to the province or territory, designate persons or classes of persons to make a demand for a sample of a bodily substance.
Restriction
(8) Samples of bodily substances referred to in paragraphs (2)(a.1) and (a.2) may not be taken, analyzed, stored, handled or destroyed, and the records of the results of the analysis of the samples may not be protected or destroyed, except in accordance with the designations and specifications made under subsection (6).
Destruction of samples
(9) The Attorney General of a province or the minister of justice of a territory, or a person authorized by the Attorney General or minister, shall cause all samples of bodily substances provided under a conditional sentence order to be destroyed within the periods prescribed by regulation, unless the samples are reasonably expected to be used as evidence in proceedings under section 742.6.
Regulations
(10) The Governor in Council may make regulations

(a) prescribing bodily substances for the purposes of paragraphs (2)(a.1) and (a.2);
(b) respecting the designations and specifications referred to in subsections (6) and (7);
(c) prescribing the periods within which samples of bodily substances are to be destroyed under subsection (9); and
(d) respecting any other matters relating to the samples of bodily substances.

1995, c. 22, s. 6; 2008, c. 18, s. 40; 2011, c. 7, s. 5; 2014, c. 21, s. 3; 2015, c. 13, s. 33.


CCC

Prohibition on use of bodily substance
742.31 (1) No person shall use a bodily substance provided under a conditional sentence order except for the purpose of determining whether an offender is complying with a condition of the order that they abstain from the consumption of drugs, alcohol or any other intoxicating substance.
Prohibition on use or disclosure of result
(2) Subject to subsection (3), no person shall use, disclose or allow the disclosure of the results of the analysis of a bodily substance provided under a conditional sentence order.
Exception
(3) The results of the analysis of a bodily substance provided under a conditional sentence order may be disclosed to the offender to whom they relate, and may also be used or disclosed in the course of proceedings under section 742.6 or, if the results are made anonymous, for statistical or other research purposes.
Offence
(4) Every person who contravenes subsection (1) or (2) is guilty of an offence punishable on summary conviction.
2011, c. 7, s. 6.


CCC

"Optional Conditions"

Definitions
742 In sections 742.1 to 742.7,
...
"optional conditions" means the conditions referred to in subsection 742.3(2); (conditions facultatives)
...
R.S., 1985, c. C-46, s. 742; R.S., 1985, c. 27 (1st Supp.), s. 165; 1992, c. 11, s. 15; 1995, c. 22, s. 6.


CCC

Procedure

742.3
...
Obligations of court
(3) A court that makes an order under this section shall

(a) cause a copy of the order to be given to the offender and, on request, to the victim;
(b) explain the substance of subsection (1) and sections 742.4 and 742.6 to the offender;
(c) cause an explanation to be given to the offender of the procedure for applying under section 742.4 for a change to the optional conditions; and
(d) take reasonable measures to ensure that the offender understands the order and the explanations.

For greater certainty
(4) For greater certainty, a failure to comply with subsection (3) does not affect the validity of the order.
...
1995, c. 22, s. 6; 2008, c. 18, s. 40; 2011, c. 7, s. 5; 2014, c. 21, s. 3; 2015, c. 13, s. 33.


CCC

Additional conditions requiring the offender to undergo treatment and then return to the court for a progress report has been found to be invalid as the court is functus officio and has no jurisdiction over the matter.[1]

"change"

Definitions
742 In sections 742.1 to 742.7,
"change", in relation to optional conditions, includes deletions and additions; (modification)
...
R.S., 1985, c. C-46, s. 742; R.S., 1985, c. 27 (1st Supp.), s. 165; 1992, c. 11, s. 15; 1995, c. 22, s. 6.


CCC

"supervisor"

Definitions
742 In sections 742.1 to 742.7,

...
"supervisor" means a person designated by the Attorney General, either by name or by title of office, as a supervisor for the purposes of sections 742.1 to 742.7. (agent de surveillance)
R.S., 1985, c. C-46, s. 742; R.S., 1985, c. 27 (1st Supp.), s. 165; 1992, c. 11, s. 15; 1995, c. 22, s. 6.


CCC

  1. R v Ermine 2010 SKCA 47 (CanLII), per Ottenbreit JA

Firearms Prohibition Orders

Firearm, etc., prohibitions
742.2 (1) Before imposing a conditional sentence under section 742.1, the court shall consider whether section 109 or 110 is applicable.
Application of section 109 or 110
(2) For greater certainty, a condition of a conditional sentence order referred to in paragraph 742.3(2)(b) does not affect the operation of section 109 or 110.
1995, c. 22, s. 6; 2002, c. 13, s. 75; 2004, c. 12, s. 14(E).


CCC


Conditional Sentence Breaches

General Principles

Conditional sentence breaches are governed by s. 742.6 which outlines the procedure of determining whether breaches occurred and their consequences when found.

An allegation of a breach of a conditional sentence stops the running of the conditional sentence. [1] A breach is not necessarily an independent offence, but rather is simply a claim to reconsider the terms of the conditional sentence under s. 742.6.[2]

A breach hearing must commence within 30 days of the allegation.[3] The time starts at the point of arrest for the breach, not when the warrant is issued or at the time of arrest for new offence.[4]

Once a breach allegation is made, it should only be the judge who granted the initial conditional sentence can grant bail before the hearing.[5] The breach hearing itself is also usually heard in front of the same judge.[6]

An allegation of breach is not a charged offence within the meaning of s. 11 of the Charter. Consequently, the reverse onus does not violate s. 11(d) and does not amount to double jeopardy.[7] Nor, generally speaking, is it a substantive criminal offence.[8]

  1. s. 742.6(10); R v Vromans, 2007 ABCA 36 (CanLII), per Fraser JA
  2. R v Proulx, [2000] 1 SCR 61, 2000 SCC 5 (CanLII), per Lamer CJ at paras 27 to 28
  3. s. 742.6(3)
    R v McIvor, 2008 SCC 11 (CanLII), [2008] 1 SCR 285, per Charron J
    R v Kabosos 2008 ONCA 711 (CanLII), per MacPherson JA
  4. Kabosos, ibid.
  5. R v Gessleman, 2005 ABQB 628 (CanLII), per Watson JA
  6. R v Tomic, 2000 ABCA 192 (CanLII), per curiam
  7. R v Casey, 2000 CanLII 5626 (ON CA), (2000) 141 CCC (3d) 506, per Osborne JA
    R v Thompson, 2014 ONCA 43 (CanLII), per Watt JA at para 29
  8. R v Bailey, 2012 ABCA 165 (CanLII), per Martin JA
    Thompson, supra at para 29 ("Breach of a condition of a CSO is not an offence")

Laying a Breach Allegation, Compelling Attendance and Bail

Procedure on breach of condition
742.6 (1) For the purpose of proceedings under this section,

(a) the provisions of Parts XVI and XVIII with respect to compelling the appearance of an accused before a justice apply, with any modifications that the circumstances require, and any reference in those Parts to committing an offence shall be read as a reference to breaching a condition of a conditional sentence order;
(b) the powers of arrest for breach of a condition are those that apply to an indictable offence, with any modifications that the circumstances require, and subsection 495(2) does not apply;
(c) despite paragraph (a), if an allegation of breach of condition is made, the proceeding is commenced by
(i) the issuance of a warrant for the arrest of the offender for the alleged breach,
(ii) the arrest without warrant of the offender for the alleged breach, or
(iii) the compelling of the offender’s appearance in accordance with paragraph (d);
(d) if the offender is already detained or before a court, the offender’s appearance may be compelled under the provisions referred to in paragraph (a);
(e) if an offender is arrested for the alleged breach, the peace officer who makes the arrest, the officer in charge or a judge or justice may release the offender and the offender’s appearance may be compelled under the provisions referred to in paragraph (a); and
(f) any judge of a superior court of criminal jurisdiction or of a court of criminal jurisdiction or any justice of the peace may issue a warrant to arrest no matter which court, judge or justice sentenced the offender, and the provisions that apply to the issuance of telewarrants apply, with any modifications that the circumstances require, as if a breach of condition were an indictable offence.

Interim release
(2) For the purpose of the application of section 515, the release from custody of an offender who is detained on the basis of an alleged breach of a condition of a conditional sentence order shall be governed by subsection 515(6).

...
1995, c. 22, s. 6; 1999, c. 5, s. 41; 2004, c. 12, s. 15(E); 2008, c. 18, s. 41.


CCC

Effect of Allegations on CSO

742.6
...
Warrant or arrest — suspension of running of conditional sentence order
(10) The running of a conditional sentence order imposed on an offender is suspended during the period that ends with the determination of whether a breach of condition had occurred and begins with the earliest of

(a) the issuance of a warrant for the arrest of the offender for the alleged breach,
(b) the arrest without warrant of the offender for the alleged breach, and
(c) the compelling of the offender’s appearance in accordance with paragraph (1)(d).

Conditions continue
(11) If the offender is not detained in custody during any period referred to in subsection (10), the conditions of the order continue to apply, with any changes made to them under section 742.4, and any subsequent breach of those conditions may be dealt with in accordance with this section.
Detention under s. 515(6)
(12) A conditional sentence order referred to in subsection (10) starts running again on the making of an order to detain the offender in custody under subsection 515(6) and, unless section 742.7 applies, continues running while the offender is detained under the order.
Earned remission does not apply
(13) Section 6 of the Prisons and Reformatories Act does not apply to the period of detention in custody under subsection 515(6).
Unreasonable delay in execution
(14) Despite subsection (10), if there was unreasonable delay in the execution of a warrant, the court may, at any time, order that any period between the issuance and execution of the warrant that it considers appropriate in the interests of justice is deemed to be time served under the conditional sentence order unless the period has been so deemed under subsection (15).
...

1995, c. 22, s. 6; 1999, c. 5, s. 41; 2004, c. 12, s. 15(E); 2008, c. 18, s. 41.


CCC

Proving a Breach

742.6
...
Hearing
(3) The hearing of an allegation of a breach of condition shall be commenced within thirty days, or as soon thereafter as is practicable, after

(a) the offender’s arrest; or
(b) the compelling of the offender’s appearance in accordance with paragraph (1)(d).

Place
(3.1) The allegation may be heard by any court having jurisdiction to hear that allegation in the place where the breach is alleged to have been committed or the offender is found, arrested or in custody.
Attorney General’s consent
(3.2) If the place where the offender is found, arrested or in custody is outside the province in which the breach is alleged to have been committed, no proceedings in respect of that breach shall be instituted in that place without

(a) the consent of the Attorney General of the province in which the breach is alleged to have been committed; or
(b) the consent of the Attorney General of Canada, if the proceedings that led to the issuance of the conditional sentence order were instituted by or on behalf of the Attorney General of Canada.

Adjournment
(3.3) A judge may, at any time during a hearing of an allegation of breach of condition, adjourn the hearing for a reasonable period.
Report of supervisor
(4) An allegation of a breach of condition must be supported by a written report of the supervisor, which report must include, where appropriate, signed statements of witnesses. Admission of report on notice of intent
(5) The report is admissible in evidence if the party intending to produce it has, before the hearing, given the offender reasonable notice and a copy of the report.
(6) and (7) [Repealed, 2008, c. 18, s. 41]
Requiring attendance of supervisor or witness
(8) The offender may, with leave of the court, require the attendance, for cross-examination, of the supervisor or of any witness whose signed statement is included in the report.
...
1995, c. 22, s. 6; 1999, c. 5, s. 41; 2004, c. 12, s. 15(E); 2008, c. 18, s. 41.


CCC

To establish a breach, the crown must establish on a balance of probabilities that the offender breached the sentence.[1] Unless the accused proves on balance of probabilities that there was "a reasonable excuse".[2]

  1. R v LeBorgne [2005] NSJ 493, 2005 NSCA 156 (CanLII)
    C. (R.) v McDougall, [2008] 3 SCR 41, 2008 SCC 53 (CanLII)
    Held to be constitutional, see R v Casey, 2000 CanLII 5626 (ON CA), (2000), 141 CCC (3d) 506 (Ont. C.A.) at paras 25 - 40.
  2. See s. 742.6(9)

Report

The breach must be supported by a signed report of the supervisor, and where appropriate signed statements of the witnesses.[1]

The report is admissible if the offender is given reasonable notice of the intention to produce the document as well as the Report itself. [2]

Section 742.6(4) provides an evidentiary "short cut” to proof of the breach allegation. If the report is defective by missing a signature the crown can still prove the breach by viva voce evidence.[3]

The accused may seek leave of the court to cross examine the supervisor or any other witness who signed a statement in the report.[4] However, the accused must establish that cross-examination serves a useful purpose.[5]

  1. s.742.6(4) ("An allegation of a breach of condition must be supported by a written report of the supervisor, which report must include, where appropriate, signed statements of witnesses.")
  2. s. 742.6(5) ("The report is admissible in evidence if the party intending to produce it has, before the hearing, given the offender reasonable notice and a copy of the report.")
  3. R v Balaj (2010) 245 CCC (3d) 252 (SKCA) (*no CanLII links)
  4. 742.6(8) ("The offender may, with leave of the court, require the attendance, for cross-examination, of the supervisor or of any witness whose signed statement is included in the report. ")
  5. R v McIvor, [2008] 1 SCR 285, 2008 SCC 11 (CanLII)

Disposition on Breach

742.6
...
Powers of court
(9) Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may

(a) take no action;
(b) change the optional conditions;
(c) suspend the conditional sentence order and direct
(i) that the offender serve in custody a portion of the unexpired sentence, and
(ii) that the conditional sentence order resume on the offender’s release from custody, either with or without changes to the optional conditions; or
(d) terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence.

...
Powers of court
(16) If a court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may, in exceptional cases and in the interests of justice, order that some or all of the period of suspension referred to in subsection (10) is deemed to be time served under the conditional sentence order.
Considerations
(17) In exercising its discretion under subsection (16), a court shall consider

(a) the circumstances and seriousness of the breach;
(b) whether not making the order would cause the offender undue hardship based on the offender’s individual circumstances; and
(c) the period for which the offender was subject to conditions while the running of the conditional sentence order was suspended and whether the offender complied with those conditions during that period.

1995, c. 22, s. 6; 1999, c. 5, s. 41; 2004, c. 12, s. 15(E); 2008, c. 18, s. 41.


CCC

If a breach is found, the presumption is for the offender to spend the remainder of the sentence in jail.[1] However, the disposition should turn on the particular circumstances.[2] It is the constant threat of incarceration that should compel compliance.[3]

A conditional sentence is suspended where the accused is ordered to serve another sentence in jail. (s. 742.7)

A judge cannot give an intermittent sentence for a breach of a conditional sentence order.[4]

  1. R v Proulx, [2000] 1 SCR 61, 2000 SCC 5 (CanLII) at para 39
  2. R v Langley, 2005 BCCA 478 (CanLII)
  3. see R v Brady 1998 ABCA 7 (CanLII), (1998), 121 CCC (3d) 504 (Alta. C.A.)
  4. R v Langmaier, 2009 SKCA 57 (CanLII)
    R v Ng, 2007 ONCA 183 (CanLII)
    R v Bailey, 2012 ABCA 165 (CanLII)

Consecutive to Prior Sentence

Breach of condition
(2) If an order is made under paragraph 742.6(9)(c) or (d) to commit an offender to custody, the custodial period ordered shall, unless the court considers that it would not be in the interests of justice, be served consecutively to any other period of imprisonment that the offender is serving when that order is made.
...
1995, c. 22, s. 6; 1999, c. 5, s. 42; 2004, c. 12, s. 16(E).


CCC

Calculating New Sentence

Multiple sentences
(3) If an offender is serving both a custodial period referred to in subsection (2) and any other period of imprisonment, the periods shall, for the purpose of section 743.1 and section 139 of the Corrections and Conditional Release Act, be deemed to constitute one sentence of imprisonment.
...
1995, c. 22, s. 6; 1999, c. 5, s. 42; 2004, c. 12, s. 16(E).


CCC

Resumption of Conditional Sentence

742.7
...
Conditional sentence order resumes
(4) The running of any period of the conditional sentence order that is to be served in the community resumes upon the release of the offender from prison on parole, on statutory release, on earned remission, or at the expiration of the sentence.
1995, c. 22, s. 6; 1999, c. 5, s. 42; 2004, c. 12, s. 16(E).


CCC

Effect of Dismissal or Excusal of Allegation

742.6
...
Allegation dismissed or reasonable excuse
(15) If the allegation is withdrawn or dismissed or the offender is found to have had a reasonable excuse for the breach, the sum of the following periods is deemed to be time served under the conditional sentence order:

(a) any period for which the running of the conditional sentence order was suspended; and
(b) if subsection (12) applies, a period equal to one half of the period that the conditional sentence order runs while the offender is detained under an order referred to in that subsection.

...
1995, c. 22, s. 6; 1999, c. 5, s. 41; 2004, c. 12, s. 15(E); 2008, c. 18, s. 41.


CCC

See Also

Concurrent and Consecutive Sentences

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).

...
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]

  1. R v Draper (T.G.), 2010 MBCA 35 (CanLII), per Steel JA at paras 29 to 31
  2. R v Dube 2006 QCCA 699 (CanLII)
  3. R v Mascarenhas, 2002 CanLII 41625 (ON CA), per Abella JA at para 31
    R v Veysey, 2006 NBCA 55 (CanLII), per Larlee AND Robertson JJA
    R v Desmarest (1986), 2 QAC 151 (*no CanLII links)
    R v Charchuk (1973), 6 NSR (2d) 519 (*no CanLII links)
  4. c.f. R v S.P.M., 2005 NLCA 36 (CanLII), per Cameron JA, at para 11
  5. Mascarenhas, supra at para 31
    R v Gummer (1983), 1 OAC 141 at p. 144, 25 MVR 282 (*no CanLII links)