Full Text:Volume 5A

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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.

Volume V: Sentencing

See Also

Principles and Factors

Purpose and Principles of Sentencing

This page was last substantively updated or reviewed January 2020. (Rev. # 79559)

Introduction

See also: Enumerated Purposes of Sentencing

The purposes and principles of sentencing for criminal offences are found in Part XXIII of the Criminal Code. The enumerated principles apply to indictable as well as summary offences.[1]

The sentencing provisions provide 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 balanced 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.

Generally, the "fundamental purpose of sentencing is to contribute ... to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions" (s. 718).

Purpose of Codifying Sentencing Principles

Sections 718 to 718.2 codify the objectives and principles of sentencing and are intended to “bring greater consistency and clarity” to sentencing.[2]

Sentencing Provisions Are Interpreted Liberally

Sections 718 to 718.2 are to be interpreted as "remedial" and be "given such fair, large and liberal" interpretation to obtain its objectives.[3]

Sentencing Communicates Shared Values

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."[4]

The courts must bring the law, including sentencing, into harmony with the prevailing social values and so must reflect changes in these values.[5]

Sentencing Focused on Past Behaviours

Sentencing is limited to addressing what offenders have done in the past and it not per se intended to remove dangerous people merely in anticipation of future harm.[6]

Uniformity Not Desirable Objective

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]

No Personal Beliefs of Judge

Judges are not permitted to apply their own personal belief or views that are contrary to the principles of sentencing.[8]

Constitution

The principles set out in s. 718 to 718.2 do not have constitutional status and are not principles of fundamental justice. The principles of sentencing are determined only by the legislature and can be subject to review under s. 12 of the Charter where they are "grossly disproportionate".[9]

  1. R v Solowan, 2008 SCC 62 (CanLII), [2008] 3 SCR 309, per Fish J, at para 16 ("In short, the sentencing principles set out in Part XXIII of the Criminal Code apply to both indictable and summary conviction offences. Parliament has made that clear in the definition of “court” at s. 716 of the Code. And when the Crown elects to prosecute a “hybrid” offence by way of summary conviction, the sentencing court is bound by the Crown’s election to determine the appropriate punishment within the limits established by Parliament for that mode of procedure.")
  2. R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J, at para 39
  3. Section 12 of the Interpretation Act
    considered in R v Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688, per Cory and Iacobucci JJ, at para 26
  4. R v CAM, 1996 CanLII 230 (SCC), [1996] 1 SCR 500, per Lamer CJ, at para 81
  5. R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J citing CAM, supra
  6. R v Knoblauch, 2000 SCC 58 (CanLII), [2000] 2 SCR 780, 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.")
  7. R v Christie, 2004 ABCA 287 (CanLII), 189 CCC (3d) 274, per Sullivan JA, at paras 42, 52
  8. R v Song, 2009 ONCA 896 (CanLII), 249 CCC (3d) 289, per curiam
  9. R v Safarzadeh-Markhali, 2016 SCC 14 (CanLII), [2016] 1 SCR 180, per McLachlin CJ, at paras 70 to 71
    cf. R v Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 SCR 433, per Lebel J, at para 36 ("proportionality in sentencing could aptly be described as a principle of fundamental justice under s. 7 of the Charter")

Determining a Fit and Proper Sentence

The overarching objective of sentencing is to determine a "just and appropriate" sentence that reflects the gravity fo the offence and the moral blameworthiness of the offender.[1]

The determination of a proper sentence is an exercise of applying the principles of sentencing to the facts of a given case.[2]

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".[3]

Sentencing as "delicate", "contextual" and "subjective"

It is a "profoundly subjective process".[4] It is also a "profoundly contextual" process with wide discretion of the judges.[5] It balances competing, if not antagonistic principles, objectives and factors.[6] They must balance "all the relevant factors in order to the objectives being pursued in sentencing".[7]

It is "one of the most delicate stages" of a criminal proceedings.[8]

Sentencing as Balancing

The sentencing process involves balancing "the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence".[9]

Duty to Consider All Circumstances

The judge must take into account all the circumstances of the offence and offender.[10]

Analytical Step for a Fit and Proper Sentence

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]

The process of sentencing involves consideration of the following principles with each decision:[13]

  • "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)...";
  • "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 [ie., parity principle], that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (s. 718.2) [ie., restraint principle]".[14]
Miscategorization of Categories of Offences

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.[15]

Absence of Established Ranges of Sentence

Without specific guidance from an appellate level court, the range of possible sentence for an offence is broad.[16]

Absence of Established Paramount Principles

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."[17]

Sentencing Removed From Philosophy or Preference

A sentence should be based on the facts, including the conduct of the accused and not the philosophy or preferences of the judge.[18]

Sentencing as "Art" vs "Science"

Sentencing of often referred to as "art" rather than science.[19]

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".[20]

  1. R v MCA, 1996 CanLII 230 (SCC), [1996] 1 SCR 500, at para 82 ("In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a "just and appropriate" sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender.")
  2. R v Ferguson, 2008 SCC 6 (CanLII), [2008] 1 SCR 96, per McLachlin CJ, at para 15 ("The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction.")
  3. R v Hamilton, 2004 CanLII 5549 (ON CA), 186 CCC (3d) 129, per Doherty JA, at para 87
  4. R v Shropshire, 1995 CanLII 47 (SCC), [1995] 4 SCR 227, per Iacobucci J, at para 46
  5. R v LM, 2008 SCC 31 (CanLII), [2008] 2 SCR 163, per LBel J, at para 51
  6. R v Jacko, 2010 ONCA 452 (CanLII), 256 CCC (3d) 113, per Watt JA, at para 48
  7. R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, per Wagner J, at para 1
  8. Lacasse, ibid., at para 1
  9. R v CAM, 1996 CanLII 230 (SCC), [1996] 1 SCR 500, per Lamer CJ, at para 91
  10. R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J, at para 44
  11. R v DGF, 2010 ONCA 27 (CanLII), 250 CCC (3d) 291, per Feldman JA, at para 18
  12. F(DG), at para 18
  13. R v LM, 2008 SCC 31 (CanLII), [2008] 2 SCR 163, per LeBel J, at para 17
  14. Annotations added
  15. R v JAG, 2008 MBCA 55 (CanLII), 232 CCC (3d) 402, per Monnin JA, at para 9
  16. R v Arcand, 2010 ABCA 363 (CanLII), 264 CCC (3d) 134, per curiam, at para 68
  17. R v Yau, 2011 ONSC 1009 (CanLII), OJ No 720, per MacDonnell J, at para 13
  18. Arcand, ibid., at para 70
  19. e.g. R v Pilon, 2014 ONCA 79 (CanLII), per Goudge JA, at para 18
    R v Arganda (J.R.), 2011 MBCA 54 (CanLII), 268 Man R (2d) 194, per MacInnes JA, at para 38
  20. R v Macintyre-Syrette, 2018 ONCA 259 (CanLII), 46 CR (7th) 78, per Juriansz JA, at para 25

Secondary Principles

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

Other sentencing principles

718.2
[omitted (a)]

(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; 2019, c. 25, s. 293.

CCC


Note up: 718.2

Codification of Common Law

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), 186 CCC (3d) 129, per Doherty JA
    R v DL, 1990 CanLII 5415 (BCCA), 53 CCC 365 (BCCA), per McEachern JA
  2. R v MacDonald, 1997 CanLII 9710 (SK CA), 113 CCC (3d) 418, per Vancise JA and Lane JA, at para 146
  3. MacDonald, ibid., at para 147

Topics

Purpose and Principles of Specific Types of Offences

Case Digests

Enumerated Purposes of Sentencing

This page was last substantively updated or reviewed January 2021. (Rev. # 79559)

General Principles

See also: Purpose and Principles of Sentencing

The purposes of sentencing are laid out in section 718 of the Criminal Code:

Purpose

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

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

CCC


Note up: 718

Fundamental Purpose

The fundamental purpose as stated is that there be "respect for the law" and the maintenance of a "just, peaceful and safe society". [1]

This fundamental purpose will generally take precedent over the welfare of the accused.[2]

How Public is Protected

The public is protected "through sanctions a court imposes upon a person...[e]ach codified objective of sentencing is designed to further the protection of the community."[3]

Objectives Will Vary By Case

There is no single "sentencing objective [that] trumps the other". It is to "the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case."[4]

In the Canadian system, "the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender". None of these factors can be excluded from consideration.[5]

Meaning of Emphasized Objectives

Where statutes or courts declare that certain objectives are to be emphasized as primary, it would then be prohibited for a court to emphasize secondary objectives over the primary ones.[6]

  1. R v Whicher, 2002 BCCA 336 (CanLII), 165 CCC (3d) 535, per Hall JA (3:0)
    R v Priest, 1996 CanLII 1381 (ON CA), 110 CCC (3d) 289, per Rosenberg JA
  2. R v Cole, 2004 CanLII 58282 (QC CM) per Discepola J
    R v Jackson(1977), 21 NSR (2d) 17 (NSCA)(*no CanLII links)
    R v Smith, 1987 CanLII 64 (SCC), [1987] 1 SCR 1045, per Lamer J
    R v Sweeney, 1992 CanLII 4030 (BC CA), 71 CCC (3d) 82, per Hutcheon JA
  3. R v Berner, 2013 BCCA 188 (CanLII), 297 CCC (3d) 69, per curiam
  4. R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J (9:0), at para 43 ("... No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law.")
  5. R v Lyons, 1987 CanLII 25 (SCC), [1987] 2 SCR 309, per La Forest J (5:2), at para 26 ("... In a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender. No one would suggest that any of these functional considerations should be excluded from the legitimate purview of legislative or judicial decisions regarding sentencing.")
  6. R v Friesen, 2020 SCC 9 (CanLII), per Wagner CJ and Rowe J, at para 104

Denunciation and Deterrence (s. 718(a), (b))

Separation from Society - 718(c)

A sentencing judge must take into account "the exigencies of the case" before determining whether total deprivation of liberty is necessary.[1]

Mental Health

Where a person with mental illness poses a risk to the public the court may need to resort to separating the offender from society, rather than focus on treatment.[2]

Treatment in the community is generally preferred over incarceration.[3] However, this is less so for serious offences.[4]

  1. R v Creighton, [1997] OJ No 2220(*no CanLII links) , at para 6
    R v Shahcheraghi, 2017 ONSC 574 (CanLII), per MOrgan J, at para 19
  2. see R v Desjardins-Paquette, 2012 ONCA 674 (CanLII), per curiam
    R v Virani, 2012 ABCA 155 (CanLII), [2012] AJ No 507 (CA), per curiam (3:0), at para 16
  3. R v Lundrigan, 2012 NLCA 43 (CanLII), [2012] NJ No 231 (NLCA), per Rowe JA (3:0), at para 20
  4. see R v JM, [2008] NJ No 262 (P.C.) (*no CanLII links)
    R v Taylor, 2012 CanLII 42053 (NL PC), [2012] NJ No 251 (P.C.), per Mennie J

Rehabilitation - s.718(d)

Section 718(d) sets out the objective of "assist[ing] in rehabilitating offenders".[1] Rehabilitation can be seen to achieve the objective of protecting the public as it assists in preventing further offences.[2]

Rehabilitation Protects the Public

Where there is a "strong chance" of "complete rehabilitation" for a young offender, the imposition of a suspended sentence is a suitable method to protect the public.[3]

Rehabilitation Mitigates Sentence

An offender's "positive potential for rehabilitation" should be to the benefit of the accused on sentence.[4]

In certain cases, where there is a realistic possibility of rehabilitation, the courts may opt not to impose a jail sentence where it would otherwise be appropriate.[5]

Rehabilitation Requires Acceptance of Responsibility

Effective rehabilitation has been seen by some courts as requiring an acceptance of responsibility, likely by way of a guilty plea, and an understanding of the harm done.[6]

Rehabilitation Always a Factor

No sentence should deprive the offender of any hope of rehabilitation.[7]

  1. see also R v Gill, 2006 BCCA 127 (CanLII), 206 CCC (3d) 525, per Mackenzie JA (2:1)
  2. R v Simmons, Allen and Bezzo, 1973 CanLII 1522 (ON CA), 13 CCC 65, per Brooke JA
  3. R v R. v. Thompson(1983), 58 NSR (2d) 21(*no CanLII links) , per Hart JA at 24
  4. R v Gouliaeff, 2012 ONCA 690 (CanLII), per curiam (3:0), at para 12
  5. R v Preston, 1990 CanLII 576 (BC CA), 79 CR (3d) 61, per curiam (5:0)
  6. See R v Lee, 2011 NSPC 81 (CanLII), 979 APR 163, per Derrick J, at para 83
    R v Seguin, [1997] OJ No 5439 at 18 (*no CanLII links)
  7. R v Johnson, 2012 ONCA 339 (CanLII), 285 CCC (3d) 120, per Blair JA, at paras 15 to 25
    R v Parry, 2012 ONCA 171 (CanLII), 289 OAC 201, per Armstrong JA, at paras 17 to 19

Specific Offence Objectives - 718.01 and 718.02

In 2005 and 2009, sections 718.01 and 718.02 were added:

Objectives — offences against children

718.01 When 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.
2005, c. 32, s. 24.

CCC

Objectives — offence against peace officer or other justice system participant

718.02 When a court imposes a sentence for an offence under subsection 270(1) [assault peace officer], section 270.01 [assault peace officer with weapon or causing bodily harm] or 270.02 [aggravated assault of peace officer] or paragraph 423.1(1)(b) [impeding justice system participant in their duties], the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.
2009, c. 22, s. 18.
[annotation(s) added]

CCC

Objectives — offence against certain animals

718.03 When a court imposes a sentence for an offence under subsection 445.01(1) [killing or injuring certain animals], the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

2015, c. 34, s. 4.
[annotation(s) added]

CCC

Objectives — offence against vulnerable person

718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

2019, c. 25, s. 292.1

CCC

Non-Criminal Code Offences

History of the Purpose and Principles of Sentencing

This page was last substantively updated or reviewed January 2016. (Rev. # 79559)

History

In September 1996, Bill C-41, an "Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof", S.C. 1995, c. 22, came into force which created many of the statutory sentencing provisions found in Part XXIII of the Code.

In 2015, section 718 was replaced. The version between 1995 and 2015 stated:

Purpose

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

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

CCC

The amendments replaced s. 718, 718(a) and 718(f). The amendment to s. 718 added the clause "to protect society" as a purpose of sentencing. The amendment to s. 718(a) added the clause "and the harm done to victims or to the community that is caused by unlawful conduct". The amendment to s. 718(f) changed the last "and" to an "or".

Addition of Other Objectives

Section 718.01 relating to objectives for offences against children was added in 2005.

Section 718.02 relating to objectives for offences against peace officers and justice system participants was added in 2009.

Denunication and Deterrence

This page was last substantively updated or reviewed January 2020. (Rev. # 79559)

General Principles

See also: Purpose and Principles of Sentencing and Enumerated Purposes 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;
(b) to deter the offender and other persons from committing offences;

[omitted (c), (d), (e) and (f)]
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


Note up: 718

It is generally considered that as the gravity fothe offence increases the weight to the objectives of deterrence and denunication increase.[1]

Effect Upon Law-abiding vs Chronic Offenders

Denunciation and deterrence are particularly important in sentencing law-abiding offenders as harsh sentences will have a greater effect on those who are otherwise law-abiding when compared to chronic offenders.[2]

Consequence of Emphasis on Denunciation and Deterrence

When an offence requires priority on denunciation and deterrence, the judge must place greater focus on the offence rather than the offender.[3] The purpose is to "better reflect the gravity and wrongfulness of the conduct and the serious harm it causes".[4]

Denunciation and Deterrence of an Intermittent Sentence

The intermittently served jail sentence "strikes a legislative balance" between the objectives of denunciation and deterrence while preserving rehabilitation through the maintenance of employment, family relationships and responsibilities, and community obligations.[5]

  1. R v Ahmed, 2021 ONSC 6968 (CanLII), per Schreck J, at para 15 ("As a general rule, the weight to be attached to the objectives of general deterrence and denunciation will increase as the gravity of the offence increases")
    R v Morris, 2021 ONCA 680 (CanLII), per curiam, at para 69
  2. R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, per Wagner J, at para 73 ("While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinarily law‑abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences. ")
  3. R v LR, 2021 BCPC 7 (CanLII), per Doulis J(complete citation pending) ("When the principles of denunciation and deterrence have priority, the sentencing judge’s focus is more on the offence than on the offender.")
  4. R v KNDW, 2020 MBCA 52 (CanLII), per Chartier CJ, at para 21 ("The reason for this priority focus on conduct is to better reflect the gravity and wrongfulness of the conduct and the serious harm it causes”)
    R v Friesen, 2020 SCC 9 (CanLII)(complete citation pending), at para 82
  5. R v Middleton, 2009 SCC 21 (CanLII), [2009] 1 SCR 674, per Fish J, at para 45 ("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.")

Denunciation - 718(a)

Section 718(a) sets out the sentencing objective of "denounc[ing] unlawful conduct". Denunciation refers to the Court's "communication of society's condemnation of the offender's conduct." The "denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law".[1]

The denunciatory sentence must also "positively instill the basic set of communal values shared by all Canadians as expressed by the Criminal Code."[2]

Denunciation becomes a major consideration in situations where "there is a “high degree of planning and premeditation, and where the offence and its consequences are highly publicized, [so that] like‑minded individuals may well be deterred by severe sentences” [citation omitted] This is particularly so where a victim is a vulnerable person with respect to age, disability, or other similar factors."[3]

Retribution

Retribution is an important consideration in sentencing.[4] It is a principle of sentencing "based on an offender's moral blameworthiness or culpability, and the seriousness of the offence and its circumstances."[5]

Denunciation should not be equated with retribution which is a separate legitimate purpose of sentencing.[6] Nor should retribution be equated with vengance.[7]

Symbolism and Impossible Sentences

The "symbolism" of denunciation cannot be an objective "in and of itself". Consequently, sentences that exceed the persons "foreseeable life serve no functional purpose" and are "purely symbolic".[8]

Character Evidence

It is generally said that character evidence, including that from uncharged-offences, is usually only connected to specific deterrence and not denunciation.[9]

Incarceration Not Necessarily Required

In any case emphasizing "general or specific deterrence and denunciation", "the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law‑abiding society."[10]

The principles of denunciation and deterrence can sometimes be satisfied without incarceration. One of these circumstances is where the publicity of the case provides for public humiliation. [11]

Conditional Sentence

Where denunciation is a paramount consideration a conditional sentence is not necessarily ruled out.[12]

A conditional sentence under s. 742.1 that includes "onerous" conditions may provide some denunciation but incarceration will generally provide greater denunciation.[13]

  1. R v Proulx, 2000 SCC 5 (CanLII), [2000] 1 SCR 61, per Lamer CJ, at para 102
    R v CAM, 1996 CanLII 230 (SCC), [1996] 1 SCR 500, per Lamer CJ ("A sentence which expresses denunciation is simply the means by which these values are communicated.") and 81 ("The principle of denunciation "mandates that a sentence should communicate society's condemnation of that particular offender's conduct ... a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law.")
  2. M(CA), supra, at para 81
  3. R v Latimer, 2001 SCC 1 (CanLII), [2001] 1 SCR 3, per curiam, at para 86
  4. CAM, supra, at para 77 ("It has been recognized by this Court that retribution is an accepted, and indeed important, principle of sentencing in our criminal law. ")
  5. R v Denny, 2016 NSSC 76 (CanLII), per Rosinski J, at para 123
    CAM, supra (retribution "... properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, nothing more")
    see also R v Vienneau, 2015 ONCA 898 (CanLII), per curiam (3:0)
  6. CAM, supra, at para 81 ("Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation...")
  7. CAM, supra, at para 80
  8. R v Klaus, 2018 ABQB 97 (CanLII), 67 Alta LR (6th) 328, per Macklin J, at para 110
    R v McArthur, 2019 ONSC 963 (CanLII), per McMahon J, at para 96
  9. R v Lindsay, 2021 ABQB 839 (CanLII), per Lema J, at paras 40 to 45
  10. R v Safarzadeh-Markhali, 2016 SCC 14 (CanLII), [2016] 1 SCR 180, per McLachlin CJ
  11. R v Ewanchuk, 2002 ABCA 95 (CanLII), 164 CCC (3d) 193, per curiam, at para 65
    R v Ambrose, 2000 ABCA 264 (CanLII), 234 WAC 161, per curiam, at para 134
    R v Kneale, [1999] OJ No 4062 (SCJ)(*no CanLII links) , at para 35
  12. R v Wells, 2000 SCC 10 (CanLII), [2000] 1 SCR 207, per Iacobucci J, at paras 31 to 35
  13. Proulx, supra, at para 102 ("Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.")

Deterrence - 718(b)

Deterrence "refers to the imposition of a sanction for the purpose of discouraging the offender and others from engaging in criminal conduct."[1] When it is targeting the offender in court, it is referred to as "specific deterrence", when it is targeting others, it is "general deterence".[2]

Section 718(b) sets out the objectives of "deter[ing] the offender and other persons from committing offences" We refer to these as the twin objectives of "general deterrence" and "specific deterrence".

Deterrence in the "widest sense" refers to a "sentence by emphasizing community disapproval of an act and branding it as reprehensible has a moral or educative effect and thereby affects the attitude of the public" with the expectation that a person will not likely commit such an act.[3]

In any case emphasizing "general or specific deterrence and denunciation", "the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law‑abiding society."[4]

It is "an error of principle for a trial court to discount the deterrent effect of any particular kind of punishment provided for in the Criminal Code, such as imprisonment, because he or she believes that imprisonment has not proven effective".[5]

Achieving Deterrence

There continues to be controversy outside of the courts about whether deterrence is effective.[6] Some have suggested that the availability of conditional sentences is an concession that general deterrence is "speculative".[7]

Given that incarceration is harsher than a conditional sentence it is considered more effective at providing deterrence.[8]

It has been said that conditional sentences are not necessarily capable of providing general deterrence.[9] This is apparent due to the frequency that CSO are rejected on serious offences.

For a conditional sentence to achieve the goals of "denunciation and general deterrence, the punishment must be meaningful by being visible, sufficiently restrictive, enforceable and capable of attracting stern sanction for failure to comply with the conditions."[10]

It is an error of law for a judge to increase the sentence to achieve specific deterrence without considering whether the sentence is still proportionate.[11]

  1. R v BWP; R v BVN, 2006 SCC 27 (CanLII), [2006] 1 SCR 941, per Charron J, at para 2
  2. BVN, ibid. at para 2 ("When deterrence is aimed at the offender before the court, it is called “specific deterrence”, when directed at others, “general deterrence”.)
  3. R v Roussy, [1977] OJ No 1208 (Ont. C.A.)(*no CanLII links) , per Zuber JA, at para 5
  4. R v Safarzadeh-Markhali, 2016 SCC 14 (CanLII), [2016] 1 SCR 180, per McLachlin CJ
  5. R v Tran, 2010 ABCA 317 (CanLII), 263 CCC (3d) 512, per Moen JA, at para 12
    R v Song, 2009 ONCA 896 (CanLII), 249 CCC (3d) 289, per curiam, at paras 8 to 12
  6. e.g. see BWP, supra, at para 3
  7. R v Wismayer, 1997 CanLII 3294 (ON CA), CR (5th) 248 (CA), per Rosenberg JA (3:0), at paras 49 to 50
    Biancofiore, supra, at p. 356 (cited to CCC)
  8. R v Proulx, 2000 SCC 5 (CanLII), [2000] 1 SCR 61, per Lamer CJ, at para 107 ("Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence")
  9. Frost, supra ("The question is whether a conditional sentence is capable of providing general deterrence. ...The answer is clearly no.")
  10. Wismayer, supra, at para 52
  11. Rogers, supra, at para 43

Specific Deterrence

Specific deterrence targets the specific offender before the court.[1]

The character and background of the offender, including prior bad conduct, is relevant to analysis for specific deterrence.[2]

Character evidence is admissible to assess the danger to the community while serving the sentence.[3]

Prior Criminal Record

Judges must avoid punishing an accused again for previous convictions.[4]

However, a record can be used to determine the "normative character of the accused" and may be viewed as aggravating.[5] It is also used to assess how the protection of the public can be best achieved and what are the prospects of rehabilitation.[6]

  1. R v BWP; R v BVN, 2006 SCC 27 (CanLII), [2006] 1 SCR 941, per Charron J, at para 2
  2. BM, 2008 ONCA 645(complete citation pending) at para 11 ("prior abusive conduct may … be relevant at the sentencing stage to show the character and background of the offender as it relates to the principles of sentencing: ... . The background and character of the offender may be considered, for example, in order to assess the need for individual deterrence, rehabilitation, or the protection of the public. Such information is essential for crafting a sentence suitable for a particular offender.")
    R v. Edwards (2001), 2001 CanLII 24105 (ON CA), 155 C.C.C. (3d) 473 (Ont. C.A.) at para. 63(complete citation pending)
    R v. Roberts (2006), 2006 ABCA 113 (CanLII), 208 C.C.C. (3d) 454 (Alta. C.A.) at para. 28(complete citation pending)
  3. R v Flis, 2003 ABQB 44, per Greckol J(complete citation pending), at para 36 ("Such evidence may be admissible to help assess the danger to the community posed by the offender while serving his sentence in the community in terms of the risk of his failing to comply with court orders or re-offending")
  4. R v Wright, 2010 MBCA 80 at para 16(complete citation pending)
  5. Wright, ibid. at para 16 ("a prior criminal record can assist that judge in determining the normative character of that accused and, when that record shows repeated related criminal behaviour, it may be viewed as an aggravating factor (thereby causing the sentence to be increased along the appropriate range of sentences) in order to better address certain objectives of sentencing more particular to the offender, such as specific deterrence, protection of society and/or the prospects of rehabilitation.)
  6. Wright, ibid. at para 16

General Deterrence

General deterrence targets potential criminals by encouraging them not to "engage in criminal activity because of the example provided by the punishment imposed on the offender." [1] The objective of general deterrence as a factor will normally result in the offender being “punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity.” [2]

When general deterrence is emphasized, the deterrent effect of incarceration can be somewhat speculative and so should be used with great restraint.[3] A lengthy sentence is not the only way of achieving the objective of general deterrence.[4]

Crimes committed out of desperation or addiction, such as much drug trafficking, are not offences for which general deterrence has much effect.[5]

Crimes motivated by profit, which can also be drug trafficking, will be addressable by general deterrence.[6]

Offences against recognized classes of vulnerable victims require the Courts to heighten their emphasis on general deterrence.[7]

Vulnerable classes have included young female victims of distribution of intimate images.[8]

A court cannot impose a "grossly disproportionate" sentence for the purpose of sending "send a message to discourage others from offending".[9]

Character Evidence

It is generally said that character evidence, including that from uncharged-offences, is usually only connected to specific deterrence and not general deterrence.[10]

General Deterrence Without Custody

In some cases, the use of a suspended sentence, with the risk of jail on breach of conditions can provide general deterrence.[11]

Publicity

The degree to which the case is covered by media is relevant to general deterrence.[12] Where there is no publicity of the case at all then there can be no general deterrence.[13]

  1. R v BWP; R v BVN, 2006 SCC 27 (CanLII), [2006] 1 SCR 941, per Charron J, at para 2
    R v McGinn, 1989 CanLII 4784 (SK CA), 49 CCC (3d) 137, per Cameron JA, (general deterrence is "punishment of the offender for what other might do")
  2. BWP, supra, at para 2
  3. R v Biancofiore, 1997 CanLII 3420 (ON CA), 119 CCC (3d) 344, per Rosenberg JA, at para 23
  4. See R v Morrissette, 1970 CanLII 642 (SK CA), 1 CCC (2d) 307, per Culliton J, at 310
  5. R v Frost, 2012 NBCA 94 (CanLII), 1024 APR 305, per Quigg JA (3:0) ("these crimes are not committed out of desperation or the result of an addiction, crimes for which general deterrence would be of little effect")
  6. Frost, ibid. ("cases such as this, where profit is the offender’s motivation, a significant penalty is generally a deterrent to others who might consider whether or not to undertake such criminal activity")
  7. R v Petrovic, 1984 CanLII 2003 (ON CA), 47 OR (2d) 97, per Lacourciere JA
    R v Inwood, 1989 CanLII 263 (ON CA), 48 CCC (3d) 173, per Howland CJ
  8. R v Zhou, 2016 ONCJ 547 (CanLII), [2016] OJ No 4641, per Ray J
    R v CNT, 2015 NSPC 43 (CanLII), per Atwood J, at para 9 overturned at 2016 NSCA 35 (CanLII), per curiam on other grounds
  9. R v Nur, 2015 SCC 15 (CanLII), [2015] 1 SCR 773, at para 45
  10. R v Lindsay, 2021 ABQB 839 (CanLII), per Lema J, at paras 31 to 39
  11. R v R. v. Thompson (1983), 58 NSR (2d) 21 (NS CA){{{2}}}(*no CanLII links) , per Hart JA ("In my opinion when there is a strong chance of complete rehabilitation of the young offender the suspension of sentence with the imposition of controls to bring about that rehabilitation is a suitable method of protecting the public. Although the general deterrence of a period of imprisonment does not appear on the surface of this arrangement it must always be remembered that it is there. The offender who chooses to avoid the controls chosen for his rehabilitation may very well end up in prison, and as long as the public is assured of this then all the proper elements of sentencing are there.")
  12. R v Matheson, 2007 NSPC 43 (CanLII), 820 APR 174, per Derrick J, at para 27
    R v Clarke, [1990] NSJ 427 (NSSC)(*no CanLII links) , per Nunn J, ("If it receives no publicity then there is no general deterrence, other than the several people who may be in court at the time the sentence is given"
  13. Clarke, ibid.

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


Note up: 718.1

The purpose of proportionality is founded in "fairness and justice". It is to prevent unjust punishment for the "sake of the common good".[2]

Proportionality as a Combination of Gravity of Offence and Responsibility of Offender

Proportionality relates to both gravity of the offence and the responsibility of the offender.[3]

The sentence must be no greater than the offender's moral culpability.[4] This is to ensure that there is "justice for the offender".[5] The severity of a sanction should reflect the seriousness and gravity of the criminal conduct. [6] And when the sentence is not adequate to address the seriousness of the offence then it is not proportionate.[7]

Proportionality as a Combination of Individualization and Parity

A proportionate sentence has been described as a "reconciliation" between the necessary individualization and necessary party of a sentence.[8]

The principle of "parity" is an expression of the broader principle of proportionality.[9]

Proportionality and a Just Sentence

Proportionality is a fundamental principle of sentences that is "the sine qua non of a just sanction".[10]

Where the sentence is not proportionate it is not just.[11]

A Just Sentence Involves Community and Victim

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.[12]

A court may be in error if it fails to consider the "needs and conditions" of the community in which the offence occurred.[13]

Proportionality, Multiple Offences and Totality

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".[14]

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

History

The inclusion of s. 718.1 in 1996 with An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 (Bill C-41) did not create the principle but rather codified a "central tenent of the sentencing process".[16]

  1. R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J (9:0), at para 40
  2. R v Priest, 1996 CanLII 1381 (ON CA), , 30 OR (3d) 538, 110 CCC (3d) 289, per Rosenberg JA, at pp. 546-47 (cited to OR), at pp. 297-98 (CCC) ("The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.")
  3. R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, per Wagner J (5:2), at paras 51 to 54
    R v Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 SCR 433, per LeBel J (6:1), at para 36 ("The fundamental principle of sentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender.") and at para 38 ("In every case, an appellate court must be satisfied that the sentence under review is proportionate to both the gravity of the offence and the degree of responsibility of the offender.")
  4. Nasogaluak, supra, at paras 40 to 42
    R v CAM, 1996 CanLII 230 (SCC), [1996] 1 SCR 500, per Lamer CJ, 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), [1990] 2 SCR 633, per Lamer CJ (“punishment must be proportionate to the moral blameworthiness of the offender”)
  5. Ipeelee, supra, at para 37 ("...the principle serves a limiting or restraining function and ensures justice for the offender.")
  6. Arcand, supra, at para 48 (“severity of sanction for a crime should reflect the...seriousness of the criminal conduct”)
    CAM, supra, at para 40
    Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 SCR 486 at 533, 24 DLR (4th) 536, per Lamer J ("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.")
  7. Arcand, supra, at para 54
  8. R v Evans, 2019 ONCA 715 (CanLII), 377 CCC (3d) 231, per Watt JA, at para 275 (“[w]e determine proportionality both on an individual basis, by looking at the individual offender and his or her offence or offences, and also by comparison with sentences imposed on similar offenders for similar offences committed in similar circumstances. To be proportionate, a sentence must reconcile both individualization and parity of sentences”)
  9. R v Friesen, 2020 SCC 9 (CanLII), per Wagner CJ and Rowe J, at paras 30 to 32
  10. R v Safarzadeh-Markhali, 2016 SCC 14 (CanLII), 334 CCC (3d) 1, per McLachlin CJ (9:0), at paras 70 to 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")
    Ipeelee, supra, at para 37
  11. R v Arcand, 2010 ABCA 363 (CanLII), 264 CCC (3d) 134, per curiam, at para 52 (proportionality is “the overarching principle since a disproportionate sanction can never be a just sanction.”)
  12. 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."), at para 57
  13. CAM, supra ("The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community")
  14. R v Guha, 2012 BCCA 423 (CanLII), 98 CR (6th) 177, per Smith JA (3:0), at para 39
  15. R v Sidwell, 2015 MBCA 56 (CanLII), 319 Man R (2d) 144, per Steel JA (3:0), 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")
  16. Ipeelee, supra, at para 26

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), 269 CCC (3d) 227, per Watt JA (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), Charron, per Charron J
    R v Briand and Matthews (No. 3), 2010 NLCA 67 (CanLII), [2010] NJ No 339 (CA), per Rowe JA (3:0)
    R v Shoker, 2006 SCC 44 (CanLII), [2006] SCJ No 44, per Charron J (7:0)
    R v Hamilton, 2004 CanLII 5549 (ON CA), [2004] OJ No 3252, per Doherty JA (3:0) 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 NSR (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), 290 CCC (3d) 506, per Berger JA (2:1), at para 12
  4. R v CAM, 1996 CanLII 230 (SCC), [1996] 1 SCR 500, per Lamer CJ (9:0), at para 92
  5. R v Shropshire, 1995 CanLII 47 (SCC), [1995] 4 SCR 227, per Iacobucci J (9:0), at para 46
  6. Hamilton, supra, at para 1
  7. R v Butler, 2008 NSCA 102 (CanLII), 239 CCC (3d) 97, per Bateman JA
  8. R v Innes, 2008 ABCA 129 (CanLII), 429 AR 164, per curiam (3:0)
  9. R v JCK, 2013 ABCA 50 (CanLII), 543 AR 242, per curiam (2:1), 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.")

Gravity of the Offence

Sanctions must be scaled according to the seriousness of the conduct.[1]

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."[2]

Proportionality can be looked at as having the two dimensions of "ordinal proportionality" and "cardinal proportionality". The former being the relative severity of punishment measured against offences any other type. The latter being the relative severity measured against the other categories of gravity within a particular offence.[3]

Gravity does not merely reflect the seriousness of the offence based on maximum available penalty, but also the "extent of the harm caused by the commission of the offence".[4]

When considering harm, it is not limited to the harm upon the victim. The "[h]arm to one member of the community affects the rights and security of others".[5]

  1. R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, per Wagner J (5:2), at paras 87 to 89
    R v Arcand, 2010 ABCA 363 (CanLII), 264 CCC (3d) 134, per curiam, at para 49 ("sactions should be scaled according to the seriousness of the criminal conduct".)
  2. R v Hamilton, 2004 CanLII 5549 (ON CA), 186 CCC (3d) 129, per Doherty JA (3:0), at para 93
  3. Arcand, supra, at paras 49 to 52
  4. Hamilton, supra, at para 90 ("The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.")
  5. Template:CanLLIIRP, at para 179

Moral Culpability, Responsibility and Blameworthiness

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

Related to this principle, "those causing harm intentionally [should] be punished more severely than those causing harm unintentionally".[3]

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.[4] Consequently, it is incorrect to equate the same level of moral blameworthiness between impaired driving and impaired driving causing death.[5] A more serious consequence then warrants a greater penalty.[6]

  1. R v Paradee, 2013 ABCA 41 (CanLII), 542 AR 222, per Paperny JA (3:0), at para 9
    see also R v Hamilton, 2004 CanLII 5549 (ON CA), 186 CCC (3d) 129, per Doherty JA, at para 91 ("The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.")
  2. Paradee, ibid., at para 10
  3. Martineau, supra
  4. R v DeSousa, 1992 CanLII 80 (SCC), [1992] 2 SCR 944, per Sopinka J (5:0), 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")
  5. e.g. discussion at R v Smith, 2013 BCCA 173 (CanLII), 296 CCC (3d) 386, per Bennett JA (3:0), at paras 40 to 46
  6. Smith, ibid., at para 45

Totality Principle

General Principles

See also: Proportionality

The common law principle to totality is found codified in s. 718.2(c), which states as follows:

Obligations of court

718.2 A court that imposes a sentence shall also take into consideration the following principles:

[omitted (a) and (b)]
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
[omitted (d) and (e)]

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; 2019, c. 25, s. 293.

CCC


Note up: 718.2

Totality as Proportionality

The principle of totality is a component of the principle of proportionality.[1] In some sense, totality is a "subsidiary" of proportionality.[2]

Purpose

The totality principle was "intended to avoid sentences that cumulatively are out of proportion to the gravity of the offences"[3]

The principle is also seen as "in service of" the principle of restraint.[4]

  1. R v Sidwell (KA), 2015 MBCA 56 (CanLII), 8 WWR 494, per Steel JA, 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. R v May, 2012 ABCA 213 (CanLII), 102 WCB (2d) 615, per curiam, at para 7
  3. R v DFP, 2005 NLCA 31 (CanLII), 197 CCC 498 (NLCA), per Welsh JA (2:1), 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.”)
  4. R v Ranger, 2014 ABCA 50 (CanLII), 569 AR 39, per curiam, at para 50

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. [1] If the total sentence is excessive the court must adjust the sentence so that the "total sentence is proper". [2]

The sentence should not deprive the offender of "any hope of ... rehabilitation".[3]

Sentences Exceeding the Ranges

The sentence may violate the totality principle where the global sentence considerably exceeds the "normal" level of the most serious of the individual offences.[4]

The sentence may also violate the principle where the global sentence "exceeds what is appropriate given the offender's overall culpability.[5]

When Offences are Concurrent

Where the multitude of offences are determined to run concurrently to each other, the judge is then prohibited from using the totality principle.[6]

Offences Not Before the Court

While not always the case, an offender's past convictions and sentences may be relevant to the calculation of totality.[7]

Totality Applied When Sentencing for Single Offence

The totality principle must still be considered when the sentencing judge is faced with a single offence if at the time the offender is serving a previous sentence.[8] Only the unexpired portion of the previous sentence should be considered.[9]

Age of Offender

Where the offender is older, the sentence should not exceed their expected lifespan.[10]

  1. R v M(CA), 1996 CanLII 230 (SCC), [1996] 1 SCR 500, per Lamer CJ, at para 42
  2. R v Keshane, 2005 SKCA 18 (CanLII), 257 Sask R 161, per Cameron JA
    R v Hicks, 2007 NLCA 41 (CanLII), 221 CCC (3d) 458, per Rowe JA
    R v Murray, 2009 BCCA 426 (CanLII), per Bennett JA, at para 13
  3. R v Anderson, 2020 BCCA 297 (CanLII), per Bennett JA, at para 89
    R v Johnson, 2012 ONCA 339 (CanLII), 285 CCC (3d) 120, per Blair JA, at para 18
  4. R v ETP, 2001 MBCA 194 (CanLII), 162 CCC (3d) 481, per Philp JA
  5. R v Wharry, 2008 ABCA 293 (CanLII), 234 CCC (3d) 338, 437 AR 148, per Watson JA, at para 35
    R v Abrosimo, 2007 BCCA 406 (CanLII), 225 CCC (3d) 253, per Frankel JA, at paras 20 to 31
    see also R v Tiegs, 2012 ABCA 116 (CanLII), [2012] AJ No. 378, per Watson JA
  6. R v Skinner, 2016 NSCA 54 (CanLII), NSJ No 255, per Saunders JA, at para 49 ("Having already determined that Mr. Skinner’s sentence for the June 25 offences would be treated as concurrent to the June 26 offences, Judge Derrick was prohibited from applying the totality principle as a basis for deciding “to arbitrarily reduce” Mr. Skinner’s sentence by 2½ years.")
  7. R v Barrett, 2012 NLCA 46 (CanLII), 291 CCC (3d) 213, per Hoegg JA, at para 24 ("In ordinary circumstances, a judge who is imposing sentence for multiple offences conducts his or her totality analysis on considerations relating to sentencing for the multiple offences which are before him or her and does not usually consider a sentence previously imposed by another judge. This is not to say that consideration of an offender’s past convictions and sentences is not relevant to his sentencing for the current offences. ")
  8. R v Johnson, 2012 ONCA 339 (CanLII), 285 CCC (3d) 120, per Blair J, at para 19 ("There are at least two types of situation where the principle of totality in the context of consecutive sentences may arise. The first is where a single judge must deal with a series of offences, ... . A second – which is the case here – concerns a situation where a sentencing judge must impose a fit sentence on an offender convicted of one or more offences where that offender is at the same time serving the remainder of a sentence for a previous conviction or convictions.")
  9. Johnson, ibid., at paras 22 to 25
  10. R v M(CA), 1996 CanLII 230 (SCC), [1996] 1 SCR 500, at para 74
    Anderson, supra, at para 89

Effect of Totality

The only effect of totality should be that the sentence "cannot exceed the overall culpability of the offender".[1]

Totality will have a balancing effect when applied after considering the denunciatory and deterrent objectives.[2]

It should not have the effect of "wip[ing] out punishment for serious aggravating factors".[3]

  1. R v Khawaja, 2012 SCC 69 (CanLII), 290 CCC (3d) 361, per McLachlin CJ, at para 126
    Ranger, ibid., at para 50
  2. e.g. R v Foley, 2013 ONCJ 26 (CanLII), OJ No 4, per Renaud J, at paras 57, 58
  3. Ranger, supra, at para 50
    R v Lemmon, 2012 ABCA 103 (CanLII), 285 CCC (3d) 419, 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.”)

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". [1] Generally, the other offences are "essentially modifiers or adjectives" that deserve concurrent sentences.[2]

  1. R v May, 2012 ABCA 213 (CanLII), 102 WCB (2d) 615, per curiam, 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")
  2. May, ibid., 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]

Analysis (BC)

The question of imposing concurrent or consecutive sentences should involved three steps:[4]

  1. determine the appropriate sentence for each offence;
  2. determine whether the sentences should be consecutive or concurrent; and
  3. assess the "overall moral culpability of the offender in relation to the offences" and determine "whether the sentence is proportionate or whether it is unduly long or harsh". Where it is too long, the sentence should be adjusted until it is proportionate.
Analysis (NS)

In Nova Scotia, it was recommended that sentencing judges consider totality as follows:[5]

  • Fix a sentence for each offence;
  • Determine which should be consecutive and which, if any, concurrent;
  • Take a final look at the aggregate sentence; and
  • Only if the total exceeds what would be a just and appropriate sentence is the overall sentence reduced.
Analysis (NFLD)

In Newfoundland and Labrador Court of Appeal the "guidelines for the analytical approach to be taken" when considering applying the principle of totality:[6]

  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."


Worst Offence First

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.[7]

  1. R v Newhook, 2008 NLCA 28 (CanLII), 846 APR 190, per Rowe JA
    R v Li, 2009 BCCA 85 (CanLII), 267 BCAC 77, per D Smith JA, at paras 26 to 28
    R v Lapointe, 2010 NBCA 63 (CanLII), 936 APR 129, per Robertson JA, at para 32
  2. R v Lombardo, 2008 NSCA 97 (CanLII), 237 CCC (3d) 349, per Saunders JA
  3. e.g. R v Adams, 2010 NSCA 42 (CanLII), 255 CCC (3d) 150, per Bateman JA, at para 23
  4. R v Anderson, 2020 BCCA 297 (CanLII), per Bennett JA, at para 90
    R v Li, 2009 BCCA 85 (CanLII), 267 BCAC 77, per Smith JA
    R v Joseph, 2010 BCCA 525 (CanLII), per Prowse JA
  5. R v Adams, 2010 NSCA 42 (CanLII), 255 CCC (3d) 150, per Bateman JA
    R v Skinner, 2016 NSCA 54 (CanLII), NSJ No 255, per Saunders JA, at para 41
  6. R v Hutchings, 2012 NLCA 2 (CanLII), 282 CCC (3d) 104, per Green CJ, at para 83
    R v Murray, 2009 BCCA 426 (CanLII), per Bennett JA, at para 13
  7. May, supra, at para 8
    see e.g. R v Fait, 1982 ABCA 148 (CanLII), 68 CCC (2d) 367, 37 AR 273 (CA), per Laycraft JA
    R v Raber, 1983 ABCA 325 (CanLII), (1983) 57 AR 360, per curiam
    R v Keough, 2012 ABCA 14 (CanLII), 519 AR 236, per Slatter JA (2:1), at paras 17, 26 to 30, but cf. paras 58 to 63 from dissent

Sprees

See also: Concurrent and Consecutive Sentences

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), 102 WCB (2d) 615, per curiam, at para 9
    R v Johnas, 1982 ABCA 331 (CanLII), 2 CCC (3d) 490, 41 AR 183, per curiam
  2. May, supra, at para 10

Parity Principle

This page was last substantively updated or reviewed August 2021. (Rev. # 79559)

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] Section 718.2 states that :

718.2 A court that imposes a sentence shall also take into consideration the following principles:

[omitted (a)]
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
[omitted (c), (d) and (e)]

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; 2019, c. 25, s. 293.
[annotation(s) added]

CCC


Note up: 718.2

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]

To fulfil this requirement sentencing judges must consider the "range" of sentences of "similar offenders for similar offences committed in similar circumstances".[4]

The judge is not required to apply the parity principle with respect to the co-accused where he is not provided with necessary information to undertake a meaningful comparison.[5]

It has been suggested that precedent should not be treated as binding. They can "inform" a sentence bu are merely "historical statements" of penalties.[6]

Purpose of Parity

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".[7] It does not however override the individualized approach to sentencing. [8]

Parity promotes "consistency, fairness, and rationality" in sentencing.[9]

It also "gives meaning to proportionality".[10]

Parity Does Not Trump Proportionality

The parity principle "does not preclude disparity where warranted by the circumstances, because of the principle of proportionality".[11] The principle of parity is "secondary to the fundamental principle of proportionality".[12]

Parity and Individualization of Sentence

The parity principle is complementary to the individualization of the sentencing process. Where a sentence must be tailored to the individual, circumstances that are similar should be treated similarly, while dissimilar cases case justifiably be treated differently.[13]

Court of Appeal Sets Range

One of the goals of the provincial courts of appeal is to maintain parity in sentence and minimize the differences in sentencing approaches.[14] However, the judges must also be sensitive to the needs of local community.[15]

Duty to Keep With Precedent

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." [16]

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.[17]

Mandatory Minimums

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.[18]

Deviations from Range Must be Justified

A judge is permitted to deviate from the range where it is permitted in accordance with the principles and objectives of sentencing.[19]

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."[20]

No Such Thing as a Single Appropriate Sentence

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".[21]

Appellate Review

In certain cases a failure to conduct a parity analysis may be a legal error.[22]

  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), 240 CCC (3d) 421, per Robertson JA, at para 54
  3. R v Roche, 1990 CanLII 6483 (NL CA), 84 Nfld. & PEIR 1, per Goodridge JA, at para 10
  4. R v Tuglavina, 2011 NLCA 13 (CanLII), [2011] NJ No 25 (NLCA), per Wells JA
    Nash, supra, at para 54
  5. R v Pearce, 2021 ONCA 239 (CanLII), per curiam, at para 18
  6. R v Laite, 2017 CanLII 74199 (NL PC), per Gorman J
  7. R v WE, 2010 NLCA 4 (CanLII), 251 CCC (3d) 213, per Rowe JA, at para 33 quoting Clayton C. Ruby, Sentencing, 7th ed. (Markham, ON: LexisNexis, 2008), at p. 33
    R v Rawn, 2012 ONCA 487 (CanLII), 34 MVR (6th) 175, per Epstein JA, at para 18
  8. R v Knife, 1982 CanLII 2569 (SKQB), 16 Sask R 40 (CA), per Cameron JA, at p. 43
  9. R v Robinson, 2021 NSPC 20 (CanLII), per Buckle J, at para 47
  10. R v Friesen, 2020 SCC 9 (CanLII), 391 CCC (3d) 309, at para 33(complete citation pending)
    R v Dawson; R. v. Ross, 2021 NSCA 29 (CanLII), at para 94
  11. R v LM, 2008 SCC 31 (CanLII), [2008] 2 SCR 163, per LeBel J, at para 36
  12. R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, per Wagner J, at para 92
  13. R v Pham, 2013 SCC 15 (CanLII), [2013] 1 SCR 739, per Wagner J, at para 9 ("As a corollary to sentence individualization, the parity principle requires that a sentence be similar to those imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b) of the Criminal Code). In other words, “if the personal circumstances of the offender are different, different sentences will be justified” (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at §2.41).")
  14. R v Arcand, 2010 ABCA 363 (CanLII), 264 CCC (3d) 134, per Fraser and Watson JJA
    R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J
  15. Nasogaluak, ibid.
  16. R v Oake, [2010] NJ No 94 (NLCA)(*no CanLII links)
  17. Oake, supra
    cf. 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.”)
  18. R v KDH, 2012 ABQB 471 (CanLII), 102 WCB (2d) 621, per Manderscheid J, at paras 6 to 8
  19. R v Nasogaluak, 2010 SCC 6(complete citation pending) at 44 ("A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.")
  20. R v Cluney, 2013 NLCA 46 (CanLII), NJ No 256, per Barry JA
  21. R v M(CA), 1996 CanLII 230 (SCC), [1996] 1 SCR 500, per Lamer CJ , at para 92
  22. R v Hynes, 2022 NSCA 51 at para 144(complete citation pending)
    R. v. Hawkins, 2011 NSCA 7
    R. v. White, 2020 NSCA 33

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), 108 CCC (3d) 83, per Goldie JA, at para 23
  2. R v Johnston, 2011 NLCA 56 (CanLII), 274 CCC (3d) 388, per White JA, at para 36
    R v O’Flaherty, 1997 CanLII 14649 (NL CA), 155 Nfld. & PEIR 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, supra, at para 42
    R v Murphy, 2001 NLCA 16 (CanLII), 672 APR 181, 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), AJ No 936, per curiam , at para 10
  2. R v Knife (1982), 16 Sask R 40 (CA)(*no CanLII links) , at p. 43
  3. R v Issa (T.), (1992), 57 OAC 253(*no CanLII links) , at para 9
    R v Rawn, 2012 ONCA 487 (CanLII), 34 MVR (6th) 175, 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), 78 WCB (2d) 802, 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
    R v Athwal, 2017 ONCA 222 (CanLII), per Juriansz JA
    R v Deol, 2017 ONCA 221 (CanLII), 352 CCC (3d) 343, per Juriansz JA
    R v Perciballi, 2001 CanLII 13394 (ON CA), [2001], 54 OR (3d) 346, per Charron JA

See Also

Restraint Principle

This page was last substantively updated or reviewed January 2020. (Rev. # 79559)

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 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; 2019, c. 25, s. 293.

CCC


Note up: 718.2

When Retaint is to be Used

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]

Function of Principle

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

Parliament codified the principle of restraint in order to limit the use of incarceration.[4]

Problem with Overly Harsh Sentences

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".[5]

Least Intrusive Sentence

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."[6]

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.[7]

Objectives of Sentencing

The principle also requires the judge to consider rehabilitation in setting the length of the sentence.[8]

"General deterrence cannot be the sole consideration. Appropriate consideration must be given to the rehabilitation of the offender."[9]

Mental Health as Factor

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), 113 CCC (3d) 418, per Lane JA, at para 147, 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 CanLII 679 (SCC), [1999] 1 SCR 688, per Cory and Iacobucci JJ, at paras 37 to 41
  2. R v May, 2012 ABCA 213 (CanLII), 102 WCB (2d) 615, per curiam (3:0)
  3. R v CAM, 1996 CanLII 230 (SCC), [1996] 1 SCR 500, per Lamer CJ, at para 80
  4. R v Batisse, 2009 ONCA 114 (CanLII), 241 CCC (3d) 491, per Gillese JA (2:1), at para 35
  5. R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, 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.")
    R v Thompson, 2017 NSPC 18 (CanLII), per Derrick J, at para 73
  6. R v Hamilton, 2004 CanLII 5549 (ON CA), 186 CCC (3d) 129, per Doherty JA, at para 96
  7. R v Vandale, 1974 CanLII 1610 (ON CA), 21 CCC (2d) 250 (ONCA), 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.")
  8. Batisse, supra, at para 33
  9. R v Blanas, 2006 CanLII 2610 (ON CA), 207 OAC 226, per curiam, at para 5
  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.[4]

  1. R v Stein, 1974 CanLII 1615 (ON CA), 15 CCC (2d) 376 (ONCA), 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 OR (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 OR (3rd) 538, per curiam (3:0) - courts should consider non-custodial sentences in appropriate cases of first time offenders
  2. R v Laschalt, 1993 CanLII 14689 (MB CA), 81 CCC (3d) 154, per Sinclair JA, at p. 59 ("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), 241 CCC (3d) 491, per Gillese JA, at para 32
    Priest, supra, at p. 545
  4. R v Perlin, [1977] N.S.J. No 548(*no CanLII links) , 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), 900 APR 118, per S Macdonald J citing Perlin, supra, at para 31

See Also

Jump, Step and Gap Principles

This page was last substantively updated or reviewed January 2014. (Rev. # 79559)

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), 275 CCC (3d) 545, per Saunders JA, at para 26
    Frigault v R, 2012 NBCA 8 (CanLII), 991 APR 266, per Quigg JA, at para 17
    R v Robitaille, 1993 CanLII 2561 (BCCA), 31 BCAC 7, per Lambert JA, 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 "ladder principle" or 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), 822 APR 351, per Cameron JA
    R v Muyser, 2009 ABCA 116 (CanLII), 457 AR 216, per Fraser JA
    R v Murphy, 2011 NLCA 16 (CanLII), [2011] NJ No 43 (CA), per Welsh JA
  2. Muyser, supra, at para 8
  3. White, supra, at paras 5 to 8
  4. Muyser, supra
  5. R v Borde, 2003 CanLII 4187 (ON CA), 63 OR (3d) 417, per Rosenberg JA, at para 39 ("[the jump] principle cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past. It has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.")
    R v Courtney, 2012 ONCA 478 (CanLII), 294 OAC 346, per curiam
  6. Re Morand and Simpson, 1959 CanLII 235 (SK CA), (1959), 30 CR 298 (Sask CA), per Martin CJ
    See R v Clark, 2005 ABPC 40 (CanLII), per Lamoureux J citing Ruby on Sentencing
  7. R v Sloane, [1973] 1 N.S.W.L.R. 202(*no CanLII links)
    See Clark, supra 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), 63 OR (3d) 417, per Rosenberg JA, 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 JG, 2005 CanLII 36170 (ON SC), per R. Smith J.
    R v Courtney, 2012 ONCA 478 (CanLII), 294 OAC 346, per curiam, at paras 10 to 11
  2. R v Muyser, 2009 ABCA 116 (CanLII), 457 AR 216, per Fraser JA, at para 9
  3. Frigault v R, 2012 NBCA 8 (CanLII), 991 APR 266, per Quigg JA
  4. R v Lohnes, 2007 NSCA 24 (CanLII), 217 CCC (3d) 392, per Roscoe JA, at paras 40, 42{{{3}}}
    R v Thomson, 2013 BCCA 220 (CanLII), per Harris JA, 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 CanLII 16828 (ONSC), , 2007 CarswellOnt 3072 (S.C.), per Molloy J, at paras 8 to 12
  6. R v Blair, 2005 ABCA 414 (CanLII), 380 AR 383, per Costigan JA, 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), 70 WCB (2d) 287, per Ryan JA, 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]

The purpose of the principle is to ensure that an offender "who has rectified past behaviour for a substantial period of time should be considered as having better prospects for individual deterrence and rehabilitation".[3]

  1. R v Smith, 2006 NSCA 95 (CanLII), 211 CCC (3d) 107, per Saunders JA, at para 36: extensive citation from Ruby on Sentencing
  2. see §8.83 of Clayton Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc, 2008)
  3. R v MacLeod, 2004 NSCA 31 (CanLII), 182 CCC (3d) 470, per Cromwell JA, at para 25

See Also

Aboriginal Sentencing Principles and Factors

This page was last substantively updated or reviewed January 2019. (Rev. # 79559)

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 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."[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]

Gladue Report

A Gladue Report is a form of pre-sentence report that addresses the necessary Gladue factors the sentencing judge must consider. They are not expert reports.[15]

A Gladue report must have "balance and objectivity".[16] It still may make suggestions about recommended programs or sentences, however, should avoid making "strong" recommendations for specific sentences.[17]

  1. see s. 718.2(e)
    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), [2012] 1 SCR 433, per LeBel J, at paras 73 to 74
    R v Kakekagamick, 2006 CanLII 28549 (ON CA), [2006] OJ No 3346, 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), 164 CCC (3d) 569, per curiam
    R v Jacko, 2010 ONCA 452 (CanLII), 256 CCC (3d) 113, per Watt JA
  13. R v Borde, 2003 CanLII 4187 (ON CA), 172 CCC (3d) 225, per Rosenberg JA
  14. R v Hamilton, 2004 CanLII 5549 (ON CA), 186 CCC (3d) 129, per Doherty JA overturning 2003 CanLII 2862 (ONSC), per Hill J
  15. R v Lawson, 2012 BCCA 508 (CanLII), 294 CCC (3d) 369, per MacKenzie JA, at paras 22 26 to 28, 33
  16. Lawson, ibid.
  17. Lawson, supra, at para 28("offer suggestions or proposals about potential restorative or rehabilitative programs or sentences, and particularly those tailored to Aboriginal offenders, they should not strongly recommend specific sentences.")

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 mere assertion of aboriginal heritage is not sufficient to engage s. 718.2(e). As otherwise, it would create a "race-based discount on sentence".[6] It is also insufficient to merely point to the "systemic and background factors affecting Aboriginal people in Canadian society".[7]

The factors apply to all offences, no matter how serious they may be.[8]

Gladue factors are only "one of a group of factors that can affect the level of moral blameworthiness". [9]

Gladue does not "create an entire new system of sentencing" for aboriginal offenders.[10]

There is no "easily ascertained or articulated" test to determine when background should influence the ultimate sentence.[11]

Linking Factors to Offence

There is no need of proving a "causal connection" between the offence and the accused's aboriginal background.[12] There is no need to "draw a straight line" between their roots and the offence.[13]

The only linkage needed is by considering which factors "may have played a part in bringing the particular offender before the courts".[14]

Burden

The offender does not have any burden of persuasion.[15] The judge must consider all factors "which may have played a part in bringing the particular offender before the courts".[16]

Effect of Factors

Where Gladue factors are identified they "will not dictate an automatic reduction in the sentence".[17] 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".[18]

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".[19]

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.[20] There is no discretion on whether to consider these factors. They must be considered in every sentencing hearing relating to an aboriginal offender.[21] Failure to undertake the duty to apply Gladue principles to an aboriginal offender is a reversible error.[22]

The Court must consider:[23]

  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:[24]

  • 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.[25]

The aboriginal heritage factors include:[26]

  • 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.[27]

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.[28]

  1. R v Laboucane, 2016 ABCA 176 (CanLII), 337 CCC (3d) 445, per curiam, at para 5
  2. R v Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 SCR 433, per LeBel J, at para 60
  3. R v Napesis, 2015 ABCA 308 (CanLII), 607 AR 395, 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 75
  7. R v L(FH), 2018 ONCA 83 (CanLII), 360 CCC (3d) 189, per Epstein JA, at para 39
  8. Ipeelee, supra, at para 84
    Gladue, supra, at para 79
    R v Wells, 2000 SCC 10 (CanLII), [2000] 1 SCR 207, per Iacobucci J, at paras 42 to 44
    Laboucane, supra, at para 63
  9. R v Assiniboine, 2016 SKQB 149 (CanLII), 8 WWR 512, per Danyliuk J, at para 74
  10. Assiniboine, ibid., at para 78
    R v Chanalquay, 2015 SKCA 141 (CanLII), 26 CR (7th) 276, per Richards CJ, at para 42
  11. L(FH), supra, at para 38
    R v Whitehead, 2016 SKCA 165 (CanLII), 344 CCC (3d) 1, per Caldwell JA, at para 60
  12. L(FH), supra, at para 38 ("The law, reviewed above, is clear. In order to be relevant to sentencing, an offender’s Aboriginal background need not be causally connected to the offence(s) for which a sentence is being imposed.")
    R v Collins, 2011 ONCA 182 (CanLII), [2011] OJ No 978, 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
  13. L(FH), supra, at para 38
    R v Monckton, 2017 ONCA 450 (CanLII), 349 CCC (3d) 90, per Trotter JA, at para 115
  14. Gladue, supra, at para 69
    Laboucane, supra, at para 63
  15. Laboucane, supra, at para 63
  16. Laboucane, supra, at para 63
    Gladue, supra, at para 69
  17. Laboucane, supra, at paras 2, and 63
    Ipeelee, supra, at para 74
    R v Holloway, 2014 ABCA 87 (CanLII), 308 CCC (3d) 145, per Berger JA, at para 42
    R v Popowich, 2013 ABCA 149 (CanLII), 106 WCB (2d) 652, per Berger JA, at para 24
    R v Guimond, 2016 MBCA 18 (CanLII), 26 CR (7th) 295, per Mainella JA, at paras 6 to 7
    R v Johnny, 2016 BCCA 61 (CanLII), 26 CR (7th) 304, 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)
    cf. R v Kreko, 2016 ONCA 367 (CanLII), 131 OR (3d) 685, per Pardu JA
  18. Ipeelee, supra, at para 83
    Laboucane, supra, at para 63
  19. Ipeelee, supra, at para 83
    Laboucane, supra, at para 63
  20. R v Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688, per Cory and Iacobucci JJ, at para 69
  21. Laboucane, supra, at para 63
  22. Ipeelee, supra, at para 87
    Laboucane, supra, at para 63
  23. Ipeelee, supra, at paras 73 to 74
    Kakekagamick, supra
  24. Ipeelee, supra, at paras 57, 60
  25. Ipeelee, supra, at para 75
  26. Gladue, supra
  27. Ipeelee, supra, at para 60
  28. 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 CanLII 389 (SCC), [1997] SCJ No 42, per Sopinka J
  2. e.g. R v Jefferson, 2008 ABCA 365 (CanLII), 238 CCC (3d) 53, 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), 83 Alta LR (3d) 20, per Viet J
  5. R v Marchesi, 2009 ABCA 304 (CanLII), 460 AR 294, per curiam, at para 7
  6. R v Lee, 2012 ABCA 17 (CanLII), 290 CCC (3d) 506, 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, 141 CCC (3d) 368, per Iacobucci J
    R v LM, 2008 SCC 31 (CanLII), [2008] 2 SCR 163, per Lebel J
  7. McDonnell, supra at para 59
    R v Lau, 2004 ABCA 408 (CanLII), at paras 29, 31(complete citation pending) ("The starting point cases are based on the assumption that the offender is of previous good character. While the presence of a record is treated as aggravating, the absence of one is not mitigating. ")
    R. v. Sandercock (1985), 1985 ABCA 218 (CanLII), 62 A.R. 382 (C.A.) at para. 17
    R. v. Christie, 2004 ABCA 287 at para. 37
    R. v. Phun (1997), 1997 ABCA 344 (CanLII), 209 A.R. 266 (C.A.) at para. 35
    R. v. Ferguson (1996), 1996 ABCA 189 (CanLII), 184 A.R. 157 (C.A.)

See Also

Sentencing Ranges

This page was last substantively updated or reviewed January 2018. (Rev. # 79559)

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 "simply a flexible guidelien for the normal case". It is supposed to assist in achieve parity in comparable cases.[2]

A range 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. [3]

The 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. They are not "averages" or "straights-jackets" to regular judicial discretion.[4]

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".[5]

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".[6]

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".[7]

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.[8]

Exceeding the Range

A sentencing judge's discretion is fettered by general ranges of sentence. These ranges are to encourage consistency between sentences.[9]

Ranges "are guidelines rather than hard and fast rules".[10] 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.[11] However, factors such as a “good record” and remorse do not amount to exceptional circumstances to deviate from the accepted range.[12]

A judge may impose a sentence outside of the recommended range so long as it complies with the principles and objectives of sentencing.[13]

Appellate Review of Ranges

It is an "error in principle" for a judge to misstate the range of sentence for a particular offence. [14]

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.[15]

  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 Thomas, 2012 ONSC 6653, per Code J at para 50 ("It is settled law that a “range” of sentence is simply a flexible guideline for the normal case. It assists in achieving “parity” in sentencing between comparable cases.")
  3. R v Cromwell, 2005 NSCA 137 (CanLII), 202 CCC (3d) 310, per Bateman JA, at para 26
  4. R v Anderson, 2016 MBPC 28 (CanLII), per Martin J, at para 24 citing Lacasse, at para 57
  5. R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, 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")
  6. R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, per Wagner J, at paras 3 to 6
  7. R v Gibson, 2015 ABCA 41 (CanLII), 319 CCC (3d) 115, per curiam, at para 16
  8. R v Généreux, 1992 CanLII 117 (SCC), [1992] 1 SCR 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.")
  9. R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J, at para 44
  10. Nasogaluak, ibid., at para 44
  11. Nasogaluak, ibid., at para 44
    cf. R v Doerksen, 1990 CanLII 7329 (SKQB), 62 Man.R. 2d 259 (CA), per Kyle J: A set range of sentence can be deviated from in “exceptional circumstances”
  12. R v Henderson, 2012 MBCA 9 (CanLII), 279 CCC (3d) 406, per Hamilton JA
  13. R v McCowan, 2010 MBCA 45 (CanLII), 255 CCC (3d) 123, per Steel JA, at para 11
  14. R v Dyke, 2014 SKCA 93 (CanLII), 323 CCC (3d) 333, per Jackson JA, at para 22
    R v Simcoe, 2002 CanLII 5352 (ON CA), 156 OAC 190, per Feldman JA, at para 13
  15. R v Gauvreau, 2017 ABCA 74 (CanLII), 48 Alta LR (6th) 285, 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), 112 WCB (2d) 188, per curiam
  3. R v Murphy, 2011 NLCA 16 (CanLII), [2011] NJ No 43 (CA), per Welsh JA at 34

See Also

Aggravating and Mitigating Factors

This page was last substantively updated or reviewed November 2020. (Rev. # 79559)

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 intimate partner or a member of the victim or the offender’s family,
(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,
(iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services,
(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 [conditional sentence orders] or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act, and
(vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services,
shall be deemed to be aggravating circumstances;

[omitted (b), (c), (d) and (e)]
1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16; 2017, c. 13, s. 4; 2019, c. 25, s. 293; 2021, c. 27, s. 5.
[annotation(s) added]

CCC


Note up: 718.2

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 suggestion 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]

The weighing of factors will be an error in principle if the judge exercises his "discretion unreasonably" in emphasizing or minimizing a factor.[9]

  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), 150 WCB (2d) 316, 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), 353 CCC (3d) 254, per curiam, at para 69
    R v BM, 2008 ONCA 645 (CanLII), 81 WCB (2d) 410, 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 , 1frb9, 1996 CanLII 230 (SCC), per Lamer CJ, at para 90
    R v WE, 2010 NLCA 4 (CanLII), 251 CCC (3d) 213, per Rowe JA, at para 26
  9. R v Friesen, 2020 SCC 9 (CanLII), 391 CCC (3d) 309, per Wagner CJ and Rowe J, at para 26 ("Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably”")

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] OJ No 955, per curiam, at paras 15 to 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), 380 Nfld & PEIR 6, 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 and Sentencing Factors Relating to the Criminal Proceedings

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".

Distinctions between offender must be relevant to the degree of responsibility before they can be factored into sentencing.[1]

  1. R v Gerbrandt, 2021 ABCA 346 (CanLII), per curiam, at para 85
    R v Roberts, 2020 ABCA 434 (CanLII), Alta. L.R. (7th) 255(complete citation pending) at paras 42-47
    R v Ford, 2019 ABCA 87 (CanLII), 371 CCC (3d) 250, per curiam
    R v Costello, 2019 ABCA 104 at para 8
    R v Miller, 2018 ABCA 356 at paras 13-17
    R v Fuller, 2017 ABCA 361 at paras 7-18
    R v Maier, 2015 ABCA 59 at paras 31-42
    R v Murphy, 2014 ABCA 409, 317 CCC (3d) 314
    R v Lausberg, 2013 ABCA 72 at para 23
    R v Ayorech, 2012 ABCA 82 (CanLII), 522 AR 306, per curiam, at para 12
    R v Virani, 2012 ABCA 155 at para 16
    R v Ramsay, 2012 ABCA 257 (CanLII), 292 CCC (3d) 400, per curiam, at paras 15 to 34
    R v Resler, 2011 ABCA 167 at paras 8-10(complete citation pending)
    R v Belcourt, 2010 ABCA 319 at para 8(complete citation pending)
    R v B(TL), 2007 ABCA 61 at para 25(complete citation pending), 218 CCC (3d) 11
    R v Gibbon, 2007 ABCA 300 at para 12(complete citation pending)
    R v Diebel, 2007 ABCA 418 at paras 16-23(complete citation pending)

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), per MJ Smith J, at para 54
    R v Scott, 2015 ABCA 99 (CanLII), 599 AR 182, per curiam (3:0), at para 13
    R v Jackson, 2002 CanLII 41524 (ON CA), 163 CCC (3d) 451, per Sharpe JA (3:0)
  2. See: R v Demeter and Whitmore, 1976 CanLII 1413 (ON CA), 32 CCC (2d) 379, per Dubin JA
  3. Demeter and Whitmore, ibid.
    R v Ijam, 2007 ONCA 597 (CanLII), 226 CCC (3d) 376, per MacPherson JA, at paras 55 to 56, 87 OR (3d) 81
    R v Hussey, 1990 CanLII 6491 (NL CA), , 83 Nfld & PEIR 161 (Nfld CA), per Gushue JA (3:0)
    Scott, supra, at para 13
  4. Scott, supra, at para 13
    R v Quesnel, 1984 CanLII 3475 (ON CA), 14 CCC (3d) 254, per Thorson JA, at p. 255 (CCC)
  5. R v Turner, 1970 CanLII 522 (ON CA), 1 CCC (2d) 293 (ONCA), per Haines J
  6. R v Priest, 1996 CanLII 1381 (ON CA), [1996] OJ No 3369 (CA), per Rosenberg JA (3:0)
    R v Nassri, 2015 ONCA 316 (CanLII), 125 OR (3d) 578, per Sharpe JA (3:0), at para 30
  7. R v Borde, 2003 CanLII 4187 (ON CA), 63 OR (3d) 417, per Rosenberg JA (3:0), at para 36
  8. e.g. R v Wiens, 2013 ABPC 15 (CanLII), 551 AR 195, per Pharo J, at para 32
  9. R v Cromwell, 2006 ABCA 365 (CanLII), 214 CCC (3d) 502, per O’Brien JA, 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), per curiam (3:0)
  10. e.g. R v Bulleyment, 1979 CanLII 2922 (ON CA), 46 CCC (2d) 429, per Martin JA
    R v Odgers, 2006 ABPC 163 (CanLII), 400 AR 322, per JDB McDonald J, at para 29
  11. R v Walker, 2016 ABQB 695 (CanLII), per Ackerl J, 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), per Twaddle JA

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]

A judge may take judicial notice that a first-time offender receiving a criminal conviction will negatively impact their future in various ways including employment and travel.[3]

  1. R v Johnston, 2011 NLCA 56 (CanLII), 274 CCC (3d) 388, per White JA (3:0), at para 21
  2. R v Hunt, 2012 NLCA 5 (CanLII), 100 WCB (2d) 602, per Barry JA (3:0), at para 19
  3. R v Edmunds, 2012 NLCA 26 at para 20(complete citation pending)

Professionals

Police Officers
See also: Violent and Assaultive Offences (Sentencing)#Peace Officers as Offender and Assaults Relating to Persons in Authority (Sentencing Cases)

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), 30 CR (7th) 117, per Braid J, at paras 28 to 29
    R v Schertzer, 2015 ONCA 259 (CanLII), 325 CCC (3d) 202, per Benotto JA, at paras 134 to 136 - re "special duty"
  2. Hansen, supra, at para 28
    R v Cook, 2010 ONSC 5016 (CanLII), OJ No 4414, per Hill J
    R v Rudge, 2014 ONSC 241 (CanLII), OJ No 113, per Hambly J
    R v Leblanc, 2003 NBCA 75 (CanLII), 180 CCC (3d) 265, 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), 234 WAC 161, per Cote JA (2:1), at para 37
  2. R v Bunn, 2000 SCC 9 (CanLII), [2000] 1 SCR 183, per Lamer J (5:3), 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]

Strong Case

Remorse has little importance when the case is so strong that "guilt is inevitable".[8]

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".[9]

Mistake of Law

While not strictly a defence at trial, a mistake of law can be mitigating for sentence. Where the accused honestly but mistakenly believe in the lawfulness of their actions they are therefore less morally blameworthy.[10]

  1. R v Anderson, 1992 CanLII 6002 (BC C.A.), 74 CCC (3d) 523, per Southin JA and Taylor JA, at pp. 535-536, 16 BCAC 14
    R v Nash, 2009 NBCA 7 (CanLII), 240 CCC (3d) 421, per Robertson JA (3:0), at para 40
    R v Cormier, 1999 CanLII 13118 (NB CA), 140 CCC (3d) 87, per Larlee JA
  2. See R v Kakekagamick, 2006 CanLII 28549 (ON CA), [2006] 81 OR (3d) 664, 211 CCC (3d) 289, per Laforme JA (3:0), at para 73 ("[his] failure to accept responsibility for his actions weighs against affording him significant consideration by way of mitigation")
    R v Wowk, 2020 ABCA 119 (CanLII), per curiam, at para 23
    R v Valentini, 1999 CanLII 1885 (ON CA), 132 CCC (3d) 262, 43 OR (3d) 178, at paras 82 to 83
    See also R v Kozy, 1990 CanLII 2625 (ON CA), 58 CCC (3d) 500, per Carthy JA (3:0), at pp. 505-506
    R v Anderson, 1992 CanLII 6002 , per Southin JA, at pp. 535-536
    R v Brown, [1993] OJ No 624 (CA)(*no CanLII links)
    R v Valentini, 1999 CanLII 1885 (ON CA), 132 CCC (3d) 262, per Rosenberg JA (3:0), at paras 80 to 85
  3. R v Arcand, 2010 ABCA 363 (CanLII), 264 CCC (3d) 134, per curiam, at para 293
  4. R v Proulx, 2000 SCC 5 (CanLII), [2000] 1 SCR 61, per Lamer CJ
    R v KA, 1999 CanLII 3756 (ON CA), [1999] OJ No 2640, per Rosenberg JA, at para 49
    R v Reid, 2017 ONCA 430 (CanLII), [2017] OJ No 2758, per van Rensburg JA, at para 36
    R v Cormier, 1999 CanLII 13118 (NB CA), 140 CCC (3d) 87, per Larlee JA
    R v S(E), 1997 CanLII 11513 (NB CA), 191 NBR (2d) 3 (CA), per Ryan JA, at para 6
    R v Williams, 2007 CanLII 13949 (ONSC), [2007] OJ No 1604, per Hill J, at para 32
    R v Hawkins, 2011 NSCA 7 (CanLII), 265 CCC (3d) 513, per Beveridge JA, at paras 31 to 34
    see also: R v Henry, 2002 NSCA 33 (CanLII), 164 CCC (3d) 167, per Roscoe JA, at para 21
    R v Zeek, 2004 BCCA 42 (CanLII), 193 BCAC 104, per Rowles JA
  5. Hawkins, supra, at para 33
    Valentini, supra
  6. Hawkins, supra
  7. R v Yau, 2011 ONSC 1009 (CanLII), OJ No 720, per MacDonnell J, at para 27
    see, e.g. R v Valentini, 1999 CanLII 1885 (ON CA), 132 CCC (3d) 262, per Rosenberg JA
    R v Giroux, 2006 CanLII 10736 (ON CA), 207 CCC (3d) 512, per Blair JA
    R v B(C), 2008 ONCA 486 (CanLII), 78 WCB (2d) 80, per Gillese JA (3:0)
  8. R v Singh, 2018 ONSC 3850 (CanLII), per Harris J
    R v Faulds, 1994 CanLII 770 (ON CA), , 20 OR (3d) 13, per curiam, at para 14
    R v Daya, 2007 ONCA 693 (CanLII), 227 CCC (3d) 367, per Moldaver and LaForme JJA, at para 15
  9. R v Sawchyn, 1981 ABCA 173 (CanLII), 124 DLR (3d) 600, per Laycraft JA, at para 34
    R v Nyoni, 2017 BCCA 360 (CanLII), per Newbury JA, at para 8
  10. R v Suter, 2018 SCC 34 (CanLII), [2018] 2 SCR 496, at para 64 ("This is because offenders who honestly but mistakenly believe in the lawfulness of their actions are less morally blameworthy than offenders who — in committing the same offence — are unsure about the lawfulness of their actions, or know that their actions are unlawful.")

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 v Morency, 2012 QCCQ 4556 (CanLII), per Morand J, 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, per Provost J
    R v Flahiff, 1999 CanLII 10716 (QC CQ), [1999] R.J.Q. 884, per Boisvert J
    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 CanLII 41073 (ON CA), 61 OR (3d) 75, per Laskin JA ( “[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".[1]

"Stressors" that "precipitated" the offence rendering the offence "out of character" will have a mitigating effect.[2]

There is some criticism of the mitigating effect of character. All persons are obligated to "obey the law" and should not be used as "credit against punishment" for the commission of an offence.[3] It is also considered an "unprincipled" use of "personal history" evidence.[4]

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.[5]

  1. R v Shrivastava, 2019 ABQB 663 (CanLII), per Antonio J at paras 72-93
    https://canlii.ca/t/#par127 R v Misay, 2021 ABQB 485 (CanLII), at para 127
  2. R v McIntosh, 2012 ONCJ 216 (CanLII), OJ No 1772, per Hearn J, at para 38
  3. Misay, supra at para 128 ("Justice Antonio also pointed out that obeying the law, an obligation we all bear, cannot be taken to earn credit against punishment for commission of a serious offence")
    Shrivastava, supra at para 78
  4. Misay, supra at para 127
  5. e.g. R v Malt, 2016 BCPC 322 (CanLII), per Harris J, at para 10

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]

In sexual abuse against children, the fact that an accused is unlikely to re-offend is not a significant consideration. The emphasis should be on general deterrence and denunciation.[3]

  1. e.g. R v Patton, 2011 ABCA 199 (CanLII), 505 AR 394, per curiam, at para 10
  2. R v Carelse, 2013 SKQB 15 (CanLII), 411 Sask R 263, per Danyliuk J, at paras 28 to 30
  3. R v SCW, 2019 BCCA 405 (CanLII), per Goepel JA, at para 26 (" should further note that even if it could be said that the judge erred in not giving weight to the opinion, it would likely have had no impact on the sentence. The fact that an accused is unlikely to re‑offend is not a significant consideration in a case concerning sexual abuse against children when the emphasis is properly based on matters of general deterrence and denunciation")

Post Offence Conduct

Efforts at rehabilitation and career 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), 98 AR 348, per Côté JA, at para 4
    R v Spina, 1997 ABCA 235 (CanLII), (1997), 200 AR 133, per Conrad JA, at para 18
  2. Thompson, supra
  3. R v Klok, 2014 ABPC 102 (CanLII), per Allen J, at paras 79 to 88
    R v S(B), 1994 CanLII 3881 (SK CA), 125 Sask R 303(Sask CA), per curiam, at para 47
  4. Klok, supra
  5. Klok, supra, at paras 87 to 88
  6. R v Gryba, 2016 SKQB 123 (CanLII), SJ No 218, per Popescul CJ, at para 35
    R v Leroux, 2015 SKCA 48 (CanLII), 9 WWR 709, per Caldwell JA, at para 62
    R v Araya, 2015 ONCA 854 (CanLII), 344 OAC 36, per Laskin JA, at para 29
    R v Gwyn, 2009 ABPC 212 (CanLII), per Fradsham J, at para 16
    R v Deren, 2017 ABCA 23 (CanLII), per Rowbotham JA, at para 5

Offender's History of Trauma

The presence of relevant abuse in the offender's history is sometimes found to be mitigating. This is particularly notable in child sexual offences where the offender had a history of abuse upon themselves.[1]

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]

Addictions and Mental Health

It has been noted that the combination of addiction and mental health make rehabilitation harder.[5]

  1. R v Ayorech, 2012 ABCA 82 (CanLII), 522 AR 306, per curiam, at para 10
    cf. see R v Sheppard, 1997 CanLII 14629 (NL CA), 147 Nfld. & PEIR 304, per O'Neill JA
    cf. R v Lane, 2004 NLSCTD 49 (CanLII), [2004] NJ No 95 (S.C.), per LeBlanc J
    cf. R v Breen, 1982 CanLII 3889 (NL CA), 37 Nfld. & PEIR 472, per Gushue JA (“the effect of alcohol or drugs” can be considered as mitigating factors in sentencing, “that consideration is normally confined to cases where the actions of a person are completely out of character. Thus, lenient treatment may be justified in anticipation of rehabilitation")
  2. R v Holmes, 1999 ABCA 228 (CanLII), 237 AR 146, per curiam
    cf. R v Wilson, 2012 NSPC 40 (CanLII), 1002 APR 96, per Ross J
  3. R v Horvath, 1997 CanLII 9759 (SK CA), [1997] SJ No 385, per Bayda CJ
  4. R v Warren, 2012 CanLII 54025 (NL PC), per Gorman J, at para 58
  5. R v Fuller, 2017 ABCA 361 (CanLII), per curiam, at para 13

Medical Conditions

Generally speaking the existence of medical conditions cannot be use to avoid what is otherwise a fit and proper sentence.[1]

  1. R v Bulic, 2020 ONCA 845 (CanLII), per curiam, at para 13
    R v Heron, 2017 ONCA 441 (CanLII), at para 25 ("medical conditions cannot generally be used to avoid what is otherwise a fit and proper sentence")

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 severe 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]

The offender must show that a lengthy sentence would have a "severe negative effect on the offender such that it should be reduced on compassionate grounds".[4]

Causal Connection

Generally, for a mental illness is to be considered mitigating, the offender must show that there is a causal link between the condition and the criminal conduct.[5]

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. [6] This is also true where the offender was not suffering from delusions at the time.[7] It is sufficient that the illness contributed in some way to the offence.[8] 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.[9]

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."[10]

Incarceration

Treatment in the community is generally preferred over incarceration.[11] However, this is less so for serious offences.[12]

Mental illness is often considered a basis to order treatment and supervision over punishment.[13]

Deterrence and Denunciation

General deterrence should be given "very little, if any, weight" since it is not an appropriate manner of making an example to others.[14]

Where mental health plays "a central role in the commission of the offence ... deterrence and punishment assume less importance".[15]

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.[16] Mental illness reduces the importance of denunciation and deterrence and increases the importance of treatment. This includes situations where rehabilitation or cure is impossible.[17]

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.[18]

The mental condition will attenuate the relative importance of deterrence and denunciation.[19]

Degree of Responsibility

A mental illness diminishes the offender’s degree of responsibility.[20]

Impact of Jail

Incarceration of persons with mental health issues can create a disproportionate impact upon them, which can be a mitigating factor.[21]

An Offenders mental illness can make a jail sentence more severe.[22]

While it has also been observed that the managing of mental health issues and other medical factors are best handled by correctional authorities who are obligated to provide essential health care including mental health care.[23]

It is recognized that it is "difficult" to predict the mental health condition of persons in custody.[24]

Cognitive Deficits

Diminished intellectual capacity is not a mitigating factor warranting a lesser sentence.[25]

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.[26]

Systemic failures to treat the offender's mental health are mitigating factors.[27]

Other Conditions

There has been some reference to PTSD being a mitigating condition.[28]

  1. R v Peters, 2000 NFCA 55 (CanLII), 194 Nfld. & PEIR 184 (NLCA), per Green JA, (“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), 490 AR 224, per Slatter JA (2:1), at para 8
  3. R v Lausberg, 2013 ABCA 72 (CanLII), 544 AR 56, per McDonald JA - Sentencing judge erred by considering the emotional state as being a mental health problem
  4. R v Prioriello, 2012 ONCA 63 (CanLII), 288 OAC 198, per O'Connor J, at para 12
  5. Prioriello, ibid., at para 11 ("In order for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is, the illness is an underlying reason for his aberrant conduct")
    R v Robinson, [1974] O.J. No. 585 (C.A.)(*no CanLII links)
  6. R v Ayorech, 2012 ABCA 82 (CanLII), [2012] AJ No 236, 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.”)
  7. R v Resler, 2011 ABCA 167 (CanLII), 95 WCB (2d) 165, per curiam (3:0)
    Ayorech, ibid.
  8. Belcourt, supra
  9. R v Shahnawaz, 2000 CanLII 16973 (ON CA), 149 CCC 97, per Charron JA
  10. R v Hagendorf, 2000 CarswellOnt 5245 (S.C.)(*no CanLII links) , per Durno J, at para 50
  11. R v Lundrigan, 2012 NLCA 43 (CanLII), [2012] NJ No 231 (NLCA), per Rowe JA, at para 20
  12. see R v JM, [2008] NJ No 262 (P.C.)(*no CanLII links)
    R v Taylor, 2012 CanLII 42053 (NLPC), [2012] NJ No 251 (P.C.), per Mennie J
  13. see R v Valiquette, 1990 CanLII 3048, 60 CCC (3d) 325, per Rothman JA, at p. 331 (“most people understand that the mentally ill require treatment and supervision, not punishment”)
  14. Belcourt, supra, at para 8
  15. R v Batisse, 2009 ONCA 114 (CanLII), 241 CCC (3d) 491, per Gillese JA
  16. R v Lockyer, 2000 NLCA 59 (CanLII), [2000] NJ No 306, per Roberts JA (2:1)
  17. R v Hiltermann, [1993] AJ No 609 (CA)(*no CanLII links) , at paras 4-8
  18. R v Newby, 1991 ABCA 307 (CanLII), 84 Alta LR (2d) 127, per Foisy JA
    R v Rhyno, 2009 NSCA 108 (CanLII), 900 APR 246, per Oland JA
    R v Dickson, 2007 BCCA 561 (CanLII), 228 CCC (3d) 450, per Finch CJ (3:0)
  19. R v Tremblay, 2006 ABCA 252 (CanLII), 401 AR 9, per Martin JA, at para 7
    R v Resler, 2011 ABCA 167 (CanLII), 95 WCB (2d) 165, per curiam (3:0), at para 14
  20. R v Ayorech, 2012 ABCA 82 (CanLII), 522 AR 306, per curiam, at para 12
    R v Resler, 2011 ABCA 167 (CanLII), 95 WCB (2d) 165, per curiam, at paras 9 to 10, 16
    Belcourt, supra, at paras 7 to 8
    R v Muldoon, 2006 ABCA 321 (CanLII), 213 CCC (3d) 468, per curiam (3:0), at paras 9 to 10
  21. Newby, supra
    Ayorech, supra
  22. 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.’")
  23. R v CF, 2020 ONSC 5975 (CanLII), per Leibovich J, at para 57
    R v Shahnawaz, 2000 CanLII 16973 (ON CA), 149 CCC (3d) 97, per Charron JA (2:1), at paras 30 to 34
    Prioriello, supra
  24. Shahnawaz, ibid., at para 34
  25. R v H(MJ), 2004 SKCA 171 (CanLII), 257 Sask R 1, per Richards JA (3:0)
  26. R v Ramsay, 2012 ABCA 257 (CanLII), 292 CCC (3d) 400, per curiam (3:0)
  27. R v Adamo, 2013 MBQB 225 (CanLII), per Suche J
    Ayorech, supra
  28. R v Walendzewicz, 2020 ONSC 57 (CanLII), at para 37

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), 172 CCC (3d) 225, per Rosenberg JA
    R v Rage, 2018 ONCA 211 (CanLII), per curiam (3:0), at para 13
  2. R v Brown, 1992 CanLII 2829 (AB CA), 73 CCC (3d) 242, per curiam
  3. R v Huang, [2005] OJ No 1855 (SCJ)(*no CanLII links) , at para 21
    R v Shaliwal, [2011] MJ No 213(Q.B.)(*no CanLII links) , at para 41
    R v Lim, [1990] OJ No 949 (H.C.J.)(*no CanLII links) , per Doherty J
    R v JWS, 2013 NSPC 7 (CanLII), per Derrick J, 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 CanLII 4477 (SK CA), 47 CCC 451 (Sask. CA), per Cameron JA
  2. R v Michel, 1996 CanLII 8363 (BCCA), 133 WAC 237 (BCCA), per Proudfoot JA
  3. R v Shah, 1994 CanLII 1290 (1994), 94 CCC 45, per Finch JA (2:1)
    R v Maczynski, 1997 CanLII 2491 (BCCA), 120 CCC 221, per Lambert JA
    R v FDM (1995), 29 WBC 148 (AltaCA)(*no CanLII links)
  4. R v Schmitt, 2014 ABCA 105 (CanLII), per curiam (3:0), 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), per curiam (3:0)
  2. Schmitt, ibid.

Effect on Immigration

See also: Immigration Consequences from a Conviction

Section 64 of the Immigration and Refugee Protection Act states:

No appeal for inadmissibility

64(1) 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.

Serious criminality

64(2) 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 do not inform the 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] The sentencing approach must not create a separate sentencing scheme for those at risk of deportation.[10]

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.[11]

Children

The judge may consider the impact of deportation on the offender's dependent children as mitigation.[12]

Counsel's Failure to Raise Immigration Status

A failure of counsel to raise the issue of immigration effect can by grounds of appellate intervention.[13]

  1. R v Pham, 2013 SCC 15 (CanLII), [2013] 1 SCR 739, per Wagner J (7:0)
    R v Hamilton, 2004 CanLII 5549 (ON CA), 72 OR (3d) 1, per Doherty JA (3:0), at paras 156, 159, and 186
    R v Barkza, 2011 ABCA 273 (CanLII), 530 WAC 333, per Rowbotham JA (3:0)
    R v Dhura, 2011 ABCA 165 (CanLII), 505 AR 248, per Watson JA (3:0)
    R v Koc, 2008 NLTD 97 (CanLII), [2008] NJ No 161 (N.L.S.C.T.D.), per Goulding J
    R v Melo, 1975 CanLII 1299 (ON CA), 26 CCC (2d) 510, per Arnup JA, at p. 516 (Ont. C.A.)
  2. R v BRC, [2010] OJ No 3571(*no CanLII links) at 6
    R v Melo, 1975 CanLII 1299 (ON CA), 26 CCC (2d) 510, per Arnup JA (3:0), at p. 516
    Pham, supra, at paras 20 to 22
  3. R v Morgan, 2008 NWTCA 12 (CanLII), 239 CCC (3d) 187, per curiam
    R v Belenky, 2010 ABCA 98 (CanLII), 253 CCC (3d) 344, per McDonald JA (3:0), 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), per curiam (3:0) , at para 24
  7. R v Dzabic, 2008 CanLII 53860 (ONSC), per DiTomaso J
  8. R v Razmara, 2012 ONCA 13 (CanLII), per curiam (3:0)
  9. R v Spencer, 2015 NSCA 108 (CanLII), 367 NSR (2d) 246, per MacDonald CJ, at para 8
    Pham, supra, at para 16 ("These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation.")
  10. Pham, supra, at para 16 ("Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.")
  11. R v Kanthasamy, 2005 BCCA 135 (CanLII), 195 CCC (3d) 182, per Donald JA (3:0), at para 15
  12. R v Gaurino, 2017 ONSC 4174 (CanLII), per Warkentin J
    R v Jiang, 2017 BCPC 111 (CanLII), per Rideout J
    R v Gomez, 2017 BCPC 7 (CanLII), per Rideout J
  13. Pham, supra, at para 24
    R v Tmenov, 2017 ONCA 454 (CanLII), per curiam (3:0)
    R v Jamieson, 2011 NSCA 122 (CanLII), 983 APR 392, per Saunders JA

"Collateral Consequences" of Commission of the Offence

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."[1]

They do not go to considerations of aggravating or mitigating factors, nor the gravity of the offence or moral blameworthiness of the offender.[2]

The analysis of collateral consequences is upon "whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances".[3]

Personal Circumstances of Offender

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.[4] They are relevant to sentencing as part of the considerations for individiualization and parity.[5]

When It can be Mitigating

The consequence does not need to "emanate from state misconduct" for it to be mitigating.[6]

After mitigating effects arising from collateral consequences are applied the sentence must still conform with the principle of proportionality.[7]

  1. R v Suter, 2018 SCC 34 (CanLII), [2018] 2 SCR 496, per Moldaver J (6:1), at para 47
  2. Suter, ibid., at para 48 ("...collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2(a) of the Criminal Code...The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious...")
  3. Suter, ibid., at para 48
  4. Suter, supra, at paras 45 to 59
    R v Pham, 2013 SCC 15 (CanLII), [2013] 1 SCR 739, per Wagner J, , at para 11
  5. Suter, supra, at para 48 ("The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity")
  6. Suter, supra, at para 56
  7. Suter, supra, at para 56

Victimization of Accused During Proceedings

An incarcerated offender who is attacked by fellow inmates can be taken as a collateral factor.[1]

Other Remedies

An accused who suffers harsh treatment while in remand, including being victimized, may have remedy under s. 24(1) of the Charter of Rights and Freedoms.[2]

Examples — 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.[3] Such violence should only be considered to a "limited extent".[4]

  1. R v Suter, 2018 SCC 34 (CanLII), [2018] 2 SCR 496, per Moldaver J (6:1), at para 51
    R v MacFarlane, 2012 ONCA 82 (CanLII), 288 OAC 114, per curiam, at para 3
  2. R v Summers, 2014 SCC 26 (CanLII), [2014] 1 SCR 575, per Karakatsanis J, at para 73("individuals who have suffered particularly harsh treatments, such as assaults in detention, can often look to other remedies, including under s 24(1) of the Charter")
  3. Suter, supra, at para 58
  4. Sutder, supra, at para 59

Aboriginal Background

See Aboriginal Sentencing Principles and Factors

During Proceedings

Sentencing Factors Relating to the Offence

General Principles

See also: Sentencing Factors Relating to the Offender and Sentencing Factors Relating to the Criminal Proceedings

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 in part 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 intimate partner or a member of the victim or the offender’s family,
(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 [conditional sentence orders] or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act, and
(vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services,

shall be deemed to be aggravating circumstances;
[omitted (b), (c), (d) and (e)]
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; 2019, c. 25, s. 293; 2021, c. 27, s. 5.

CCC


Note up: 718.2

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

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 deterrence. [1]

  1. R v Clayton, 2014 ABCA 27 (CanLII), per curiam (3:0), at para 35 (“ The trial judge did not consider Clayton's grievances against the WCB to be mitigating. This was well within his discretion because committing serious offences as retaliation or as an aspect of self-help is not mitigating and, in some instances, elevates deterrence to the position of being the primary sentencing consideration; ... . Nothing in the fresh evidence, had it been accepted, would have affected this conclusion.”)

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.

The number of assaults, duration and intensity of the assaults are relevant factors. However, "the key factor is harm" to the victim".[1]

  1. R v Boucher, 2020 ABCA 208 (CanLII), per curiam, at para 24 ("The number of assaults, the duration of the offence, and the intensity of the assaults are relevant factors in sentencing, although the key factor is harm to the child...")

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 AR, 1994 CanLII 4524 (MB CA), [1994] 4 WWR 620, per Twaddle JA
  2. R v RA, 1994 CanLII 4524 (MB CA), 88 CCC (3d) 184, per Twaddle JA, 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

See also: Position of Trust as a Factor in Sentencing

Where an offender was able to commit an offence by taking advantage of their position of trust, this factor will be treated as aggravating: 718.2(a)(iii).

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), 180 BCAC 290, per Southin JA (3:0)
    R v Lecourt, 2005 QCCA 845 (CanLII), per curiam
  2. R v McEachern, 1978 CanLII 2506, 42 CCC (2d) 189, 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 WHM, 1994 CanLII 7583 (NS SC), 386 APR 155, per Kelly J

Prevalence of This Type of Crime in the Community

See also: Judicial Notice

It is appropriate in sentencing for the judge to consider the frequency of the form of offence that exists within a particular community at the time.[1]

A judge may take some limited judicial notice to the prevalence of certain types of offences within the community.[2] However, doing so has the tendency to create unfairness to both parties.[3]

If the judge is going to rely upon the prevalence of crime in sentencing an offender, he or she should give notice to the parties and an opportunity to reply.[4]

  1. R v Sears, 1978 CanLII 2277 (ON CA), [1978] OJ No 435 (CA), at para 2 ("...in considering the appropriate sentence to be imposed in cases of shoplifting or related offences, it is appropriate to consider whether in that particular community, at that particular time, there appears to be an unusual amount of that type of crime, which therefore calls for a sentence which will reflect a degree of deterrence to others. At the same time, that situation can never be more than one of the factors which is to be taken into account, the paramount question of course always being: what should this offender receive for this offence, committed in the circumstances under which it was committed?")
    R v Gibbon, 2006 BCCA 219 (CanLII), 209 CCC (3d) 307, per Ryan JA, at para 21 ("He was of the view that the operation of the house in downtown Kelowna as the place where Ms. Gibbon committed her offences was something that required the denunciation of society. In other words he concluded that an aspect of this sentence should communicate the values of those who live in Kelowna, who abhor the harm of drug trafficking in their community. To sum up it is clear from his reasons that the trial judge in this case had decided that the street trafficking range of sentencing was inappropriate for this offence given the existing conditions in his community.")
    R v Prasad, 2006 BCCA 470 (CanLII), 37 MVR (5th) 11, per Hall JA, at para 12 ("I do not consider that the sentencing judge has been shown to have erred in taking account of the prevalence of this sort of problem in the community in which he was sitting.")
    R v Nguyen, 2013 ONCA 51 (CanLII), per curiam, at para 4 ("There was nothing wrong with the trial judge’s observations about the prevalence of marijuana grow operations in his community and the need for denunciation.")
  2. R v VHM, 2004 NBCA 72 (CanLII), 189 CCC (3d) 345, per Ryan JA (3:0) ("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), 358 Sask R 252, per Gunn J, at paras 18 to 22
  3. 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.")
  4. 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]

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 GES, 2007 MBCA 105 (CanLII), 220 Man R (2d) 101, per MA Monnin JA, at para 13
  3. R v BM, 2008 ONCA 645 (CanLII), 81 WCB (2d) 410, per curiam
  4. R v Truong, 2013 ABCA 373 (CanLII), 561 AR 288, 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), 37 CR (7th) 95, per Ottenbreit JA

See Also

Sentencing Factors Relating to the Criminal Proceedings

This page was last substantively updated or reviewed January 2021. (Rev. # 79559)

General Principles

See also: Sentencing Factors Relating to the Offender and Sentencing Factors Relating to the Offence

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]

Offer of Lesser Plea

The mere offer to plead to a lesser included offence does not amount to a factor of mitigation.[13]

Timing of Plea

The timing of a guilty plea is important. An early guilty plea generally deserves "considerable weight" in sentencing.[14] It may entitle the accused to "substantial credit" in sentence.[15]

A guilty plea during trial may still deserve mitigation on sentence.[16]

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.[17]

  1. R v Holder, 1998 CanLII 14962 (ONSC), 21 CR (5th) 277 (Ont. SCJ), per Hill J at 281-2
    R v Beier, 1995 CanLII 681 (ON CA), [1995] OJ No 2552 (CA), per curiam, at para 2
    R v Sawchyn, 1981 ABCA 173 (CanLII), 60 CCC (2d) 200, per Laycraft JA at 210
  2. R v Gardiner, 1982 CanLII 30 (SCC), [1982] 2 SCR 368, per Dickson J (4:3)
    R v Fegan, 1993 CanLII 8607 (ON CA), 80 CCC (3d) 356, per Finlayson JA (3:0) at 360–61, 13 OR (3d) 88
    R v Ticne, 2009 BCCA 191 (CanLII), 269 BCAC 308, per Mackenzie JA (2:1), at para 23 (“In MacMillan Bloedel v Brown (1994), ... , Chief Justice McEachern, in recognizing that a guilty plea will generally be deserving of some credit, noted that such a plea not only obviates the need for a trial, but also saves the public the expense associated with taking a matter to trial: at 165, 166. It has also been recognized that a guilty plea can be indicative of remorse, and of the fact that the offender takes responsibility for his or her actions”)
    R v Wisniewski, (1975) 29 CRNS 342 (Ont.)(*no CanLII links)
  3. Holder, supra
    R v Randhawa, 2007 BCCA 598 (CanLII), 249 BCAC 87, per Hall JA, at para 7
  4. R v Johnson and Tremayne, [1970] 4 CCC 64(*no CanLII links) , per Gale CJ at 67
    Randhawa, ibid., at para 7
    Ticne, supra, at para 23
  5. R v Faulds et al., et al., 1994 CanLII 770 (ON CA), 20 OR (3d) 13, per curiam (3:0), at p. 17
    R v Santos (J.), 67 OAC 270 (CA)(*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 CanLII 2643 (ON CA), [1998] OJ No 461 (CA), per curiam, at para 6
  8. R v FHL, 2018 ONCA 83 (CanLII), 360 CCC (3d) 189, per Epstein JA (3:0), 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 AR 398, per Watson JA, at para 12 (“its significance as [a mitigating] factor is variable”)
    R v Carreira, 2015 ONCA 639 (CanLII), 337 OAC 396, per Epstein JA, at para 15
  10. FHL, supra, at paras 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), 517 AR 365, per Daniel J
  13. R v Shyback, 2018 ABCA 331 (CanLII), per curiam, at para 26 (“the law is clear that it is not mitigating for an accused to offer to plead guilty to a lesser included offence if the accused is ultimately convicted of the offence as charged. So, for example, an offer by an accused charged with second degree murder to plead guilty to manslaughter is not mitigating if the accused is subsequently convicted of second degree murder:...")
    R v Ryan, 2015 ABCA 286 (CanLII), 607 AR 47, per Picard JA, at paras 28 to 33
  14. R v Patterson, 1998 CanLII 2154 (ON CA), [1998] OJ No 937 (CA), per curiam, at para 1
    R v Pitkeathly, 1994 CanLII 222 (ON CA), 29 CR (4th) 182, per curiam at 184-5
    R v T(R), 1992 CanLII 2834 (ON CA), 17 CR (4th) 247, per Doherty JA at 263
  15. R v Mann, 2010 ONCA 342 (CanLII), 261 OAC 379, per MacPherson JA (3:0), at para 21
  16. R v Garofoli et al., 1988 CanLII 3270 (ON CA), 41 CCC (3d) 97, per Martin JA at 153 aff'd on other issue at 1990 CanLII 52 (SCC), per Sopinka J
  17. R v Vickers, 1998 CanLII 14982 (BC CA), 105 BCAC 42, per Esson JA (3:0)

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] However, it can be used to establish that the accused has "demonstrate[d] a lack of insight into the gravity and seriousness of his crimes".[3]

  1. R v Davis, 2012 ONSC 6486 (CanLII), per Spies J, at para 34
    R v White, 2008 CanLII 58421 (ONSC), [2008] OJ No 4511 (ONSC), per Spies J, 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] OJ No 955, per curiam, at paras 15 and 16
    R v Kozy, 1990 CanLII 2625 (ON CA), [1990] OJ No 1586 (CA), per Carthy JA
    R v Bani-Naiem, 2010 ONSC 1890 (CanLII), [2010] OJ No 1234, per MacDonnell J, at para 13
  3. Bani-Naiem, ibid., at para 13

Strict Bail Conditions

See also: Remand Credit

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] This will also apply to circumstances where delay is caused by appeal.[3]

Courts are reluctant to give sentence credit on this bais, however.[4]

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.[5]

On serious offences, the passage of time between the offence and sentence does not reduce the need for denunciation or deterrence.[6]

Other factors in delay to consider include:[7]

  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), 260 BCAC 254, per Kirkpatrick JA
  2. R v McAulay, 1987 ABCA 44 (CanLII), 78 AR 142, per Kerans JA
    R v Bosley, 1992 CanLII 2838 (ON CA), 18 CR (4th) 347, per Doherty JA, at p. 358 ("... excessive delay which causes prolonged uncertainty for the appellant but does not reach constitutional limits can be taken into consideration as a factor in mitigation of sentence")
    R v Leaver, 1996 CanLII 10223 (ON CA), 3 CR (5th) 138 (ONCA), per curiam
    R v Dwyer, [2000] OJ 3598 (ONSC)(*no CanLII links)
    R v Spencer, 2003 CanLII 36890 (ONSC), [2003] OJ 10 (ONSC), per Mossip J
    R v Morris, 2018 BCSC 803 (CanLII), per Sharma J, at paras 35 to 39
    R v Volk, 2018 BCPC 58 (CanLII), per Koturbash J, at para 27
    R v Schertzer, 2015 ONCA 259 (CanLII), 325 CCC (3d) 202, per Benotto JA, at para 129
    R v Legerton, 2015 ABQB 268 (CanLII), 604 AR 373, per Yamauchi J, at para 69
    R v TMB, 2013 ONSC 4019 (CanLII), 299 CCC (3d) 493, per Code J, at para 74 (“ It is settled law that delays in trial proceedings and delays during the appeal period, although within constitutional norms, can have a mitigating effect on sentence. ... . The substantial delays in this case have undoubtedly caused ongoing uncertainty for B. and, equally significantly, if he was now to serve an eight month custodial sentence and likely lose his job, at age 59, there would be additional hardship in attempting to re-enter the job market at age 60.“)
    R v Sheng, 2010 ONCA 296 (CanLII), 254 CCC (3d) 153, per Laskin JA, at para 60
    R v Viccars, 2010 ABPC 351 (CanLII), DTC 5184, per Fradsham J, at para 62
    Right to a Trial Within a Reasonable Time
  3. TMB, supra, at paras 73 to 75
    R v Williams, 2009 244 CCC (3d) 153(*no CanLII links) , at paras 29 to 32
    Sheng, supra, at para 60
    R v Boucher, 2004 CanLII 17719 (ON CA), 186 CCC (3d) 479, per Simmons JA, at para 33
    R v Symes, 1989 CanLII 7173 (ON CA), 49 CCC (3d) 81, per Goodman JA, at paras 96 to 97
  4. R v Glykis, 1995 CanLII 1277 (ON CA), , 41 CR (4th) 310 (ONCA), per Dubin CJ (3:0)
  5. R v Archibald, 2012 ABCA 202 (CanLII), 557 WAC 188, per curiam (3:0) , at para 13
  6. R v Partridge, 2005 NSCA 159 (CanLII), 206 CCC (3d) 87, per Bateman JA (3:0)
  7. R v Critton, 2002 CanLII 3240 (ONSC), [2002] OJ No 2594 (ONSC), per Hill J, at para 76

Pre-trial Custody

See also: Remand Credit

719
[omitted (1) and (2)]

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) [determination of sentence – remand credit], if the circumstances justify it, the maximum is one and one-half days for each day spent in custody.

Reasons

(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.
[omitted (3.3), (3.4), (4), (5) and (6)]
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; 2018, c. 29, s. 66.
[annotation(s) added]

CCC


Note up: 719(3), (3.1) and (3.2)


Defined terms: "court" (s. 716)

Section 719(3.1)—as it existed prior to December 2018—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), 268 CCC (3d) 423, per M Green J
    R v Dann, 2011 NSPC 22 (CanLII), per Derrick J
  2. R v Crawford, 2010 ABCA 290 (CanLII), 490 AR 148, per Rowbotham JA (3:0)

Pre-Trial Publicity

It is an error of law to "rely on pretrial publicity to determine whether the need for general deterrence has been satisfied".[1]

Courts should exercise caution against permitting "publicity to substitute for punishment".[2] However, publicity does constitute a "collateral consequence" and so are relevant in determining an "individualized" sentence.[3] But where the consequence is "inevitable", the mitigation is "greatly diminished".[4]

  1. R v Joseph, 2020 ONCA 733 (CanLII), per curiam, at paras 115 to 122
  2. R v Eliasson, 2021 ABCA 188 (CanLII), per curiam, at para 19
    R v Zentner, 2012 ABCA 332 (CanLII), 294 CCC (3d) 174, per curiam, at para 49
  3. Eliasson, supra, at para 19 ("the adverse effects of publicity are a "collateral consequence" as defined in Suter and are relevant, if at all, in determining how the individual circumstances of the offence and the offender affect the appropriate "individualized" sentence")
  4. Eliasson, supra, at para 19 ("As a matter of principle, the mitigating force of collateral circumstances that are "almost inevitable" is "greatly diminished"")
    Joseph, supra, at para 133
    Suter at para 49
    Zentner, supra at para 43

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), 20 MVR (4th) 177, per Mackenzie JA (3:0), at paras 32 to 35
    R v Sadler, 2009 BCCA 386 (CanLII), 274 BCAC 308, per curiam (3:0), at paras 23 to 29

Victims as a Factor in Sentencing

This page was last substantively updated or reviewed July 2021. (Rev. # 79559)

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;
[omitted (b), (c) and (d)]
(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


Note up: 718

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 gender identity or expression, or on any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,
(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,
(iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services,
[omitted (iv), (v), (vi) and (vii)]
shall be deemed to be aggravating circumstances;
[omitted (b), (c) and (d)]
; 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; 2019, c. 25, s. 293; 2021, c. 27, s. 5.

CCC


Note up: 718.2

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

Impact on Victim

Section 718.2(a)(iii.1) requires courts to consider the principle that "evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation".

This section requires more than just consideration of "harm". The judge must consider "evidence that the offence had a significant impact on the victim".[1]

  1. R v Quash, 2019 YKCA 8 (CanLII), per Fisher JA (2:1), at para 29 (section 718.2(a)(iii.1) “requires more than an acknowledgement of harm; it requires the judge to consider ‘evidence that the offence had a significant impact on the victim’ to be an aggravating circumstance")

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] This includes the reluctance that sex workers have to testify against their abusers.[2]


Objectives — offence against vulnerable person

718.‍04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

CCC


Note up: 718.‍04

Pending Sept 19, 2019 Bill C-75 [1]

  1. R v Yusuf, 2011 BCSC 626 (CanLII), BCWLD 6459, per Griffin J, at para 34
    R v DR, 2004 BCSC 336 (CanLII), BCTC 336, per Martinson J
    R v Downey, 1992 CanLII 109 (SCC), [1992] 2 SCR 10, per Cory J at p. 32 ("Prostitutes are a particularly vulnerable segment of society. The cruel abuse they suffer inflicted by their parasitic pimps has been well documented.")
  2. Downey, ibid. at para 61 ("reluctance of prostitutes to testify against pimps is well documented" and at para 55 "[s]trangely, despite the abusive and corrosive relationship that exists between the pimp and prostitute, many prostitutes are strongly attached to their pimps and truly believe that they are in love with them")

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 CanLII 1270 (AB CA), 22 CCC (2d) 472, per Allen JA, at pp. 486-7
    R v Cloutier, 2017 ABPC 3 (CanLII), per Allen J, 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]

Intimate Partner Violence

Additional consideration — increased vulnerability

718.201 A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims.

2019, c. 25, s. 293.1.

CCC


Note up: 718.201

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.[1] Willing participation on the part of the victim is not mitigating.[2]

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.[3]

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.[4]

The existence of a "relationship" of "genuine affection" is not a valid consideration as a mitigating factor.[5]

  1. R v Hajar, 2016 ABCA 222 (CanLII), 338 CCC (3d) 477, per Fraser CJ (2:1), 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), 371 AR 27, per Fraser CJ, 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), per Mainella JA, 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.")
    R v SADF, 2021 MBCA 32 (CanLII), per Spivak JA
  2. R v DB, 2013 ONCA 691 (CanLII), 119 OR (3d) 16, per curiam
  3. SJB, ibid., at para 24
  4. Pritchard, ibid., at para 9
  5. R v Ford, 2019 ABCA 87 (CanLII), 371 CCC (3d) 250, per Martin JA, at para 30

See Also

State and Police Misconduct as a Sentencing Factor

This page was last substantively updated or reviewed January 2019. (Rev. # 79559)

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), [2010] 1 SCR 206, per LeBel J, at para 53
  2. R v Tran, 2010 ONCA 471 (CanLII), 257 CCC (3d) 18, per Epstein JA, at para 48

Police Misconduct

See also: Acting in Authority

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) [protection of persons acting under authority – when protected] and (5) [protection of persons acting under authority – power in case of escape from penitentiary], a person is not justified for the purposes of subsection (1) [protection of persons acting under authority] 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


Note up: 25(1), (2), (3), and (4)

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]

Reasonableness Factors for Police Action

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.
Racialized Contexts

In a racialized used of force context, such as where white police officers are using force on a black suspect, it has been suggested that it is even more important for courts to denounce police conduct by making a measurable sentencing reduction in order to restore reacialized groups' respect for the law.[12]

  1. R v Pigeon, 1992 CanLII 869 (BC CA), 73 CCC (3d) 337, per Carrothers JA
  2. R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J
  3. eg. R v Charanek, 2011 ABPC 374 (CanLII), per Fradsham J
  4. R v Tran, 2010 ONCA 471 (CanLII), 257 CCC (3d) 18, per Epstein JA
  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 CanLII 90 (SCC), [1988] 1 SCR 30, per Dickson CJ
  7. Nasogaluak, supra, at para 32
  8. R v Chartier v Greave, [2001] OJ No 634 (ONSC)(*no CanLII links) at 29
  9. Nasogaluak, supra, at para 35
  10. Crampton v Walton, 2005 ABCA 81 (CanLII), 194 CCC (3d) 207, per Fruman JA
  11. R v Magiskan, 2003 CanLII 859 (ONSC), OJ No 4490, per Zelinski J
    R v Tang, 2011 ONCJ 525 (CanLII), per Reinhardt J, at para 81
    Crampton, supra, at para 6 (the officer must demonstrate that (i) was required or authorized by law to perform an action in the administration or enforcement of the law; (ii) acted on reasonable grounds in performing that action; and (iii) did not use unnecessary force.)
  12. R v Acheampong, 2018 ONCJ 798 (CanLII), per Burstein J, at para 59 - resulted in a 2 year reduction on a 7.5 year sentence

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] It's absence is not a mitigating but is simply neutral.[2]

The criminal record can show that the offender is a "scofflaw", is not rehabilitated or has not "learned from past mistakes".[3]

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.[4]

It is an error in principle to determine a sentence based only on the sentence from a previous conviction.[5] It is a "relevant consideration" but the sentence must be driven by the facts of the case.[6] It is relevant to whether "the offence is uncharacteristic for the offender...whether the offender demonstrates a continuing attitude of disobedience of the law".[7]

A person who has received a discharge can still be considered a "first time offender".[8]

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".[9]

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)".[10]

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


Note up: 725(1), (1.1) and (2)

An offence committed while on parole is an aggravating factor. By contrast the added consequences of parole revocation should not be mitigating.[11]

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).[12]

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.[13]

  1. R v Squires, 2012 NLCA 20 (CanLII), 289 CCC (3d) 429, per Welsh JA (2:1), (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 Lau, 2004 ABCA 408 (CanLII), 193 CCC (3d) 51, per Hunt JA, at para 29
    R v Felix, 2019 ABCA 458 (CanLII), per Antonio JA, at para 45 ("The starting point established herein presumes an offender who has no criminal record and is of prior good character, and who has been found guilty after trial.")
    R v JJM, 2021 ABCA 170 (CanLII), per curiam
    contra R v RM, 2019 BCCA 409 (CanLII), per Fenlon JA at paras 20 to 25
  3. R v Barrett, 2012 NLCA 46 (CanLII), 291 CCC (3d) 213, per Hoegg JA (3:0), 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.”)
  4. R v RA, 1994 CanLII 4524 (MB CA), 88 CCC (3d) 184, per Twaddle JA
    R v Garnet Lee Cole, 2013 NBPC 9 (CanLII), per Brien J, at para 34
  5. Squires, supra, at para 55
  6. Squires, supra, at para 55
  7. R v Presgrave, [2014] QCCA 105(*no CanLII links) , at para 32
  8. R v Barclay, 2018 ONCA 114 (CanLII), 44 CR (7th) 134, per Hoy ACJ, at paras 44, 49
  9. Presgrave, ibid., at para 32
  10. R v Moller, 2012 ABCA 381 (CanLII), 539 AR 300, per curiam (3:0) , at para 11
  11. R v Lavallee, 2006 ABCA 324 (CanLII), 214 CCC (3d) 223, per Costigan JA (3:0)
  12. R v Andrade, 2010 NBCA 62 (CanLII), 260 CCC (3d) 353, per Robertson JA (3:0)
    see also R v Garcia and Silva, 1969 CanLII 450 (ON CA), [1970] 1 OR 821 at 823, [1970] 3 CCC 124 (CA), per Gale ACJ (3:0)
  13. Garcia and Silva, supra
    see also R v Edwards, 2001 CanLII 24105 (ON CA), OR (3d) 737, per Rosenberg JA (3:0)

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), 260 CCC (3d) 353, per Robertson JA (3:0), at para 2

First Time Offenders

The 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, per Rosenberg JA (3:0), at para 22
  2. R v Stein, 1974 CanLII 1615 (ON CA), 15 CCC (2d) 376 (ONCA), per Martin JA (3:0)
    R v Gaetz, 1992 CanLII 2509 (NS CA), 77 CCC (3d) 445, per Chipman JA (2:1)

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 have been specifically charged and 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), [2006] 2 SCR 762, per Fish J (7:0), 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), 214 CCC (3d) 309, per Charron J, 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. R v Audet, 1996 CanLII 198 (SCC), [1996] 2 SCR 171, per La Forest J
  3. R v MC, 2012 ONSC 2505 (CanLII), OJ No 1797, per Thorburn J, at para 26
  4. Audet, supra, at para 35
  5. Audet, supra, at para 36
  6. Audet, supra
  7. Audet, supra
  8. see R v Fones, 2012 MBCA 110 (CanLII), [2012] MJ No 407, per Hamilton JA, at para 68
    R v R(GW), 2011 MBCA 62 (CanLII), [2011] MJ No 246, per Steel JA, at para 42
  9. e.g. R v AGA, 2010 ABCA 61 (CanLII), 474 AR 304, per curiam
  10. R v Rocha, 2012 ABPC 24 (CanLII), 532 AR 344, per Groves J (offence of voyeurism by taking photos up the skirt of a passenger)

See Also

Sentencing of Organizations

This page was last substantively updated or reviewed January 2020. (Rev. # 79559)

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


Note up: 718.21

Previous Convictions

Previous conviction

727
[omitted (1), (2) and (3)]

Organizations

(4) If, under section 623 [trial of organization], 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) [sentence of life imprisonment – subsequent conviction for second-degree murder].
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.
[annotation(s) added]

CCC


Note up: 727(4) and (5)

Probation

See also: Probation Orders

732.1
[omitted (1), (2), (2.1), (2.2) and (3)]

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) [probation order – optional conditions on organization & create standards and practices], 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.

[omitted (4), (5), (6), (7), (8), (9), (10), (11) and (12)]
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; 2015, c. 13, s. 27; 2018, c. 21, s. 24(F); 2019, c. 25, s. 297
[annotation(s) added]

CCC


Note up: 732.1(3.1) and (3.2)

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) [fines for organizations] 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


Note up: 735(1), (1.1) and (2)

Principles by Offence

Violent and Assaultive Offences (Sentencing)

This page was last substantively updated or reviewed January 2018. (Rev. # 79559)

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 consensual 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]

Sports-related violence can frequently allow for discharges.[5]

  1. R v Ogg-Moss, 1984 CanLII 77 (SCC), [1984] 2 SCR 173, per Dickson J (5:0) ("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 CanLII 4838 (BC CA), 131 CCC (3d) 274, per Prowse JA
  4. R v Philpott, 2011 NLTD 30 (CanLII), 958 APR 119, per LeBlanc J
  5. R v Carroll, 1995 CanLII 1123 (BC CA), (1995) 38 CR 238, per Donald JA

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

Group Violence

When sentencing for group violence, it is not permitted to argue that a particular individual’s contribution was less than others and so deserves a lower sentence. They are responsible for the group that they contributed to. [1]

  1. R v MacIntyre and Liron, 1992 ABCA 319 (CanLII), 18 WCB (2d) 123, per Fraser CJ at para 3 (“...when individuals act as part of a group or gang and perpetrate criminal acts, this gang-like feature of their activities does not permit each individual to offer his individual involvement alone ignoring, for sentencing purposes, the seriousness of their collective actions. When a person acts in concert with other members of a group or gang to victimize a single victim, that person must accept the consequences which flow from this group action. Each member of the group must be taken to know that by committing individual assaults upon a victim, he advances and even encourages the violence of the others.”)

Position of Trust

Position of Trust as a Factor in Sentencing

Peace Officers as Offender

See also: Assaults Relating to Persons in Authority (Sentencing Cases)

Domestic Violence

Types of Victims

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), 27 WCB (2d) 176, per Fraser CJ, at para 28
  2. R v Nickel, 2012 ABCA 158 (CanLII), 545 WAC 366, per Watson JA (3:2), at paras 34, 35
  3. R v MacDonald (K.), 2009 MBCA 36 (CanLII), 236 Man.R. (2d) 239, per Scott CJ, at para 14

Peace Officers as Victim

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) [threats – causing harm or death] or any of sections 266 to 269 [forms of assault], 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


Note up: 269.01(1) and (2)

Sentencing for Drug Offences

Purpose of Sentencing for Drug Offences

See also: Drug Offences (Crime) and Purpose and Principles of Sentencing

In addition to the sentencing purposes and principles outlined in s. 718 to 719.2 of the Criminal Code, 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.
[omitted (2), (3), (4) and (5)]
1996, c. 19, s. 10; 1999, c. 5, s. 49; 2012, c. 1, s. 43; 2017, c. 7, s. 7; 2018, c. 16, s. 198.

CDSA


Note up: 10(1)

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. USA v Dynar, 1997 CanLII 359 (SCC), 115 CCC (3d) 481, per Cory and Iacobucci JJ, 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), 335 CCC (3d) 478, per Lowry JA, at para 28
  3. R v Cisneros, 2014 BCCA 154 (CanLII), per Groberman JA
  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
[omitted (1)]

Factors 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,
(iii) trafficked in a substance included in Schedule I, II, III, IV or V, 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 18 years, or
(iv) trafficked in a substance included in Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, to a person under the age of 18 years;
(b) was previously convicted of a designated substance offence, as defined in subsection 2(1) of this Act, or a designated offence, as defined in subsection 2(1)of the Cannabis Act;
(c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, the 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.
[omitted (4) and (5)]
1996, c. 19, s. 10; 1999, c. 5, s. 49; 2012, c. 1, s. 43; 2017, c. 7, s. 7; 2018, c. 16, s. 198; 2022, c. 15, s. 19.

CDSA


Note up: 10(2) and (3)

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.

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), 330 CCC (3d) 82, per Scanlan JA, 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] OJ No 5708 (S.C.)(*no CanLII links)
  2. R v Lively, 2006 NSSC 274 (CanLII), 796 APR 1, per Gruchy J, at para 39
  3. R v Matias-Pedro, 2003 BCCA 590 (CanLII), 180 CCC (3d) 304, per Rowles JA, 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 the 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

Some courts have made a distinction in sentencing between traffickers motivated by addiction as opposed to financial gain and greed.[6]

  1. R v Fifield, 1978 CanLII 812 (NSCA), 25 NSR (2d) 407, per MacKeigan CJ
  2. R v Williams, [2010] OJ No 2971 (ONSC)(*no CanLII links) , at para 20
    R v Woolcock, [2002] OJ No 4927 (CA)(*no CanLII links) , at para 5
    R v Mandolino, [2001] OJ No 289 (CA)(*no CanLII links) , at para 1
    R v Belenky, 2010 ABCA 98 (CanLII), 253 CCC (3d) 344, per McDonald JA, at para 3
    R v Lau, 2004 ABCA 408 (CanLII), 193 CCC (3d) 51, per Hunt JA, at para 33
    R v Nguyen, 2001 BCCA 624 (CanLII), 160 BCAC 17, per Ryan JA, at para 7
  3. R v Bui, 2004 CanLII 7201 (ON CA), [2004] OJ No 3452 (CA), per curiam, at para 2
    Woolcock, supra, at para 17
    Nguyen, supra, at para 14
  4. see e.g. R v Salame, 1999 ABCA 318 (CanLII), AJ No 1271, per Fraser CJ, at para 3
  5. e.g. see R v Murray, 2012 ABPC 123 (CanLII), per Semenuk J
  6. R. v. Burchnall and Dumont (1980), 1980 ABCA 219 (CanLII), 24 A.R. 17 (C.A.) at para. 29
    R v Ma (2003), 2003 ABCA 220 (CanLII) at para. 8(complete citation pending)
    Henderson (2002), 2002 ABQB 442 (CanLII), 313 A.R. 182 (Q.B.), at para. 38
    R v Lau, 2004 ABCA 408 (CanLII), at para 33

Ranges

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

In Ontario, conditional sentences are available but are restricted to "exceptional circumstances".[2]

In Alberta, the court recommends a starting point of 3 years for trafficking in cocaine in context of a "commercial operation or something more than a minimal scale".[3] "Commercial" operations will vary from a few grams to 2 oz of cocaine.[4] When it is "wholesale commercial trafficking" the starting point is 4.5 years.[5]

  1. R v Voong, 2015 BCCA 285 (CanLII), 325 CCC (3d) 267, per Bennett JA, at para 1
  2. R v Mori, 2020 ONCJ 620 (CanLII), at para 39
  3. Maskell (1981), 1981 ABCA 50 (CanLII), 29 A.R. 107 (C.A.)
    R v Lau, 2004 ABCA 408 (CanLII), at para 20(complete citation pending)
  4. Lau, ibid. at para 26
  5. Lau, supra at para 21
    R. v. Chung (1999), 1999 ABCA 86 (CanLII), 232 A.R. 193 (C.A.)
    R. v. Honish (1989), 1989 ABCA 228 (CanLII), 100 A.R. 79 (C.A.)
    R. v. Ma (2003), 2003 ABCA 220 (CanLII), 330 A.R. 142 (C.A.)

Drug Court

[omitted (1), (2) and (3)]

Drug treatment court program

(4) A court sentencing a person who is convicted of an offence under this Part may delay sentencing to enable the offender

(a) to participate in a drug treatment court program approved by the Attorney General; or
(b) to attend a treatment program under subsection 720(2) [Court-supervised programs] of the Criminal Code.

[omitted (5)]
1996, c. 19, s. 10; 1999, c. 5, s. 49; 2012, c. 1, s. 43; 2017, c. 7, s. 7; 2018, c. 16, s. 198; 2022, c. 15, s. 19.

CDSA


Note up: 10(4)

Sentencing Ranges by Type of Drug

Sentencing for Sexual Offences

This page was last substantively updated or reviewed January 2021. (Rev. # 79559)

General Principles

Ranges

Sentencing for sexual offence, whether the victim is under age or not, must emphasize the "wrongfulness and harmfulness" of the offences by taking into account the "life-altering consequences" of the offences.[1]

The mere fact that there was no penetrative intercourse does not render the sexual assault on a "lower" range of penalty.[2]

Consent

De facto consent of the victim is not an appropriate form of mitigation.[3]

Terminology

The use of terms such as "fondling" or "caressing" should be avoided as it tends to minimize the violence involved.[4]

  1. R v Brown, 2020 ONCA 657 (CanLII), 152 OR (3d) 650, per Trotter JA, at para 59 - extending principles from Friesen to adult offences
  2. R v Stuckless, 1998 CanLII 7143 (ON CA){perONCA| ("The absence of penetration does not automatically relegate the sexual abuse of children to the "lower range" of sexual offences. There is no question that "additional force", "collateral crimes" and penetration are aggravating factors. But their absence does not thereby transform them into mitigating circumstances, nor neutralize the other aggravating factors found in this case: the abuse of trust, the number of victims, the frequency of the assaults and their devastating impact on the lives of the victims. These offences were, individually and collectively, unconscionable. Any characterization which purports to diminish their magnitude, is unacceptable.")
  3. See Victims as a Factor in Sentencing
  4. R v Friesen, 2020 SCC 9 (CanLII), per Wagner CJ and Rowe J

Child Sexual Offences

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.

Case Digests

See Also

Regulatory Offences (Sentencing)

This page was last substantively updated or reviewed January 2016. (Rev. # 79559)

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), 5 WWR 99, per Watson J, at para 35
  2. R v Cotton Felts Ltd., 1982 CanLII 3695 (ON CA), 2 CCC (3d) 287, 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), 560 AR 382, per Walter J, at para 10
  4. Cotton Felts Ltd., supra

See Also

Property and Fraud Offences

Introduction

See also: Fraud-based Offences

Property offences cover a broad variety of offences in which a victim is either deprived or at risk of being deprived of some assets of value. This can include fraud-related offences.

List of Property Offences

Part IX - Offences Against Rights of Property (s. 321 to 378)

Fraud-related Offences

See Also


Sentencing Fraud

This page was last substantively updated or reviewed January 2020. (Rev. # 79559)

Overview

See also: Fraud (Offence)

The Association of Certified Fraud Examiners created a taxonomy of fraud:[1]

  • Corruption
    • Conflict of Interest (purchasing schemes, sales schemes)
    • Bribery (Invoice kickbacks, bid rigging)
    • Illegal Gratuities
    • Economic Extortion
  • Asset misappropriation
    • Cash
      • Theft of Cash on Hand
      • Theft of Cash Receipts
        • Skimming
          • Sales (unrecorded, understated)
          • Receivables (Write-off schemes, lapping schemes, unconcealed)
          • Refunds or Other
        • Cash Larceny
      • Fraudulent Disbursements
        • Billing Schemes (shell company, non-accomplice vendor, personal purchases)
        • Payroll Schemes (ghost employee, falsified wages, commission schemes)
        • Expense Reimbursement Schemes (mischaracterized expenses, overstated expenses, fictitious expenses, multiple reimbursements)
        • Cheque Tampering (forged maker, forged endorsement, altered payee, authorized maker)
        • Register Disbursements (False voids, false refunds)
    • Inventory and Other Assets
  • Financial statement fraud
    • Net Worth/Net Income Overstatement (timing differences, fictitious revenues, concealed liabilities and expenses, improper asset valuations, improper disclosures)
    • Net Worth/Net Income Understatement (timing differences, understated revenues, overstated liabilities and expenses, improper asset valuations, improper disclosures)

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) [fraud], 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.
[omitted (2)]
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.
[annotation(s) added]

CCC


Note up: 380(1) and (1.1)


Defined terms: "Act" (s. 2), "person" (s. 2), and "testamentary instrument” (s. 2)

Draft Form of Charges

See also: Draft Form of Charges

See Fraud (Offence)

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) [fraud over $5,000]
From September 15, 2004
N/A 14 years incarceration
s. 380(1)(b) [fraud not exceeding $5,000] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 380(1)(b) [fraud not exceeding $5,000] indictable election 2 years incarceration
s. 380(1)(a) [fraud over $5,000]
Until September 14, 2004
N/A 10 years incarceration

Offences under s. 380(1)(a) [fraud over $5,000] are straight indictable. The maximum penalty is 14 years incarceration.

Offences under s. 380(1)(b) [fraud not exceeding $5,000] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

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(1)(b) [fraud not exceeding $5,000] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 380(1)(a) [fraud over $5,000]
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(1)(a) [fraud over $5,000]
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(1)(a) [fraud over $5,000]
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.


Mandatory Minimum

The mandatory minimum sentence for fraud over $1 million has been found in at least one instance to be unconstitutional as "cruel and unusual" punishment under s. 12 of the Charter.[1]

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.[2]

Unless prohibited by law, the court should be considered a conditional sentence in all circumstances where incarceration is contemplated.[3]

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".[4]

For most courts, the amount defrauded will be sufficient to determine if incarceration is required.[5]

In major frauds involving breach of trust, denunciation and deterrence are to be emphasized and will usually result in jail sentences.[6]

Certain courts have stated that conditional sentence orders should not be granted where there is a breach of trust.[7] However, others suggest that it is not a full prohibition. Rather is it rate where it is a large scale fraud.[8]

Incarceration is often ordered where there is no remorse.[9] Also where there is no acceptance of responsibility.[10]

Where there are exceptional or extreme personal mitigating circumstances, general deterrence can be satisfied by a conditional sentence.[11]

Restitution and community service work are not sufficient to amount to exceptional circumstances to warrant a conditional sentence.[12]

Where the aggravating factors overwhelm the mitigating factors, a sentence of imprisonment is mandated.[13]

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.[14]

Res Judicata

A person convicted of fraud and income tax evasion may be sentenced separately for each offence.[15]

  1. R v Plange, 2018 ONSC 1657 (CanLII), per Nakatsuru J, at paras 36 to 39
  2. List of Criminal Code Amendments
  3. R v Moulton, 2001 SKCA 121 (CanLII), 160 CCC (3d) 407, per Vancise JA
  4. R v Proulx, 2000 SCC 5 (CanLII), [2000] 1 SCR 61, per Lamer CJ at 114
  5. R v Bogart, 2002 CanLII 41073 (ON CA), [2002] OJ No 3039, per Laskin JA, leave ref'd, [2003] SCR vi, at para 34
    R v Evans, 2003 NBQB 54 (CanLII), per Glennie J
    R v Williams, 2003 CanLII 9650 (ON CA), [2003] OJ No 2202 (CA), per curiam
    R v Kuriya, 2002 NBQB 306 (CanLII), 658 APR 247, per Russell J aff’d at 2003 NBCA 63 (CanLII), per curiam
    R v Black, 2003 NSSC 99 (CanLII), [2003] NSJ No 168, per Murphy J
  6. R v MacEachern, [1978] OJ No 987(*no CanLII links) , at paras 8, 9 (ONCA)
    R v Tucker, [1988] NSJ No 33(*no CanLII links) , at p. 18 (NSCA)
    R v Hill, 1997 CanLII 9832 (NSSC), [1997] NSJ No 97, per Gruchy J, at paras 13 to 15 (N.S.S.C.)
    R v Toews, 2007 ABPC 235 (CanLII), [2007] AJ No 944, per Stevens-Guille J, at paras 36, 37 (ABPC)
    R v McKinnon, 2005 ABCA 8 (CanLII), [2005] AJ No 12, per Côté JA, at paras 60 to 63 (ABCA)
    R v Reid, 2004 YKCA 4 (CanLII), [2004] Y.J. No 3, per Hall JA, at para 13 (YTCA)
    R v Steeves, 2005 NBCA 85 (CanLII), [2005] N.B. J. No 351, per curiam, at para 10 (NBCA)
    R v Cremer, 2007 ABQB 544 (CanLII), [2007] AJ No 989, per Burrows J, at para 26 (ABQB)
    R v Miller, 2010 ABPC 37 (CanLII), [2010] AJ No 174, per Mcllhargey J, at para 62
    R v Inglis, 2002 BCPC 242 (CanLII), per Brecknell J, 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, per Hunt JA, at para 3 - concerned tax fraud
    cf. R v Matchett, 1997 CanLII 9511 (NB CA), [1997] NBJ No 176 (CA), per Ayles JA at 5
  7. R v Pierce, 1997 CanLII 3020 (ON CA), 114 CCC (3d) 23, per Finlayson JA
  8. R v Williams, 2007 CanLII 13949 (ONSC), [2007] O.J. 1604, per Hill J, at paras 26 to 28 ("The sentencing option of a conditional sentence is not excluded from consideration in breach of trust fraud cases")
  9. R v Mastromonaco, [2002] OJ No 4612(*no CanLII links) at 28
  10. Desormeau, supra at 20
  11. R v Bunn, 2000 SCC 9 (CanLII), [2000] 1 SCR 183, per Lamer J
    R v Kratky, 1997 CanLII 936 (BC SC), per Curtis J
    R v Anderson-Davis, 2000 BCSC 42 (CanLII), [2000] BCJ No 88, per Boyle J
  12. R v McEachern, 1978 CanLII 2506 (ON CA), 42 CCC (2d) 189, per Howland CJ, at p. 191 (CCC)
  13. R v Bodnarchuk, 2008 BCCA 39 (CanLII), 254 BCAC 6, per Levine JA at 20
    R v Mohebtash, 2007 BCCA 427 (CanLII), per Finch CJ, at para 10
  14. R v Bunn, 2000 SCC 9 (CanLII), [2000] 1 SCR 183, per Lamer CJ, at para 23
  15. R v Beggs, 2003 BCCA 101 (CanLII), 180 BCAC 186, per Ryan JA
    R v Leo-Mensah, 2010 ONCA 139 (CanLII), 259 OAC 196, per Gillese JA

Sentencing Principles

See also: Property and Fraud Offences (Sentencing)
Primacy of General Deterrence and Denunciation

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 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]

Where there is a "large-scale" fraud, it will generally attract a sentence of imprisonment absence "unusual circumstances".[6]

Gravity of Fraud

Fraud's are often found to be offences with a high degree of moral blameworthiness as fraud involves a great deal of forethought and conscious effort. It has been called the "thinking person's" crime.[7]

  1. R v Dobis, 2002 CanLII 32815 (ON CA), 163 CCC (3d) 259, per MacPherson JA at 42
    R v Bogart, 2002 CanLII 41073 (ON CA), [2002] OJ No 3039, per Laskin JA, leave ref'd, [2003] SCR vi, at 29, 33-36
    R v Wismayer, 1997 CanLII 3294 (ON CA), 115 CCC (3d) 118, per Rosenberg JA at 38
    R v Gray (LV) et al, 1995 CanLII 18 (ON CA), 76 OAC 387, per Carthy JA, at pp. 398-99
    R v Betram [1990] OJ No 2013(*no CanLII links) at 3 (CA)
  2. R v Howe, 2002 ABCA 277 (CanLII), [2002] AJ No 1443, per Hunt JA, at para 3
    Dobis, supra at 272
    Bogart, supra at 29
    R v Pierce, 1997 CanLII 3020 (ON CA), [1997] OJ No 715, per Finlayson JA, at 11
  3.   R v Drabinsky and Gottlieb, 2011 ONCA 582 (CanLII), 274 CCC (3d) 289, per curiam, at para 160
    R v Coffin, 2006 QCCA 471 (CanLII), 210 CCC (3d) 227, per curiam, at paras 49, 70
  4. Pierce, supra at 5
  5. R v Howe, 2002 ABCA 277 (CanLII), [2002] AJ No 1443, per Hunt JA, at para 3
    Dobois, supra, at p. 272
  6. R v Rands, 2005 BCPC 264 at para 28
    R v Burkart, 2006 BCCA 446 (CanLII), at para 5
  7. R v Elmadani, 2015 NSPC 65, at para. 10
    see also R v Pravo, 2018 ONSC 4889 at para 23(complete citation pending) ("There is considerable legitimate debate as to whether significant sentences imposed on offenders truly have a deterrent effect, either for the individual offender or for others who might be tempted to commit similar crimes. However, it is well recognized that if deterrence is relevant at all, it is particularly so for crimes of this nature, involving individuals who are intelligent and who deliberately set out to plan and execute sophisticated frauds. It is important that such individuals be aware that the significant risk of a long jail term outweighs any benefit or financial reward they may obtain from the fraud. ")

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 CanLII 381 (ON CA), 5 CCC (2d) 129, per Gale CJ, 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 CanLII 1403 (ONSC), 9 CCC (2d) 74 (Ont.Co.Ct.), per Moore J, at p. 74 ("The cardinal principle in the determination of a sentence is the protection of the public.")
  3. R v Wilton, 1991 CanLII 7961 (SK CA), 93 Sask R 184, per Cameron JA
    see also R v Durocher, 1992 CanLII 8243 (SK CA), 100 Sask R 108, 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 [fraud], 382 [manipulating stock exchange], 382.1 [insider trading] and 400 [false prospectus], 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


Note up: 380.1(1), (1.1), (2), and (3)

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), per curiam, at para 41
    see also R v Levesque, 1993 CanLII 4232 (QC CA), 59 QAC 307 CA, per curiam
  2. R v Evans, 2003 NBQB 54 (CanLII), per Glennie J
    see s. 718.2(a)(iii)
  3. R v Kuriya, 2002 NBQB 306 (CanLII), 252 NBR (2d) 247, per Russell J
    R v Evans, 2003 NBQB 54 (CanLII), [2003] NBJ No 47 (QB), per Glennie J
  4. Howe, supra
  5. R v Bjellebo, 2003 CanLII 26907 (ON CA), [2000] OJ No 478 (SC), per Sharpe JA
  6. R v Fehr, 2001 SKCA 37 (CanLII), [2001] SJ No 147 (CA), per Sherstobitoff JA
  7. R v Wheeler, 2001 CanLII 37646 (NLSCTD), 612 APR 277, per Dymond J and 2001 CanLII 37651 (NLSCTD), [2001] NJ No 240, per Dymond J
  8. R v Evans, 2003 NBQB 54 (CanLII), per Glennie J, at para 12 and R v Adler, 1999 CanLII 9438 (NB CA), [1999] NBJ No 100 (CA), per curiam
    R v Desormeau, 2001 CanLII 33851 (NLSCTD), [2001] NJ No 341, per Leblanc J
    R v Bradbury, 2002 CanLII 61687 (NLSCTD), 218 Nfld 33, per Adams J -- institutional victims
  9. R v Bogart, 2002 CanLII 41073 (ON CA), 167 CCC (3d) 390, per Laskin JA
  10. R v Wisniewski, 2002 MBCA 93 (CA), (2002) 166 Man R (2d) 73, per Steel JA
  11. R v Harding, 2002 BCCA 606 (CanLII), [2002] BJ No 2502 (CA), 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), 995 APR 126, per Richard JA, at para 13
    R v Chaulk, 2005 NBCA 86 (CanLII), 200 CCC (3d) 442, per curiam
    R v McKinnon, 2005 ABCA 8 (CanLII), [2005] AJ No 12, per Côté JA-- embezzlement by a bookkeeper R v Holmes, 1999 ABCA 228 (CanLII), 237 AR 146, per curiam -- bank manager stealing from accounts
    R v Reid, 2004 YKCA 4 (CanLII), 194 BCAC 18, per Hall JA -- cashier stealing from employer R v Pierce, 1997 CanLII 3020 (ON CA), [1997] OJ No 715 (CA), per Finlayson JA -- comptroller sealing from employer
    R v Dobis, 2002 CanLII 32815 (ON CA), 163 CCC (3d) 259, per MacPherson JA -- fraud by accounting manager
    R v Clarke, 2004 CanLII 7246 (ON CA), [2004] OJ No 3438 (CA), per curiam -- bank telephone agent stealing from accounts R v Bowes (J.M.)155 NBR (2d) 321 (CA)(*no CanLII links) -- lawyer stealing trust funds
  14. R v Johnson, 2010 ABCA 392 (CanLII), 265 CCC (3d) 443, per curiam, at paras 35 to 36
  15. R v Walker, 2016 ABQB 695 (CanLII), per Ackerl J, at para 65
    R v deKock, 2008 ABPC 279 (CanLII), AJ No 1147, per Ayotte J (13 victims)
    R v Winter, 2008 CanLII 47443 (NLPC), [2008] NJ No 260, per Hyslop J (15 victims)
    R v Banks, 2010 ONCJ 339 (CanLII), [2010] OJ No 3550, per West J (18 victims)
    R v Penney, 2008 ABPC 339 (CanLII), [2008] AJ No 1353, per Allen J (20 victims)
    R v Cruz, 2010 ONCJ 640 (CanLII), [2010] OJ No 5735, per Bellefontaine J (29 victims)
    R v Dhanaswar, 2016 ONCA 172 (CanLII), [2014] OJ No 6388, 2014 CarswellOnt 18873, per curiam (31 victims)
  16. e.g. R v Sanmugam, 2012 ONSC 6663 (CanLII), [2012] OJ No 5647, per Ducharme J
  17. R v Adams, 2015 ONCJ 161 (CanLII), per LeDressay J, at para 47
    R v Mazzucco, 2012 ONCJ 333 (CanLII), 101 WCB (2d) 651, per Clark J, 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), per Hill J, at para 39
  2. R v Inglis, 2002 BCPC 242 (CanLII), [2002] BCJ No 1551 (PC), per Brecknell J
    R v Bogart, 2002 CanLII 41073 (ON CA), 167 CCC (3d) 390, per Laskin JA
  3. R v Loewen, 2002 CanLII 37336 (MB PC), 168 Man R (2d) 48, per Wyant J
  4. Bogart, supra
  5. Bogart, supra
    R v Bertram and Wood (1990), 40 OAC 317, [1989] O. J. No 2123(*no CanLII links) , at p. 319 (OAC)
    R v Drabinsky, 2011 ONCA 582 (CanLII), per curiam, at para 160 ("In any event, this court and all other provincial appellate courts have repeatedly held that denunciation and general deterrence must dominate sentencing for large-scale commercial frauds. Denunciation and general deterrence most often find expression in the length of the jail term imposed.")
  6. R v Foran, 1969 CanLII 209 (ON CA), [1970] 1 CCC 336 (ONCA), per Gale CJ, at p. 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), per Bascom J, 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), 163 CCC (3d) 259, per MacPherson JA, at p. 271 - stating 3 to 5 years
    R v Drakes, 2009 ONCA 560 (CanLII), 252 OAC 200, per curiam, at paras 24 to 26 (leave to appeal refused, [2009] SCCA No 381)
    R v Bertram, [1990] OJ No 2013 (CA)(*no CanLII links) , at p. 3
    R v Wilson, 2003 CanLII 48181 (ON CA), 174 CCC (3d) 255, per curiam, at para 5
  2. R v Cunsolo, 2014 ONCA 364 (CanLII), per curiam, at para 53

Ancillary Sentencing Orders

See also: Ancillary Orders and Fraud Prohibition 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 discretionary 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 has smaller minimum amounts (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 His Majesty the King 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.

Record Suspensions and Pardons

Convictions under s. 380 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History of the Offence

See Also

References

Child Pornography Sentencing

This page was last substantively updated or reviewed June 2021. (Rev. # 79559)

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 and Sentencing for Child 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 incarceration
s. 163.1(4) and (4.1) [poss'n, access]
From July 17, 2015
summary election 2 years less a day incarceration
s. 163.1(4) and (4.1) [poss'n, access]
From July 17, 2015
indictable election 10 years incarceration
s. 163.1(2) and (3) [making, distributing]
August 9, 2012 to July 16, 2015
summary election 2 years less a day incarceration
s. 163.1(2) and (3) [making, distributing]
November 1, 2005 to July 16, 2015
indictable election 10 years incarceration
s. 163.1(4) and (4.1) [poss'n, access]
November 1, 2005 to July 16, 2015
summary election 18 months incarceration
s. 163.1(4) and (4.1) [poss'n, access]
November 1, 2005 to July 16, 2015
indictable election 5 years incarceration
s. s. 163.1(2) and (3) [making, distributing]
November 1, 2005 to August 8, 2012
summary election 18 months incarceration

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 incarceration.

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 incarceration Same
s. 163.1(4) and (4.1) [poss'n, access]
From July 17, 2015
summary election 6 months incarceration Same
s. 163.1(4) and (4.1) [poss'n, access]
From July 17, 2015
indictable election 1 year incarceration Same
s. 163.1(2) and (3) [making, distributing]
August 9, 2012 to July 16, 2015
summary election 6 months incarceration Same
s. 163.1(2) and (3) [making, distributing]
August 9, 2012 to July 16, 2015
indictable election 1 year incarceration Same
s. 163.1(4) and (4.1) [poss'n, access]
August 9, 2012 to July 16, 2015
summary election 90 days incarceration Same
s. 163.1(4) and (4.1) [poss'n, access]
August 9, 2012 to July 16, 2015
indictable election 6 months incarceration Same
s. 163.1(2) and (3) [making, distributing]
November 1, 2005 to August 8, 2012
summary election 90 days incarceration Same
s. 163.1(2) and (3) [making, distributing]
November 1, 2005 to August 8, 2012
indictable election 1 year incarceration Same
s. 163.1(4) and (4.1) [poss'n, access]
November 1, 2005 to August 8, 2012
summary election 14 days incarceration Same
s. 163.1(4) and (4.1) [poss'n, access]
November 1, 2005 to August 8, 2012
indictable election 45 days incarceration 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 must be consecutive where:

  • one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
  • each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))

[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]

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]

  1. R v DC, 2016 MBCA 49 (CanLII), 336 CCC (3d) 366, per Burnett JA, at para 44 - relating to offences of sexual touching and making child porn in relation to same victim

General Principles

Offences related to child pornography are a form of sex offence.[1] They are abhorent and cause extreme harm to its victims.[2]

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".[3]

All offences involving child pornography have a greater emphasis on general deterrence and denunciation.[4]

The initial sentencing response to child pornography offences have been acknowledged as being too lenient.[5]

Child pornography is increasing and expanding as technology becomes more sophisticated.[6]

Section 163.1(4.3) adds an aggravating factor:

163.1
[omitted (1), (2), (3), (4), (4.1) and (4.2)]

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.
[omitted (5), (6) and (7)]

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


Note up: 163.1(4.3)

Consequence of Unconstitutional Minimums

Despite the abolition of mandatory minimums, the courts should take their existence as a signal from Parliament that the offences were not being taken as seriously in the past as they should be.[7]

  1. R v Dyck, 2008 ONCA 309 (CanLII), 232 CCC (3d) 450, per Blair JA, at para 19
  2. R v Nisbet, 2011 ONCA 26 (CanLII), OJ No 101, 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), 142 OR (3d) 128, per Brown JA, at para 53
  3. R v Rowe, 2011 ONCA 48 (CanLII), per curiam
  4. R v EO, 2003 CanLII 2017 (ON CA), [2003] OJ No 563, 169 OAC 110 (CA), per Cronk JA, at para 7
    R v DGF, 2010 ONCA 27 (CanLII), 98 OR (3d) 241, per Feldman JA, at paras 21 to 22, 30
    R v Nisbet, 2011 ONCA 26, [2011] OJ No 101, per curiam, at para 3
    R v Stroempl, 1995 CanLII 2283 (ON CA), 105 CCC (3d) 187, per Morden ACJ, at para 9
    R v Inksetter, 2018 ONCA 474 (CanLII), 141 OR (3d) 161, per Hoy ACJ, at para 16
  5. R v PJB, 2010 ABCA 49 (CanLII), 474 AR 161, per Watson JA (2:1), at para 10
  6. R v Inksetter, 2018 ONCA 474 (CanLII), 141 OR (3d) 161, per Hoy ACJ, at para 26
  7. R v Inksetter, 2018 ONCA 474 (CanLII), [2018] OJ No 2702 (CA), per Hoy ACJ

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), [2001] 1 SCR 45, per McLachlin CJ, at para 28 ("This brings us to the countervailing interest at stake in this appeal: society’s interest in protecting children from the evils associated with the possession of child pornography. Just as no one denies the importance of free expression, so no one denies that child pornography involves the exploitation of children. The links between possession of child pornography and harm to children are arguably more attenuated than are the links between the manufacture and distribution of child pornography and harm to children. However, possession of child pornography contributes to the market for child pornography, a market which in turn drives production involving the exploitation of children. Possession of child pornography may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences. Some of these links are disputed and must be considered in greater detail in the course of the s. 1 justification analysis. The point at this stage is simply to describe the concerns that, according to the government, justify limiting free expression by banning the possession of child pornography.")
  2. R v TLB, 2007 ABCA 61 (CanLII), 218 CCC (3d) 11, per Fraser CJ, at para 27
  3. R v EO, 2003 CanLII 2017 (ON CA), [2003] OJ No 563, 169 OAC 110 (CA), per Cronk JA, at para 7
  4. Sharpe, supra, at para 158 ("The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children. It preys on preexisting inequalities.")
    R v Pecchiarich [2001] OJ No 3940(*no CanLII links) , per Hill J ("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 para 158
  7. Sharpe, supra, at para 88
    R v Miller, 2017 NLCA 22 (CanLII), 354 CCC (3d) 58, per Hoegg JA, at para 14
  8. Sharpe, supra, at para 89 ("The second alleged harm is that possession of child pornography fuels fantasies, making paedophiles more likely to offend. The trial judge found that studies showed a link between highly erotic child pornography and offences. However, other studies suggested that both erotic and milder pornography might provide substitute satisfaction and reduce offences. Putting the studies together, the trial judge concluded that he could not say that the net effect was to increase harm to children (para. 23). Absent evidence as to whether the benefit from sublimation equals the harm of incitement or otherwise, this conclusion seems tenuous. More fundamentally, the trial judge proceeded on the basis that scientific proof was required. The lack of unanimity in scientific opinion is not fatal. Complex human behaviour may not lend itself to precise scientific demonstration, and the courts cannot hold Parliament to a higher standard of proof than the subject matter admits of. Some studies suggest that child pornography, like other forms of pornography, will fuel fantasies and may incite offences in the case of certain individuals. This reasoned apprehension of harm demonstrates a rational connection between the law and the reduction of harm to children through child pornography.")
  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), [2001] 1 SCR 45}, 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 paras 14 and 15
  3. R v D(D), 2002 CanLII 44915 (ON CA), 163 CCC (3d) 471, per Moldaver JA, at para 35
  4. R v Nisbet, 2011 ONCA 26 (CanLII), OJ No 101, 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. D(D), supra, at para 36 ("In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.")
  6. D(D), supra, at paras 37 to 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), 890 APR 214, 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), 250 CCC (3d) 291, 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] OJ No 2277 (SCJ), 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 EO, 2003 CanLII 2017 (ON CA), [2003] OJ No 563, 169 OAC 110 (CA), per Cronk JA, at para 7
  4. e.g. see R v Saddlemire, 2007 ONCA 36 (CanLII), 216 CCC (3d) 119, 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), 77 WCB (2d) 573, 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), 416 Sask R 307, 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), 545 WAC 306, 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), 287 Man R (2d) 204, per Perlmutter J, at para 19
    R v Brooks, 2010 MBPC 61 (CanLII), 263 Man R (2d) 186, per Lerner J
  2. R v Yau, 2011 ONSC 1009 (CanLII), OJ No 720, per MacDonnell J
  3. R v Missions, 2005 NSCA 82 (CanLII), 196 CCC (3d) 253, per Roscoe JA, at para 14
    LaGue, supra, at para 19
    R v Basov, 2015 MBCA 22 (CanLII), 315 Man R (2d) 222, per Beard JA
  4. R v Stupnikoff, 2013 SKPC 57 (CanLII), 416 Sask R 307, per Agnew J , at para 35
  5. e.g. R v CGL, 2013 ABCA 140 (CanLII), 544 AR 360, 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]

Some have stated that the collector bears responsibility for the growth of these materials along with its creators.[2]

Purpose

The primary objective for sentencing in possession of child pornography is denunciation and general deterrence. [3]

Possession of child pornography contributes to the market for child pornography which drives the production of the materials.[4]

Possession is a "very important contributing element in the general problem of child pornography."[5] It is a "short step" away from being a distributor.[6]

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.[7] In certain individuals, it will fuel fantasies and incite them to commit offences.[8]

The materials encourage potential offenders to groom and seduce children for the purpose of making child pornography.[9]

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.[10]

The offence of accessing should not be considered any less serious an offence as possession.[11]

  1. R v Bejasa, 2010 ABPC 249 (CanLII), per Fradsham J, at paras 33 to 34
  2. R v Murty, 2021 ONSC 2801 (CanLII), per Kelly J, at para 36
    R v Kwok, 2007 CanLII 2942 (ON SC), 72 WCB (2d) 533, per Molloy J, at para 49
  3. R v Stroempl, 1995 CanLII 2283 (ON CA), 105 CCC (3d) 187, per Morden ACJ, at p. 191
    R v Hewlett, 2002 ABCA 179 (CanLII), 167 CCC (3d) 425, per Fraser CJ, at p. 432 (ABCA)
    R v Hunt, 2002 ABCA 155 (CanLII), [2002] AJ No 831, per curiam, at para 41
    R v Missions, 2005 NSCA 82 (CanLII), 196 CCC (3d) 253, per Roscoe JA
    R v Cohen, 2001 CanLII 3862 (ON CA), 49 WCB (2d) 555, per curiam
  4. R v Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45, per McLachlin CJ, at para 28
    R v Fisher, 2007 NBPC 15 (CanLII), [2007] NBJ No 129, per Cumming J, at para 16
    Stroempl, supra, at p. 191
  5. Stroempl, supra
    R v WC, [2004] OJ No 5985 (SCJ)(*no CanLII links) , at paras 20-22
  6. WC, ibid., at paras 20-26
    Stroempl, supra, at p. 191
    R v Lisk, 1998 CanLII 4737 (ON CA), [1998] OJ No 1456 (CA), per curiam, at para 1
  7. Sharpe, supra, at paras 85 to 94
  8. Sharpe, supra, at paras 85 to 94
    R v Steadman, 2001 ABQB 1004 (CanLII), [2001] AJ No 1563, per Gallant J, at paras 21 and 22
  9. 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.")
  10. e.g. R v Durnford, 2006 CanLII 34694 (NL PC), per Gorman J, at para 77
  11. R v Hammond, 2009 ABCA 415 (CanLII), 249 CCC (3d) 340, per Watson JA, at para 6

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]

In BC, the range for a first-time offender accessing CP would be between 4 months and 2 years.[3] With sympathetic circumstances and a relatively small collection, the range would be between 45 days to 9 months.[4]

  1. R v Hilderman, 2010 ABPC 183 (CanLII), AWLD 4452, per Fraser J, at para 15
  2. R v Kroeker, 2014 SKQB 137 (CanLII), 456 Sask R 41, per Keene J, at para 51
  3. R v Petne, 2020 BCPC 200 (CanLII), per Gouge J, at para 11
    R v Alexander, 2019 BCCA 100 (CanLII), per MacKenzie JA, at paras 37 to 38
  4. R v Walker, 2017 BCSC 1301 (CanLII), 386 CRR (2d) 222, per Brown J, at para 43

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.

The prohibition's objective includes preventing offenders from sending a message that "sex with children can and should be pursued."[1] It also seeks to prevent the "normalization" of child sexual abuse and prevent dissemination of the idea that children are sex objects to be abused.[2]

Gravity

The offence can range from "recording reprehensible non-consensual sexual acts to pure voyeurism".[3] While all are forms of abuse, "surreptitious recording" of change rooms is on the lower end of the scale.[4]

The gravity of the making of child pornography is different from the possession and access, as making usually involves the direct abuse of children.[5]


Consideration of how many images are made is secondary for the purpose of sentencing to the question of "how" the material was made.[6]

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.[7]

Victims are harmed "not only by the initial production of 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.[8]

  1. R v Beattie, 2005 CanLII 10273 (ON CA), 201 CCC (3d) 533, per Laskin JA
    R v Levin, 2015 ONCJ 290 (CanLII), per McArthur J, at para 100
  2. Beattie, ibid.
  3. R v Gryba, 2016 SKQB 123 (CanLII), SJ No 218, per Popescul CJ, at para 63
  4. Gryba, ibid., at p. 63
  5. R v Rhode, 2019 SKCA 17 (CanLII), 372 CCC (3d) 442, per Caldwell JA, at para 89 ("...the gravamen of conduct giving rise to the objective offence of making child pornography differs from the gravamen of the offences of accessing and possessing child pornography. It differs because it usually involves the direct abuse of a child as opposed to the promotion of the abuse of a child. ")
  6. Rhode, ibid., at para 89
  7. R v Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45, 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.")
  8. R v GJM, 2015 MBCA 103 (CanLII), 126 WCB (2d) 117, 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]

The creation of child pornography through pasting faces on previously downloaded images of child pornography is not a lesser form of creation.[3]

  1. R v Gryba, 2016 SKQB 123 (CanLII), SJ No 218, 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), 126 WCB (2d) 117, per Mainella JA, at para 15
  3. R v Rhode, 2019 SKCA 17 (CanLII), 372 CCC (3d) 442, per Caldwell JA, at para 89

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), 126 WCB (2d) 117, 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), 218 CCC (3d) 11, per Fraser CJ leave to SCC refused
  2. R v Weber, 2003 CanLII 28579 (ON CA), [2003] OJ No 3306 (CA), per Feldman JA, at para 16
  3. R v Kwok, 2007 CanLII 2942 (ON SC), 72 WCB (2d) 533, per Molloy J, at para 51
  4. R v DGF, 2010 ONCA 27 (CanLII), 250 CCC (3d) 291, 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 WAE, 2009 CanLII 42861 (NL PC), 890 APR 214, per Gorman J, at para 76
    R v Smith, 2008 CanLII 59107 (ON SC), per Clark J
    R v Kwok, 2007 CanLII 2942 (ON SC), 72 WCB (2d) 533, 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. R v Missions, 2005 NSCA 82 (CanLII), 196 CCC (3d) 253, per Roscoe JA
    see also Mallett, supra, at para 15
  5. Mallett, supra, at para 15
  6. R v Innes, 2008 ABCA 129 (CanLII), 231 CCC (3d) 48, per curiam, at para 12
  7. Kwok, supra
    R v Parise, [2002] OJ No 2513 (ONCJ) (*no CanLII links)
    Mallett, supra, at paras 15 to 16 (ONSC)
    R v Smith, 2008 CanLII 59107 (ON SC), per Clark J
  8. R v B(TL), 2007 ABCA 61 (CanLII), 218 CCC (3d) 11, per Fraser CJ leave to SCC refused, at para 28
  9. R v Stupnikoff, 2013 SKPC 57 (CanLII), 416 Sask R 307, per Agnew J , at para 27
  10. R v Schneider, 2008 ONCJ 250 (CanLII), 77 WCB (2d) 573, 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), AR 177, 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

See also: Mandatory_Minimum_Penalties#Consequence_of_Unconstitutional_Minimums

Conditional Sentence

Certain jurisdictions that have struck down the mandatory minimums. In BC, the accused must show that he has "exceptional circumstances" to warrant a conditional sentence.[1]

One judge suggested weighing the strength of the urges to access child pornography against the deterrence effect of staying home for a year or so.[2]

  1. R v Alexander, 2019 BCCA 100 (CanLII), per MacKenzie JA, at para 39 ("At sentencing, the appellant asserted a CSO was a fit sentence for him as the facts of this case are analogous to those in Swaby BCSC. However, the judge accurately distinguished Mr. Swaby’s circumstances from those of the appellant. Moreover, recent authorities say incarceration will be necessary in all cases of possession of child pornography, except in exceptional cases, to appropriately emphasize the principles of denunciation and deterrence. I do not consider the present case to be exceptional.")
  2. R. v. Kwok 2007 CanLII 2942 (ON SC), [2007] OJ No. 457 (para. 57)

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—Computer-related (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.
  • application to superior court of the province only.
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 discretionary 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 has smaller minimum amounts (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 His Majesty the King 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.

Record Suspensions and Pardons

Convictions under s. 163.1 [child pornography] are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. An exception can be made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference between victim and offender is less than 5 years.

See Also

Weapons Offences (Sentencing)

This page was last substantively updated or reviewed November 2022. (Rev. # 79559)

General Principles

Firearms

A firearm always presents a "threat of death to those in its presence".[1] Anytime a gun is loaded, there is probability that anyone in the line of fire could be killed.[2]

Possession of a loaded firearm is inherently dangerous. Death and serious injury are only a "impulse and trigger pull away".[3]

Offences involving handguns is a “serious and growing societal danger”.[4]

There is a strong emphasis on the need to denounce and deter the use of firearms in public places.[5] This is necessary in order to maintain confidence in the administration of justice.[6]

Handguns

One distinctive feature of illegal handgun offences is that the guns are exclusively "used to kill people or threaten them with physical harm".[7]

Range of Conduct

For firearms offences, such as those under s. 95, there is a broad spectrum of culpability, ranging from the "outlaw" who is “engaged in truly criminal conduct” and who "poses a real and immediate danger to the public" at one end. And at the other end the "law-abiding responsible gun owner...with readily accessible ammunition stored nearby" but possesses an illegal firearm.[8]

Ontario Ranges

Ontario has set a range of 7 to 11 years for "serious firearm offences".[9]

Judicial Notice of Increase in Gun Violence

There has been judicial notice that as of 2007 there has been a national increase in gun violence and gun-related offences.[10]

  1. R v Hills, 2020 ABCA 263 (CanLII), 2 WWR 31, per Antonio, at para 32
    R v Morrisey, 2000 SCC 39 (CanLII), [2000] 2 SCR 90, per Gonthier J, at para 43
  2. Morrisey, ibid. at para 53
  3. R v Chin, 2009 ABCA 226 (CanLII), [2009] AJ No 711 (CA), per curiam
    see also R v Elliston, 2010 ONSC 6492 (CanLII), 225 CRR (2d) 109, per Aston J
    Foster v Prince, 2012 ONSC 205 (CanLII), [2012] O.J. No. 89 (O.S.C.), per MacLeod J, at para 18
  4. R v Clayton, 2005 CanLII 16569 (ON CA), 194 CCC (3d) 289, per Doherty JA at 41
  5. R v Danvers, 2005 CanLII 30044 (ON CA), [2005] OJ 3532, per Armstrong JA, at para 77
    R v Bellamy, 2008 CanLII 26259 (ON SC), [2008] 175 CRR (2d) 241, per Boswell J, at para 76
    R v Brown, 2006 CanLII 39311 (ON SC), [2006] O.J. No. 4681 (Ont. SCJ), 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.")
  6. R v Whervin, [2006] O.J. No. 443 (SCJ)(*no CanLII links) , at para 14
    R v David, [2006] O.J. No. 3833 (SCJ)(*no CanLII links)
  7. R v Omar, 2018 ONCA 975 (CanLII), 369 CCC (3d) 544, per Brown JA (dissenting), at para 123 SCC adopts opinion of Brown at 2019 SCC 32 (CanLII)
  8. R v Nur, 2013 ONCA 677 (CanLII), 303 CCC (3d) 474, per Doherty JA, at para 51
  9. R v Bellissimo, 2009 ONCA 49 (CanLII), OJ No 179, per curiam, at para 3
    R v Danvers, 2005 CanLII 30044 (ON CA), 199 CCC (3d) 490, per Armstrong JA
  10. R v Clayton, 2007 SCC 32 (CanLII), [2007] 2 SCR 725, per Abella J, at para 110

Notice of Increased Penalties

See also: Notice of Increased Penalty

Section 84(5) and (6) state:

84.
[omitted (1), (2), (3), (3.1) and (4)]

Subsequent offences

(5) In determining, for the purpose of subsection 99(2) [firearms trafficking – punishment], 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 [use of firearm or imitation in commission of an offence], 95 [possession of prohibited or restricted firearm with ammunition], 96 [possession of weapon obtained by commission of offence], 98 [breaking and entering to steal firearm], 98.1 [robbery to steal firearm], 99 [weapons trafficking], 100 [possession for purpose of weapons trafficking], 102 [making automatic firearm] or 103 [importing or exporting firearms knowing it is unauthorized] or subsection 117.01(1) [possession contrary to order – order];
(b) an offence under section 244 [discharging firearm] or 244.2 [discharging firearm – recklessness]; or
(c) an offence under section 220 [criminal negligence causing death], 236 [manslaughter], 239 [attempted murder], 272 [sexual assault with a weapon or causing bodily harm] or 273 [aggravated sexual assault], subsection 279(1) [kidnapping] or section 279.1 [hostage taking], 344 [robbery] or 346 [extortion] 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) [determining subsequent offences for various firearms offences], 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; 2022, c. 15, s. 1.
[annotation(s) added]

CCC


Note up: 84(5) and (6)

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 and Labrador

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 SCR 773, per McLachlin CJ, at para 82
  2. R v Marsh, 2017 CanLII 84460 (NLSCTD), per Goodridge J, at para 20

See Also

Terrorism Offences (Sentencing)

This page was last substantively updated or reviewed January 2020. (Rev. # 79559)

General Principles

The emphasis on sentencing for terrorist offences must be one denunciation and deterrence.[1]

  1. R v Hersi, 2019 ONCA 94 (CanLII), 373 CCC (3d) 229, per Doherty JA, at para 51
    R v Khalid, 2010 ONCA 861 (CanLII), 183 OR (3d) 600, per curiam
    R v Amara, 2010 ONCA 858 (CanLII), 266 CCC (3d) 422, per curiam
    R v Khawaja, 2010 ONCA 862 (CanLII), 103 OR (3d) 321, aff’d 2012 SCC 69, [2012] 3 SCR 555, per curiam

Maximum Life Sentences for Terrorist Activities

Punishment for terrorist activity

83.27 (1) Notwithstanding anything in this Act, a person convicted of an indictable offence, other than an offence for which a sentence of imprisonment for life is imposed as a minimum punishment, where the act or omission constituting the offence also constitutes a terrorist activity, is liable to imprisonment for life.

Offender must be notified

(2) Subsection (1) [terrorist activity – punishment] does not apply unless the prosecutor satisfies the court that the offender, before making a plea, was notified that the application of that subsection would be sought.
2001, c. 41, s. 4.
[annotation(s) added]

CCC


Note up: 83.27(1) and (2)

Tools of Sentencing: Available Sentences

Alternative Measures