Full Text:Volume 5A

Sentencing Introduction

• < Sentencing

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

• Topic Index#Volume V: Sentencing

See Also

• Criminal Law Notebook:About

Purpose and Principles of Sentencing

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

• < Sentencing
• < Purposes, Principles and Factors

Introduction

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.

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.

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.

See Enumerated Purposes of Sentencing for legislative text.

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.

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."

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

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.

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.

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.

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".

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.

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

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".

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

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

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

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".

Duty to Consider All Circumstances

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

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." The nature and gravity of the offence are the "central factor in sentencing".

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

• "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]".

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.

Absence of Established Ranges of Sentence

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

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."

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.

Sentencing as "Art" vs "Science"

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

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".

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; 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 (CanLII), (DOJ)

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Codification of Common Law

The principles stated in s. 718.2(a),(b) and (c) are simply "restatements of the jurisprudence". 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".

Topics

• Enumerated Purposes of Sentencing
  • Denunication and Deterrence (s. 718(a), (b))
  • Separation from Society - 718(c)
  • Rehabilitation - s.718(d)
  • Specific Offence Objectives - 718.01 and 718.02
• Proportionality - Fundamental Principle (718.1)
• Aggravating and Mitigating Factors - 718.2(a)
  • Sentencing Factors Relating to the Offender
    • Sentencing Factors Relating to the Criminal Proceedings
  • Sentencing Factors Relating to the Offence
• Parity Principle - s. 718.2(b)
• Totality Principle - s. 718.2(c)
• Restraint Principle - s. 718.2(d), (e)
• Aboriginal Sentencing Principles and Factors
• Racial Identity in Sentencing
• Jump, Step and Gap Principles
• Sentencing Starting Points
• Sentencing Ranges
• Sentencing of Organizations

Purpose and Principles of Specific Types of Offences

• Sentencing for Drug Offences
• Sexual Offences (Sentencing)
• Regulatory Offences (Sentencing)
• History of the Purpose and Principles of Sentencing

Case Digests

• Principles and Factors of Sentencing Cases

See Also

• Sentencing Reform:A Canadian Approach (1987)

Enumerated Purposes of Sentencing

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

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General Principles

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 (CanLII), (DOJ)

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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."

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

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."

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."

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.

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.

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

• Denunication and Deterrence

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.

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.

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

Rehabilitation - s.718(d)

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

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.

Rehabilitation Mitigates Sentence

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

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.

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.

Rehabilitation Always a Factor

No sentence should deprive the offender of any hope of rehabilitation.

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 (CanLII), (DOJ)

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 (CanLII), (DOJ)

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 (CanLII), (DOJ)

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 (CanLII), (DOJ)

Non-Criminal Code Offences

• Sentencing for Drug Offences

History of the Purpose and Principles of Sentencing

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

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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)

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General Principles

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 (CanLII), (DOJ)

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It is generally considered that as the gravity of the offence increases the weight to the objectives of deterrence and denunciation increase.

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.

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. The purpose is to "better reflect the gravity and wrongfulness of the conduct and the serious harm it causes."

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.

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."

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

Offences with Planning, Vulnerable Victims, or Media Attention

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."

Retribution

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

Denunciation should not be equated with retribution which is a separate legitimate purpose of sentencing. Nor should retribution be equated with vengeance.

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."

Character Evidence

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

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."

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.

Conditional Sentence

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

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

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." When it is targeting the offender in court, it is referred to as "specific deterrence", when it is targeting others, it is "general deterrence."

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.

Usually Results in Imprisonment

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."

Law's Recognition of Deterrent Effects

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."

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

Deterrence and Conditional Sentences

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

It has been said that conditional sentences are not necessarily capable of providing general deterrence. 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."

Specific Deterrence

Specific deterrence targets the specific offender before the court.

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

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

Still Must be Proportionate

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.

Prior Criminal Record

Judges must avoid punishing an accused again for previous convictions.

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

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." 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.”

Restraint When Increasing Sentence

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

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

Offences of Desperation or Addiction

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

Offences of Greed

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

Offences Against Vulnerable Populations

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

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

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.

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.

Publicity

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

Proportionality

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General Principles

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

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 (CanLII), (DOJ)

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

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.

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

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.

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

Proportionality and a Just Sentence

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

Where the sentence is not proportionate it is not just.

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.

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

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".

A component of the principle of proportionality is the principle of totality.

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".

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.

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.

There is no "one size fits all" penalties.

Sentencing is “an inherently individualized process.”

It is also a "profoundly subjective process."

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".

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

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.

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".

Gravity of the Offence

Sanctions must be scaled according to the seriousness of the conduct.

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."

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.

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".

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".

Moral Culpability, Responsibility and Blameworthiness

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

The higher the degree of moral blameworthiness, the longer the sentence that is to be imposed.

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

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

Totality Principle

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General Principles

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 (CanLII), (DOJ)

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Totality as Proportionality

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

Purpose

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

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

"Cheaper by the Dozen"

By contrast, there is authority saying that courts must avoid making it "cheaper by the dozen" when sentencing an offender for multiple offences. The use of "cheaper by the dozen" sentencing is exhibited when the court improperly attributes muliple offences to being a "spree" without considering whether the accused has good prospects of rehabilitation.

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. If the total sentence is excessive the court must adjust the sentence so that the "total sentence is proper".

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

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.

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

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.

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.

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. Only the unexpired portion of the previous sentence should be considered.

Age of Offender

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

Effect of Totality

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

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

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

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

Procedure

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

Analysis (BC)

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

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:

• 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:

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.

Sprees

Totality can be applied to spree crimes, a string of similar offences over a short period of time. Though they are separate offences, the courts can treat them as a single transaction due to the linkage between them. 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".

Parity Principle

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

• < Sentencing
• < Purposes, Principles and Factors

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". 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 (CanLII), (DOJ)

---

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

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.

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

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.

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

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". It does not however override the individualized approach to sentencing.

Parity promotes "consistency, fairness, and rationality" in sentencing.

It also "gives meaning to proportionality".

Parity Does Not Trump Proportionality

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

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.

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. However, the judges must also be sensitive to the needs of local community.

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."

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.

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.

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.

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."

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".

Appellate Review

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

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.

A Court referring to a "range" of sentence can be interpreted in multiples ways. 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".

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".

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

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.

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

Parity to Co-Accused

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

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

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."

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

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.

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.

See Also

• Sentencing Starting Points

Restraint Principle

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

• < Sentencing
• < Purposes, Principles and Factors

General Principles

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

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 (CanLII), (DOJ)

---

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".

Function of Principle

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

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

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".

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."

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.

Objectives of Sentencing

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

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

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.

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". It is preferable in most cases that non-violent first time offenders be punished in other ways than incarceration.

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".

Offences of Violence

Certain violent offences will attract a jail sentence despite being a first offence.

See Also

• Jump, Step and Gap Principles
• Release by Police on Undertaking - re different "principle of restraint"

Jump, Step and Gap Principles

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

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• < Purposes, Principles and Factors

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).

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. The purpose of this rule is to avoid having the accused re-punished for past bad acts.

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

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

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

Exceptions

The jump rule does not apply where the index offence is greatly more serious than the prior offences. 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.

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

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

The jump principle cannot trump the principle of proportionality.

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.

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. This principle however should not be applied where denunciation and deterrence are the primary goals.

Gap Principle

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

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".

See Also

• Sentencing Factors Relating to the Offender#Criminal Record

Aboriginal Sentencing Principles and Factors

This page was last substantively updated or reviewed January 2023. (Rev. # 79559)

• < Sentencing
• < Purposes, Principles and Factors

General Principles

Section 718.2(e) requires sentencing judges to take into account an offender's aboriginal status. It states that "[a] court that imposes a sentence shall also take into consideration...all available sanctions, other than imprisonment, that are reasonable in the circumstances 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."

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

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.

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

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."

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

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.

The aboriginal sentencing factors (or "Gladue" factors) will play a role in all offences by aboriginal offenders, no matter how serious. 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.

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.

Non-Aboriginal Disadvantaged Groups

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

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.

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

Limitations on Application of the Principles

The principles are not to be used to provide "automatic" reduction in sentencing and does not mandate a different result due to identity.

Particularly violent and serious offences will result in imprisonment for aboriginal offenders as much as everyone else.

The principles are not meant to "hijack" the process to pursue other goals. The sentencing process should not be considered the "primary" means of addressing aboriginal overrepresentation. It has been said that the principles are not intended as a means to redress complex social problems or past wrongs.

Aboriginal Sentencing Factors ("Gladue" Factors)

In sentencing aboriginal offenders, the sentencing judge must:

1. consider "Gladue factors" unless the offender "expressly waives the right" to have them considered; 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."

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."

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."

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." It is also insufficient to merely point to the "systemic and background factors affecting Aboriginal people in Canadian society."

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

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

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

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

Failure to apply the Gladue principles on a case involving an Aboriginal offender violates the court's statutory obligations.

Linking Factors to Offence

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

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

Accused's Connection to Aboriginal Heritage

It is an error of law to rely on "limited" role of Gladue principles on account of a "disconnection" with his aboriginal heritage.

Burden

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

Effect of Factors

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

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."

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

The Court must consider:

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:

• 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.

The aboriginal heritage factors include:

• 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.

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.

See Also

• Sentencing Circles

Sentencing Starting Points

• < Sentencing
• < Purposes, Principles and Factors

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."

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

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

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

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.

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

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

See Also

• Parity Principle

Sentencing Ranges

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

• < Sentencing
• < Purposes, Principles and Factors

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.

A range of sentence is "simply a flexible guidelien for the normal case". It is supposed to assist in achieve parity in comparable cases.

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.

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.

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".

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".

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".

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.

Exceeding the Range

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

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

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

Appellate Review of Ranges

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

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.

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. Likewise, an election to proceed by indictment should not be a relevant factor.

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

See Also

• Grounds of Appeal from Sentence

Aggravating and Mitigating Factors

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

• < Sentencing
• < Purposes, Principles and Factors

General Principles

Section 718.2 provides a non-exhaustive list of secondary principles and objectives in sentencing. 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 (CanLII), (DOJ)

---

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.

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.

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

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. 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.

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

Appellate Review

It is an error of law to "over-emphasize" a single factor over all other factors.

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

Factors of Offender and Offence

• Sentencing Factors Relating to the Offender
  • Sentencing Factors Relating to the Criminal Proceedings
• Sentencing Factors Relating to the 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
• absent a charge for perjury, whether the accused was being honest in the trial proceedings
• character of the victim or other parties
• risk of harm while incarcerated
• costs associated with incarceration

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."

Sentencing Factors Relating to the Offender

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• < Purposes, Principles and Factors

General Principles

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.

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.

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

Youthfulness as a factor is of primary importance for first time offenders. 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".

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

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

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

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

At a certain age there is a recognized category of offender for which imprisonment would be considered "pointless or an unreasonable burden". 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.

Maturity of Adults

The naivete and immaturity are valid mitigating factors affecting culpability.

Advanced Age Offenders

An offender of advanced age can "in some circumstances" be considered a mitigating feature. 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.

Employment

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

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

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.

Professionals

Police Officers

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

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

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.

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.

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.

Degree of Remorse and Attitude

Remorse is a mitigating factor. 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.

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

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. Only in exceptional circumstances can the lack of remorse be taken as aggravating.

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

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

Strong Case

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

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".

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.

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.

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."

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.

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

Character

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

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

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. It is also considered an "unprincipled" use of "personal history" evidence.

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.

Risk to Re-Offend

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

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

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.

Post Offence Conduct

Efforts at rehabilitation and career advancement post-offence is a mitigating factor.

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

Post-offence bad behaviour is generally not an aggravating factor. Criminal offences committed after the offence will not be aggravating. 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.

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.

Correctional Records

The disciplinary records of a remanded accused should not generally be used as aggravating to the sentence. But they can be used to rebut assertions of good character as a mitigating factor.

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.

Addiction and Substance Abuse

Substance abuse, by itself, is not ordinarily a mitigating factor. 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. 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.

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.

Addictions and Mental Health

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

Medical Conditions

Generally speaking the existence of medical conditions cannot be use to avoid what is otherwise a fit and proper sentence. If health is being used to avoid a jail sentence there must be some evidence showing that the condition cannot be properly treated in jail.

Mental Health

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

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.

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.

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".

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.

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

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."

Incarceration

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

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

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.

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

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

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.

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

Degree of Responsibility

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

Impact of Jail

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

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

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.

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

Cognitive Deficits

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

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.

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

Other Conditions

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

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".

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

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

Sympathy and Compassion

The court may allow for a degree of leniency for sympathetic or compassionate offenders. 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. However, simply poor health or age is not usually a reason on its own.

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".

Effect on Family and Others

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

The impact on family cannot override other factors.

Effect on Immigration

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. It must be weighed and considered with all other factors and circumstances of the case. However, it should not bring the sentence out of the appropriate range. However, the factor is a discretionary one.

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".

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.

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.

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

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. The sentencing approach must not create a separate sentencing scheme for those at risk of deportation.

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.

Children

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

Counsel's Failure to Raise Immigration Status

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

"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."

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

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".

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. They are relevant to sentencing as part of the considerations for individiualization and parity.

When It can be Mitigating

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

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

Stigma of the Offence

Stigma arising from the offence cannot be used as a mitigating factor when it is in line with what is expected from someone facing the same charges.

Victimization of Accused During Proceedings

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

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.

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. Such violence should only be considered to a "limited extent".

Aboriginal Background

See Aboriginal Sentencing Principles and Factors

During Proceedings

• Sentencing Factors Relating to the Criminal Proceedings

Sentencing Factors Relating to the Offence

• < Sentencing
• < Purposes, Principles and Factors

General Principles

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 (CanLII), (DOJ)

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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".

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

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.

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".

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” 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.”

Role in Offence

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

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

Breach of Trust

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

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

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

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.

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.

Prevalence of This Type of Crime in the Community

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.

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

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.

State Misconduct

• State and Police Misconduct as a Sentencing Factor

Strength of the Crown's Case

The strength of the Crown's case can be a factor to sentence. 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. Weaknesses in a case are referred to as "special circumstances" that would warrant a joint recommendation for an exceptional sentence.

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.

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.” The Crown cannot attempt to seek sentences based on uncharged offences. The Crown must choose what is the most appropriate charge to apply.

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

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.

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.

Pending Changes to the Law

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

See Also

• Sentencing Factors Relating to the Criminal Proceedings

Sentencing Factors Relating to the Criminal Proceedings

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

• < Sentencing
• < Purposes, Principles and Factors

General Principles

Guilty Plea

A guilty plea is a major mitigating factor.

Reasons for Mitigation

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

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

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.

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". The effect on sentence will vary depending on the circumstances.

Mitigation Not Fixed Amount

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.

Inevitable Conviction

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.

Testimony at Sentencing

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.

Mitigation is not attenuated simply because the victim had to testify at the sentencing and it does not change that there was as acceptance of responsibility and the value of demonstrated remorse.

The value of guilty plea does not require admission of aggravating factors. It is assessed on the facts of the case.

Offer of Lesser Plea

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

Timing of Plea

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

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

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.

Conduct During Trial

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

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

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.

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

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

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.

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

Other factors in delay to consider include:

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.

Pre-trial Custody

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 (CanLII), (DOJ)

---

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.

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

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".

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

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.

Victims as a Factor in Sentencing

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

• < Sentencing
• < Purposes, Principles and Factors

General Principles

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 (CanLII), (DOJ)

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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 (CanLII), (DOJ)

---

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".

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

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 (CanLII), (DOJ)

---

Pending Sept 19, 2019 Bill C-75 [2]

Number of Victims

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

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.

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 (CanLII), (DOJ)

---

Victim Under 18 Years of Age

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".

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

Offences where young victims must always be considered:

• Child Pornography (163.1)
• Child Luring (Offence) (172.1)
• Abandoning Child (Offence) (218)
• Abduction of a Young Person (Offence) (280 to 283)

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. Willing participation on the part of the victim is not mitigating.

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.

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.

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

See Also

• Victim Impact Statements
• Sexual Offences (Sentencing)

State and Police Misconduct as a Sentencing Factor

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

• < Sentencing
• < Purposes, Principles and Factors

General Principles

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.”

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

Police Misconduct

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

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.

In exceptional cases, the charges may be stayed.

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 (CanLII), (DOJ)

---

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.

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”

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.

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

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

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

Reasonableness Factors for Police Action

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

(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.

See Also

• Role of Law Enforcement
• Acting in Authority
• Stay of Proceedings
• Stay of Proceedings (Cases)

Effect of Criminal Records in Sentencing

• < Sentencing

General Principles

A criminal record will be an aggravating factor in sentencing. It's absence is not a mitigating but is simply neutral.

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

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.

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

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

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."

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)."

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.

– [http://canlii.ca/t/7vf2#sec725

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

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).

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.

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.

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."

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.

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."

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

"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."

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."

See Also

• Consequences of Criminal Records After Sentencing

Position of Trust as a Factor in Sentencing

• < Sentencing
• < Purposes, Principles and Factors

General Principles

It is an aggravating factor in sentencing for the offender to have been in a position of trust. 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.

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

"Trust" refers to "confidence in or reliance on some quality or attribute of a person". 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.

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

Considerations include:

• 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".

Child and Parent Relationship

A relationship between a child and an adult is one that imposes influence and creates vulnerability for the child.

A person who is a babysitter will generally be considered in a position of trust.

Employees

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

See Also

• Breach of Trust (Offence)
• Breach of Public Trust (Offence)

Sentencing of Organizations

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

• < Sentencing

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 (CanLII), (DOJ)

---

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 (CanLII), (DOJ)

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Probation

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 (CanLII), (DOJ)

---

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 (CanLII), (DOJ)

---

Violent and Assaultive Offences (Sentencing)

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

• < Criminal Law/Sentencing
• < Offences

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". It is a "central purpose" of the criminal law to protect the public from such invasions.

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.

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

Sports-related violence can frequently allow for discharges.

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

Psychologists do make a distinction between "affective violence" and "predatory violence". Affective violence concerns "violence that is reactive and emotionally driven". Predatory violence concerns violence where the offender "sought both gratification and compliance".

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.

Position of Trust

Position of Trust as a Factor in Sentencing

Peace Officers as Offender

• Offences of Violence by Persons in Authority (Sentencing)

Domestic Violence

• Domestic Violence Sentencing

Types of Victims

Child Victims

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.

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

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

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.

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."

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 (CanLII), (DOJ)

---

Sentencing for Drug Offences

• < Sentencing

Purpose of Sentencing for Drug Offences

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

---

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

Dial-a-Dope

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

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

---

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

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.

Addiction

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

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

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

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.

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.

Denunciation and deterrence are the paramount focus in commerical trafficking.

Court make some distinction between commercial and social trafficking. 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.

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.

Ranges

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

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

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". "Commercial" operations will vary from a few grams to 2 oz of cocaine. When it is "wholesale commercial trafficking" the starting point is 4.5 years.

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

---

Sentencing Ranges by Type of Drug

• Drug Trafficking, Schedule I (Sentencing): Maximum penalty of life
• Drug Trafficking, Schedule II (Sentencing): Maximum penalty of life
• Drug Trafficking, Schedule III (Sentencing): Maximum penalty of 10 years
• Drug Trafficking, Schedule IV (Sentencing): Maximum penalty of 3 years

Sentencing for Sexual Offences

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

• < Sentencing

• < Criminal Law/Sentencing
• < Offences

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.

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

Consent

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

Terminology

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

Child Sexual Offences

• Sentencing for 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. The importance of denunciation and deterrence as primary sentencing objectives are not diminished.

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

• Sexual Assault (Sentencing Cases)

See Also

• Government Policy on Sentencing for Sexual Offences (UK)

Regulatory Offences (Sentencing)

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

• < Sentencing

General Principles

Sentencing of corporate offenders for regulatory offences should consider:

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

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

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

The primary objective of the fine is deterrence.

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

• 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.

See Also

• Regulatory and Provincial Offences

Property and Fraud Offences

• < Sentencing

Introduction

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)

• Telecommunication Offences (Offence) (327, 342.1 ,342.2, 372, 430)
• Robbery (Offence) (344)
• Break and Enter (Offence) (348)
• Unlawfully in a Dwelling (Offence) (349)
• Possession of Break-in Instruments (Offence) (351)
• Forcible Entry (Offence) (74)
• Motor Vehicle Theft (Offence) (333.1)
• Theft (Offence) (334)
• Theft and Forgery of a Credit Card (Offence) (342)
• Possession of Stolen Property (Offence) (355)
• Trafficking in Stolen Property (Offence) (355.2, 355.4)
• Obtaining Property by False Pretences (Offence) (362)
• Forgery (Offence) (366, 367, 368)

Fraud-related Offences

• Counterfeiting (Offence) (449, 450, 452)
• Breach of Trust (Offence)
• Fraud (Offence) (380)
• Mischief (Offence) (430)
• Arson (Offence) (433, 434)
• Possession of Incendiary Materials (Offence)
• Unauthorized Use of Computer (Offence)
• Identity Theft (Offence)
• Identity Fraud (Offence)
• Money Laundering (Offence)
• Procuring and Trafficking Government Documents (Offence)

See Also

• Property and Fraud Offences (Sentencing)

Sentencing Fraud

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

• < Criminal Law/Sentencing
• < Offences
• < Fraud

Overview

The Association of Certified Fraud Examiners created a taxonomy of fraud:

• 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 (CanLII), (DOJ)

---

Draft Form of Charges

See Fraud (Offence)

General Principles

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
s. 380(1)(a) [fraud over $5,000] Nov. 20, 2012 onward	N/A
s. 380(1)(a) [fraud over $5,000] September 15, 2004 to Nov. 20, 2012	N/A
s. 380(1)(a) [fraud over $5,000] Until September 14, 2004	N/A

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.

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.

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

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".

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

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

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

Incarceration is often ordered where there is no remorse. Also where there is no acceptance of responsibility.

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

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

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

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.

Res Judicata

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

Sentencing Principles

Primacy of General Deterrence and Denunciation

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

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.

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

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

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.

Social Assistance Fraud

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

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

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 (CanLII), (DOJ)

---

Aggravating

Aggravating factors for major fraud include:

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

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".

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).

"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.

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

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

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.

Mitigating

Mitigating factors for major fraud include:

• “substantial recovery” of the proceeds of the dishonest conduct
• voluntary repayment of restitution before sentencing
• 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
• no record

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.

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.

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.

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

Gambling Addiction

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

Ranges

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

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

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 380(1)(a) or (2)	For conviction under s. 380(1)(a) and (2), a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).
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. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

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

• History of Fraud Offences

See Also

• Identity Theft (Offence)
• Theft (Offence)
• Miscellaneous Fraudulent Offences

References

• Pre-Trial and Trial Motions Checklist

• UK Sentencing Guidelines for Fraud

Child Pornography Sentencing

This page was last substantively updated or reviewed February 2023. (Rev. # 79559)

• < Criminal Law
• < Offences
• < Child Pornography (Offence)

General Principles

For general principles on sentence for sexual offences, see Sexual Offences and Sentencing for Child Sexual Offences

Sentencing Profile

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

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