Offences of Violence (Sentencing)

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2018. (Rev. # 95407)

General Principles

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

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

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

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

  1. ↑ R v Ogg-Moss, 1984 CanLII 77 (SCC), [1984] 2 SCR 173, per Dickson J (5:0) ("One of the key rights in our society is the individual’s right to be free from unconsented invasions on his or her physical security or dignity and it is a central purpose of the criminal law to protect members of society from such invasions.")
  2. ↑ Ogg-Moss, ibid.
  3. ↑ R v Johnson, 1998 CanLII 4838 (BC CA), 131 CCC (3d) 274, per Prowse JA
  4. ↑ R v Philpott, 2011 NLTD 30 (CanLII), 958 APR 119, per LeBlanc J
  5. ↑ R v Carroll, 1995 CanLII 1123 (BC CA), (1995) 38 CR 238, per Donald JA

General Factors

Key Aggravating Factors

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

Other Factors

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

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."[1]

  1. ↑ R v States, 2017 ONSC 4023 (CanLII), at para 298 ("Both saw the initial assault of Mr. States as important. From their respective psychiatric and psychological perspectives, both saw the offence as involving affective violence: violence that is reactive and emotionally driven.")
    R v Paxton, 2013 ABQB 750 (CanLII), per S.L. Martin J, at para 234

Group Violence

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

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

Position of Trust

Position of Trust as a Factor in Sentencing

Peace Officers as Offender

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

Domestic Violence

Types of Victims

Child Victims

See also: Victims as a Factor in Sentencing

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

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

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

  1. cases involving the application of force with the expectation of causing injury or indifference to it;
  2. cases involving the application of force where a parent was immature and unskilled and acting out of emotional upset, frustration or temper and did not fully appreciate the serious injuries which might result; and
  3. cases involving diminished responsibility through mental disorder where the abnormal mental condition of the accused requires the treatment of the offender to be given priority over the principles of general and individual deterrence.
  1. ↑ R v Laberge, 1995 ABCA 196 (CanLII), 27 WCB (2d) 176, per Fraser CJ, at para 28
  2. ↑ R v Nickel, 2012 ABCA 158 (CanLII), 545 WAC 366, per Watson JA (3:2), at paras 34, 35
  3. ↑ R v MacDonald (K.), 2009 MBCA 36 (CanLII), 236 Man.R. (2d) 239, per Scott CJ, at para 14

Peace Officers as Victim

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

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

Transit Workers

Aggravating circumstance — assault against a public transit operator

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

Definitions

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

– CCC (CanLII), (DOJ)

Note up: 269.01(1) and (2)

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