Sentencing Ranges

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2018. (Rev. # 95465)

General Principles

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

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

A range is not the boundary for all sentences between the minimum and maximum for the offence charged. Rather, it is narrowed by the specific offence and offender. The variations of punishment when weighing aggravating and mitigating factors create the continuum of the range. [3]

The sentencing ranges recommended by the courts of appeal are generally looked at as summaries of the minimum and maximums that have been imposed in the past which can guide judges. They are not "averages" or "straights-jackets" to regular judicial discretion.[4]

Purpose of Ranges

One of the purposes of a range set by a court of appeal is to "minimize disparity of sentences in cases involving similar offences and similar offenders."[5]

Importance of Ranges

The "credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders."[6]

Effect of Ranges

A sentence is not proportionate simply because it is within a range. Likewise, it is not disproportionate when it falls outside of a range "providing it is otherwise in accordance with the principles and objectives of sentencing."[7]

An offender who is charged by the military will generally be expected to receive a harsher sentence than that of a civilian for the same offence.[8]

Exceeding the Range

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

Ranges "are guidelines rather than hard and fast rules."[10] A range of sentence can be deviated as long as it is "in accordance with the principles and objectives of sentencing" and are not necessarily unfit.[11] However, factors such as a “good record” and remorse do not amount to exceptional circumstances to deviate from the accepted range.[12]

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

Appellate Review of Ranges

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

Sentencing Grids and Sentencing Tables

The use of judge-imposed sentencing grids or tables goes contrary to the intent of parliament and is not permitted.[15]

  1. ↑ R v Jafarian, 2014 ONCA 9 (CanLII), per curiam - trial judge refuses to follow appellate direction because they are "ridiculously low"
  2. ↑ R v Thomas, 2012 ONSC 6653, per Code J at para 50 ("It is settled law that a “range” of sentence is simply a flexible guideline for the normal case. It assists in achieving “parity” in sentencing between comparable cases.")
  3. ↑ R v Cromwell, 2005 NSCA 137 (CanLII), 202 CCC (3d) 310, per Bateman JA, at para 26
  4. ↑ R v Anderson, 2016 MBPC 28 (CanLII), per Martin J, at para 24 citing Lacasse, at para 57
  5. ↑ R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J, at para 244 ("One function of appellate courts is to minimize disparity of sentences in cases involving similar offences and similar offenders")
  6. ↑ R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, per Wagner J, at paras 3 to 6
  7. ↑ R v Gibson, 2015 ABCA 41 (CanLII), 319 CCC (3d) 115, per curiam, at para 16
  8. ↑ R v Généreux, 1992 CanLII 117 (SCC), [1992] 1 SCR 259, per Lamer CJ ("To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct.")
  9. ↑ R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J, at para 44
  10. ↑ Nasogaluak, ibid., at para 44
  11. ↑ Nasogaluak, ibid., at para 44
    cf. R v Doerksen, 1990 CanLII 7329 (SKQB), 62 Man.R. 2d 259 (CA), per Kyle J: A set range of sentence can be deviated from in “exceptional circumstances”
  12. ↑ R v Henderson, 2012 MBCA 9 (CanLII), 279 CCC (3d) 406, per Hamilton JA
  13. ↑ R v McCowan, 2010 MBCA 45 (CanLII), 255 CCC (3d) 123, per Steel JA, at para 11
  14. ↑ R v Dyke, 2014 SKCA 93 (CanLII), 323 CCC (3d) 333, per Jackson JA, at para 22
    R v Simcoe, 2002 CanLII 5352 (ON CA), 156 OAC 190, per Feldman JA, at para 13
  15. ↑ R v Gauvreau, 2017 ABCA 74 (CanLII), 48 Alta LR (6th) 285, per curiam, at para 17

Effect of Election on Sentence

A sentence is not scaled based on the election made. Thus, an offence prosecuted summarily should not be scaled to less than the maximum only because it would not have been a maximum sentence by indictment.[1] Likewise, an election to proceed by indictment should not be a relevant factor.[2]

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

  1. ↑ R v Solowan, 2008 SCC 62 (CanLII), [2008] 3 SCR 309, per Fish J, at para 15
  2. ↑ R v Paul, 2014 ABCA 42 (CanLII), 112 WCB (2d) 188, per curiam
  3. ↑ R v Murphy, 2011 NLCA 16 (CanLII), [2011] NJ No 43 (CA), per Welsh JA at 34

See Also

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