Difference between revisions of "Jump, Step and Gap Principles"

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==General Principles==
 
==General Principles==
 
The "jump", "step", and "gap" principles are principles designed to limit the range of appropriate sentences for offenders who have a prior related records. They are derived from several principles including proportionality, rehabilitation, restraint under s. 718(d), and the totality principle under s. 718.2(c).<ref>
 
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).<ref>
''R v Bernard'', [http://canlii.ca/t/flrt1 2011 NSCA 53] (CanLII){{perNSCA|Saunders JA}}{{at|26}}<br>
+
''R v Bernard'', [http://canlii.ca/t/flrt1 2011 NSCA 53] (CanLII){{perNSCA|Saunders JA}}{{atL|26|http://canlii.ca/t/flrt1}}<br>
''Frigault v R'', [http://canlii.ca/t/fpvch 2012 NBCA 8] (CanLII){{perNBCA|Quigg JA}}{{at|17}}<br>
+
''Frigault v R'', [http://canlii.ca/t/fpvch 2012 NBCA 8] (CanLII){{perNBCA|Quigg JA}}{{atL|17|http://canlii.ca/t/fpvch}}<br>
''R v Robitaille'', [http://canlii.ca/t/1dc39 1993 CanLII 2561] (BC CA), (1993), 31 BCAC 7{{perBCCA|Lambert JA}}{{at|9}} ("... the theory that sentences should go up only in moderate steps is a theory which rests on the sentencing principles of rehabilitation. It should be only in cases where rehabilitation
+
''R v Robitaille'', [http://canlii.ca/t/1dc39 1993 CanLII 2561] (BC CA), (1993), 31 BCAC 7{{perBCCA|Lambert JA}}{{atL|9|http://canlii.ca/t/1dc39}} ("... the theory that sentences should go up only in moderate steps is a theory which rests on the sentencing principles of rehabilitation. It should be only in cases where rehabilitation
 
is a significant sentencing factor.")<br>
 
is a significant sentencing factor.")<br>
 
</ref>
 
</ref>
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A significant jump in sentence is inconsistent with rehabilitation where that is a significant factor in sentence.<ref>
 
A significant jump in sentence is inconsistent with rehabilitation where that is a significant factor in sentence.<ref>
{{supra1|White}}{{ats|5 to 8}}</ref>
+
{{supra1|White}}{{atsL|5 to 8|http://canlii.ca/t/1rvsv#par5}}</ref>
  
 
The subsequent similar sentence must be progressive.<ref>
 
The subsequent similar sentence must be progressive.<ref>
Line 28: Line 28:
 
A dramatic increase in sentence (ie. a "jump") due to a recent prior similar record would violate this principle.<ref>
 
A dramatic increase in sentence (ie. a "jump") due to a recent prior similar record would violate this principle.<ref>
 
''R v Borde'', [http://canlii.ca/t/1c062 2003 CanLII 4187] (ON CA), (2003), 63 O.R. (3d) 417{{perONCA|Rosenberg JA}}{{at|39}} ("[the jump] principle cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past. It has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.")<br>
 
''R v Borde'', [http://canlii.ca/t/1c062 2003 CanLII 4187] (ON CA), (2003), 63 O.R. (3d) 417{{perONCA|Rosenberg JA}}{{at|39}} ("[the jump] principle cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past. It has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.")<br>
''R v Courtney'', 2012 ONCA 478 (CanLII){{fix}}<br>
+
''R v Courtney'', [http://canlii.ca/t/frz4k 2012 ONCA 478] (CanLII){{TheCourtONCA}}<br>
 
</ref>  
 
</ref>  
  
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''R v Borde'', [http://canlii.ca/t/1c062 2003 CanLII 4187] (ON CA), (2003), 63 O.R. (3d) 417{{perONCA|Rosenberg JA}}{{at|39}} ("[The jump principle] has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.")<br>
 
''R v Borde'', [http://canlii.ca/t/1c062 2003 CanLII 4187] (ON CA), (2003), 63 O.R. (3d) 417{{perONCA|Rosenberg JA}}{{at|39}} ("[The jump principle] has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.")<br>
 
''R v JG'', [http://canlii.ca/t/1lr4j 2005 CanLII 36170] (ON SC){{perONSC|R. Smith J.}}<br>
 
''R v JG'', [http://canlii.ca/t/1lr4j 2005 CanLII 36170] (ON SC){{perONSC|R. Smith J.}}<br>
''R v Courtney'', [http://canlii.ca/t/frz4k 2012 ONCA 478] (CanLII){{TheCourtONCA}}{{ats|10-11}}</ref>
+
''R v Courtney'', [http://canlii.ca/t/frz4k 2012 ONCA 478] (CanLII){{TheCourtONCA}}{{atsL|10 to 11|http://canlii.ca/t/frz4k#par10}}</ref>
 
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.<ref>
 
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.<ref>
 
{{supra1|Muyser}}{{at|9}}<br>
 
{{supra1|Muyser}}{{at|9}}<br>
Line 53: Line 53:
 
''Frigault v R'', [http://canlii.ca/t/fpvch 2012 NBCA 8] (CanLII){{perNBCA|Quigg JA}}<br>
 
''Frigault v R'', [http://canlii.ca/t/fpvch 2012 NBCA 8] (CanLII){{perNBCA|Quigg JA}}<br>
 
</ref> And also where rehabilitation is not realistic and record is related to the offence.<ref>
 
</ref> And also where rehabilitation is not realistic and record is related to the offence.<ref>
''R v Lohnes'', [http://canlii.ca/t/1qnz5 2007 NSCA 24] (CanLII){{perNSCA|Roscoe JA}}{{ats|40, 42}}<br>
+
''R v Lohnes'', [http://canlii.ca/t/1qnz5 2007 NSCA 24] (CanLII){{perNSCA|Roscoe JA}}{{atsL|40, 42|http://canlii.ca/t/1qnz5#par40}}<br>
''R v Thomson'', [http://canlii.ca/t/fxbhx 2013 BCCA 220] (CanLII){{perBCCA|Harris JA}}{{ats|7 to 8}}<br>
+
''R v Thomson'', [http://canlii.ca/t/fxbhx 2013 BCCA 220] (CanLII){{perBCCA|Harris JA}}{{atsL|7 to 8|http://canlii.ca/t/fxbhx#par7}}<br>
 
</ref>
 
</ref>
  
 
A jump in sentence may be permissible where a previously lenient sentence was not effective in deterring the offender.<ref>
 
A jump in sentence may be permissible where a previously lenient sentence was not effective in deterring the offender.<ref>
 
''R v Westerman'', 2002 CarswellOnt 1041 (C.J.){{NOCANLII}}{{ats|28 to 30, 44 to 49}}<br>  
 
''R v Westerman'', 2002 CarswellOnt 1041 (C.J.){{NOCANLII}}{{ats|28 to 30, 44 to 49}}<br>  
''R v Ferrigon'', 2007 CarswellOnt 3072 (S.C.), [http://canlii.ca/t/1rfzp 2007 CanLII 16828] (ON SC){{perONSC|Molloy J}}{{ats|8 to 12}}<br>
+
''R v Ferrigon'', 2007 CarswellOnt 3072 (S.C.), [http://canlii.ca/t/1rfzp 2007 CanLII 16828] (ON SC){{perONSC|Molloy J}}{{atsL|8 to 12|http://canlii.ca/t/1rfzp#par8}}<br>
 
</ref>
 
</ref>
  
 
The jump principle cannot trump the principle of proportionality.<ref>
 
The jump principle cannot trump the principle of proportionality.<ref>
''R v Blair'', [http://canlii.ca/t/1m3vk 2005 ABCA 414] (CanLII){{perABCA|Costigan JA}}{{at|10}}</ref>
+
''R v Blair'', [http://canlii.ca/t/1m3vk 2005 ABCA 414] (CanLII){{perABCA|Costigan JA}}{{atL|10|http://canlii.ca/t/1m3vk}}</ref>
  
 
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.
 
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.
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===Step-up Principle===
 
===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.<ref>
 
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.<ref>
''R v Bush'' (D.F), [http://canlii.ca/t/1p29n 2006 BCCA 350] (CanLII){{perBCCA|Ryan JA}}{{at|9}} ("the principle … that is often used to describe the philosophy that sentences should usually increase in moderate steps since a sudden, large increase in the length of a sentence may interfere with the goal of rehabilitation, if that is the focus of the sentence.")</ref> This principle however should not be applied where denunciation and deterrence are the primary goals.<ref>
+
''R v Bush'' (D.F), [http://canlii.ca/t/1p29n 2006 BCCA 350] (CanLII){{perBCCA|Ryan JA}}{{atL|9|http://canlii.ca/t/1p29n}} ("the principle … that is often used to describe the philosophy that sentences should usually increase in moderate steps since a sudden, large increase in the length of a sentence may interfere with the goal of rehabilitation, if that is the focus of the sentence.")</ref> This principle however should not be applied where denunciation and deterrence are the primary goals.<ref>
{{ibid1|Bush}}{{at|9}} ("The step-up principle has little application where a sentencing judge determines that the offence in question calls for a sentence in which the primary goals are denunciation and deterrence")</ref>
+
{{ibid1|Bush}}{{atL|9|http://canlii.ca/t/1p29n}} ("The step-up principle has little application where a sentencing judge determines that the offence in question calls for a sentence in which the primary goals are denunciation and deterrence")</ref>
  
 
{{reflist|2}}
 
{{reflist|2}}

Revision as of 02:21, 13 August 2019

General Principles

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

  1. R v Bernard, 2011 NSCA 53 (CanLII), per Saunders JA, at para http://canlii.ca/t/flrt1
    Frigault v R, 2012 NBCA 8 (CanLII), per Quigg JA, at para http://canlii.ca/t/fpvch
    R v Robitaille, 1993 CanLII 2561 (BC CA), (1993), 31 BCAC 7, per Lambert JA, at para http://canlii.ca/t/1dc39 ("... the theory that sentences should go up only in moderate steps is a theory which rests on the sentencing principles of rehabilitation. It should be only in cases where rehabilitation is a significant sentencing factor.")

Jump/Step Principle

The "jump" or "step" principle (also called the "principle of incremental sentencing") states that subsequent sentences passed should not be disproportionate to the prior offence (ie. a "jump" in sentence). A subsequent offence should have an incremental increase proportionate to frequency of the repeated offences.[1] The purpose of this rule is to avoid having the accused re-punished for past bad acts.[2]

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

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

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

  1. R v White, 2007 NLCA 44 (CanLII), per Cameron JA
    R v Muyser, 2009 ABCA 116 (CanLII), per Fraser JA
    R v Murphy, [2011] N.J. No. 43 (C.A.), 2011 NLCA 16 (CanLII), per Welsh JA
  2. Muyser, supra, at para 8
  3. White, supra, at to 8#parhttp://canlii.ca/t/1rvsv#par5 paras http://canlii.ca/t/1rvsv#par5{{{3}}}
  4. Muyser, supra
  5. R v Borde, 2003 CanLII 4187 (ON CA), (2003), 63 O.R. (3d) 417, per Rosenberg JA, at para 39 ("[the jump] principle cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past. It has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.")
    R v Courtney, 2012 ONCA 478 (CanLII), per curiam
  6. Re Morand and Simpson (1959), 30 C.R. 298 (Sask. C.A.), 1959 CanLII 235 (SK CA), per Martin CJ
    See R v Clark, 2005 ABPC 40 (CanLII), per Lamoureux J citing Ruby on Sentencing
  7. R v Sloane, [1973] 1 N.S.W.L.R. 202 (*no CanLII links)
    See Clark, supra citing Ruby on Sentencing

Exceptions

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

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

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

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

It can be concluded that the prior sentence was not sufficiently deterrent and so the sentence for the new offence should be increased to focus on specific deterrence.

  1. R v Borde, 2003 CanLII 4187 (ON CA), (2003), 63 O.R. (3d) 417, per Rosenberg JA, at para 39 ("[The jump principle] has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.")
    R v JG, 2005 CanLII 36170 (ON SC), per R. Smith J.
    R v Courtney, 2012 ONCA 478 (CanLII), per curiam, at to 11#parhttp://canlii.ca/t/frz4k#par10 paras http://canlii.ca/t/frz4k#par10{{{3}}}
  2. Muyser, supra, at para 9
  3. Frigault v R, 2012 NBCA 8 (CanLII), per Quigg JA
  4. R v Lohnes, 2007 NSCA 24 (CanLII), per Roscoe JA, at 42#parhttp://canlii.ca/t/1qnz5#par40 paras http://canlii.ca/t/1qnz5#par40{{{3}}}
    R v Thomson, 2013 BCCA 220 (CanLII), per Harris JA, at to 8#parhttp://canlii.ca/t/fxbhx#par7 paras http://canlii.ca/t/fxbhx#par7{{{3}}}
  5. R v Westerman, 2002 CarswellOnt 1041 (C.J.)(*no CanLII links) , at paras 28 to 30, 44 to 49
    R v Ferrigon, 2007 CarswellOnt 3072 (S.C.), 2007 CanLII 16828 (ON SC), per Molloy J, at to 12#parhttp://canlii.ca/t/1rfzp#par8 paras http://canlii.ca/t/1rfzp#par8{{{3}}}
  6. R v Blair, 2005 ABCA 414 (CanLII), per Costigan JA, at para http://canlii.ca/t/1m3vk

Step-up Principle

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

  1. R v Bush (D.F), 2006 BCCA 350 (CanLII), per Ryan JA, at para http://canlii.ca/t/1p29n ("the principle … that is often used to describe the philosophy that sentences should usually increase in moderate steps since a sudden, large increase in the length of a sentence may interfere with the goal of rehabilitation, if that is the focus of the sentence.")
  2. Bush, ibid., at para http://canlii.ca/t/1p29n ("The step-up principle has little application where a sentencing judge determines that the offence in question calls for a sentence in which the primary goals are denunciation and deterrence")

Gap Principle

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

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

See Also