Objectifs et principes de la détermination de la peine

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Introduction

The purposes and principles of sentencing for criminal offences are found in Part XXIII du Code Criminel. The enumerated principles apply to indictable as well as summary offences.

The broad purpose of sentencing is to protect the public. The codified objectives are designed to further that purpose.

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.

Not Revenge

The principles of sentencing should not include any notion of "revenge." A sentence should not be for the purpose of "establishing an equivalence between the loss of the victims and the sanction imposed."

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

The process begins with consideration of the purposes of sentencing set out in s. 718 to determine the appropriate balance of objectives.

Then a judge should follow this 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
[omis (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), (Jus.)

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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
    • Health and Substance Abuse as a Sentencing Factor
    • Racial Identity in Sentencing
    • Sentencing Factors Relating to the Criminal Proceedings
    • State and Police Misconduct as a Sentencing Factor
    • Collateral Consequences of Proceedings as a Sentencing Factor
  • Sentencing Factors Relating to the Offence
    • Victims as a Factor in Sentencing
    • Position of Trust as a Factor in Sentencing
• 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

See Also

• Sentencing Reform:A Canadian Approach (1987)