Purpose and Principles of Sentencing

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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.[1]

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.

Generally, the "fundamental purpose of sentencing is to contribute ... to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions" (s. 718).

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.[2]

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.[3]

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."[4]

The courts must bring the law, including sentencing, into harmony with the prevailing social values and so must reflect changes in these values.[5]

Sentencing Focused on Past Behaviours

Sentencing is limited to addressing what offender have done in the past and it not per se intended to remove dangerous people merely in anticipation of future harm.[6]

Unformity 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.[7]

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.[8]

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".[9]

  1. R v Solowan, 2008 SCC 62 (CanLII) , [2008] 3 SCR 309, per Fish J, at para 16 ("In short, the sentencing principles set out in Part XXIII of the Criminal Code apply to both indictable and summary conviction offences. Parliament has made that clear in the definition of “court” at s. 716 of the Code. And when the Crown elects to prosecute a “hybrid” offence by way of summary conviction, the sentencing court is bound by the Crown’s election to determine the appropriate punishment within the limits established by Parliament for that mode of procedure.")
  2. R v Nasogaluak, 2010 SCC 6 (CanLII), per LeBel J, at para 39
  3. Section 12 of the Interpretation Act
    considered in R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC), per Cory and Iacobucci JJ, at para 26
  4. R v CAM, 1996 CanLII 230 (SCC), [1996] 1 SCR 500, per Lamer CJ, at para 81
  5. R v Stone, 1999 CanLII 688 (SCC), per Bastarache J citing CAM, supra
  6. R v Knoblauch, [2000] 2 SCR 780, 2000 SCC 58 (CanLII), per Arbour J, at para 16 ("There is no mechanism in criminal law to remove dangerous people from society merely in anticipation of the harm that they may cause. The limit of the reach of the criminal sanction is to address what offenders have done.")
  7. R v Christie, 2004 ABCA 287 (CanLII), per Sullivan JA, at paras 42, 52
  8. R v Song, 2009 ONCA 896 (CanLII), per curiam
  9. R v Safarzadeh-Markhali, 2016 SCC 14 (CanLII), per McLachlin CJ, at paras 70 to 71
    cf. R v Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 SCR 433, per Lebel J, at para 36 ("proportionality in sentencing could aptly be described as a principle of fundamental justice under s. 7 of the Charter")

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.[1]

The determination of a proper sentence is an exercise of applying the principles of sentencing to the facts of a given case.[2]

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".[3]

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

It is a "profoundly subjective process".[4] It is also a "profoundly contextual" process with wide discretion of the judges.[5] They must balance "all the relevant factors in order to the objectives being pursued in sentencing".[6]

It is "one of the most delicate stages" of a criminal proceedings.[7]

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".[8]

Duty to Consider All Circumstances

The judge must take into account all the circumstances of the offence and offender.[9]

Analystical 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." [10] The nature and gravity of the offence are the "central factor in sentencing".[11]

The process of sentencing involves consideration of the following principles with each decision:[12]

  • "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]".[13]
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.[14]

Absence of Established Ranges of Sentence

Without specific guidance from an appellate level court, the range of possible sentence for an offence is broad.[15]

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."[16]

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.[17]

Sentencing as "Art" vs "Science"

Sentencing of often referred to as "art" rather than science.[18]

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".[19]

  1. R v MCA, [1996] 1 SCR 500, 1996 CanLII 230 (SCC), at para 82 ("In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a "just and appropriate" sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender.")
  2. R v Ferguson, [2008] 1 SCR 96, 2008 SCC 6 (CanLII), per McLachlin CJ, at para 15 ("The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction.")
  3. R v Hamilton, 2004 CanLII 5549 (ON CA), per Doherty JA, at para 87
  4. R v Shropshire, [1995] 4 SCR 227, 1995 CanLII 47 (SCC), per Iacobucci J, at para 46
  5. R v LM, [2008] 2 SCR 163, 2008 SCC 31 (CanLII), per LBel J, at para 51
  6. R v Lacasse, 2015 SCC 64 (CanLII), per Wagner J, at para 1
  7. Lacasse, ibid., at para 1
  8. R v CAM, [1996] 1 SCR 500, 1996 CanLII 230 (SCC), per Lamer CJ, at para 91
  9. R v Nasogaluak, [2010] 1 SCR 206, 2010 SCC 6 (CanLII), per LeBel J, at para 44
  10. R v DGF, 2010 ONCA 27 (CanLII), per Feldman JA, at para 18
  11. F(DG), at para 18
  12. R v LM, [2008] 2 SCR 163, 2008 SCC 31 (CanLII), per LeBel J, at para 17
  13. Annotations added
  14. R v JAG, 2008 MBCA 55 (CanLII), per Monnin JA, at para 9
  15. R v Arcand, 2010 ABCA 363 (CanLII), per curiam, at para 68
  16. R v Yau, 2011 ONSC 1009 (CanLII), per MacDonnell J, at para 13
  17. Arcand, ibid., at para 70
  18. e.g. R v Pilon, 2014 ONCA 79 (CanLII), per Goudge JA, at para 18
    R v Arganda (J.R.), 2011 MBCA 54 (CanLII), per MacInnes JA, at para 38
  19. R v Macintyre-Syrette, 2018 ONCA 259 (CanLII), per Juriansz JA, at para 25

Secondary Principles

The secondary principles of sentencing are listed in s. 718.2:

Other sentencing principles

718.2
...

(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; [1] 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


Note up: 718.2

Codification of Common Law

The principles stated in s. 718.2(a),(b) and (c) are simply "restatements of the jurisprudence".[2] 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".[3]

  1. R v Hamilton, 2004 CanLII 5549 (ON CA), per Doherty JA
    R v DL, 1990 CanLII 5415 (BC CA), (1990), 53 CCC 365 (BCCA), per McEachern JA
  2. R v MacDonald (1997), 113 CCC (3d) 418, 1997 CanLII 9710 (SK CA), per Vancise JA and Lane JA, at para 146
  3. MacDonald, ibid., at para 147

Topics

Purpose and Principles of Specific Types of Offences

Case Digests