View source for Denunciation and Deterrence

{{LevelZero}}{{HeaderPrinciples}}
==General Principles==
{{seealso|Purpose and Principles of Sentencing|Enumerated Purposes of Sentencing}}
{{quotation2|
; Purpose
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
:(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
:(b) to deter the offender and other persons from committing offences;
{{removed|(c), (d), (e) and (f)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 718; 
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 155; 
{{LegHistory90s|1995, c. 22}}, s. 6;
{{LegHistory10s|2015, c. 13}}, s. 23.
|[{{CCCSec|718}} CCC] 
|{{NoteUp|718}}
}}

; Effect Upon Law-abiding vs Chronic Offenders
Denunciation and deterrence are particularly important in sentencing law-abiding offenders as harsh sentences will have a greater effect on those who are otherwise law-abiding when compared to chronic offenders.<ref>
{{CanLIIR|Lacasse|gml9v|2015 SCC 64 (CanLII)|[2015] 3 SCR 1089}}{{perSCC|Wagner J}}{{atL|gml9v|73}} ("While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinarily law‑abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences. ")<br>
</ref>

; Denunciation and Deterrence of an Intermittent Sentence
The intermittently served jail sentence "strikes a legislative balance" between the objectives of denunciation and deterrence while preserving rehabilitation through the maintenance of employment, family relationships and responsibilities, and community obligations.<ref>
{{CanLIIR|Middleton|23l0k|2009 SCC 21}}{{perSCC|Fish J}}{{atL|23l0k|45}} ("Intermittent sentences strike a legislative balance between the denunciatory and deterrent functions of “real jail time” and the rehabilitative functions of preserving the offender’s employment, family relationships and responsibilities, and obligations to the community.")
</ref>

{{reflist|2}}

== Denunciation - s.718(a) ==
Section 718(a) sets out the sentencing objective of  "denounc[ing] unlawful conduct".
Denunciation refers to the Court's "communication of society's condemnation of the offender's conduct." The "denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law".<ref>
{{CanLIIR|Proulx|527b|2000 SCC 5 (CanLII)}}{{perSCC|Lamer CJ}}{{atL|527b|102}}<br>
{{CanLIIRP|CAM|1frb9|1996 CanLII 230 (SCC)|[1996] 1 SCR 500}}{{perSCC|Lamer CJ}} ("A sentence which expresses denunciation is simply the means by which these values are communicated.") and {{atsL-np|1frb9|81|}} ("The principle of denunciation "mandates that a sentence should communicate society's condemnation of that particular offender's conduct ... a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law.")
</ref>

The "symbolism" of denunciation cannot be an objective "in and of itself". Consequently, sentences that exceed the persons "foreseeable life serve no functional purpose" and are "purely symbolic".<ref>
{{CanLIIR|Klaus|hqf49|2018 ABQB 97 (CanLII)}}{{perABQB|Macklin J}}{{atL|hqf49|110}}<br>
{{CanLIIR|McArthur|hxg6g|2019 ONSC 963 (CanLII)}}{{perONSC|McMahon J}}{{atL|hxg6g|96}}<br>
</ref>

The denunciatory sentence must also "positively instill the basic set of communal values shared by all Canadians as expressed by the Criminal Code."<ref>
{{supra1|M(CA)}}{{atL|1frb9|81}}
</ref>

Denunciation becomes a major consideration in situations where "there is a “high degree of planning and premeditation, and where the offence and its consequences are highly publicized, [so that] like‑minded individuals may well be deterred by severe sentences” [citation omitted]  This is particularly so where a victim is a vulnerable person with respect to age, disability, or other similar factors."<ref>
{{CanLIIR|Latimer|523c|2001 SCC 1 (CanLII)}}{{TheCourtSCC}}{{atL|523c|86}}
</ref>

; Retribution
Retribution is an important consideration in sentencing.<ref>
{{supra1|CAM}}{{atL|1frb9|77}} ("It has been recognized by this Court that retribution is an accepted, and indeed important, principle of sentencing in our criminal law. ")
</ref>
It is a principle of sentencing "based on an offender's moral blameworthiness or culpability, and the seriousness of the offence and its circumstances."<ref>
{{CanLIIR|Denny|gp2h1|2016 NSSC 76 (CanLII)}}{{perNSSC|Rosinski J}}{{atL|gp2h1|123}}<br>
{{supra1|CAM}} (retribution "... properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, nothing more")<br>
see also {{CanLIIR|Vienneau|gml8c|2015 ONCA 898 (CanLII)}}{{TheCourtONCA}} (3:0)<br>
</ref> 

Denunciation should not be equated with retribution which is a separate legitimate purpose of sentencing.<ref>
{{supra1|CAM}}{{atL|1frb9|81}} ("Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation...")
</ref> 
Nor should retribution be equated with vengance.<Ref>
{{supra1|CAM}}{{atL|1frb9|80}}
</ref>

; Incarceration Not Necessarily Required
In any case emphasizing "general or specific deterrence and denunciation", "the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law‑abiding society."<ref> 
{{CanLIIR|Safarzadeh-Markhali|gpg9w|2016 SCC 14 (CanLII)}}{{perSCC|McLachlin CJ}}
</ref>

The principles of denunciation and deterrence can sometimes be satisfied without incarceration. One of these circumstances is where the publicity of the case provides for public humiliation. <ref>
{{CanLIIR|Ewanchuk|506z|2002 ABCA 95 (CanLII)}}{{TheCourtABCA}}{{atL|506z|65}}<br> 
{{CanLIIR|Ambrose|5rqs|2000 ABCA 264 (CanLII)}}{{TheCourtABCA}}{{atL|5rqs|134}}<br> 
{{CanLIIR-N|Kneale|, [1999] OJ No 4062 (SCJ)}}{{at-|35}}</ref>

; Conditional Sentence
Where denunciation is a paramount consideration a conditional sentence is not necessarily ruled out.<ref>
{{CanLIIR|Wells|527n|2000 SCC 10 (CanLII)}}{{perSCC|Iacobucci J}}{{atsL|527n|31| to 35}}<br>
</ref>

A conditional sentence under s. 742.1 that includes "onerous" conditions may provide some denunciation but incarceration will generally provide greater denunciation.<ref>
{{supra1|Proulx}}{{atL|527b|102}} ("Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation.  This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.")<br>
</ref>


{{reflist|2}}

== Deterrence - 718(b) ==
Deterrence "refers to the imposition of a sanction for the purpose of discouraging the offender and others from engaging in criminal conduct."<ref>
{{CanLIIRP|BWP; R v BVN|1nn6n|2006 SCC 27 (CanLII)|[2006] 1 SCR 941}}{{perSCC|Charron J}}{{atL|1nn6n|2}}</ref>

Section 718(b) sets out the objectives of "deter[ing] the offender and other persons from committing offences" We refer to these as the twin objectives of "general deterrence" and "specific deterrence".

Deterrence in the "widest sense" refers to a "sentence by emphasizing community disapproval of an act and branding it as reprehensible has a moral or educative effect and thereby affects the attitude of the public" with the expectation that a person will not likely commit such an act.<ref>
{{CanLIIR-N|Roussy|, [1977] OJ No 1208 (Ont. C.A.)}}{{perONCA|Zuber JA}}{{at-|5}}<br>
</ref>

In any case emphasizing "general or specific deterrence and denunciation", "the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law‑abiding society."<ref> 
{{CanLIIR|Safarzadeh-Markhali|gpg9w|2016 SCC 14 (CanLII)}}{{perSCC|McLachlin CJ}}
</ref>

It is "an error of principle for a trial court to discount the deterrent effect of any particular kind of punishment provided for in the Criminal Code, such as imprisonment, because he or she believes that imprisonment has not proven effective".<ref> 
{{CanLIIR|Tran|2d2xm|2010 ABCA 317 (CanLII)}}{{perABCA|Moen JA}}{{atL|2d2xm|12}}<br>
{{CanLIIR|Song|2734x|2009 ONCA 896 (CanLII)}}{{TheCourtONCA}}{{atsL|2734x|8| to 12}}<br>
</ref>

; Specific Deterrence
Specific deterrence targets the specific offender before the court.<ref>
{{supra1|BWP}}{{atL|1nn6n|2}}</ref>

; General Deterrence
General deterrence targets potential criminals by encouraging them not to "engage in criminal activity because of the example provided by the punishment imposed on the offender." <ref>
{{supra1|BWP}}{{atL|1nn6n|2}}<br>
{{CanLIIRP|McGinn|g8f2g|1989 CanLII 4784 (SK CA)| (1989), 49 CCC (3d) 137 (SKCA)}}{{perSKCA|Cameron JA}}, (general deterrence is "punishment of the offender for what other might do")<br>
</ref>
The objective of general deterrence as a factor will normally result in the offender being “punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity.” <ref>
{{supra1|BWP}}{{atL|1nn6n|2}}</ref>

When general deterrence is emphasized, the deterrent effect of incarceration can be somewhat speculative and so should be used with great restraint.<ref>
{{CanLIIRP|Biancofiore|6hjk|1997 CanLII 3420 (ONCA)|119 CCC (3d) 344}}{{perONCA|Rosenberg JA}}{{atL|6hjk|23}}</ref> 
A lengthy sentence is not the only way of achieving the objective of general deterrence.<ref>
See {{CanLIIRP|Morrissette|g7bxk|1970 CanLII 642|1 CCC (2d) 307 (Sask CA)}}{{perSKCA|Culliton J}}, at 310</ref>

Crimes committed out of desperation or addiction, such as much drug trafficking, are not offences for which general deterrence has much effect.<ref>
{{CanLIIR|Frost|ftvn8|2012 NBCA 94 (CanLII)}}{{perNBCA|Quigg JA}} (3:0) ("these crimes are not committed out of desperation or the result of an addiction, crimes for which general deterrence would be of little effect")</ref>

Crimes motivated by profit, which can also be drug trafficking, will be addressable by general deterrence.<ref>
{{ibid1|Frost}} ("cases such as this, where profit is the offender’s motivation, a significant penalty is generally a deterrent to others who might consider whether or not to undertake such criminal activity")</ref>

Offences against recognized classes of vulnerable victims require the Courts to heighten their emphasis on general deterrence.<ref>
{{CanLIIRP|Petrovic|g1b0c|1984 CanLII 2003 (ONCA)| (1984), 47 OR (2d) 97, }}{{perONCA|Lacourciere JA}}<br>
{{CanLIIR|Inwood|1p78h|1989 CanLII 263 (ONCA)}}{{perONCA|Howland CJ}}<br>
</ref>

Vulnerable classes have included young female victims of distribution of intimate images.<ref>
{{CanLIIRP|Zhou|gt89m|2016 ONCJ 547 (CanLII)|[2016] OJ No 4641}}{{perONCJ|Ray J}}<br>
{{CanLIIR|CNT|gk29w|2015 NSPC 43 (CanLII)}}{{perNSPC|Atwood J}}{{atL|gk29w|9}} overturned at [http://canlii.ca/t/gr50z 2016 NSCA 35] (CanLII){{TheCourtNSCA}} on other grounds<br>
</ref>

; Publicity
The degree to which the case is covered by media is relevant to general deterrence.<ref>
{{CanLIIR|Matheson|1sxvg|2007 NSPC 43 (CanLII)}}{{perNSPC|Derrick J}}{{atL|1sxvg|27}}<br>
{{CanLIIR-N|Clarke|, [1990] NSJ 427 (NSSC)}}{{perNSSC|Nunn J}}, ("If it receives no publicity then there is no general deterrence, other than the several people who may be in court at the time the sentence is given"<br>
</ref>
Where there is no publicity of the case at all then there can be no general deterrence.<ref>
{{ibid1|Clarke}}
</ref>

; Achieving Deterrence
There continues to be controversy outside of the courts about whether deterrence is effective.<ref>
e.g. see {{supra1|BWP}}{{atL|1nn6n|3}}<br>
</ref>
Some have suggested that the availability of conditional sentences is an concession that general deterrence is "speculative".<ref>
{{CanLIIRP|Wismayer|6h6j|1997 CanLII 3294 (ONCA)|(1997), 5 CR (5th) 248 (CA)}}{{perONCA|Rosenberg JA}} (3:0){{AtsL|6h6j|49| to 50}}<br>
{{supra1|Biancofiore}}{{Atp|356}} (cited to CCC)<br>
</ref>

Given that incarceration is harsher than a conditional sentence it is considered more effective at providing deterrence.<ref>
{{CanLIIR|Proulx|527b|2000 SCC 5 (CanLII)|[2000] 1 SCR 61}}{{perSCC|Lamer CJ}}{{atL|527b|107}} ("Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence")
</ref>

It has been said that conditional sentences are not necessarily capable of providing general deterrence.<ref>
{{supra1|Frost}} ("The question is whether a conditional sentence is capable of providing general deterrence. ...The answer is clearly no.")</ref>
This is apparent due to the frequency that CSO are rejected on serious offences.

For a conditional sentence to achieve the goals of "denunciation and general deterrence, the punishment must be meaningful by being visible, sufficiently restrictive, enforceable and capable of attracting stern sanction for failure to comply with the conditions."<ref>
{{supra1|Wismayer}}{{atL|6h6j|52}}</ref>

It is an error of law for a judge to increase the sentence to achieve specific deterrence without considering whether the sentence is still proportionate.<ref>
{{supra1|Rogers}}{{at|43}}</ref>

{{reflist|2}}