Totality Principle

This page was last substantively updated or reviewed January 2023. (Rev. # 95991)

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General Principles

The common law principle to totality is found codified in s. 718.2(c), which states as follows:

Obligations of court

718.2 A court that imposes a sentence shall also take into consideration the following principles:

[omitted (a) and (b)]

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

[omitted (d) and (e)]

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), (DOJ)

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Totality as Proportionality

The principle of totality is a component of the principle of proportionality. In some sense, totality is a "subsidiary" of proportionality.

Purpose

The totality principle was "intended to avoid sentences that cumulatively are out of proportion to the gravity of the offences"

The principle is also seen as "in service of" the principle of restraint.

"Cheaper by the Dozen"

By contrast, there is authority saying that courts must avoid making it "cheaper by the dozen" when sentencing an offender for multiple offences. The use of "cheaper by the dozen" sentencing is exhibited when the court improperly attributes muliple offences to being a "spree" without considering whether the accused has good prospects of rehabilitation.

Terminology of "global" vs "cumulative" sentence

There has been some suggestion that the term "cumulative" is better than "global" in reference to the final sentence.

Application

The principle of totality comes into play where there is a sentence for multiple offences. The principle requires the court to craft a global sentence of all offences that is not excessive. If the total sentence is excessive the court must adjust the sentence so that the "total sentence is proper".

The sentence should not deprive the offender of "any hope of ... rehabilitation".

Sentences Exceeding the Ranges

The sentence may violate the totality principle where the global sentence considerably exceeds the "normal" level of the most serious of the individual offences.

The sentence may also violate the principle where the global sentence "exceeds what is appropriate given the offender's overall culpability.

When Offences are Concurrent

Where the multitude of offences are determined to run concurrently to each other, the judge is then prohibited from using the totality principle.

Offences Not Before the Court

While not always the case, an offender's past convictions and sentences may be relevant to the calculation of totality.

Totality Applied When Sentencing for Single Offence

The totality principle must still be considered when the sentencing judge is faced with a single offence if at the time the offender is serving a previous sentence. Only the unexpired portion of the previous sentence should be considered.

Age of Offender

Where the offender is older, the sentence should not exceed their expected lifespan.

Effect of Totality

The only effect of totality should be that the sentence "cannot exceed the overall culpability of the offender."

Totality will have a balancing effect when applied after considering the denunciatory and deterrent objectives.

It should not have the effect of "wip[ing] out punishment for serious aggravating factors."

Single Transaction

Where there are multiple counts arising from a single transaction, the court should consider the sentencing of the worst of the counts "then go on to assess what effect the other collateral or associated crimes has on the overall culpability of the offender". Generally, the other offences are "essentially modifiers or adjectives" that deserve concurrent sentences.

Procedure

Depending on the jurisdiction, this process can be done either by summing the individual sentences and then adjusting accordingly or by making a global sentence and calculating individual sentences from that number. It is more frequently the former than the latter.

Analysis (BC)

The question of imposing concurrent or consecutive sentences should involved three steps:

1. determine the appropriate sentence for each offence;
2. determine whether the sentences should be consecutive or concurrent; and
3. assess the "overall moral culpability of the offender in relation to the offences" and determine "whether the sentence is proportionate or whether it is unduly long or harsh". Where it is too long, the sentence should be adjusted until it is proportionate.

Analysis (NS)

In Nova Scotia, it was recommended that sentencing judges consider totality as follows:

1. Identify an appropriate sentence for each offence;
2. Consider whether sentences should be concurrent or consecutive to each other based on the nature of the offences (see Concurrent and Consecutive Sentences);
3. Take a "last look". If the global sentence is "unduly long or harsh and not proportionate", the court should reduce the sentence in light of factors:
   1. "the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved;"
   2. "the number and gravity of the offences involved;"
   3. "the offender’s criminal record;"
   4. "the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing;"
   5. "such other factors as may be appropriate."
4. The reduction should be done by "first attempt[ing] to adjust one or more of the sentences by making it or them concurrent with other sentences". If "that does not achieve the proper result, the court may in addition, or instead, reduce the length of an individual sentence below what it would otherwise have been."

In the analysis the judge should be sure to identify:

1. "the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, without considerations of totality;"
2. "the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and"
3. "the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are, for this purpose, to be made concurrent or to be otherwise reduced."

Worst Offence First

It has been suggested that where there are multiple counts from a single transaction, the best practice is to first consider the worst of the offences and then assess what affect the collateral offences have on the overall culpability, thus treating the lesser offences as modifiers of the initial sentence.

Sprees

Totality can be applied to spree crimes, a string of similar offences over a short period of time. Though they are separate offences, the courts can treat them as a single transaction due to the linkage between them. This form of totality must be considered carefully as it should not give the impression that offences are "cheaper" when done in succession. It has a reduction effect in part due to the frequency that the offender is young and rehabilitation is still a major consideration.

It is wrong to treat "sprees" of crime as a reason to deduct the overall sentence as crime should not be treated as "cheaper by the dozen."