Sentencing Ranges: Difference between revisions
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{{HeaderPrinciples}} | {{HeaderPrinciples}} | ||
==General Principles== | ==General Principles== | ||
Sentencing courts are required to apply the ranges of sentences set by the Court of Appeal when considering a fit and proper sentence.<ref> | Sentencing courts are required to apply the ranges of sentences set by the Court of Appeal when considering a fit and proper sentence.<ref> | ||
{{CanLIIRx|Jafarian|g2hzp|2014 ONCA 9 (CanLII)}}{{TheCourtONCA}} - trial judge refuses to follow appellate direction because they are "ridiculously low" | |||
</ref> | </ref> | ||
A range of sentence is not the boundary for all sentences between the minimum and maximum for the offence charged. Rather, it is narrowed by the specific offence and offender. The variations of punishment when weighing aggravating and mitigating factors create the continuum of the range. <ref> | A range of sentence is "simply a flexible guidelien for the normal case". It is supposed to assist in achieve parity in comparable cases.<ref> | ||
{{CanLIIR|Thomas||2012 ONSC 6653}}{{perONSC|Code J}} at para 50 ("It is settled law that a “range” of sentence is simply a flexible guideline for the normal case. It assists in achieving “parity” in sentencing between comparable cases.") | |||
</ref> | |||
A range is not the boundary for all sentences between the minimum and maximum for the offence charged. Rather, it is narrowed by the specific offence and offender. The variations of punishment when weighing aggravating and mitigating factors create the continuum of the range. <ref> | |||
{{CanLIIRP|Cromwell|1m44w|2005 NSCA 137 (CanLII)|202 CCC (3d) 310}}{{perNSCA-H|Bateman JA}}{{atL|1m44w|26}}</ref> | |||
The sentencing ranges recommended by the courts of appeal are generally looked at as summaries of the minimum and maximums that have been imposed in the past which can guide judges. They are not "averages" or "straights-jackets" to regular judicial discretion.<ref> | |||
{{CanLIIRx|Anderson|gs0qq|2016 MBPC 28 (CanLII)}}{{perMBPC|Martin J}}{{atL|gs0qq|24}} citing Lacasse{{at|57}}<Br> | |||
</ref> | </ref> | ||
; Purpose of Ranges | |||
One of the purposes of a range set by a court of appeal is to "minimize disparity of sentences in cases involving similar offences and similar offenders" | One of the purposes of a range set by a court of appeal is to "minimize disparity of sentences in cases involving similar offences and similar offenders."<ref> | ||
{{CanLIIRP|Stone|1fqn2|1999 CanLII 688 (SCC)|[1999] 2 SCR 290}}{{perSCC-H|Bastarache J}}{{atL|1fqn2|244}} ("One function of appellate courts is to minimize disparity of sentences in cases involving similar offences and similar offenders")<br> | |||
</ref> | </ref> | ||
; Importance of Ranges | |||
The "credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders" | The "credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders."<ref> | ||
{{CanLIIRP|Lacasse|gml9v|2015 SCC 64 (CanLII)|[2015] 3 SCR 1089}}{{perSCC|Wagner J}}{{atsL|gml9v|3| to 6}}<br> | |||
</ref> | </ref> | ||
; Effect of Ranges | |||
A sentence is not proportionate simply because it is within a range. Likewise, it is not disproportionate when it falls outside of a range "providing it is otherwise in accordance with the principles and objectives of sentencing" | A sentence is not proportionate simply because it is within a range. Likewise, it is not disproportionate when it falls outside of a range "providing it is otherwise in accordance with the principles and objectives of sentencing."<ref> | ||
{{CanLIIRP|Gibson|gg38b|2015 ABCA 41 (CanLII)|319 CCC (3d) 115}}{{TheCourtABCA}}{{atL|gg38b|16}}<br> | |||
</ref> | </ref> | ||
An offender who is charged by the military will generally be expected to receive a harsher sentence than that of a civilian for the same offence.<ref> | An offender who is charged by the military will generally be expected to receive a harsher sentence than that of a civilian for the same offence.<ref> | ||
{{CanLIIRP|Généreux|1fsg8|1992 CanLII 117 (SCC)|[1992] 1 SCR 259}}{{perSCC|Lamer CJ}} ("To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct.") | |||
</ref> | </ref> | ||
; Exceeding the Range | |||
A sentencing judge's discretion is fettered by general ranges of sentence. These ranges are to encourage consistency between sentences.< | A sentencing judge's discretion is fettered by general ranges of sentence. These ranges are to encourage consistency between sentences.<ref> | ||
{{CanLIIRP|Nasogaluak|2848x|2010 SCC 6 (CanLII)|[2010] 1 SCR 206}}{{perSCC|LeBel J}}{{atL|2848x|44}}<br> | |||
</ref> | </ref> | ||
Ranges "are guidelines rather than hard and fast rules" | Ranges "are guidelines rather than hard and fast rules."<ref> | ||
{{ibid1|Nasogaluak}}{{atL|2848x|44}}</ref> | |||
However, factors such as a “good record” and remorse do not amount to exceptional circumstances to deviate from the accepted range.<ref> | A range of sentence can be deviated as long as it is "in accordance with the principles and objectives of sentencing" and are not necessarily unfit.<ref> | ||
{{ibid1|Nasogaluak}}{{atL|2848x|44}}<br> | |||
cf. {{CanLIIRP|Doerksen|gdd1x|1990 CanLII 7329 (SKQB)|62 Man.R. 2d 259 (CA)}}{{perSKQB|Kyle J}}: A set range of sentence can be deviated from in “exceptional circumstances” </ref> | |||
However, factors such as a “good record” and remorse do not amount to exceptional circumstances to deviate from the accepted range.<ref> | |||
{{CanLIIRP|Henderson|fpxrx|2012 MBCA 9 (CanLII)|279 CCC (3d) 406}}{{perMBCA|Hamilton JA}}</ref> | |||
A judge may impose a sentence outside of the recommended range so long as it complies with the principles and objectives of sentencing.< | A judge may impose a sentence outside of the recommended range so long as it complies with the principles and objectives of sentencing.<ref> | ||
{{CanLIIRP|McCowan|29qn9|2010 MBCA 45 (CanLII)|255 CCC (3d) 123}}{{perMBCA|Steel JA}}{{atL|29qn9|11}}<Br> | |||
</ref> | </ref> | ||
; Appellate Review of Ranges | |||
It is an "error in principle" for a judge to misstate the range of sentence for a particular offence. <ref> | It is an "error in principle" for a judge to misstate the range of sentence for a particular offence. <ref> | ||
{{CanLIIRP|Dyke|g90fs|2014 SKCA 93 (CanLII)|323 CCC (3d) 333}}{{perSKCA|Jackson JA}}{{atL|g90fs|22}}<Br> | |||
{{CanLIIRP|Simcoe|1dnrb|2002 CanLII 5352 (ON CA)|156 OAC 190}}{{perONCA|Feldman JA}}{{atL|1dnrb|13}}<br> | |||
</ref> | </ref> | ||
; Sentencing Grids and Sentencing Tables | |||
The use of judge-imposed sentencing grids or tables goes contrary to the intent of parliament and is not permitted.<ref> | The use of judge-imposed sentencing grids or tables goes contrary to the intent of parliament and is not permitted.<ref> | ||
{{CanLIIRP|Gauvreau|h0b5j|2017 ABCA 74 (CanLII)|48 Alta LR (6th) 285}}{{TheCourtABCA}}{{atL|h0b5j|17}}<Br> | |||
</ref> | </ref> | ||
| Line 57: | Line 69: | ||
==Effect of Election on Sentence== | ==Effect of Election on Sentence== | ||
A sentence is not scaled based on the election made. Thus, an offence prosecuted summarily should not be scaled to less than the maximum only because it would not have been a maximum sentence by indictment.< | A sentence is not scaled based on the election made. Thus, an offence prosecuted summarily should not be scaled to less than the maximum only because it would not have been a maximum sentence by indictment.<ref> | ||
{{CanLIIRP|Solowan|21h61|2008 SCC 62 (CanLII)|[2008] 3 SCR 309}}{{perSCC-H|Fish J}}{{atL|21h61|15}}</ref> | |||
Likewise, an election to proceed by indictment should not be a relevant factor.<ref> | |||
{{CanLIIRP|Paul|g2vp9|2014 ABCA 42 (CanLII)|112 WCB (2d) 188}}{{TheCourtABCA}} | |||
</ref> | </ref> | ||
Sentences for breach of court orders is a gradual process without a sudden, substantial increase in penalty.< | Sentences for breach of court orders is a gradual process without a sudden, substantial increase in penalty.<ref> | ||
{{CanLIIRP|Murphy|2fn2v|2011 NLCA 16 (CanLII)|[2011] NJ No 43 (CA)}}{{perNLCA|Welsh JA}} at 34</ref> | |||
{{reflist|2}} | {{reflist|2}} | ||
Latest revision as of 14:38, 14 July 2024
| This page was last substantively updated or reviewed January 2018. (Rev. # 95465) |
General Principles
Sentencing courts are required to apply the ranges of sentences set by the Court of Appeal when considering a fit and proper sentence.[1]
A range of sentence is "simply a flexible guidelien for the normal case". It is supposed to assist in achieve parity in comparable cases.[2]
A range is not the boundary for all sentences between the minimum and maximum for the offence charged. Rather, it is narrowed by the specific offence and offender. The variations of punishment when weighing aggravating and mitigating factors create the continuum of the range. [3]
The sentencing ranges recommended by the courts of appeal are generally looked at as summaries of the minimum and maximums that have been imposed in the past which can guide judges. They are not "averages" or "straights-jackets" to regular judicial discretion.[4]
- Purpose of Ranges
One of the purposes of a range set by a court of appeal is to "minimize disparity of sentences in cases involving similar offences and similar offenders."[5]
- Importance of Ranges
The "credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders."[6]
- Effect of Ranges
A sentence is not proportionate simply because it is within a range. Likewise, it is not disproportionate when it falls outside of a range "providing it is otherwise in accordance with the principles and objectives of sentencing."[7]
An offender who is charged by the military will generally be expected to receive a harsher sentence than that of a civilian for the same offence.[8]
- Exceeding the Range
A sentencing judge's discretion is fettered by general ranges of sentence. These ranges are to encourage consistency between sentences.[9]
Ranges "are guidelines rather than hard and fast rules."[10] A range of sentence can be deviated as long as it is "in accordance with the principles and objectives of sentencing" and are not necessarily unfit.[11] However, factors such as a “good record” and remorse do not amount to exceptional circumstances to deviate from the accepted range.[12]
A judge may impose a sentence outside of the recommended range so long as it complies with the principles and objectives of sentencing.[13]
- Appellate Review of Ranges
It is an "error in principle" for a judge to misstate the range of sentence for a particular offence. [14]
- Sentencing Grids and Sentencing Tables
The use of judge-imposed sentencing grids or tables goes contrary to the intent of parliament and is not permitted.[15]
- ↑ R v Jafarian, 2014 ONCA 9 (CanLII), per curiam - trial judge refuses to follow appellate direction because they are "ridiculously low"
- ↑ R v Thomas, 2012 ONSC 6653, per Code J at para 50 ("It is settled law that a “range” of sentence is simply a flexible guideline for the normal case. It assists in achieving “parity” in sentencing between comparable cases.")
- ↑ R v Cromwell, 2005 NSCA 137 (CanLII), 202 CCC (3d) 310, per Bateman JA, at para 26
- ↑
R v Anderson, 2016 MBPC 28 (CanLII), per Martin J, at para 24 citing Lacasse, at para 57
- ↑
R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J, at para 244 ("One function of appellate courts is to minimize disparity of sentences in cases involving similar offences and similar offenders")
- ↑
R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, per Wagner J, at paras 3 to 6
- ↑
R v Gibson, 2015 ABCA 41 (CanLII), 319 CCC (3d) 115, per curiam, at para 16
- ↑ R v Généreux, 1992 CanLII 117 (SCC), [1992] 1 SCR 259, per Lamer CJ ("To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct.")
- ↑
R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J, at para 44
- ↑ Nasogaluak, ibid., at para 44
- ↑
Nasogaluak, ibid., at para 44
cf. R v Doerksen, 1990 CanLII 7329 (SKQB), 62 Man.R. 2d 259 (CA), per Kyle J: A set range of sentence can be deviated from in “exceptional circumstances” - ↑ R v Henderson, 2012 MBCA 9 (CanLII), 279 CCC (3d) 406, per Hamilton JA
- ↑
R v McCowan, 2010 MBCA 45 (CanLII), 255 CCC (3d) 123, per Steel JA, at para 11
- ↑
R v Dyke, 2014 SKCA 93 (CanLII), 323 CCC (3d) 333, per Jackson JA, at para 22
R v Simcoe, 2002 CanLII 5352 (ON CA), 156 OAC 190, per Feldman JA, at para 13
- ↑
R v Gauvreau, 2017 ABCA 74 (CanLII), 48 Alta LR (6th) 285, per curiam, at para 17
Effect of Election on Sentence
A sentence is not scaled based on the election made. Thus, an offence prosecuted summarily should not be scaled to less than the maximum only because it would not have been a maximum sentence by indictment.[1] Likewise, an election to proceed by indictment should not be a relevant factor.[2]
Sentences for breach of court orders is a gradual process without a sudden, substantial increase in penalty.[3]
- ↑ R v Solowan, 2008 SCC 62 (CanLII), [2008] 3 SCR 309, per Fish J, at para 15
- ↑ R v Paul, 2014 ABCA 42 (CanLII), 112 WCB (2d) 188, per curiam
- ↑ R v Murphy, 2011 NLCA 16 (CanLII), [2011] NJ No 43 (CA), per Welsh JA at 34