Offences of Violence (Sentencing): Difference between revisions

From Criminal Law Notebook
m Text replacement - "(R v [A-Z][a-z]+-[A-Z][a-z]+)," to "''$1'',"
 
(93 intermediate revisions by the same user not shown)
Line 1: Line 1:
[[fr:Infractions de violence et de voies de fait (détermination de la peine)]]
{{Currency2|January|2018}}
{{LevelZero}}{{HeaderOffences}}
{{LevelZero}}{{HeaderOffences}}
==General Principles==
==General Principles==
<!-- -->
A key societal right for all people is the right to be "free from unconsented invasions on his or her physical security or dignity."<Ref>
A key societal right for all people is the right to be "free from unconsented invasions on his or her physical security or dignity".<Ref>
{{CanLIIRP|Ogg-Moss|1txjt|1984 CanLII 77 (SCC)|[1984] 2 SCR 173}}{{perSCC|Dickson J}} (5:0) ("One of the key rights in our society is the individual’s right to be free from unconsented invasions on his or her physical security or dignity and it is a central purpose of the criminal law to protect members of society from such invasions.")
''R v Ogg-Moss'', [1984] 2 SCR 173, [http://canlii.ca/t/1txjt 1984 CanLII 77] (SCC){{perSCC|Dickson J}} (5:0) ("One of the key rights in our society is the individual’s right to be free from unconsented invasions on his or her physical security or dignity and it is a central purpose of the criminal law to protect members of society from such invasions.")
</ref>
</ref>
It is a "central purpose" of the criminal law to protect the public from such invasions.<Ref>
It is a "central purpose" of the criminal law to protect the public from such invasions.<Ref>
Ogg-Moss{{ibid}}
{{ibid1|Ogg-Moss}}
</ref>
</ref>


Provocation will have an effect on sentence for assault. Where the injury occurred while in an initially consensual fight the sentence will be less than where the attack was unprovoked and against a defenceless victim.<Ref> R v Johnson [1998] BCJ NO.2924 (BCCA){{NOCANLII}}</ref>
Provocation will have an effect on sentence for assault. Where the injury occurred while in an initially consensual fight the sentence will be less than where the attack was unprovoked and against a defenceless victim.<ref>
{{CanLIIRP|Johnson|1f0vs|1998 CanLII 4838 (BC CA)|131 CCC (3d) 274}}{{perBCCA-H|Prowse JA}}</ref>


In offences of violence involving a weapon, "the primary sentencing objectives to be applied are deterrence and protection of the public."<ref>
In offences of violence involving a weapon, "the primary sentencing objectives to be applied are deterrence and protection of the public."<ref>
''R v Philpott'', [http://canlii.ca/t/2fx0s 2011 NLTD 30] (CanLII){{perNLSC|LeBlanc J}}</ref>
{{CanLIIRP|Philpott|2fx0s|2011 NLTD 30 (CanLII)|958 APR 119}}{{perNLSC|LeBlanc J}}</ref>
 
Random acts of violence upon strangers will often attract jail sentence. <ref>
''R v Lewis'', 1983 OntCA -- 9 mo for random unprovoked assault<br>
</ref>


Sports-related violence can frequently allow for discharges.<ref>
Sports-related violence can frequently allow for discharges.<ref>
R v Carroll (1995) 38 CR 238 (BCCA){{NOCANLII}}
{{CanLIIRP|Carroll|1ddnb|1995 CanLII 1123 (BC CA)|(1995) 38 CR 238}}{{perBCCA-H|Donald JA}}
</ref>
</ref>
   
   
Line 45: Line 43:
# evidence that it was out of character or isolated event
# evidence that it was out of character or isolated event


{{reflist|2}}
Psychologists do make a distinction between "affective violence" and "predatory violence". Affective violence concerns "violence that is reactive and emotionally driven". Predatory violence concerns violence where the offender "sought both gratification and compliance."<ref>
 
{{CanLIIR|States|h4m1q|2017 ONSC 4023 (CanLII)}}{{atL|h4m1q|298}} ("Both saw the initial assault of Mr. States as important. From their respective psychiatric and psychological perspectives, both saw the offence as involving affective violence: violence that is reactive and emotionally driven.")<br>
== Domestic Violence==
{{CanLIIR|Paxton|g2jtf|2013 ABQB 750 (CanLII)}}{{perABQB|S.L. Martin J}}{{atL|g2jtf|234}}
Section 718.2(a)(ii) provides that “evidence that the offender, in committing the offence, abused the offender’s spouse or common law partner...shall be deemed to be an aggravating factor." This can include those who are in a sexual relationship but may not be co-habitating.<Ref>
''R v Wenc'', [http://canlii.ca/t/2607q 2009 ABCA 328] (CanLII){{TheCourtABCA}} (3:0) at para 23 to 25<br>
</ref>
</ref>


A spousal connection between the offender and victim is an aggravating factor at common law.<ref>
{{reflist|2}}
''R v Doyle'', (1991), 108 N.S.R. (2d) 1 (C.A.), [http://canlii.ca/t/1ms6d 1991 CanLII 2535] (NS CA){{perNSCA|Hallett JA}}<br>
''R v Brown'', [http://canlii.ca/t/1p6kf 1992 ABCA 132] (CanLII), (1992), 13 C.R. (4th) 346, 73 CCC 242 (Alta.C.A.){{TheCourtABCA}}<br>
R v Pitkeathly [http://canlii.ca/t/6k0z 1994 CanLII 222] (ON CA), (1994), 29 C.R. (4th) 182 (Ont.C.A.){{TheCourtONCA}}<br>
R v Jackson [http://canlii.ca/t/2dczm 1996 ABCA 195] (CanLII), (1996), 106 CCC (3d) 557 (Alta.C.A.){{perABCA|O'Leary JA}} (3:0)<br>
''R v Edwards'', [http://canlii.ca/t/5tk2 1996 CanLII 1522] (ON CA), (1996), 28 O.R. (3d) 54, 105 CCC (3d) 21 (C.A.){{perONCA|Finlayson JA}}<br>
''R v Stone'', [http://canlii.ca/t/1fqn2 1999 CanLII 688] (SCC), (1999), 134 CCC (3d) 353 (SCC){{perSCC|Bastarache J}} (5:4)<br>
</ref>


'''Denunciation and Deterrence are Primary'''<Br>
== Group Violence ==
The primary principles are denunciation and general deterrence for domestic violence offences.<ref>
When sentencing for group violence, it is not permitted to argue that a particular individual’s contribution was less than others and so deserves a lower sentence. They are responsible for the group that they contributed to.
''R v McCarthy'', [http://canlii.ca/t/1l14d 2005 NLCA 36] (CanLII){{perNLCA|Cameron JA}}<br>
<ref>
''R v Dodd'', [http://canlii.ca/t/27pr2 1999 CanLII 18930] (NL CA), (1999), 180 Nfld. & P.E.I.R. 145{{perNLCA|Marshall JA}} at 38<br>
{{CanLIIRP|MacIntyre and Liron|2dttv|1992 ABCA 319 (CanLII)|18 WCB (2d) 123}}{{perABCA|Fraser CJ}} at para 3 (“...when individuals act as part of a group or gang and perpetrate criminal acts, this gang-like feature of their activities does not permit each individual to offer his individual involvement alone ignoring, for sentencing purposes, the seriousness of their collective actions. When a person acts in concert with other members of a group or gang to victimize a single victim, that person must accept the consequences which flow from this group action. Each member of the group must be taken to know that by committing individual assaults upon a victim, he advances and even encourages the violence of the others.)
''R v O'Keefe'', (1997), 158 Nfld. & P.E.I.R. 138 (NLPC){{NOCANLII}} at p. 252<br>
''R v Rahaman'', [http://canlii.ca/t/1vb1k 2008 ONCA 1] (CanLII){{perONCA|Watt JA}} at para 46 (The primary objectives in offences of "violence arising out of an existing or failed domestic or romantic relationship" is denunciation and deterrence.)<br>
''R v Saghier'', [http://canlii.ca/t/gwt8d 2017 ONSC 227] (CanLII){{perONSC|Garson J}} at para 46<br>
also see ''R v Dodd'', [1999] N.J. No. 262 (Nfld. C.A.), [http://canlii.ca/t/27pr2 1999 CanLII 18930] (NLCA)/[http://canlii.ca/t/1npl7 1999 CanLII 13904] (NL CA){{perNLCA|Marshall JA}} at para 38 -39<br>
''R v Campbell'', [http://canlii.ca/t/7cld 2003 CanLII 48403] (ON CA){{TheCourtONCA}}<br>
''R v Wishlow'', [http://canlii.ca/t/fx8rk 2013 MBCA 34] (CanLII){{perMBCA|Steel JA}} (3:0) ("Domestic violence is a serious problem in our society and the paramount sentencing principle for assaults of this nature should be deterrence and denunciation.")<br>
</ref>
</ref>
Offences of violence that are between ex-partners would not be considered a case of domestic violence.<ref>
''R v Wesslen'', [http://canlii.ca/t/ggf30 2015 ABCA 74] (CanLII){{TheCourtABCA}} (3:0)
</ref>
Courts are not to tolerate domestic violence within the communities.<ref>
''R v Wilhelm'', [http://canlii.ca/t/g656v 2014 ONSC 1637] (CanLII){{perONSC|Hill J}} at para 101<br>
''R v Menary'', [http://canlii.ca/t/ftc37 2012 ONCA 706] (CanLII){{TheCourtONCA}} at para 7<br>
</ref>
Custodial sentences are considered the norm where significant bodily harm has been inflicted in a domestic violence situation.<ref>
''R v Inwood'', [1989] O.J. No. 428 (C.A.), [http://canlii.ca/t/1p78h 1989 CanLII 263] (ON CA){{perONCA|Howland CJO}}<Br>
Saghier{{supra}} at para 46<br>
</ref> This is in part due to courts recognizing that domestic violence is often part of continuous abuse ongoing in the relationship.<Ref> R v Bates [http://canlii.ca/t/1fbc9 2000 CanLII 5759] (ON CA), (2000), 146 CCC (3d) 321 (Ont. C.A.){{perONCA|Moldaver and Feldman JJA}} at para 30</ref>


{{reflist|2}}
{{reflist|2}}
Line 92: Line 61:
[[Position of Trust as a Factor in Sentencing]]
[[Position of Trust as a Factor in Sentencing]]


==Child Victims==
==Peace Officers as Offender==
{{seealso|Assaults Relating to Persons in Authority (Sentencing Cases)}}
* [[Offences of Violence by Persons in Authority (Sentencing)]]
 
==Domestic Violence==
* [[Intimate Partner Violence Sentencing]]
 
==Types of Victims==
===Child Victims===
{{seealso|Victims as a Factor in Sentencing}}
{{seealso|Victims as a Factor in Sentencing}}
Offences of violence against children by their parents requires a strong response due to their inability to defend themselves and the fiduciary duty towards them.<ref>
Offences of violence against children by their parents requires a strong response due to their inability to defend themselves and the fiduciary duty towards them.<ref>
R v Laberge [http://canlii.ca/t/2dc8j 1995 ABCA 196] (CanLII){{perABCA|Fraser CJ}} at para 28
{{CanLIIRP|Laberge|2dc8j|1995 ABCA 196 (CanLII)|27 WCB (2d) 176}}{{perABCA|Fraser CJ}}{{atL|2dc8j|28}}
</ref>
</ref>


The most important factors to consider is the child's exposure to harm and the forseeability of the harm.<Ref>''R v Nickel'', [http://canlii.ca/t/frgmj 2012 ABCA 158] (CanLII){{perABCA|Watson JA}} (3:2) at paras 34, 35</ref>
The most important factors to consider is the child's exposure to harm and the forseeability of the harm.<ref>
{{CanLIIRP|Nickel|frgmj|2012 ABCA 158 (CanLII)|545 WAC 366}}{{perABCA|Watson JA}} (3:2){{AtsL|frgmj|34|, 35}}</ref>


Certain courts have divided offences involving the assault of children into three categories:<Ref>R v MacDonald (K.), [http://canlii.ca/t/230n0 2009 MBCA 36] (CanLII), 236 Man.R. (2d) 239{{perMBCA|Scott CJ}} at para 14 </ref>
Certain courts have divided offences involving the assault of children into three categories:<ref>
{{CanLIIRP|MacDonald (K.)|230n0|2009 MBCA 36 (CanLII)|236 Man.R. (2d) 239}}{{perMBCA|Scott CJ}}{{atL|230n0|14}}</ref>
#cases involving the application of force with the expectation of causing injury or indifference to it;
#cases involving the application of force with the expectation of causing injury or indifference to it;
#cases involving the application of force where a parent was immature and unskilled and acting out of emotional upset, frustration or temper and did not fully appreciate the serious injuries which might result; and
#cases involving the application of force where a parent was immature and unskilled and acting out of emotional upset, frustration or temper and did not fully appreciate the serious injuries which might result; and
Line 107: Line 86:
{{reflist|2}}
{{reflist|2}}


==Peace Officers==
===Peace Officers as Victim===
 
Police officers put themselves in harm's way to protect the community and preserve a just, peaceful and safe society. "Violent attacks upon police officers who are doing their duty are attacks on the rule of law and on the safety and well-being of the community as a whole. Sentences imposed for those attacks must reflect the vulnerability of the police officers, society's dependence on the police, and society’s determination to avoid a policing mentality which invites easy resort to violence in the execution of the policing function."<ref>  
Police officers put themselves in harm's way to protect the community and preserve a just, peaceful and safe society. "Violent attacks upon police officers who are doing their duty are attacks on the rule of law and on the safety and well-being of the community as a whole. Sentences imposed for those attacks must reflect the vulnerability of the police officers, society's dependence on the police, and society’s determination to avoid a policing mentality which invites easy resort to violence in the execution of the policing function."<ref>  
R v MacArthur, [2004] O.J. No. 721 (ONCA){{NOCANLII}} at para 49</ref>
{{CanLIIR-N|MacArthur|, [2004] O.J. No. 721 (ONCA)}}{{at-|49}}</ref>


{{reflist|2}}
{{reflist|2}}
===Transit Workers===


==Transit Workers==
{{quotation2|
; Aggravating circumstance — assault against a public transit operator
269.01 (1) When a court imposes a sentence for an offence referred to in paragraph 264.1(1)(a) {{AnnSec2|264.1(1)(a)}} or any of sections 266 to 269 {{AnnSec2|266 to 269}}, it shall consider as an aggravating circumstance the fact that the victim of the offence was, at the time of the commission of the offence, a public transit operator engaged in the performance of his or her duty.


{{quotation|
; Definitions
'''Aggravating circumstance — assault against a public transit operator'''<br>
269.01 (1) When a court imposes a sentence for an offence referred to in paragraph 264.1(1)(a) or any of sections 266 to 269, it shall consider as an aggravating circumstance the fact that the victim of the offence was, at the time of the commission of the offence, a public transit operator engaged in the performance of his or her duty.
 
'''Definitions'''<br>
(2) The following definitions apply in this section.<br>
(2) The following definitions apply in this section.<br>
“public transit operator” means an individual who operates a vehicle used in the provision of passenger transportation services to the public, and includes an individual who operates a school bus.
'''"public transit operator"''' means an individual who operates a vehicle used in the provision of passenger transportation services to the public, and includes an individual who operates a school bus.
<br>
<br>
“vehicle” includes a bus, paratransit vehicle, licensed taxi cab, train, subway, tram and ferry.
'''"vehicle"''' includes a bus, paratransit vehicle, licensed taxi cab, train, subway, tram and ferry.
<br>
<br>
2015, c. 1, s. 1.
2015, c. 1, s. 1.
|[http://canlii.ca/t/7vf2#sec269.01 CCC]
|{{CCCSec2|269.01}}
|{{NoteUp|269.01|1|2}}
}}
}}
==Offender a Persons in Authority==
Factors to offences of violence by police officers:<ref>''R v Gillian'', [http://canlii.ca/t/25q6w 2009 BCPC 241] (CanLII){{perBCPC|Watchuk J}} at para 69</ref>
#Was the officer on duty at the time or off duty?
#Was the offence committed spontaneously in the heat of the moment or was it committed continually or with time for the officer to consider his actions?
#Was there a concern for his personal or fellow officers’ safety at the time of the assault?
#Was the victim a prisoner in the officer’s custody in an institution?
#What was the nature of the assault?
#What were the injuries suffered by the victim?
#Was the sentencing at the conclusion of a trial or was it a result of a guilty plea?
#Did the officer express or show remorse?
#Did the officer impede or assist the resulting police investigation of his actions?
#What was the experience and rank of the officer at the time of the offence?
{{reflist|2}}


{{OffencesNavBar/Violence}}
{{OffencesNavBar/Violence}}

Latest revision as of 12:05, 29 September 2024

This page was last substantively updated or reviewed January 2018. (Rev. # 96548)

General Principles

A key societal right for all people is the right to be "free from unconsented invasions on his or her physical security or dignity."[1] It is a "central purpose" of the criminal law to protect the public from such invasions.[2]

Provocation will have an effect on sentence for assault. Where the injury occurred while in an initially consensual fight the sentence will be less than where the attack was unprovoked and against a defenceless victim.[3]

In offences of violence involving a weapon, "the primary sentencing objectives to be applied are deterrence and protection of the public."[4]

Sports-related violence can frequently allow for discharges.[5]

  1. R v Ogg-Moss, 1984 CanLII 77 (SCC), [1984] 2 SCR 173, per Dickson J (5:0) ("One of the key rights in our society is the individual’s right to be free from unconsented invasions on his or her physical security or dignity and it is a central purpose of the criminal law to protect members of society from such invasions.")
  2. Ogg-Moss, ibid.
  3. R v Johnson, 1998 CanLII 4838 (BC CA), 131 CCC (3d) 274, per Prowse JA
  4. R v Philpott, 2011 NLTD 30 (CanLII), 958 APR 119, per LeBlanc J
  5. R v Carroll, 1995 CanLII 1123 (BC CA), (1995) 38 CR 238, per Donald JA

General Factors

Key Aggravating Factors

  1. History of spousal abuse / previously assaulted same victim
  2. Criminal record for violence or related convictions
  3. Spouse or common law spouse is victim = breach of trust
  4. Serious injuries to complainant
  5. Planned or pre-meditated
  6. Use of weapon
  7. Children witnessed the assault or were present when the assault occurred
  8. Offence occurred in the home
  9. Degradation of victim
  10. Separate acts occurring over a period of time
  11. No remorse
  12. Home invasion
  13. Intoxicated at time of offence

Other Factors

  1. degree of provocation
  2. circumstances that make it desirable to preserve the family relationship
  3. evidence that it was out of character or isolated event

Psychologists do make a distinction between "affective violence" and "predatory violence". Affective violence concerns "violence that is reactive and emotionally driven". Predatory violence concerns violence where the offender "sought both gratification and compliance."[1]

  1. R v States, 2017 ONSC 4023 (CanLII), at para 298 ("Both saw the initial assault of Mr. States as important. From their respective psychiatric and psychological perspectives, both saw the offence as involving affective violence: violence that is reactive and emotionally driven.")
    R v Paxton, 2013 ABQB 750 (CanLII), per S.L. Martin J, at para 234

Group Violence

When sentencing for group violence, it is not permitted to argue that a particular individual’s contribution was less than others and so deserves a lower sentence. They are responsible for the group that they contributed to. [1]

  1. R v MacIntyre and Liron, 1992 ABCA 319 (CanLII), 18 WCB (2d) 123, per Fraser CJ at para 3 (“...when individuals act as part of a group or gang and perpetrate criminal acts, this gang-like feature of their activities does not permit each individual to offer his individual involvement alone ignoring, for sentencing purposes, the seriousness of their collective actions. When a person acts in concert with other members of a group or gang to victimize a single victim, that person must accept the consequences which flow from this group action. Each member of the group must be taken to know that by committing individual assaults upon a victim, he advances and even encourages the violence of the others.”)

Position of Trust

Position of Trust as a Factor in Sentencing

Peace Officers as Offender

See also: Assaults Relating to Persons in Authority (Sentencing Cases)

Domestic Violence

Types of Victims

Child Victims

See also: Victims as a Factor in Sentencing

Offences of violence against children by their parents requires a strong response due to their inability to defend themselves and the fiduciary duty towards them.[1]

The most important factors to consider is the child's exposure to harm and the forseeability of the harm.[2]

Certain courts have divided offences involving the assault of children into three categories:[3]

  1. cases involving the application of force with the expectation of causing injury or indifference to it;
  2. cases involving the application of force where a parent was immature and unskilled and acting out of emotional upset, frustration or temper and did not fully appreciate the serious injuries which might result; and
  3. cases involving diminished responsibility through mental disorder where the abnormal mental condition of the accused requires the treatment of the offender to be given priority over the principles of general and individual deterrence.
  1. R v Laberge, 1995 ABCA 196 (CanLII), 27 WCB (2d) 176, per Fraser CJ, at para 28
  2. R v Nickel, 2012 ABCA 158 (CanLII), 545 WAC 366, per Watson JA (3:2), at paras 34, 35
  3. R v MacDonald (K.), 2009 MBCA 36 (CanLII), 236 Man.R. (2d) 239, per Scott CJ, at para 14

Peace Officers as Victim

Police officers put themselves in harm's way to protect the community and preserve a just, peaceful and safe society. "Violent attacks upon police officers who are doing their duty are attacks on the rule of law and on the safety and well-being of the community as a whole. Sentences imposed for those attacks must reflect the vulnerability of the police officers, society's dependence on the police, and society’s determination to avoid a policing mentality which invites easy resort to violence in the execution of the policing function."[1]

  1. R v MacArthur, [2004] O.J. No. 721 (ONCA)(*no CanLII links) , at para 49

Transit Workers

Aggravating circumstance — assault against a public transit operator

269.01 (1) When a court imposes a sentence for an offence referred to in paragraph 264.1(1)(a) [threats – causing harm or death] or any of sections 266 to 269 [forms of assault], it shall consider as an aggravating circumstance the fact that the victim of the offence was, at the time of the commission of the offence, a public transit operator engaged in the performance of his or her duty.

Definitions

(2) The following definitions apply in this section.
"public transit operator" means an individual who operates a vehicle used in the provision of passenger transportation services to the public, and includes an individual who operates a school bus.
"vehicle" includes a bus, paratransit vehicle, licensed taxi cab, train, subway, tram and ferry.
2015, c. 1, s. 1.

CCC (CanLII), (DOJ)


Note up: 269.01(1) and (2)