Proportionality

This page was last substantively updated or reviewed January 2024. (Rev. # 95482)

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General Principles

No matter what the balance between objectives, the sentence must always satisfy the fundamental principle of sentencing under s. 718.1.

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
R.S., 1985, c. 27 (1st Supp.), s. 156; 1995, c. 22, s. 6.

– CCC (CanLII), (DOJ)

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The purpose of proportionality is founded in "fairness and justice". It is to prevent unjust punishment for the "sake of the common good." It is considered another form of "just deserts."

Proportionality as a Combination of Gravity of Offence and Responsibility of Offender

Proportionality relates to both gravity of the offence and the responsibility of the offender.

The sentence must be no greater than the offender's moral culpability. This is to ensure that there is "justice for the offender." The severity of a sanction should reflect the seriousness and gravity of the criminal conduct. And when the sentence is not adequate to address the seriousness of the offence then it is not proportionate.

Likewise, a sentence must be "severe enough to denounce the offence" but should not exceed the moral blameworthiness of the offender and gravity of the offence.

Proportionality as a Combination of Individualization and Parity

A proportionate sentence has been described as a "reconciliation" between the necessary individualization and necessary party of a sentence.

Making an "example" of an offender in the face of evidence of rehabilitation is "incompatible" with the individualization principle. In that sense, proportionality has a "restraining function" to a sentence.

The principle of "parity" is an expression of the broader principle of proportionality.

Proportionality and a Just Sentence

Proportionality is a fundamental principle of sentences that is "the sine qua non of a just sanction."

Where the sentence is not proportionate it is not just.

Proportionality is necessary to maintain public confidence in the fairness and rationality of the system.

Proportionality and General Deterrence

An offender cannot be subject to a "grossly disproportionate punishment" in order to send a message to others.

A Just Sentence Involves Community and Victim

A proper sentence is not just about the offender but also about the harm to the victim and community. Harm is one of the "central elements" in proportionality.

A court may be in error if it fails to consider the "needs and conditions" of the community in which the offence occurred.

Proportionality, Multiple Offences and Totality

When crafting a sentence for multiple offences, proportionality can be achieved either "by imposing concurrent sentences" or "by applying the totality principle to consecutive sentences."

A component of the principle of proportionality is the principle of totality.

History

The inclusion of s. 718.1 in 1996 with An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 (Bill C-41) did not create the principle but rather codified a "central tenent of the sentencing process."

Individualization

From this, it is well established that sentencing is a highly discretionary endeavour. Each sentence is to be custom tailored to match the particular offender.

Based on the purposes and principles set out in 718 and 718.2, sentencing is a highly individualized process that takes into account the offence, as well as the offender.

There is no "one size fits all" penalties.

Sentencing is “an inherently individualized process.”

It is also a "profoundly subjective process."

The process is considered particularly difficult when "otherwise decent, law-abiding persons persons commit very serious crimes in circumstances that justifiably attract understanding and empathy."

Gravity of an offence can be measured in part by the lasting emotional effects of the offence upon the victim.

The individualization of a sentence to account with the characteristics of a particular offender should not reduce a global sentence to the point where it not proportionate with the misconduct.

While a sentence may occasionally seem "harsh for the individual", but the court must "reflect the degree of injury to our common values as well as to the victim of the offence."

Gravity of the Offence

Sanctions must be scaled according to the seriousness of the conduct.

Gravity is directed to what the "offender did wrong." It has two components: "(1) the harm or likely harm to the victim; and (2)the harm or likely harm to society and its values."

The gravity or seriousness of an offence is determined by its "normative wrongfulness."

A proper sentence consistent with s. 718.1 can become difficult to gauge where the gravity of the offence may operate against the "factors mitigating personal responsibility."

Proportionality can be looked at as having the two dimensions of "ordinal proportionality" and "cardinal proportionality". The former being the relative severity of punishment measured against offences of any other type. The latter is the relative severity measured against the other categories of gravity within a particular offence.

Gravity does not merely reflect the seriousness of the offence based on maximum available penalty, but also the "extent of the harm caused by the commission of the offence."

When considering harm, it is not limited to the harm upon the victim. The "[h]arm to one member of the community affects the rights and security of others."

Culpability can include not only harm intended but also harm that was foreseeable.

Moral Culpability, Responsibility and Blameworthiness

"Moral blameworthiness" is "measured by the gravity of the offence and the degree of responsibility of the offender." This requires the court to consider the (1) individual offender, (2) the harm to the victim, and (3) the harm to society at large.

The higher the degree of moral blameworthiness, the longer the sentence that is to be imposed.

Related to this principle, "those causing harm intentionally [should] be punished more severely than those causing harm unintentionally."

The law does not require foresight into the consequences of the criminal act for a person to be liable for those consequences. Parliament may then treat offences with certain consequences as more serious than others. Consequently, it is incorrect to equate the same level of moral blameworthiness between impaired driving and impaired driving causing death. A more serious consequence then warrants a greater penalty.

Personal Responsibility

The assessment of responsibility requires consideration of the offender's state of mind at the time of the offence. That consideration can include factors such as:

• "the level of planning and/or intentionality brought to the crime";
• "the degree, nature and extent of the offender’s personal participation in the offence";
• "the means or method by which the crime was committed";
• "the motive or reasons for the offender’s participation";
• "the offender’s awareness of the legal and moral wrongfulness of their conduct";
• "their awareness of the actual or reasonably foreseeable harms flowing from their conduct (immediate and long-term)"; and
• "their persistence in perpetrating the offence despite that awareness"

Drug-Induced Psychosis

A violent offence committed while in a drug-induced psychosis can still receive a serious penalty based on the paramountcy of general deterrence. Any mitigating effect of psychosis can be attenuated as the accused is responsible for consuming the drug that caused the psychosis.