Concurrent and Consecutive Sentences: Difference between revisions

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Generally, sentences for offences that occur at separate occasions will be served consecutively.<ref> R v Dube [http://canlii.ca/t/1n9kc 2006 QCCA 699] (CanLII){{TheCourtQCCA}}<br>  
Generally, sentences for offences that occur at separate occasions will be served consecutively.<ref> R v Dube [http://canlii.ca/t/1n9kc 2006 QCCA 699] (CanLII){{TheCourtQCCA}}<br>  
</ref> While where the offences arise out of the same transaction, the sentences will be typically concurrent.<ref>
</ref> While where the offences arise out of the same transaction, the sentences will be typically concurrent.<ref>
R v Mascarenhas, [http://canlii.ca/t/1cqpk 2002 CanLII 41625] (ON CA){{perONCA|Abella JA}} at para 31<br>
''R v Mascarenhas'', [http://canlii.ca/t/1cqpk 2002 CanLII 41625] (ON CA){{perONCA|Abella JA}} at para 31<br>
R v Veysey, [http://canlii.ca/t/1n992 2006 NBCA 55] (CanLII){{perNBCA|Larlee and Robertson JJA}}<br>
''R v Veysey'', [http://canlii.ca/t/1n992 2006 NBCA 55] (CanLII){{perNBCA|Larlee and Robertson JJA}}<br>
R v Desmarest (1986), 2 QAC 151  {{NOCANLII}}<br>
R v Desmarest (1986), 2 QAC 151  {{NOCANLII}}<br>
R v Charchuk (1973), 6 NSR (2d) 519 {{NOCANLII}}<br>
R v Charchuk (1973), 6 NSR (2d) 519 {{NOCANLII}}<br>
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R v Gummer (1983), 1 OAC 141 at p. 144, 25 MVR 282 {{NOCANLII}}<br>
R v Gummer (1983), 1 OAC 141 at p. 144, 25 MVR 282 {{NOCANLII}}<br>
</ref>, where the offences "protect different societal interests" or the gravamen of the two offences are different.<Ref>
</ref>, where the offences "protect different societal interests" or the gravamen of the two offences are different.<Ref>
R v Berezowsky, [http://canlii.ca/t/1ms0h 2006 CanLII 7030] (ON SC){{perONSC|Fuerst J}}, at para 20<Br>
''R v Berezowsky'', [http://canlii.ca/t/1ms0h 2006 CanLII 7030] (ON SC){{perONSC|Fuerst J}}, at para 20<Br>
R v Dua, [1999] OJ No 5068 (SCJ) {{NOCANLII}}<br>
''R v Dua'', [1999] OJ No 5068 (SCJ) {{NOCANLII}}<br>
</ref>
</ref>


Nevertheless, the decision of consecutive sentences is a discretionary one and is entitled to deference.<ref>
Nevertheless, the decision of consecutive sentences is a discretionary one and is entitled to deference.<ref>
''R v TEM'', [http://canlii.ca/t/1fr3d 1997 CanLII 389] (SCC), [1997] 1 SCR 948{{perSCC|Sopinka J}} at para 46<br>
''R v TEM'', [http://canlii.ca/t/1fr3d 1997 CanLII 389] (SCC), [1997] 1 SCR 948{{perSCC|Sopinka J}} at para 46<br>
R v Maroti, [http://canlii.ca/t/29v39 2010 MBCA 54] (CanLII){{perMBCA|Steel JA}}</ref>
''R v Maroti'', [http://canlii.ca/t/29v39 2010 MBCA 54] (CanLII){{perMBCA|Steel JA}}</ref>


Sentences may be imposed consecutively in relation to a single transaction where the punishments protect "different societal interests" or "different legal interests".<ref>
Sentences may be imposed consecutively in relation to a single transaction where the punishments protect "different societal interests" or "different legal interests".<ref>
R v Gillis, [http://canlii.ca/t/234dv 2009 ONCA 312] (CanLII){{TheCourt}}<br>  
''R v Gillis'', [http://canlii.ca/t/234dv 2009 ONCA 312] (CanLII){{TheCourt}}<br>  
R v Clarke, [http://canlii.ca/t/1mqpl 1994 CanLII 4071] (NS CA), (1994), 94 CCC 249 (NSCA){{perNSCA|Hallett JA}}</ref>  
''R v Clarke'', [http://canlii.ca/t/1mqpl 1994 CanLII 4071] (NS CA), (1994), 94 CCC 249 (NSCA){{perNSCA|Hallett JA}}</ref>  
A judge should consider the time frame within which the offences occurred, the similarity of the offences, whether a new intent or impulse initiated each of the offences and whether the total sentence is fit and proper under the circumstances.<ref>  
A judge should consider the time frame within which the offences occurred, the similarity of the offences, whether a new intent or impulse initiated each of the offences and whether the total sentence is fit and proper under the circumstances.<ref>  
''R v GAW'', [http://canlii.ca/t/1x3ww 1993 CanLII 5618] (NS CA), (1993), 125 N.S.R. (2d) 312 (NSCA){{perNSCA|Roscoe JA}}<br>  
''R v GAW'', [http://canlii.ca/t/1x3ww 1993 CanLII 5618] (NS CA), (1993), 125 N.S.R. (2d) 312 (NSCA){{perNSCA|Roscoe JA}}<br>  
R v Naugle, [http://canlii.ca/t/fktj3 2011 NSCA 33] (CanLII){{perNSCA|Beveridge JA}}</ref>
''R v Naugle'', [http://canlii.ca/t/fktj3 2011 NSCA 33] (CanLII){{perNSCA|Beveridge JA}}</ref>


When deciding whether a sentence should be consecutive or concurrent, the court should consider 1) the time frame of the offences, 2) the similarity of the offences, 3) whether a new intent broached each offence, and 4) whether the total sentence is fit and proper.<ref>   
When deciding whether a sentence should be consecutive or concurrent, the court should consider 1) the time frame of the offences, 2) the similarity of the offences, 3) whether a new intent broached each offence, and 4) whether the total sentence is fit and proper.<ref>   
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Where offences "protect different social interests" the principle requiring concurrency of sentence when the offences arise from the "same transaction or incident" does "not necessarily apply when the offences constitute invasions of different legally protected interests".<ref>
Where offences "protect different social interests" the principle requiring concurrency of sentence when the offences arise from the "same transaction or incident" does "not necessarily apply when the offences constitute invasions of different legally protected interests".<ref>
R v Clouthier, [http://canlii.ca/t/gnmxl 2016 ONCA 197] (CanLII){{perONCA|Watt JA}} at para 55 - failing to stay at scene of accident consecutive to impaired driving causing bodily harm<br>
''R v Clouthier'', [http://canlii.ca/t/gnmxl 2016 ONCA 197] (CanLII){{perONCA|Watt JA}} at para 55 - failing to stay at scene of accident consecutive to impaired driving causing bodily harm<br>
Gummer{{supra}} at para 13<br>
Gummer{{supra}} at para 13<br>
R v Van Puyenbroek, [http://canlii.ca/t/1v0gh 2007 ONCA 824] (CanLII), 226 CCC (3d) 289{{perONCA|Feldman JA}}, at para 63<br>
R v Van Puyenbroek, [http://canlii.ca/t/1v0gh 2007 ONCA 824] (CanLII), 226 CCC (3d) 289{{perONCA|Feldman JA}}, at para 63<br>
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Generally offences that occur on separate occasions against separate victims will result in consecutive sentences.<ref>
Generally offences that occur on separate occasions against separate victims will result in consecutive sentences.<ref>
R v Leroux, [http://canlii.ca/t/ghlc4 2015 SKCA 48] (CanLII){{perSKCA|Caldwell JA}}
''R v Leroux'', [http://canlii.ca/t/ghlc4 2015 SKCA 48] (CanLII){{perSKCA|Caldwell JA}}
</ref>
</ref>


Judges should be cautious not to "slavishly impose consecutive sentences merely because offences are... committed on different days." Instead, where there is a "reasonably close" nexus, concurrent sentences can be imposed.
Judges should be cautious not to "slavishly impose consecutive sentences merely because offences are... committed on different days." Instead, where there is a "reasonably close" nexus, concurrent sentences can be imposed.
<ref>
<ref>
R v Hatch, [1979] NSJ 520 {{NOCANLII}}
''R v Hatch'', [1979] NSJ 520 {{NOCANLII}}
</ref>
</ref>


It has been observed that the “proper approach to sentencing an offender for multiple offences is unsettled.”<ref>
It has been observed that the “proper approach to sentencing an offender for multiple offences is unsettled.”<ref>
R v Wozny, [http://canlii.ca/t/2f63t 2010 MBCA 115] (CanLII){{perMBCA|MacInnes JA}}<Br>
''R v Wozny'', [http://canlii.ca/t/2f63t 2010 MBCA 115] (CanLII){{perMBCA|MacInnes JA}}<Br>
R v Ahmed, [http://canlii.ca/t/gx51n 2017 ONCA 76] (CanLII){{perONCA|van Rensburg JA}}, at paras 85<br>
''R v Ahmed'', [http://canlii.ca/t/gx51n 2017 ONCA 76] (CanLII){{perONCA|van Rensburg JA}}, at paras 85<br>
</ref>
</ref>


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Where offences are committed in prison "must be consecutive", particularly when it involves violence against correctional officers.<ref>
Where offences are committed in prison "must be consecutive", particularly when it involves violence against correctional officers.<ref>
Ruby, Sentencing (7th ed.) Markham:LexisNexis Canada Inc. 2008 at p.524<br>
Ruby, Sentencing (7th ed.) Markham:LexisNexis Canada Inc. 2008 at p.524<br>
R v Healey, [http://canlii.ca/t/gr8pm 2016 CanLII 26778] (NLPC){{perNLPC|Orr J}} at para 15<br>
''R v Healey'', [http://canlii.ca/t/gr8pm 2016 CanLII 26778] (NLPC){{perNLPC|Orr J}} at para 15<br>
</ref>
</ref>


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'''Crime Sprees'''<br>
'''Crime Sprees'''<br>
Where a judge is sentencing an offender for a series of alike offences, he may order that the individual sentences be all served concurrently to each other and sentence the series of offences as a whole amounting to a "crime spree" or simply a "single" criminal transaction.<ref>
Where a judge is sentencing an offender for a series of alike offences, he may order that the individual sentences be all served concurrently to each other and sentence the series of offences as a whole amounting to a "crime spree" or simply a "single" criminal transaction.<ref>
e.g. R v Arbuthnot, [http://canlii.ca/t/26g5f 2009 MBCA 106] (CanLII){{perMBCA|Chartier JA}} at paras 19 and 24<br>
e.g. ''R v Arbuthnot'', [http://canlii.ca/t/26g5f 2009 MBCA 106] (CanLII){{perMBCA|Chartier JA}} at paras 19 and 24<br>
R v Osachie, [1973] NSJ 112 (NSCA){{NOCANLII}} at para 10<br>
''R v Osachie'', [1973] NSJ 112 (NSCA){{NOCANLII}} at para 10<br>
</ref>  
</ref>  
For the sentences be concurrent as a "crime spree" the acts must be "similar, continuous and recurring" with "the same gravamen within a sustained and relatively short period of time".<ref>
For the sentences be concurrent as a "crime spree" the acts must be "similar, continuous and recurring" with "the same gravamen within a sustained and relatively short period of time".<ref>
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'''Life Sentences'''<br>
'''Life Sentences'''<br>
At common law, sentencing judge may not impose consecutive life sentences.<ref>
At common law, sentencing judge may not impose consecutive life sentences.<ref>
R v Hawkins, [http://canlii.ca/t/2fdkz 2011 NSCA 7] (CanLII){{perNSCA|Beveridge JA}} at para 39<br>
''R v Hawkins'', [http://canlii.ca/t/2fdkz 2011 NSCA 7] (CanLII){{perNSCA|Beveridge JA}} at para 39<br>
</ref>
</ref>


Revision as of 20:04, 12 January 2019

General Principles

Cumulative punishments arising from a single sentencing hearing on multiple offences are known as consecutive sentences. This only applies to jail sentences, all other sentences run concurrently.

The recommended procedure for dealing with multiple offences suggests that the sentencing judge must first determine whether the sentences should be served consecutively or concurrently. If consecutive, appropriate sentence for each offence is calculated, following this, the totality principle is applied which would adjust the sentence as needed.[1]

All sentences are presumed to be served concurrently. The Code provides for cumulative punishments at section 718.3:

718.3
...
Cumulative punishments
(4) The court that sentences an accused shall consider directing

(a) that the term of imprisonment that it imposes be served consecutively to a sentence of imprisonment to which the accused is subject at the time of sentencing; and
(b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, including when
(i) the offences do not arise out of the same event or series of events,
(ii) one of the offences was committed while the accused was on judicial interim release, including pending the determination of an appeal, or
(iii) one of the offences was committed while the accused was fleeing from a peace officer.

Cumulative punishments — fines
(5) For the purposes of subsection (4), a term of imprisonment includes imprisonment that results from the operation of subsection 734(4).

Cumulative punishments — youth
(6) For the purposes of subsection (4), a sentence of imprisonment includes

(a) a disposition made under paragraph 20(1)(k) or (k.1) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985;
(b) a youth sentence imposed under paragraph 42(2)(n), (o), (q) or (r) of the Youth Criminal Justice Act; and
(c) a sentence that results from the operation of subsection 743.5(1) or (2).

...
1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182; 2015, c. 23, s. 17.


– CCC

Generally, sentences for offences that occur at separate occasions will be served consecutively.[2] While where the offences arise out of the same transaction, the sentences will be typically concurrent.[3] If the court does not indicate whether sentences are concurrent or consecutive it is presumed concurrent.[4]

A judge may order a sentence to be consecutive despite the offences arising from the same transaction or incident, such as where the offences "constitute invasions of different legally protected interests, although the principles of totality must be kept in mind"[5], where the offences "protect different societal interests" or the gravamen of the two offences are different.[6]

Nevertheless, the decision of consecutive sentences is a discretionary one and is entitled to deference.[7]

Sentences may be imposed consecutively in relation to a single transaction where the punishments protect "different societal interests" or "different legal interests".[8] A judge should consider the time frame within which the offences occurred, the similarity of the offences, whether a new intent or impulse initiated each of the offences and whether the total sentence is fit and proper under the circumstances.[9]

When deciding whether a sentence should be consecutive or concurrent, the court should consider 1) the time frame of the offences, 2) the similarity of the offences, 3) whether a new intent broached each offence, and 4) whether the total sentence is fit and proper.[10]

Where offences "protect different social interests" the principle requiring concurrency of sentence when the offences arise from the "same transaction or incident" does "not necessarily apply when the offences constitute invasions of different legally protected interests".[11]

Generally offences that occur on separate occasions against separate victims will result in consecutive sentences.[12]

Judges should be cautious not to "slavishly impose consecutive sentences merely because offences are... committed on different days." Instead, where there is a "reasonably close" nexus, concurrent sentences can be imposed. [13]

It has been observed that the “proper approach to sentencing an offender for multiple offences is unsettled.”[14]

  1. ↑ R v Draper (T.G.), 2010 MBCA 35 (CanLII), per Steel JA at paras 29 to 31
  2. ↑ R v Dube 2006 QCCA 699 (CanLII), per curiam
  3. ↑ R v Mascarenhas, 2002 CanLII 41625 (ON CA), per Abella JA at para 31
    R v Veysey, 2006 NBCA 55 (CanLII), per Larlee and Robertson JJA
    R v Desmarest (1986), 2 QAC 151 (*no CanLII links)
    R v Charchuk (1973), 6 NSR (2d) 519 (*no CanLII links)
  4. ↑ c.f. R v SPM, 2005 NLCA 36 (CanLII), per Cameron JA, at para 11
  5. ↑ Mascarenhas, supra at para 31
    R v Gummer (1983), 1 OAC 141 at p. 144, 25 MVR 282 (*no CanLII links)
  6. ↑ R v Berezowsky, 2006 CanLII 7030 (ON SC), per Fuerst J, at para 20
    R v Dua, [1999] OJ No 5068 (SCJ) (*no CanLII links)
  7. ↑ R v TEM, 1997 CanLII 389 (SCC), [1997] 1 SCR 948, per Sopinka J at para 46
    R v Maroti, 2010 MBCA 54 (CanLII), per Steel JA
  8. ↑ R v Gillis, 2009 ONCA 312 (CanLII), per curiam
    R v Clarke, 1994 CanLII 4071 (NS CA), (1994), 94 CCC 249 (NSCA), per Hallett JA
  9. ↑ R v GAW, 1993 CanLII 5618 (NS CA), (1993), 125 N.S.R. (2d) 312 (NSCA), per Roscoe JA
    R v Naugle, 2011 NSCA 33 (CanLII), per Beveridge JA
  10. ↑ GAW, supra
    Maroti, supra
    Naugle, supra
  11. ↑ R v Clouthier, 2016 ONCA 197 (CanLII), per Watt JA at para 55 - failing to stay at scene of accident consecutive to impaired driving causing bodily harm
    Gummer, supra at para 13
    R v Van Puyenbroek, 2007 ONCA 824 (CanLII), 226 CCC (3d) 289, per Feldman JA, at para 63
  12. ↑ R v Leroux, 2015 SKCA 48 (CanLII), per Caldwell JA
  13. ↑ R v Hatch, [1979] NSJ 520 (*no CanLII links)
  14. ↑ R v Wozny, 2010 MBCA 115 (CanLII), per MacInnes JA
    R v Ahmed, 2017 ONCA 76 (CanLII), per van Rensburg JA, at paras 85

Consecutive Sentencing Based on Type of Offence

Where offences are committed in prison "must be consecutive", particularly when it involves violence against correctional officers.[1]

Offences committed while out on bail awaiting trial will be consecutive even where the latter offence may be part of an ongoing spree.[2]

Where an offender is convicted of a possession offence and then an offence involving "using or dealing with it". The sentences should be concurrent.[3]

Crime Sprees
Where a judge is sentencing an offender for a series of alike offences, he may order that the individual sentences be all served concurrently to each other and sentence the series of offences as a whole amounting to a "crime spree" or simply a "single" criminal transaction.[4] For the sentences be concurrent as a "crime spree" the acts must be "similar, continuous and recurring" with "the same gravamen within a sustained and relatively short period of time".[5]

Life Sentences
At common law, sentencing judge may not impose consecutive life sentences.[6]

Appellate Review
The decision to give a concurrent or consecutive sentence should be given the same deference as the judge's decision on the length of sentence.[7]

  1. ↑ Ruby, Sentencing (7th ed.) Markham:LexisNexis Canada Inc. 2008 at p.524
    R v Healey, 2016 CanLII 26778 (NLPC), per Orr J at para 15
  2. ↑ R v McKinney, 1963 CanLII 360 (SK QB), [1963] SJ No 17, per Disbery J
    Healey, supra at para 16
  3. ↑ Healey, supra at para 18
    Ruby, supra at p. 530
    R v KDH, 2012 ABQB 471 (CanLII), per Manderscheid J at paras 13 to 54
  4. ↑ e.g. R v Arbuthnot, 2009 MBCA 106 (CanLII), per Chartier JA at paras 19 and 24
    R v Osachie, [1973] NSJ 112 (NSCA)(*no CanLII links) at para 10
  5. ↑ Arbuthnot, ibid. at para 24
  6. ↑ R v Hawkins, 2011 NSCA 7 (CanLII), per Beveridge JA at para 39
  7. ↑ R v McDonnell, 1997 CanLII 389 (SCC), [1997] 1 SCR 948, per Sopinka J

Sexual Offences

718.3
...
Cumulative punishments — sexual offences against children
(7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct

(a) that a sentence of imprisonment it imposes for an offence under section 163.1 [child pornography] be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another section of this Act committed against a child; and
(b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under section 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under section 163.1.

1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182; 2015, c. 23, s. 17.

[annotation(s) added]


– CCC

History of s. 718.3

The previous version of 718.3(4) read:

718.3.
...
Cumulative punishments
(4) The court or youth justice court that sentences an accused may direct that the terms of imprisonment that are imposed by the court or the youth justice court or that result from the operation of subsection 734(4) or 743.5(1) or (2) shall be served consecutively, when

(a) the accused is sentenced while under sentence for an offence, and a term of imprisonment, whether in default of payment of a fine or otherwise, is imposed;
(b) the accused is found guilty or convicted of an offence punishable with both a fine and imprisonment and both are imposed;
(c) the accused is found guilty or convicted of more than one offence, and
(i) more than one fine is imposed,
(ii) terms of imprisonment for the respective offences are imposed, or
(iii) a term of imprisonment is imposed in respect of one offence and a fine is imposed in respect of another offence; or
(d) subsection 743.5(1) or (2) applies.

1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182.


– CCC

Sections 718.3(5) to (7) were first introduced in 2012.

Mandatory Consecutive Sentences

Certain sentences must be ordered to be served consecutively:

  1. Possession of Explosive Substance in association with criminal organization (s. 82 and 82.1)
  2. offences under s. 83.02 to 83.04 and 83.18 to 83.23
  3. Commission of indictable offence to advantage a terrorist group (s. 83.2 and s. 83.26)
  4. Instructing activity for terrorist group (s. 83.21(1) and s. 83.26)
  5. Instructing terrorist activity (s. 83.22(1) and s. 83.26)
  6. Using Firearm in Commission of Offence (s. 85(4))
  7. offences under s. 270(1), 270.01(1) or 270.02 committed against a law enforcement officer (270.03)
  8. Killing or injuring certain animals (445.01)
  9. Instructing commission of offence for criminal organization (s. 467.13(1) and s. 467.14)

The decision on whether a sentence should be concurrent or consecutive "should be treated with the same deference owed by appellate courts to sentencing judges concerning the length of sentences ordered."[1]

  1. ↑ R v McDonnell, 1997 CanLII 389 (SCC), [1997] 1 SCR 948, per Sopinka J at para 17

See Also

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