Jump, Step and Gap Principles: Difference between revisions
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==General Principles== | ==General Principles== | ||
The "jump", "step", and "gap" principles are principles designed to limit the range of appropriate sentences for offenders who have a prior related records. They are derived from several principles including proportionality, rehabilitation, restraint under s. 718(d), and the totality principle under s. 718.2(c).<ref> | The "jump", "step", and "gap" principles are principles designed to limit the range of appropriate sentences for offenders who have a prior related records. They are derived from several principles including proportionality, rehabilitation, restraint under s. 718(d), and the totality principle under s. 718.2(c).<ref> | ||
''R v Bernard'', [http://canlii.ca/t/flrt1 2011 NSCA 53] (CanLII){{perNSCA|Saunders JA}}{{ | ''R v Bernard'', [http://canlii.ca/t/flrt1 2011 NSCA 53] (CanLII){{perNSCA|Saunders JA}}{{atLz|flrt1|26}}<br> | ||
''Frigault v R'', [http://canlii.ca/t/fpvch 2012 NBCA 8] (CanLII){{perNBCA|Quigg JA}}{{ | ''Frigault v R'', [http://canlii.ca/t/fpvch 2012 NBCA 8] (CanLII){{perNBCA|Quigg JA}}{{atLz|fpvch|17}}<br> | ||
''R v Robitaille'', [http://canlii.ca/t/1dc39 1993 CanLII 2561] (BC CA), (1993), 31 BCAC 7{{perBCCA|Lambert JA}}{{ | ''R v Robitaille'', [http://canlii.ca/t/1dc39 1993 CanLII 2561] (BC CA), (1993), 31 BCAC 7{{perBCCA|Lambert JA}}{{atLz|1dc39|9}} ("... the theory that sentences should go up only in moderate steps is a theory which rests on the sentencing principles of rehabilitation. It should be only in cases where rehabilitation | ||
is a significant sentencing factor.")<br> | is a significant sentencing factor.")<br> | ||
</ref> | </ref> | ||
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''R v Murphy'', [2011] N.J. No. 43 (C.A.), [http://canlii.ca/t/2fn2v 2011 NLCA 16] (CanLII){{perNLCA|Welsh JA}}</ref> | ''R v Murphy'', [2011] N.J. No. 43 (C.A.), [http://canlii.ca/t/2fn2v 2011 NLCA 16] (CanLII){{perNLCA|Welsh JA}}</ref> | ||
The purpose of this rule is to avoid having the accused re-punished for past bad acts.<ref> | The purpose of this rule is to avoid having the accused re-punished for past bad acts.<ref> | ||
{{supra1|Muyser}}{{ | {{supra1|Muyser}}{{atLz|22xkv|8}}<br> | ||
</ref> | </ref> | ||
A significant jump in sentence is inconsistent with rehabilitation where that is a significant factor in sentence.<ref> | A significant jump in sentence is inconsistent with rehabilitation where that is a significant factor in sentence.<ref> | ||
{{supra1|White}}{{ | {{supra1|White}}{{atsLz|1rvsv|5| to 8}}</ref> | ||
The subsequent similar sentence must be progressive.<ref> | The subsequent similar sentence must be progressive.<ref> | ||
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</ref> | </ref> | ||
A dramatic increase in sentence (ie. a "jump") due to a recent prior similar record would violate this principle.<ref> | A dramatic increase in sentence (ie. a "jump") due to a recent prior similar record would violate this principle.<ref> | ||
''R v Borde'', [http://canlii.ca/t/1c062 2003 CanLII 4187] (ON CA), (2003), 63 O.R. (3d) 417{{perONCA|Rosenberg JA}}{{ | ''R v Borde'', [http://canlii.ca/t/1c062 2003 CanLII 4187] (ON CA), (2003), 63 O.R. (3d) 417{{perONCA|Rosenberg JA}}{{atLz|1c062|39}} ("[the jump] principle cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past. It has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.")<br> | ||
''R v Courtney'', [http://canlii.ca/t/frz4k 2012 ONCA 478] (CanLII){{TheCourtONCA}}<br> | ''R v Courtney'', [http://canlii.ca/t/frz4k 2012 ONCA 478] (CanLII){{TheCourtONCA}}<br> | ||
</ref> | </ref> | ||
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===Exceptions=== | ===Exceptions=== | ||
The jump rule does not apply where the index offence is greatly more serious than the prior offences.<ref> | The jump rule does not apply where the index offence is greatly more serious than the prior offences.<ref> | ||
''R v Borde'', [http://canlii.ca/t/1c062 2003 CanLII 4187] (ON CA), (2003), 63 O.R. (3d) 417{{perONCA|Rosenberg JA}}{{ | ''R v Borde'', [http://canlii.ca/t/1c062 2003 CanLII 4187] (ON CA), (2003), 63 O.R. (3d) 417{{perONCA|Rosenberg JA}}{{atLz|1c062|39}} ("[The jump principle] has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.")<br> | ||
''R v JG'', [http://canlii.ca/t/1lr4j 2005 CanLII 36170] (ON SC){{perONSC|R. Smith J.}}<br> | ''R v JG'', [http://canlii.ca/t/1lr4j 2005 CanLII 36170] (ON SC){{perONSC|R. Smith J.}}<br> | ||
''R v Courtney'', [http://canlii.ca/t/frz4k 2012 ONCA 478] (CanLII){{TheCourtONCA}}{{ | ''R v Courtney'', [http://canlii.ca/t/frz4k 2012 ONCA 478] (CanLII){{TheCourtONCA}}{{atsLz|frz4k|10| to 11}}</ref> | ||
The jump principle has greater application for sentences on the lower range of seriousness as there is a greater flexibility in what is an appropriate sentence.<ref> | The jump principle has greater application for sentences on the lower range of seriousness as there is a greater flexibility in what is an appropriate sentence.<ref> | ||
{{ | ''R v Muyser'', [http://canlii.ca/t/22xkv 2009 ABCA 116] (CanLII){{perABCA|Fraser JA}}{{atLz|22xkv|9}}<br> | ||
</ref> | </ref> | ||
| Line 54: | Line 54: | ||
</ref> | </ref> | ||
And also where rehabilitation is not realistic and record is related to the offence.<ref> | And also where rehabilitation is not realistic and record is related to the offence.<ref> | ||
''R v Lohnes'', [http://canlii.ca/t/1qnz5 2007 NSCA 24] (CanLII){{perNSCA|Roscoe JA}}{{ | ''R v Lohnes'', [http://canlii.ca/t/1qnz5 2007 NSCA 24] (CanLII){{perNSCA|Roscoe JA}}{{atsLz|1qnz5|40|}}, {{atsL-npz|1qnz5|42}}<br> | ||
''R v Thomson'', [http://canlii.ca/t/fxbhx 2013 BCCA 220] (CanLII){{perBCCA|Harris JA}}{{ | ''R v Thomson'', [http://canlii.ca/t/fxbhx 2013 BCCA 220] (CanLII){{perBCCA|Harris JA}}{{atsLz|fxbhx|7| to 8}}<br> | ||
</ref> | </ref> | ||
A jump in sentence may be permissible where a previously lenient sentence was not effective in deterring the offender.<ref> | A jump in sentence may be permissible where a previously lenient sentence was not effective in deterring the offender.<ref> | ||
''R v Westerman'', 2002 CarswellOnt 1041 (C.J.){{NOCANLII}}{{ats|28 to 30, 44 to 49}}<br> | ''R v Westerman'', 2002 CarswellOnt 1041 (C.J.){{NOCANLII}}{{ats|28 to 30, 44 to 49}}<br> | ||
''R v Ferrigon'', 2007 CarswellOnt 3072 (S.C.), [http://canlii.ca/t/1rfzp 2007 CanLII 16828] (ON SC){{perONSC|Molloy J}}{{ | ''R v Ferrigon'', 2007 CarswellOnt 3072 (S.C.), [http://canlii.ca/t/1rfzp 2007 CanLII 16828] (ON SC){{perONSC|Molloy J}}{{atsLz|1rfzp|8| to 12}}<br> | ||
</ref> | </ref> | ||
The jump principle cannot trump the principle of proportionality.<ref> | The jump principle cannot trump the principle of proportionality.<ref> | ||
''R v Blair'', [http://canlii.ca/t/1m3vk 2005 ABCA 414] (CanLII){{perABCA|Costigan JA}}{{ | ''R v Blair'', [http://canlii.ca/t/1m3vk 2005 ABCA 414] (CanLII){{perABCA|Costigan JA}}{{atLz|1m3vk|10}}</ref> | ||
It can be concluded that the prior sentence was not sufficiently deterrent and so the sentence for the new offence should be increased to focus on specific deterrence. | It can be concluded that the prior sentence was not sufficiently deterrent and so the sentence for the new offence should be increased to focus on specific deterrence. | ||
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===Step-up Principle=== | ===Step-up Principle=== | ||
The closely related "step-up" principle (primarily employed in British Columbia) suggests that subsequent sentences should be increased in "moderate steps" or else it may interfere with rehabilitation.<ref> | The closely related "step-up" principle (primarily employed in British Columbia) suggests that subsequent sentences should be increased in "moderate steps" or else it may interfere with rehabilitation.<ref> | ||
''R v Bush'' (D.F), [http://canlii.ca/t/1p29n 2006 BCCA 350] (CanLII){{perBCCA|Ryan JA}}{{ | ''R v Bush'' (D.F), [http://canlii.ca/t/1p29n 2006 BCCA 350] (CanLII){{perBCCA|Ryan JA}}{{atLz|1p29n|9}} ("the principle … that is often used to describe the philosophy that sentences should usually increase in moderate steps since a sudden, large increase in the length of a sentence may interfere with the goal of rehabilitation, if that is the focus of the sentence.")</ref> | ||
This principle however should not be applied where denunciation and deterrence are the primary goals.<ref> | This principle however should not be applied where denunciation and deterrence are the primary goals.<ref> | ||
{{ibid1|Bush}}{{ | {{ibid1|Bush}}{{atLz|1p29n|9}} ("The step-up principle has little application where a sentencing judge determines that the offence in question calls for a sentence in which the primary goals are denunciation and deterrence")</ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
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==Gap Principle== | ==Gap Principle== | ||
The "gap principle" directs courts to take into consideration the gaps of time between offences.<ref> | The "gap principle" directs courts to take into consideration the gaps of time between offences.<ref> | ||
''R v Smith'', [http://canlii.ca/t/1p11l 2006 NSCA 95] (CanLII){{perNSCA|Saunders JA}}{{ | ''R v Smith'', [http://canlii.ca/t/1p11l 2006 NSCA 95] (CanLII){{perNSCA|Saunders JA}}{{atLz|1p11l|36}}: extensive citation from Ruby on Sentencing</ref> | ||
It gives credit to someone who has made an effort to avoid criminal charges. | It gives credit to someone who has made an effort to avoid criminal charges. | ||
<ref>see §8.83 of Clayton Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008) </ref> | <ref>see §8.83 of Clayton Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008) </ref> | ||
Revision as of 18:15, 19 August 2019
General Principles
The "jump", "step", and "gap" principles are principles designed to limit the range of appropriate sentences for offenders who have a prior related records. They are derived from several principles including proportionality, rehabilitation, restraint under s. 718(d), and the totality principle under s. 718.2(c).[1]
- ↑
R v Bernard, 2011 NSCA 53 (CanLII), per Saunders JA, at para 26
Frigault v R, 2012 NBCA 8 (CanLII), per Quigg JA, at para 17
R v Robitaille, 1993 CanLII 2561 (BC CA), (1993), 31 BCAC 7, per Lambert JA, at para 9 ("... the theory that sentences should go up only in moderate steps is a theory which rests on the sentencing principles of rehabilitation. It should be only in cases where rehabilitation is a significant sentencing factor.")
Jump/Step Principle
The "jump" or "step" principle (also called the "principle of incremental sentencing") states that subsequent sentences passed should not be disproportionate to the prior offence (ie. a "jump" in sentence). A subsequent offence should have an incremental increase proportionate to frequency of the repeated offences.[1] The purpose of this rule is to avoid having the accused re-punished for past bad acts.[2]
A significant jump in sentence is inconsistent with rehabilitation where that is a significant factor in sentence.[3]
The subsequent similar sentence must be progressive.[4] A dramatic increase in sentence (ie. a "jump") due to a recent prior similar record would violate this principle.[5]
The jump principle will be violated when a sentence goes from 2 years to 4 years on subsequent conviction.[6] Or where the sentence goes from probation to 8 years.[7]
- ↑
R v White, 2007 NLCA 44 (CanLII), per Cameron JA
R v Muyser, 2009 ABCA 116 (CanLII), per Fraser JA
R v Murphy, [2011] N.J. No. 43 (C.A.), 2011 NLCA 16 (CanLII), per Welsh JA - ↑
Muyser, supra, at para 8
- ↑ White, supra, at paras 5 to 8
- ↑ Muyser, supra
- ↑
R v Borde, 2003 CanLII 4187 (ON CA), (2003), 63 O.R. (3d) 417, per Rosenberg JA, at para 39 ("[the jump] principle cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past. It has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.")
R v Courtney, 2012 ONCA 478 (CanLII), per curiam
- ↑
Re Morand and Simpson (1959), 30 C.R. 298 (Sask. C.A.), 1959 CanLII 235 (SK CA), per Martin CJ
See R v Clark, 2005 ABPC 40 (CanLII), per Lamoureux J citing Ruby on Sentencing - ↑
R v Sloane, [1973] 1 N.S.W.L.R. 202 (*no CanLII links)
See Clark, supra citing Ruby on Sentencing
Exceptions
The jump rule does not apply where the index offence is greatly more serious than the prior offences.[1] The jump principle has greater application for sentences on the lower range of seriousness as there is a greater flexibility in what is an appropriate sentence.[2]
The jump principle is of "less utility" when dealing with an accused "with a lengthy criminal record on multiple convictions".[3] And also where rehabilitation is not realistic and record is related to the offence.[4]
A jump in sentence may be permissible where a previously lenient sentence was not effective in deterring the offender.[5]
The jump principle cannot trump the principle of proportionality.[6]
It can be concluded that the prior sentence was not sufficiently deterrent and so the sentence for the new offence should be increased to focus on specific deterrence.
- ↑
R v Borde, 2003 CanLII 4187 (ON CA), (2003), 63 O.R. (3d) 417, per Rosenberg JA, at para 39 ("[The jump principle] has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.")
R v JG, 2005 CanLII 36170 (ON SC), per R. Smith J.
R v Courtney, 2012 ONCA 478 (CanLII), per curiam, at paras 10 to 11 - ↑
R v Muyser, 2009 ABCA 116 (CanLII), per Fraser JA, at para 9
- ↑
Frigault v R, 2012 NBCA 8 (CanLII), per Quigg JA
- ↑
R v Lohnes, 2007 NSCA 24 (CanLII), per Roscoe JA, at paras 40, 42{{{3}}}
R v Thomson, 2013 BCCA 220 (CanLII), per Harris JA, at paras 7 to 8
- ↑
R v Westerman, 2002 CarswellOnt 1041 (C.J.)(*no CanLII links)
, at paras 28 to 30, 44 to 49
R v Ferrigon, 2007 CarswellOnt 3072 (S.C.), 2007 CanLII 16828 (ON SC), per Molloy J, at paras 8 to 12
- ↑ R v Blair, 2005 ABCA 414 (CanLII), per Costigan JA, at para 10
Step-up Principle
The closely related "step-up" principle (primarily employed in British Columbia) suggests that subsequent sentences should be increased in "moderate steps" or else it may interfere with rehabilitation.[1] This principle however should not be applied where denunciation and deterrence are the primary goals.[2]
- ↑ R v Bush (D.F), 2006 BCCA 350 (CanLII), per Ryan JA, at para 9 ("the principle … that is often used to describe the philosophy that sentences should usually increase in moderate steps since a sudden, large increase in the length of a sentence may interfere with the goal of rehabilitation, if that is the focus of the sentence.")
- ↑ Bush, ibid., at para 9 ("The step-up principle has little application where a sentencing judge determines that the offence in question calls for a sentence in which the primary goals are denunciation and deterrence")
Gap Principle
The "gap principle" directs courts to take into consideration the gaps of time between offences.[1] It gives credit to someone who has made an effort to avoid criminal charges. [2]
- ↑ R v Smith, 2006 NSCA 95 (CanLII), per Saunders JA, at para 36: extensive citation from Ruby on Sentencing
- ↑ see §8.83 of Clayton Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008)