Jump, Step and Gap Principles: Difference between revisions
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{{HeaderPrinciples}} | {{HeaderPrinciples}} | ||
==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) at para 26<br> | R v Bernard, [http://canlii.ca/t/flrt1 2011 NSCA 53] (CanLII){{perNSCA|Saunders JA}} at para 26<br> | ||
Frigault v R., [http://canlii.ca/t/fpvch 2012 NBCA 8] (CanLII) at para 17<br> | Frigault v R., [http://canlii.ca/t/fpvch 2012 NBCA 8] (CanLII){{perNBCA|Quigg JA}} at para 17<br> | ||
R v Robitaille, [http://canlii.ca/t/1dc39 1993 CanLII 2561] (BC CA), (1993), 31 BCAC 7 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 | R v Robitaille, [http://canlii.ca/t/1dc39 1993 CanLII 2561] (BC CA), (1993), 31 BCAC 7{{perBCCA|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.")<Br> | is a significant sentencing factor.")<Br> | ||
</ref> | </ref> | ||
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==Jump/Step Principle== | ==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.<ref> | 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.<ref> | ||
R v White, [http://canlii.ca/t/1rvsv 2007 NLCA 44] (CanLII)<br> | R v White, [http://canlii.ca/t/1rvsv 2007 NLCA 44] (CanLII){{perNLCA|Cameron JA}}<br> | ||
R v Muyser, [http://canlii.ca/t/22xkv 2009 ABCA 116] (CanLII)<br> | R v Muyser, [http://canlii.ca/t/22xkv 2009 ABCA 116] (CanLII){{perABCA|Fraser JA}}<br> | ||
R v Murphy, [2011] N.J. No. 43 (C.A.), [http://canlii.ca/t/2fn2v 2011 NLCA 16] (CanLII)</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> | ||
Muyser{{supra}} at para 8<br> | Muyser{{supra}} at para 8<br> | ||
</ref> | </ref> | ||
A significant jump in sentence is inconsistent with rehabilitation where that is a significant factor in sentence.<Ref>R v White, at paras 5 to 8</ref> | A significant jump in sentence is inconsistent with rehabilitation where that is a significant factor in sentence.<Ref>R v White{{supra}}, at paras 5 to 8</ref> | ||
The subsequent similar sentence must be progressive.<ref> | The subsequent similar sentence must be progressive.<ref> | ||
R v Muyser, [http://canlii.ca/t/22xkv 2009 ABCA 116] (CanLII) | R v Muyser, [http://canlii.ca/t/22xkv 2009 ABCA 116] (CanLII){{perABCA|Fraser CJ}} | ||
</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, at para 39</ref> | R v Borde [http://canlii.ca/t/1c062 2003 CanLII 4187] (ON CA), (2003), 63 O.R. (3d) 417{{perONCA|Rosenberg JA}}, at para 39</ref> | ||
The jump principle will be violated when a sentence goes from 2 years to 4 years on subsequent conviction.<ref> | The jump principle will be violated when a sentence goes from 2 years to 4 years on subsequent conviction.<ref> | ||
Re Morand and Simpson, (1959), 30 C.R. 298 (Sask. C.A.), [http://canlii.ca/t/g7b2r 1959 CanLII 235] (SK CA)<Br> | Re Morand and Simpson, (1959), 30 C.R. 298 (Sask. C.A.), [http://canlii.ca/t/g7b2r 1959 CanLII 235] (SK CA){{per|Martin CJ}}<Br> | ||
See R v Clark, [http://canlii.ca/t/1jxww 2005 ABPC 40] (CanLII) citing Ruby on Sentencing | See R v Clark, [http://canlii.ca/t/1jxww 2005 ABPC 40] (CanLII){{perABPC|Lamoureux J}} citing Ruby on Sentencing | ||
</ref> Or where the sentence goes from probation to 8 years.<ref> | </ref> Or where the sentence goes from probation to 8 years.<ref> | ||
R v Sloane, [1973] 1 N.S.W.L.R. 202 {{NOCANLII}}<br> | R v Sloane, [1973] 1 N.S.W.L.R. 202 {{NOCANLII}}<br> | ||
See R v Clark citing Ruby on Sentencing | See R v Clark{{supra}} citing Ruby on Sentencing | ||
</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, 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.")<br> | R v Borde [http://canlii.ca/t/1c062 2003 CanLII 4187] (ON CA), (2003), 63 O.R. (3d) 417{{perONCA|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.")<br> | ||
R v J.G., [http://canlii.ca/t/1lr4j 2005 CanLII 36170] (ON SC)<br> | R v J.G., [http://canlii.ca/t/1lr4j 2005 CanLII 36170] (ON SC){{perOSNC|R. Smith J.}}<br> | ||
R v Courtney, [http://canlii.ca/t/frz4k 2012 ONCA 478] (CanLII) at para 10-11</ref> | R v Courtney, [http://canlii.ca/t/frz4k 2012 ONCA 478] (CanLII){{TheCourtONCA}} at para 10-11</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> | ||
Muyser{{supra}} at para 9<br> | |||
</ref> | </ref> | ||
The jump principle is of "less utility" when dealing with an accused "with a lengthy criminal record on multiple convictions".<ref> | The jump principle is of "less utility" when dealing with an accused "with a lengthy criminal record on multiple convictions".<ref> | ||
Frigault v R., [http://canlii.ca/t/fpvch 2012 NBCA 8] (CanLII)<br> | Frigault v R., [http://canlii.ca/t/fpvch 2012 NBCA 8] (CanLII){{perNBCA|Quigg JA}}<br> | ||
</ref> And also where rehabilitation is not realistic and record is related to the offence.<ref> | </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) at paras 40, 42<br> | R v Lohnes, [http://canlii.ca/t/1qnz5 2007 NSCA 24] (CanLII){{perNSCA|Roscoe JA}} at paras 40, 42<br> | ||
R v Thomson, [http://canlii.ca/t/fxbhx 2013 BCCA 220] (CanLII) at paras 7 to 8<br> | R v Thomson, [http://canlii.ca/t/fxbhx 2013 BCCA 220] (CanLII){{perBCCA|Harris JA}} at paras 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}} at paras 28 to 30, 44 to 49<br> | R v Westerman, 2002 CarswellOnt 1041 (C.J.){{NOCANLII}} at paras 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) at paras 8 to 12<br> | R v Ferrigon, 2007 CarswellOnt 3072 (S.C.), [http://canlii.ca/t/1rfzp 2007 CanLII 16828] (ON SC){{perONSC|Molloy J}} at paras 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) at para 10</ref> | R v Blair, [http://canlii.ca/t/1m3vk 2005 ABCA 414] (CanLII){{perABCA|Costigan JA}} at para 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) 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.")</ref> This principle however should not be applied where denunciation and deterrence are the primary goals.<ref> | R v Bush (D.F), [http://canlii.ca/t/1p29n 2006 BCCA 350] (CanLII){{perBCCA|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.")</ref> This principle however should not be applied where denunciation and deterrence are the primary goals.<ref> | ||
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")</ref> | 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")</ref> | ||
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==Gap Principle== | ==Gap Principle== | ||
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) at para 36: extensive citation from Ruby on Sentencing</ref> It gives credit to someone who has made an effort to avoid criminal charges. | 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}} at para 36: extensive citation from Ruby on Sentencing</ref> 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 11:44, 20 December 2018
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
- ↑ R v White, supra, at paras 5 to 8
- ↑ R v Muyser, 2009 ABCA 116 (CanLII), per Fraser CJ
- ↑ R v Borde 2003 CanLII 4187 (ON CA), (2003), 63 O.R. (3d) 417, per Rosenberg JA, at para 39
- ↑
Re Morand and Simpson, (1959), 30 C.R. 298 (Sask. C.A.), 1959 CanLII 235 (SK CA)Template:Per
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 R v 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 J.G., 2005 CanLII 36170 (ON SC)Template:PerOSNC
R v Courtney, 2012 ONCA 478 (CanLII), per curiam at para 10-11 - ↑
Muyser, supra 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
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)