Sentencing Ranges: Difference between revisions
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==General Principles== | ==General Principles== | ||
Sentencing courts are required to apply the ranges of sentences set by the Court of Appeal when considering a fit and proper sentence.<ref> | Sentencing courts are required to apply the ranges of sentences set by the Court of Appeal when considering a fit and proper sentence.<ref> | ||
R v Jafarian, [http://canlii.ca/t/g2hzp 2014 ONCA 9] (CanLII) - trial judge refuses to follow appellate direction because they are "ridiculously low" | R v Jafarian, [http://canlii.ca/t/g2hzp 2014 ONCA 9] (CanLII){{TheCourt}} - trial judge refuses to follow appellate direction because they are "ridiculously low" | ||
</ref> | </ref> | ||
A range of sentence is not the boundary for all sentences between the minimum and maximum for the offence charged. Rather, it is narrowed by the specific offence and offender. The variations of punishment when weighing aggravating and mitigating factors | A range of sentence is not the boundary for all sentences between the minimum and maximum for the offence charged. Rather, it is narrowed by the specific offence and offender. The variations of punishment when weighing aggravating and mitigating factors create the continuum of the range. <ref> R v Cromwell [http://canlii.ca/t/1m44w 2005 NSCA 137] (CanLII){{perNSCA|Bateman JA}} at para 26</ref> | ||
A sentencing ranges recommended by the courts of appeal are generally looked at as summaries of the minimum and maximums that have been imposed in the past which can guide judges. The are not "averages" or "straights-jackets" to regular judicial discretion.<Ref> | A sentencing ranges recommended by the courts of appeal are generally looked at as summaries of the minimum and maximums that have been imposed in the past which can guide judges. The are not "averages" or "straights-jackets" to regular judicial discretion.<Ref> | ||
R v Anderson, [http://canlii.ca/t/gs0qq 2016 MBPC 28] (CanLII) at para 24 citing Lacasse at para 57<Br> | R v Anderson, [http://canlii.ca/t/gs0qq 2016 MBPC 28] (CanLII){{perMBPC|Martin J}} at para 24 citing Lacasse at para 57<Br> | ||
</ref> | </ref> | ||
'''Purpose of Ranges'''<br> | '''Purpose of Ranges'''<br> | ||
One of the purposes of a range set by a court of appeal is to "minimize disparity of sentences in cases involving similar offences and similar offenders".<ref> | One of the purposes of a range set by a court of appeal is to "minimize disparity of sentences in cases involving similar offences and similar offenders".<ref> | ||
R v Stone, [1999] 2 SCR 290, [http://canlii.ca/t/1fqn2 1999 CanLII 688] (SCC) at para 244 | R v Stone, [1999] 2 SCR 290, [http://canlii.ca/t/1fqn2 1999 CanLII 688] (SCC){{perSCC|Bastarache J}} at para 244 ("One function of appellate courts is to minimize disparity of sentences in cases involving similar offences and similar offenders")<br> | ||
</ref> | </ref> | ||
'''Importance of Ranges'''<br> | '''Importance of Ranges'''<br> | ||
The "credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders".<ref> | The "credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders".<ref> | ||
R v Lacasse, [http://canlii.ca/t/gml9v 2015 SCC 64] (CanLII), [2015] 3 SCR 1089 at paras 3-6<br> | R v Lacasse, [http://canlii.ca/t/gml9v 2015 SCC 64] (CanLII), [2015] 3 SCR 1089{{perSCC| Wagner J}} at paras 3-6<br> | ||
</ref> | </ref> | ||
'''Effect of Ranges'''<br> | '''Effect of Ranges'''<br> | ||
A sentence is not proportionate simply because it is within a range. Likewise, it is not disproportionate when it falls outside of a range "providing it is otherwise in accordance with the principles and objectives of sentencing".<ref> | A sentence is not proportionate simply because it is within a range. Likewise, it is not disproportionate when it falls outside of a range "providing it is otherwise in accordance with the principles and objectives of sentencing".<ref> | ||
R v Gibson, [http://canlii.ca/t/gg38b 2015 ABCA 41] (CanLII) at para 16<br> | R v Gibson, [http://canlii.ca/t/gg38b 2015 ABCA 41] (CanLII){{perABCA| Jivraj JA}} at para 16<br> | ||
</ref> | </ref> | ||
An offender who is charged by the military will generally be expected to receive harsher sentence than that of a civilian for the same offence.<ref> | An offender who is charged by the military will generally be expected to receive a harsher sentence than that of a civilian for the same offence.<ref> | ||
R. v Généreux, (1992) [http://canlii.ca/t/1fsg8 1992 CanLII 117] (SCC), 1 S.C.R. 259 | R. v Généreux, (1992) [http://canlii.ca/t/1fsg8 1992 CanLII 117] (SCC), 1 S.C.R. 259{{perSCC|Lamer CJ}} ("To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct.") | ||
</ref> | </ref> | ||
'''Exceeding the Range'''<br> | '''Exceeding the Range'''<br> | ||
A sentencing judge's discretion is fettered by general ranges of sentence. These ranges are to encourage consistency between sentences.<Ref> | A sentencing judge's discretion is fettered by general ranges of sentence. These ranges are to encourage consistency between sentences.<Ref> | ||
R v Nasogaluak, [http://canlii.ca/t/2848x 2010 SCC 6] (CanLII), [2010] 1 SCR 206 at para 44<br> | R v Nasogaluak, [http://canlii.ca/t/2848x 2010 SCC 6] (CanLII), [2010] 1 SCR 206{{perSCC|LeBel J}} at para 44<br> | ||
</ref> | </ref> | ||
Ranges "are guidelines rather than hard and fast rules".<ref> | Ranges "are guidelines rather than hard and fast rules".<ref>Nasogaluak{{ibid}} at para 44</ref> A range of sentence can be deviated as long as it is "in accordance with the principles and objectives of sentencing" and are not necessarily unfit.<ref>Nasogaluak at para 44 <br> | ||
c.f. R v Doerksen, [http://canlii.ca/t/gdd1x 1990 CanLII 7329] (SK QB), (1990) 62 Man.R. 2d 259 (CA): A set range of sentence can be deviated from in “exceptional circumstances” </ref> | c.f. R v Doerksen, [http://canlii.ca/t/gdd1x 1990 CanLII 7329] (SK QB), (1990) 62 Man.R. 2d 259 (CA){{perSKQB|Kyle J}}: A set range of sentence can be deviated from in “exceptional circumstances” </ref> | ||
However, factors such as a “good record” and remorse do not amount to exceptional circumstances to deviate from the accepted range.<ref>R v Henderson, [http://canlii.ca/t/fpxrx 2012 MBCA 9] (CanLII)</ref> | However, factors such as a “good record” and remorse do not amount to exceptional circumstances to deviate from the accepted range.<ref>R v Henderson, [http://canlii.ca/t/fpxrx 2012 MBCA 9] (CanLII){{perMBCA|Hamilton JA}}</ref> | ||
A judge may impose a sentence outside of the recommended range so long as it complies with the principles and objectives of sentencing.<Ref> | A judge may impose a sentence outside of the recommended range so long as it complies with the principles and objectives of sentencing.<Ref> | ||
R v McCowan, [http://canlii.ca/t/29qn9 2010 MBCA 45] (CanLII) at para 11<Br> | R v McCowan, [http://canlii.ca/t/29qn9 2010 MBCA 45] (CanLII){{perMBCA|Steel JA}} at para 11<Br> | ||
</ref> | </ref> | ||
'''Appellate Review of Ranges'''<br> | '''Appellate Review of Ranges'''<br> | ||
It is an "error in principle" for a judge to misstate the range of sentence for a particular offence. <ref>R v Dyke, [http://canlii.ca/t/g90fs 2014 SKCA 93] (CanLII) at para 22<Br> | It is an "error in principle" for a judge to misstate the range of sentence for a particular offence. <ref>R v Dyke, [http://canlii.ca/t/g90fs 2014 SKCA 93] (CanLII){{perSKCA|Jackson JA}} at para 22<Br> | ||
R v Simcoe, [http://canlii.ca/t/1dnrb 2002 CanLII 5352] (ONCA) at para 13<br> | R v Simcoe, [http://canlii.ca/t/1dnrb 2002 CanLII 5352] (ONCA){{perONCA|Feldman JA}} at para 13<br> | ||
</ref> | </ref> | ||
'''Sentencing Grids and Sentencing Tables'''<br> | '''Sentencing Grids and Sentencing Tables'''<br> | ||
The use of judge-imposed sentencing grids or tables goes contrary to the intent of parliament and is not permitted.<ref> | The use of judge-imposed sentencing grids or tables goes contrary to the intent of parliament and is not permitted.<ref> | ||
R v Gauvreau, [http://canlii.ca/t/h0b5j 2017 ABCA 74] (CanLII), at para 17<Br> | R v Gauvreau, [http://canlii.ca/t/h0b5j 2017 ABCA 74] (CanLII){{TheCourt}}, at para 17<Br> | ||
</ref> | </ref> | ||
| Line 57: | Line 57: | ||
==Effect of Election on Sentence== | ==Effect of Election on Sentence== | ||
A sentence is not scaled based on the election made. Thus, an offence prosecuted summarily should not be scaled to less than the maximum only because it would not have been a maximum sentence by indictment.<Ref> R v Solowan, [http://canlii.ca/t/21h61 2008 SCC 62] (CanLII), [2008] 3 SCR 309 at para 15</ref> Likewise, an election to proceed by indictment should not be a relevant factor.<ref> | A sentence is not scaled based on the election made. Thus, an offence prosecuted summarily should not be scaled to less than the maximum only because it would not have been a maximum sentence by indictment.<Ref> R v Solowan, [http://canlii.ca/t/21h61 2008 SCC 62] (CanLII), [2008] 3 SCR 309{{perSCC|Fish J}} at para 15</ref> Likewise, an election to proceed by indictment should not be a relevant factor.<ref> | ||
R v Paul, [http://canlii.ca/t/g2vp9 2014 ABCA 42] (CanLII) | R v Paul, [http://canlii.ca/t/g2vp9 2014 ABCA 42] (CanLII){{TheCourt}} | ||
</ref> | </ref> | ||
Sentences for breach of court orders is a gradual process without a sudden, substantial increase in penalty.<Ref>R v Murphy, [http://canlii.ca/t/2fn2v 2011 NLCA 16] (CanLII), [2011] N.J. No. 43 (C.A.) at 34</ref> | Sentences for breach of court orders is a gradual process without a sudden, substantial increase in penalty.<Ref>R v Murphy, [http://canlii.ca/t/2fn2v 2011 NLCA 16] (CanLII), [2011] N.J. No. 43 (C.A.){{perNLCA|Welsh JA}} at 34</ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
Revision as of 21:17, 7 November 2018
General Principles
Sentencing courts are required to apply the ranges of sentences set by the Court of Appeal when considering a fit and proper sentence.[1]
A range of sentence is not the boundary for all sentences between the minimum and maximum for the offence charged. Rather, it is narrowed by the specific offence and offender. The variations of punishment when weighing aggravating and mitigating factors create the continuum of the range. [2]
A sentencing ranges recommended by the courts of appeal are generally looked at as summaries of the minimum and maximums that have been imposed in the past which can guide judges. The are not "averages" or "straights-jackets" to regular judicial discretion.[3]
Purpose of Ranges
One of the purposes of a range set by a court of appeal is to "minimize disparity of sentences in cases involving similar offences and similar offenders".[4]
Importance of Ranges
The "credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders".[5]
Effect of Ranges
A sentence is not proportionate simply because it is within a range. Likewise, it is not disproportionate when it falls outside of a range "providing it is otherwise in accordance with the principles and objectives of sentencing".[6]
An offender who is charged by the military will generally be expected to receive a harsher sentence than that of a civilian for the same offence.[7]
Exceeding the Range
A sentencing judge's discretion is fettered by general ranges of sentence. These ranges are to encourage consistency between sentences.[8]
Ranges "are guidelines rather than hard and fast rules".[9] A range of sentence can be deviated as long as it is "in accordance with the principles and objectives of sentencing" and are not necessarily unfit.[10] However, factors such as a “good record” and remorse do not amount to exceptional circumstances to deviate from the accepted range.[11]
A judge may impose a sentence outside of the recommended range so long as it complies with the principles and objectives of sentencing.[12]
Appellate Review of Ranges
It is an "error in principle" for a judge to misstate the range of sentence for a particular offence. [13]
Sentencing Grids and Sentencing Tables
The use of judge-imposed sentencing grids or tables goes contrary to the intent of parliament and is not permitted.[14]
- ↑ R v Jafarian, 2014 ONCA 9 (CanLII), per curiam - trial judge refuses to follow appellate direction because they are "ridiculously low"
- ↑ R v Cromwell 2005 NSCA 137 (CanLII), per Bateman JA at para 26
- ↑
R v Anderson, 2016 MBPC 28 (CanLII), per Martin J at para 24 citing Lacasse at para 57
- ↑
R v Stone, [1999] 2 SCR 290, 1999 CanLII 688 (SCC), per Bastarache J at para 244 ("One function of appellate courts is to minimize disparity of sentences in cases involving similar offences and similar offenders")
- ↑
R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, per Wagner J at paras 3-6
- ↑
R v Gibson, 2015 ABCA 41 (CanLII), per Jivraj JA at para 16
- ↑ R. v Généreux, (1992) 1992 CanLII 117 (SCC), 1 S.C.R. 259, per Lamer CJ ("To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct.")
- ↑
R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J at para 44
- ↑ Nasogaluak, ibid. at para 44
- ↑ Nasogaluak at para 44
c.f. R v Doerksen, 1990 CanLII 7329 (SK QB), (1990) 62 Man.R. 2d 259 (CA), per Kyle J: A set range of sentence can be deviated from in “exceptional circumstances” - ↑ R v Henderson, 2012 MBCA 9 (CanLII), per Hamilton JA
- ↑
R v McCowan, 2010 MBCA 45 (CanLII), per Steel JA at para 11
- ↑ R v Dyke, 2014 SKCA 93 (CanLII), per Jackson JA at para 22
R v Simcoe, 2002 CanLII 5352 (ONCA), per Feldman JA at para 13
- ↑
R v Gauvreau, 2017 ABCA 74 (CanLII), per curiam, at para 17
Effect of Election on Sentence
A sentence is not scaled based on the election made. Thus, an offence prosecuted summarily should not be scaled to less than the maximum only because it would not have been a maximum sentence by indictment.[1] Likewise, an election to proceed by indictment should not be a relevant factor.[2]
Sentences for breach of court orders is a gradual process without a sudden, substantial increase in penalty.[3]
- ↑ R v Solowan, 2008 SCC 62 (CanLII), [2008] 3 SCR 309, per Fish J at para 15
- ↑ R v Paul, 2014 ABCA 42 (CanLII), per curiam
- ↑ R v Murphy, 2011 NLCA 16 (CanLII), [2011] N.J. No. 43 (C.A.), per Welsh JA at 34