Parity Principle: Difference between revisions
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Given the subjective nature of the sentencing process it is necessary that all sentences "must respect the parity principle".<Ref> | Given the subjective nature of the sentencing process it is necessary that all sentences "must respect the parity principle".<Ref> | ||
Nash v R., [http://canlii.ca/t/29vmr 2009 NBCA 7] (CanLII) at para 54 | Nash v R., [http://canlii.ca/t/29vmr 2009 NBCA 7] (CanLII){{perNBCA|Robertson JA}} at para 54 | ||
</ref> | </ref> | ||
Offenders being sentenced to the same or similar offence should not have disparate sentences. The sentences should be approximately the same, taking into account the aggravating and mitigating factors unique to the individual. | Offenders being sentenced to the same or similar offence should not have disparate sentences. The sentences should be approximately the same, taking into account the aggravating and mitigating factors unique to the individual. | ||
<ref> | <ref> | ||
R v Roche [http://canlii.ca/t/fsxnf 1990 CanLII 6483] (NL CA), (1990), 84 Nfld. & P.E.I.R. 1, at para 10 | R v Roche [http://canlii.ca/t/fsxnf 1990 CanLII 6483] (NL CA), (1990), 84 Nfld. & P.E.I.R. 1{{perNLCA|Goodridge JA}}, at para 10 | ||
</ref> | </ref> | ||
The purpose of the parity principle is to ensure fairness "by avoiding disproportionate sentences among convicted persons where, essentially, the same facts and circumstances indicate equivalent or like sentences".<ref> | The purpose of the parity principle is to ensure fairness "by avoiding disproportionate sentences among convicted persons where, essentially, the same facts and circumstances indicate equivalent or like sentences".<ref> | ||
R v W.E., [http://canlii.ca/t/27jkw 2010 NLCA 4] (CanLII) at para 33 quoting Clayton C. Ruby, Sentencing, 7th ed. (Markham, ON: LexisNexis, 2008) at page 33: | R v W.E., [http://canlii.ca/t/27jkw 2010 NLCA 4] (CanLII){{perNLCA|Rowe JA}} at para 33 quoting Clayton C. Ruby, Sentencing, 7th ed. (Markham, ON: LexisNexis, 2008) at page 33: | ||
</ref> | </ref> | ||
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R v Oake, [2010] N.J. No. 94 (NLCA){{NOCANLII}}</ref> | R v Oake, [2010] N.J. No. 94 (NLCA){{NOCANLII}}</ref> | ||
To fulfil this requirement sentencing judges must consider the "range" of sentences of "similar offenders for similar offences committed in similar circumstances".<Ref>R v Tuglavina, [http://canlii.ca/t/2fgrh 2011 NLCA 13] (CanLII), [2011] N.J. No. 25 (NLCA)<br> | To fulfil this requirement sentencing judges must consider the "range" of sentences of "similar offenders for similar offences committed in similar circumstances".<Ref>R v Tuglavina, [http://canlii.ca/t/2fgrh 2011 NLCA 13] (CanLII), [2011] N.J. No. 25 (NLCA){{perNLCA|Wells JA}}<br> | ||
Nash at para 54</ref> | Nash at para 54</ref> | ||
The principle ensures fairness between similarly situated cases.<Ref>R v Rawn, [http://canlii.ca/t/frzp0 2012 ONCA 487] (CanLII) at para 18</ref> It does not however override the individualized approach to sentencing. | The principle ensures fairness between similarly situated cases.<Ref>R v Rawn, [http://canlii.ca/t/frzp0 2012 ONCA 487] (CanLII){{perONCA|Epstein JA}} at para 18</ref> It does not however override the individualized approach to sentencing. | ||
<Ref>R v Knife, [http://canlii.ca/t/g7s9g 1982 CanLII 2569] (SK QB), (1982), 16 Sask. R. 40 (C.A.) at p. 43</ref> | <Ref>R v Knife, [http://canlii.ca/t/g7s9g 1982 CanLII 2569] (SK QB), (1982), 16 Sask. R. 40 (C.A.){{perSKQB|Cameron JA}} at p. 43</ref> | ||
One of the goals of the provincial courts of appeal is to maintain parity in sentence and minimize the differences in sentencing approaches.<ref> | One of the goals of the provincial courts of appeal is to maintain parity in sentence and minimize the differences in sentencing approaches.<ref> | ||
R v Arcand [http://canlii.ca/t/2dnsp 2010 ABCA 363] (CanLII)<br> | R v Arcand [http://canlii.ca/t/2dnsp 2010 ABCA 363] (CanLII){{perABCA|Fraser and Watson JJA}}<br> | ||
Nasogaluak [http://canlii.ca/t/2848x 2010 SCC 6] (CanLII)<br> | Nasogaluak [http://canlii.ca/t/2848x 2010 SCC 6] (CanLII){{perSCC|LeBel J}}<br> | ||
</ref> However, the judges must also be sensitive to the needs of local community.<ref> | </ref> However, the judges must also be sensitive to the needs of local community.<ref> | ||
Nasogaluak{{ibid}}</ref> | Nasogaluak{{ibid}}</ref> | ||
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It has been suggested that courts have a duty "to impose sentences in line with precedent" while still taking into account the uniqueness of the offender and offence.<ref> | It has been suggested that courts have a duty "to impose sentences in line with precedent" while still taking into account the uniqueness of the offender and offence.<ref> | ||
Oake{{supra}}<br> | Oake{{supra}}<br> | ||
c.f. R v Day, [http://canlii.ca/t/fx45g 2013 BCCA 172] (CanLII), at para 17 (It is “trite law that the sentences imposed in other cases are of limited assistance in determining a fit sentence.”) | c.f. R v Day, [http://canlii.ca/t/fx45g 2013 BCCA 172] (CanLII){{perBCCA|Kirkpatrick JA}}, at para 17 (It is “trite law that the sentences imposed in other cases are of limited assistance in determining a fit sentence.”) | ||
</ref> | </ref> | ||
The parity principle "does not preclude disparity where warranted by the circumstances, because of the principle of proportionality".<ref> | The parity principle "does not preclude disparity where warranted by the circumstances, because of the principle of proportionality".<ref> | ||
R v LM, [http://canlii.ca/t/1x21j 2008 SCC 31] (CanLII), [2008] 2 SCR 163 at para 36<br> | R v LM, [http://canlii.ca/t/1x21j 2008 SCC 31] (CanLII), [2008] 2 SCR 163{{perSCC|LeBel J}} at para 36<br> | ||
</ref> | </ref> | ||
Increases in [[Maximum and Minimum Sentences|minimum sentences]] will have the effect of "shifting" or "inflating" the range of appropriate sentence. This is not considered a violation of the parity rule.<ref> | Increases in [[Maximum and Minimum Sentences|minimum sentences]] will have the effect of "shifting" or "inflating" the range of appropriate sentence. This is not considered a violation of the parity rule.<ref> | ||
R v KDH, [http://canlii.ca/t/fs78w 2012 ABQB 471] (CanLII) at paras 6-8<br> | R v KDH, [http://canlii.ca/t/fs78w 2012 ABQB 471] (CanLII){{perABQB|Manderscheid J}} at paras 6-8<br> | ||
</ref> | </ref> | ||
Where the judge deviates from the regular range established by case law the judge "should explain how it is in accordance with the principles and objectives and objectives of sentencing."<ref> | Where the judge deviates from the regular range established by case law the judge "should explain how it is in accordance with the principles and objectives and objectives of sentencing."<ref> | ||
R v Cluney, [http://canlii.ca/t/g2ck1 2013 NLCA 46] (CanLII) | R v Cluney, [http://canlii.ca/t/g2ck1 2013 NLCA 46] (CanLII){{perNLCA|Barry JA}} | ||
</ref> | </ref> | ||
Given the individualized process of sentencing, "the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction".<ref> | Given the individualized process of sentencing, "the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction".<ref> | ||
R v M(CA), [1996] 1 SCR 500, [http://canlii.ca/t/1frb9 1996 CanLII 230] (SCC) at para 92 | R v M(CA), [1996] 1 SCR 500, [http://canlii.ca/t/1frb9 1996 CanLII 230] (SCC){{perSCC|Lamer CJ}} at para 92 | ||
</ref> | </ref> | ||
The principle of parity is "secondary to the fundamental principle of [[Proportionality|proportionality]]".<ref> | The principle of parity is "secondary to the fundamental principle of [[Proportionality|proportionality]]".<ref> | ||
R v Lacasse, [2015] 3 SCR 1089, [http://canlii.ca/t/gml9v 2015 SCC 64] (CanLII) at para 92<br> | R v Lacasse, [2015] 3 SCR 1089, [http://canlii.ca/t/gml9v 2015 SCC 64] (CanLII){{perSCC|Wagner J}} at para 92<br> | ||
</ref> | </ref> | ||
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==Ranges of Sentence== | ==Ranges of Sentence== | ||
One of the roles of appellate courts is in "maintaining some degree of uniformity in the sentences imposed for crimes of the same general character" by setting direction of appropriate sentences.<ref> | One of the roles of appellate courts is in "maintaining some degree of uniformity in the sentences imposed for crimes of the same general character" by setting direction of appropriate sentences.<ref> | ||
R v Robert, [http://canlii.ca/t/1f0fk 1996 CanLII 1725] (BC CA) at para 23<Br> | R v Robert, [http://canlii.ca/t/1f0fk 1996 CanLII 1725] (BC CA){{perBCCA|Goldie JA}} at para 23<Br> | ||
</ref> | </ref> | ||
A Court referring to a "range" of sentence can be interpreted in multiples ways.<ref> | A Court referring to a "range" of sentence can be interpreted in multiples ways.<ref> | ||
R v Johnston, [http://canlii.ca/t/fmqxj 2011 NLCA 56] (CanLII) at para 36<br> | R v Johnston, [http://canlii.ca/t/fmqxj 2011 NLCA 56] (CanLII){{perNLCA|White JA}} at para 36<br> | ||
R v O’Flaherty, [http://canlii.ca/t/27pt7 1997 CanLII 14649] (NL CA), (1997), 155 Nfld. & P.E.I.R. 150 (NFCA) at para 20 | R v O’Flaherty, [http://canlii.ca/t/27pt7 1997 CanLII 14649] (NL CA), (1997), 155 Nfld. & P.E.I.R. 150 (NFCA){{perNLCA|Steele JA}} at para 20 | ||
</ref> It its ''descriptive'' sense, considering a range of sentence is simply a "check" to ensure that the sentence is not unduly harsh or lenient when compared against other cases. It "reflects individual cases, but does not govern them".<ref> | </ref> It its ''descriptive'' sense, considering a range of sentence is simply a "check" to ensure that the sentence is not unduly harsh or lenient when compared against other cases. It "reflects individual cases, but does not govern them".<ref> | ||
Johnston{{supra}} at para 36</ref> | Johnston{{supra}} at para 36</ref> | ||
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In a ''prescriptive'' sense, a range is set by an appellate court to instruct lower courts on the "appropriate penalty for a category of crime".<ref> | In a ''prescriptive'' sense, a range is set by an appellate court to instruct lower courts on the "appropriate penalty for a category of crime".<ref> | ||
Johnston{{supra}} at para 37<br> | Johnston{{supra}} at para 37<br> | ||
R v Stone, [http://canlii.ca/t/1fqn2 1999 CanLII 688] (SCC), [1999] 2 SCR 290 at para 244</ref> | R v Stone, [http://canlii.ca/t/1fqn2 1999 CanLII 688] (SCC), [1999] 2 SCR 290{{perSCC| Bastarache J}} at para 244</ref> | ||
When a range is defined prescriptively, care should be taken as problems may arise in defining the parameters.<ref> | When a range is defined prescriptively, care should be taken as problems may arise in defining the parameters.<ref> | ||
Johnson at para 42<br> | Johnson at para 42<br> | ||
R v Murphy, [http://canlii.ca/t/59sv 2001 NLCA 16] (CanLII)<br> | R v Murphy, [http://canlii.ca/t/59sv 2001 NLCA 16] (CanLII){{perNLCA|Marshall JA}}<br> | ||
</ref> | </ref> | ||
Regardless of the sense, ranges are considered "guidelines" and not "hard and fast rules". The judge may go outside the range as long as it conforms to the principles and objectives of sentencing.<ref> | Regardless of the sense, ranges are considered "guidelines" and not "hard and fast rules". The judge may go outside the range as long as it conforms to the principles and objectives of sentencing.<ref> | ||
R v Nasogaluak, [http://canlii.ca/t/2848x 2010 SCC 6] (CanLII), [2010] 1 SCR 206 at para 44 | R v Nasogaluak, [http://canlii.ca/t/2848x 2010 SCC 6] (CanLII), [2010] 1 SCR 206{{perSCC|LeBel J}} at para 44 | ||
</ref> | </ref> | ||
| Line 93: | Line 93: | ||
==Parity to Co-Accused== | ==Parity to Co-Accused== | ||
Co-accused who are equally responsible for the offence should, with all else being equal, expect to have similar sentences.<ref> | Co-accused who are equally responsible for the offence should, with all else being equal, expect to have similar sentences.<ref> | ||
R v Reitmeier, [http://canlii.ca/t/gtqg9 2016 ABCA 269] (CanLII) | R v Reitmeier, [http://canlii.ca/t/gtqg9 2016 ABCA 269] (CanLII){{TheCourt}} at para. 10 | ||
</ref> | </ref> | ||
| Line 101: | Line 101: | ||
The principle of parity does not require equal sentences for participants in the same offence. Rather, they must "only [be] understandable sentences when examined together."<ref> | The principle of parity does not require equal sentences for participants in the same offence. Rather, they must "only [be] understandable sentences when examined together."<ref> | ||
R v Issa (T.), (1992), 57 O.A.C. 253{{NOCANLII}} at para 9<br> | R v Issa (T.), (1992), 57 O.A.C. 253{{NOCANLII}} at para 9<br> | ||
R v Rawn, [http://canlii.ca/t/frzp0 2012 ONCA 487] (CanLII) at para 30<br> | R v Rawn, [http://canlii.ca/t/frzp0 2012 ONCA 487] (CanLII){{perONCA|Epstein JA}} at para 30<br> | ||
</ref> | </ref> | ||
Where there is disparity between offenders who participated in a "common venture", the judge must show justification.<ref> | Where there is disparity between offenders who participated in a "common venture", the judge must show justification.<ref> | ||
R v Sahota, [http://canlii.ca/t/ghk63 2015 ONCA 336] (CanLII) at para 7<br> | R v Sahota, [http://canlii.ca/t/ghk63 2015 ONCA 336] (CanLII){{TheCourt}} at para 7<br> | ||
</ref> | </ref> | ||
Where accomplices who commit the crime at the orders of a principal and agree to testify against he principal can be afforded lesser sentences than the principal.<ref> | Where accomplices who commit the crime at the orders of a principal and agree to testify against he principal can be afforded lesser sentences than the principal.<ref> | ||
R v Ellahib, [http://canlii.ca/t/2088f 2008 ABCA 281] (CanLII) -- 20 years for the principal and the 16 and 15 year sentences accomplices justified because the principal was the instigator and the accomplices entered guilty pleas and testified against him.</ref> | R v Ellahib, [http://canlii.ca/t/2088f 2008 ABCA 281] (CanLII){{perABCA|Rowbotham JA}} -- 20 years for the principal and the 16 and 15-year sentences accomplices justified because the principal was the instigator and the accomplices entered guilty pleas and testified against him.</ref> | ||
'''Uncharged Co-Accused'''<br> | '''Uncharged Co-Accused'''<br> | ||
Uncharged accomplices who sign an immunity agreement in exchange for testimony of the accused is ''not'' a relevant factor to sentencing of the accused.<ref> | Uncharged accomplices who sign an immunity agreement in exchange for testimony of the accused is ''not'' a relevant factor to sentencing of the accused.<ref> | ||
R v Wilson, [http://canlii.ca/t/hqpn5 2018 ABPC 54] (CanLII), at para 27 at para 27<Br> | R v Wilson, [http://canlii.ca/t/hqpn5 2018 ABPC 54] (CanLII){{perABPC| Van de Veen J}}, at para 27 at para 27<Br> | ||
R v Athwal, [http://canlii.ca/t/h2ph5 2017 ONCA 222] (CanLII) <br> | R v Athwal, [http://canlii.ca/t/h2ph5 2017 ONCA 222] (CanLII){{perONCA| Juriansz JA}} <br> | ||
R v Deol, [http://canlii.ca/t/h2ph6 2017 ONCA 221] (CanLII)<Br> | R v Deol, [http://canlii.ca/t/h2ph6 2017 ONCA 221] (CanLII){{perONCA| Juriansz JA}}<Br> | ||
R v Perciballi, [http://canlii.ca/t/1fbs7 2001 CanLII 13394] (ON CA), [2001], 54 O.R. (3d) 346 | R v Perciballi, [http://canlii.ca/t/1fbs7 2001 CanLII 13394] (ON CA), [2001], 54 O.R. (3d) 346{{perONCA|Charron JA}} | ||
</ref> | </ref> | ||
Revision as of 19:14, 21 November 2018
General Principles
The parity principle means that a sentence should be "similar to sentences imposed on similar offenders for similar offences committed in similar circumstances". [1]
Given the subjective nature of the sentencing process it is necessary that all sentences "must respect the parity principle".[2]
Offenders being sentenced to the same or similar offence should not have disparate sentences. The sentences should be approximately the same, taking into account the aggravating and mitigating factors unique to the individual. [3]
The purpose of the parity principle is to ensure fairness "by avoiding disproportionate sentences among convicted persons where, essentially, the same facts and circumstances indicate equivalent or like sentences".[4]
A judge has a responsibility to "impose sentences in line with precedent, noting always that for each offence and each offender some elements are unique." [5]
To fulfil this requirement sentencing judges must consider the "range" of sentences of "similar offenders for similar offences committed in similar circumstances".[6]
The principle ensures fairness between similarly situated cases.[7] It does not however override the individualized approach to sentencing. [8]
One of the goals of the provincial courts of appeal is to maintain parity in sentence and minimize the differences in sentencing approaches.[9] However, the judges must also be sensitive to the needs of local community.[10]
It has been suggested that courts have a duty "to impose sentences in line with precedent" while still taking into account the uniqueness of the offender and offence.[11]
The parity principle "does not preclude disparity where warranted by the circumstances, because of the principle of proportionality".[12]
Increases in minimum sentences will have the effect of "shifting" or "inflating" the range of appropriate sentence. This is not considered a violation of the parity rule.[13]
Where the judge deviates from the regular range established by case law the judge "should explain how it is in accordance with the principles and objectives and objectives of sentencing."[14]
Given the individualized process of sentencing, "the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction".[15]
The principle of parity is "secondary to the fundamental principle of proportionality".[16]
- ↑ see s. 718.2(b) Criminal Code
Sentencing, 7th ed. (Markham: LexisNexis, 2008), at ss.2.21 - ↑ Nash v R., 2009 NBCA 7 (CanLII), per Robertson JA at para 54
- ↑ R v Roche 1990 CanLII 6483 (NL CA), (1990), 84 Nfld. & P.E.I.R. 1, per Goodridge JA, at para 10
- ↑ R v W.E., 2010 NLCA 4 (CanLII), per Rowe JA at para 33 quoting Clayton C. Ruby, Sentencing, 7th ed. (Markham, ON: LexisNexis, 2008) at page 33:
- ↑ R v Oake, [2010] N.J. No. 94 (NLCA)(*no CanLII links)
- ↑ R v Tuglavina, 2011 NLCA 13 (CanLII), [2011] N.J. No. 25 (NLCA), per Wells JA
Nash at para 54 - ↑ R v Rawn, 2012 ONCA 487 (CanLII), per Epstein JA at para 18
- ↑ R v Knife, 1982 CanLII 2569 (SK QB), (1982), 16 Sask. R. 40 (C.A.), per Cameron JA at p. 43
- ↑
R v Arcand 2010 ABCA 363 (CanLII), per Fraser and Watson JJA
Nasogaluak 2010 SCC 6 (CanLII), per LeBel J
- ↑ Nasogaluak, ibid.
- ↑
Oake, supra
c.f. R v Day, 2013 BCCA 172 (CanLII), per Kirkpatrick JA, at para 17 (It is “trite law that the sentences imposed in other cases are of limited assistance in determining a fit sentence.”) - ↑
R v LM, 2008 SCC 31 (CanLII), [2008] 2 SCR 163, per LeBel J at para 36
- ↑
R v KDH, 2012 ABQB 471 (CanLII), per Manderscheid J at paras 6-8
- ↑ R v Cluney, 2013 NLCA 46 (CanLII), per Barry JA
- ↑ R v M(CA), [1996] 1 SCR 500, 1996 CanLII 230 (SCC), per Lamer CJ at para 92
- ↑
R v Lacasse, [2015] 3 SCR 1089, 2015 SCC 64 (CanLII), per Wagner J at para 92
Ranges of Sentence
One of the roles of appellate courts is in "maintaining some degree of uniformity in the sentences imposed for crimes of the same general character" by setting direction of appropriate sentences.[1]
A Court referring to a "range" of sentence can be interpreted in multiples ways.[2] It its descriptive sense, considering a range of sentence is simply a "check" to ensure that the sentence is not unduly harsh or lenient when compared against other cases. It "reflects individual cases, but does not govern them".[3]
In a prescriptive sense, a range is set by an appellate court to instruct lower courts on the "appropriate penalty for a category of crime".[4]
When a range is defined prescriptively, care should be taken as problems may arise in defining the parameters.[5]
Regardless of the sense, ranges are considered "guidelines" and not "hard and fast rules". The judge may go outside the range as long as it conforms to the principles and objectives of sentencing.[6]
Some courts have stated that deviation from the range requires something "special" or "unusual" about the case.[7]
- ↑
R v Robert, 1996 CanLII 1725 (BC CA), per Goldie JA at para 23
- ↑
R v Johnston, 2011 NLCA 56 (CanLII), per White JA at para 36
R v O’Flaherty, 1997 CanLII 14649 (NL CA), (1997), 155 Nfld. & P.E.I.R. 150 (NFCA), per Steele JA at para 20 - ↑ Johnston, supra at para 36
- ↑
Johnston, supra at para 37
R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J at para 244 - ↑
Johnson at para 42
R v Murphy, 2001 NLCA 16 (CanLII), per Marshall JA
- ↑ R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J at para 44
- ↑ Johnston, supra at para 39
Parity to Co-Accused
Co-accused who are equally responsible for the offence should, with all else being equal, expect to have similar sentences.[1]
In a situation of co-accused, the roles of the parties will be considered as well as their personal circumstances. [2]
The principle of parity does not require equal sentences for participants in the same offence. Rather, they must "only [be] understandable sentences when examined together."[3]
Where there is disparity between offenders who participated in a "common venture", the judge must show justification.[4]
Where accomplices who commit the crime at the orders of a principal and agree to testify against he principal can be afforded lesser sentences than the principal.[5]
Uncharged Co-Accused
Uncharged accomplices who sign an immunity agreement in exchange for testimony of the accused is not a relevant factor to sentencing of the accused.[6]
- ↑ R v Reitmeier, 2016 ABCA 269 (CanLII), per curiam at para. 10
- ↑ R v Knife (1982), 16 Sask. R. 40 (C.A.)(*no CanLII links) at p. 43
- ↑
R v Issa (T.), (1992), 57 O.A.C. 253(*no CanLII links)
at para 9
R v Rawn, 2012 ONCA 487 (CanLII), per Epstein JA at para 30
- ↑
R v Sahota, 2015 ONCA 336 (CanLII), per curiam at para 7
- ↑ R v Ellahib, 2008 ABCA 281 (CanLII), per Rowbotham JA -- 20 years for the principal and the 16 and 15-year sentences accomplices justified because the principal was the instigator and the accomplices entered guilty pleas and testified against him.
- ↑
R v Wilson, 2018 ABPC 54 (CanLII), per Van de Veen J, at para 27 at para 27
R v Athwal, 2017 ONCA 222 (CanLII), per Juriansz JA
R v Deol, 2017 ONCA 221 (CanLII), per Juriansz JA
R v Perciballi, 2001 CanLII 13394 (ON CA), [2001], 54 O.R. (3d) 346, per Charron JA