Enumerated Purposes of Sentencing: Difference between revisions

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Some have suggested that the availability of conditional sentences is an concession that general deterrence is "speculative".<ref>
Some have suggested that the availability of conditional sentences is an concession that general deterrence is "speculative".<ref>
''R v Wismayer'', [http://canlii.ca/t/6h6j 1997 CanLII 3294] (ON CA), (1997), 5 C.R. (5th) 248 (C.A.){{perONCA|Rosenberg JA}} (3:0){{Ats|49, 50}}<br>
''R v Wismayer'', [http://canlii.ca/t/6h6j 1997 CanLII 3294] (ON CA), (1997), 5 C.R. (5th) 248 (C.A.){{perONCA|Rosenberg JA}} (3:0){{Ats|49, 50}}<br>
''R v Biancofiore'' at p. 356 (cited to CCC)<br>
''R v Biancofiore''{{Atp|356}} (cited to CCC)<br>
</ref>
</ref>


Revision as of 22:27, 17 February 2019

General Principles

See also: Purpose and Principles of Sentencing

The purposes of sentencing are laid out in section 718 of the Criminal Code:

Purpose

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6.


– CCC

The fundamental purpose as stated is that there be "respect for the law" and the maintenance of a "just, peaceful and safe society". [1]

The public is protected "through sanctions a court imposes upon a person...[e]ach codified objective of sentencing is designed to further the protection of the community."[2]

This fundamental purpose will generally take precedent over the welfare of the accused.[3]

Objectives Will Vary By Case

There is no single "sentencing objective [that] trumps the other". It is to "the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case."[4]

In the Canadian system, "the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender". None of these factors can be excluded from consideration.[5]

  1. ↑ R v Whicher, 2002 BCCA 336 (CanLII), per Hall JA (3:0)
    R v Priest, 1996 CanLII 1381 (ON CA), per Rosenberg JA
  2. ↑ R v Berner, 2013 BCCA 188 (CanLII), per curiam
  3. ↑ R v Cole, 2004 CanLII 58282 (QC CM), per Discepola J
    R v Jackson (1977) 21 N.S.R. (2d) 17 (NSCA) (*no CanLII links)
    R v Smith, [1987] 1 SCR 1045, 1987 CanLII 64 (SCC), per Lamer J
    R v Sweeney, 1992 CanLII 4030 (BC CA), per Hutcheon JA
  4. ↑ R v Nasogaluak, 2010 SCC 6 (CanLII), per LeBel J (9:0), at para 43
  5. ↑ R v Lyons, [1987] 2 SCR 309, 1987 CanLII 25 (SCC), per La Forest J (5:2), at para 26

Denunciation - s.718(a)

Section 718(a) sets out the sentencing objective of "denounc[ing] unlawful conduct". Denunciation refers to the Court's "communication of society's condemnation of the offender's conduct." The "denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law".[1]

The "symbolism" of denunciation cannot be an objective "in and of itself". Consequently, sentences that exceed the persons "foreseeable life serve no functional purpose" and are "purely symbolic".[2]

The denunciatory sentence must also "positively instill the basic set of communal values shared by all Canadians as expressed by the Criminal Code."[3]

Denunciation becomes a major consideration in situations where "there is a “high degree of planning and premeditation, and where the offence and its consequences are highly publicized, [so that] like‑minded individuals may well be deterred by severe sentences” [citation omitted] This is particularly so where a victim is a vulnerable person with respect to age, disability, or other similar factors."[4]

Retribution

Retribution is an important consideration in sentencing.[5] It is a principle of sentencing "based on an offender's moral blameworthiness or culpability, and the seriousness of the offence and its circumstances."[6]

Denunciation should not be equated with retribution which is a separate legitimate purpose of sentencing.[7] Nor should retribution be equated with vengance.[8]

Incarceration Not Necessarily Required

In any case emphasizing "general or specific deterrence and denunciation", "the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law‑abiding society."[9]

The principles of denunciation and deterrence can sometimes be satisfied without incarceration. One of these circumstances is where the publicity of the case provides for public humiliation. [10]

Conditional Sentence

Where denunciation is a paramount consideration a conditional sentence is not necessarily ruled out.[11]

A conditional sentence under s. 742.1 that includes "onerous" conditions may provide some denunciation but incarceration will generally provide greater denunciation.[12]


  1. ↑ R v Proulx, 2000 SCC 5 (CanLII), per Lamer CJ, at para 102
    R v CAM, 1996 CanLII 230, [1996] 1 SCR 500, per Lamer CJ ("A sentence which expresses denunciation is simply the means by which these values are communicated.") and, at para 81 ("The principle of denunciation "mandates that a sentence should communicate society's condemnation of that particular offender's conduct ... a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law.")
  2. ↑ R v Klaus, 2018 ABQB 97 (CanLII), per Macklin J, at para 110
    R v McArthur, 2019 ONSC 963 (CanLII), per McMahon J, at para 96
  3. ↑ M(CA), supra , at para 81
  4. ↑ R v Latimer, 2001 SCC 1 (CanLII), per curiam , at para 86
  5. ↑ CAM, supra, at para 77 ("It has been recognized by this Court that retribution is an accepted, and indeed important, principle of sentencing in our criminal law. ")
  6. ↑ R v Denny, 2016 NSSC 76 (CanLII), per Rosinski J, at para 123
    CAM, supra (retribution "... properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, nothing more")
    see also R v Vienneau, 2015 ONCA 898 (CanLII), per curiam (3:0)
  7. ↑ CAM, supra, at para 81 ("Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation...")
  8. ↑ CAM, supra, at para 80
  9. ↑ R v Safarzadeh-Markhali, 2016 SCC 14 (CanLII), per McLachlin CJ
  10. ↑ R v Ewanchuk, 2002 ABCA 95 (CanLII), per curiam, at para 65
    R v Ambrose, 2000 ABCA 264 (CanLII), per curiam, at para 134
    R v Kneale, [1999] OJ No 4062 (SCJ), at para 35(*no CanLII links)
  11. ↑ R v Wells, 2000 SCC 10 (CanLII), per Iacobucci J, at paras 31 to 35
  12. ↑ Proulx, supra, at para 102 ("Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.")

Deterrence - 718(b)

Deterrence "refers to the imposition of a sanction for the purpose of discouraging the offender and others from engaging in criminal conduct."[1]

Section 718(b) sets out the objectives of "deter[ing] the offender and other persons from committing offences" We refer to these as the twin objectives of "general deterrence" and "specific deterrence".

Deterrence in the "widest sense" refers to a "sentence by emphasizing community disapproval of an act and branding it as reprehensible has a moral or educative effect and thereby affects the attitude of the public" with the expectation that a person will not likely commit such an act.[2]

In any case emphasizing "general or specific deterrence and denunciation", "the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law‑abiding society."[3]

It is "an error of principle for a trial court to discount the deterrent effect of any particular kind of punishment provided for in the Criminal Code, such as imprisonment, because he or she believes that imprisonment has not proven effective".[4]

Specific Deterrence

Specific deterrence targets the specific offender before the court.[5]

General Deterrence

General deterrence targets potential criminals by encouraging them not to "engage in criminal activity because of the example provided by the punishment imposed on the offender." [6] The objective of general deterrence as a factor will normally result in the offender being “punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity.” [7]

When general deterrence is emphasized, the deterrent effect of incarceration can be somewhat speculative and so should be used with great restraint.[8] A lengthy sentence is not the only way of achieving the objective of general deterrence.[9]

Crimes committed out of desperation or addiction, such as much drug trafficking, are not offences for which general deterrence has much effect.[10]

Crimes motivated by profit, which can also be drug trafficking, will be addressable by general deterrence.[11]

Offences against recognized classes of vulnerable victims require the Courts to heighten their emphasis on general deterrence.[12]

Vulnerable classes have included young female victims of distribution of intimate images.[13]

Publicity

The degree to which the case is covered by media is relevant to general deterrence.[14] Where there is no publicity of the case at all then there can be no general deterrence.[15]

Achieving Deterrence

There continues to be controversy outside of the courts about whether deterrence is effective.[16] Some have suggested that the availability of conditional sentences is an concession that general deterrence is "speculative".[17]

Given that incarceration is harsher than a conditional sentence it is considered more effective at providing deterrence.[18]

It has been said that conditional sentences are not necessarily capable of providing general deterrence. [19] This is apparent due to the frequency that CSO are rejected on serious offences.

For a conditional sentence to achieve the goals of "denunciation and general deterrence, the punishment must be meaningful by being visible, sufficiently restrictive, enforceable and capable of attracting stern sanction for failure to comply with the conditions."[20]

It is an error of law for a judge to increase the sentence to achieve specific deterrence without considering whether the sentence is still proportionate.[21]

  1. ↑ R v BWP; R v BVN, 2006 SCC 27 (CanLII), [2006] 1 SCR 941, per Charron J, at para 2
  2. ↑ R v Roussy, [1977] OJ No 1208 (Ont. C.A.), per Zuber JA, at para 5 (*no CanLII links)
  3. ↑ R v Safarzadeh-Markhali, 2016 SCC 14 (CanLII), per McLachlin CJ
  4. ↑ R v Tran, 2010 ABCA 317 (CanLII), per Moen JA, at para 12
    R v Song, 2009 ONCA 896 (CanLII), per curiam, at paras 8 to 12
  5. ↑ BWP, supra, at para 2
  6. ↑ BWP, supra, at para 2
    R v McGinn (1989), 49 CCC (3d) 137 (SKCA), 1989 CanLII 4784 (SK CA), per Cameron JA, (general deterrence is "punishment of the offender for what other might do")
  7. ↑ BWP, supra, at para 2
  8. ↑ R v Biancofiore, 1997 CanLII 3420 (ON CA), (1997), 119 CCC (3d) 344, per Rosenberg JA, at para 23
  9. ↑ See R v Morrissette (1970), 1 CCC (2d) 307 (Sask. C.A.), 1970 CanLII 642 (SK CA), per Culliton J, at 310
  10. ↑ R v Frost, 2012 NBCA 94 (CanLII), per Quigg JA (3:0) ("these crimes are not committed out of desperation or the result of an addiction, crimes for which general deterrence would be of little effect")
  11. ↑ Frost, ibid. ("cases such as this, where profit is the offender’s motivation, a significant penalty is generally a deterrent to others who might consider whether or not to undertake such criminal activity")
  12. ↑ R v Petrovic (1984), 47 OR (2d) 97, 1984 CanLII 2003 (ON CA), per Lacourciere JA
    R v Inwood, 1989 CanLII 263 (ONCA), per Howland CJ
  13. ↑ R v Zhou, 2016 ONCJ 547 (CanLII), [2016] OJ No 4641, per Ray J
    R v CNT, 2015 NSPC 43 (CanLII), per Atwood J, at para 9 overturned at 2016 NSCA 35 (CanLII), per curiam on other grounds
  14. ↑ R v Matheson, 2007 NSPC 43 (CanLII), per Derrick J, at para 27
    R v Clarke, [1990] NSJ 427 (NSSC)(*no CanLII links) , per Nunn J, ("If it receives no publicity then there is no general deterrence, other than the several people who may be in court at the time the sentence is given"
  15. ↑ Clarke, ibid.
  16. ↑ e.g. see BWP, supra, at para 3
  17. ↑ R v Wismayer, 1997 CanLII 3294 (ON CA), (1997), 5 C.R. (5th) 248 (C.A.), per Rosenberg JA (3:0), at paras 49, 50
    R v Biancofiore, at p. 356 (cited to CCC)
  18. ↑ R v Proulx, [2000] 1 SCR 61, 2000 SCC 5 (CanLII), per Lamer CJ, at para 107 ("Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence")
  19. ↑ Frost, supra ("The question is whether a conditional sentence is capable of providing general deterrence. ...The answer is clearly no.")
  20. ↑ Wismayer, supra, at para 52
  21. ↑ Rogers, supra, at para 43

Separation from Society - 718(c)

A sentencing judge must take into account "the exigencies of the case" before determining whether total deprivation of liberty is necessary.[1]

Mental Health

Where a person with mental illness poses a risk to the public the court may need to resort to separating the offender from society, rather than focus on treatment.[2]

Treatment in the community is generally preferred over incarceration.[3] However, this is less so for serious offences.[4]

  1. ↑ R v Creighton, [1997] OJ No 2220(*no CanLII links) , at para 6
    R v Shahcheraghi, 2017 ONSC 574 (CanLII), per MOrgan J, at para 19
  2. ↑ see R v Desjardins-Paquette, 2012 ONCA 674 (CanLII), per curiam
    R v Virani, 2012 ABCA 155 (CanLII), [2012] AJ No 507 (C.A.), per curiam (3:0), at para 16
  3. ↑ R v Lundrigan, 2012 NLCA 43 (CanLII), [2012] NJ No 231 (NLCA), per Rowe JA (3:0), at para 20
  4. ↑ see R v JM, [2008] N.J. No. 262 (P.C.) (*no CanLII links)
    R v Taylor, 2012 CanLII 42053 (NL PC), [2012] N.J. No. 251 (P.C.), per Mennie J

Rehabilitation - s.718(d)

Section 718(d) sets out the objective of "assist[ing] in rehabilitating offenders".[1] Rehabilitation can be seen to achieve the objective of protecting the public as it assists in preventing further offences.[2]

Rehabilitation Mitigates Sentence

An offender's "positive potential for rehabilitation" should be to the benefit of the accused on sentence.[3]

In certain cases, where there is a realistic possibility of rehabilitation, the courts may opt not to impose a jail sentence where it would otherwise be appropriate.[4]

Rehabilitation Requires Acceptance of Responsibility

Effective rehabilitation has been seen by some courts as requiring an acceptance of responsibility, likely by way of a guilty plea, and an understanding of the harm done.[5]

Rehabilitation Always a Factor

No sentence should deprive the offender of any hope of rehabilitation.[6]

  1. ↑ see also R v Gill (2006), 2006 BCCA 127 (CanLII), per Mackenzie JA (2:1)
  2. ↑ R v Simmons, Allen and Bezzo (1973), 13 CCC 65 (Ont.C.A.), 1973 CanLII 1522 (ON CA), per Brooke JA
  3. ↑ R v Gouliaeff, 2012 ONCA 690 (CanLII), per curiam (3:0), at para 12
  4. ↑ R v Preston, 1990 CanLII 576 (BC CA), per curiam (5:0)
  5. ↑ See R v Lee, 2011 NSPC 81 (CanLII), per Derrick J, at para 83
    R v Seguin, [1997] OJ No 5439 at 18 (*no CanLII links)
  6. ↑ R v Johnson, 2012 ONCA 339 (CanLII), per Blair JA, at paras 15-25
    R v Parry, 2012 ONCA 171 (CanLII), per Armstrong JA, at paras 17-19

Specific Offence Objectives - 718.01 and 718.02

In 2005 and 2009, sections 718.01 and 718.02 were added:

Objectives — offences against children

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
2005, c. 32, s. 24.


– CCC

Objectives — offence against peace officer or other justice system participant

718.02 When a court imposes a sentence for an offence under subsection 270(1), section 270.01 or 270.02 or paragraph 423.1(1)(b), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.
2009, c. 22, s. 18.


– CCC

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