Parity Principle: Difference between revisions
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; Purpose of Parity | ; Purpose of Parity | ||
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> | ||
{{CanLIIR|WE|27jkw|2010 NLCA 4 | {{CanLIIR|WE|27jkw|2010 NLCA 4 (CanLII)}}{{perNLCA|Rowe JA}}{{atL|27jkw|33}} quoting Clayton C. Ruby, Sentencing, 7th ed. (Markham, ON: LexisNexis, 2008){{atp|33}}<br> | ||
{{CanLIIR|Rawn|frzp0|2012 ONCA 487 | {{CanLIIR|Rawn|frzp0|2012 ONCA 487 (CanLII)}}{{perONCA|Epstein JA}}{{atL|frzp0|18}}<br> | ||
</ref> | </ref> | ||
It does not however override the individualized approach to sentencing. <ref> | It does not however override the individualized approach to sentencing. <ref> | ||
| Line 61: | Line 61: | ||
; Court of Appeal Sets Range | ; Court of Appeal Sets Range | ||
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> | ||
{{CanLIIR|Arcand|2dnsp|2010 ABCA 363 | {{CanLIIR|Arcand|2dnsp|2010 ABCA 363 (CanLII)}}{{perABCA|Fraser and Watson JJA}}<br> | ||
{{CanLIIR|Nasogaluak|2848x|2010 SCC 6 | {{CanLIIR|Nasogaluak|2848x|2010 SCC 6 (CanLII)}}{{perSCC|LeBel J}}<br> | ||
</ref> | </ref> | ||
However, the judges must also be sensitive to the needs of local community.<ref> | However, the judges must also be sensitive to the needs of local community.<ref> | ||
| Line 73: | Line 73: | ||
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> | ||
{{supra1|Oake}}<br> | {{supra1|Oake}}<br> | ||
cf. {{CanLIIR|Day|fx45g|2013 BCCA 172 | cf. {{CanLIIR|Day|fx45g|2013 BCCA 172 (CanLII)}}{{perBCCA|Kirkpatrick JA}}{{atL|fx45g|17}} (It is “trite law that the sentences imposed in other cases are of limited assistance in determining a fit sentence.”) | ||
</ref> | </ref> | ||
; Mandatory Minimums | ; Mandatory Minimums | ||
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> | ||
{{CanLIIR|KDH|fs78w|2012 ABQB 471 | {{CanLIIR|KDH|fs78w|2012 ABQB 471 (CanLII)}}{{perABQB|Manderscheid J}}{{atsL|fs78w|6| to 8}}<br> | ||
</ref> | </ref> | ||
; Deviations from Range Must be Justified | ; Deviations from Range Must be Justified | ||
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> | ||
{{CanLIIR|Cluney|g2ck1|2013 NLCA 46 | {{CanLIIR|Cluney|g2ck1|2013 NLCA 46 (CanLII)}}{{perNLCA|Barry JA}} | ||
</ref> | </ref> | ||
| Line 99: | Line 99: | ||
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> | ||
{{CanLIIR|Johnston|fmqxj|2011 NLCA 56 | {{CanLIIR|Johnston|fmqxj|2011 NLCA 56 (CanLII)}}{{perNLCA|White JA}}{{atL|fmqxj|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){{perNLCA|Steele JA}} {{atL|27pt7|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}} {{atL|27pt7|20}} | ||
</ref> | </ref> | ||
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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> | ||
{{supra1|Johnson}}{{atL|fmqxj|42}}<br> | {{supra1|Johnson}}{{atL|fmqxj|42}}<br> | ||
{{CanLIIR|Murphy|59sv|2001 NLCA 16 | {{CanLIIR|Murphy|59sv|2001 NLCA 16 (CanLII)}}{{perNLCA|Marshall JA}}<br> | ||
</ref> | </ref> | ||
| Line 125: | Line 125: | ||
==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> | ||
{{CanLIIR|Reitmeier|gtqg9|2016 ABCA 269 | {{CanLIIR|Reitmeier|gtqg9|2016 ABCA 269 (CanLII)}}{{TheCourtABCA}} {{atL|gtqg9|10}} | ||
</ref> | </ref> | ||
| Line 134: | Line 134: | ||
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-|9}}<br> | ''R v Issa'' (T.), (1992), 57 O.A.C. 253{{NOCANLII}}{{at-|9}}<br> | ||
{{CanLIIR|Rawn|frzp0|2012 ONCA 487 | {{CanLIIR|Rawn|frzp0|2012 ONCA 487 (CanLII)}}{{perONCA|Epstein JA}}{{atL|frzp0|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> | ||
{{CanLIIR|Sahota|ghk63|2015 ONCA 336 | {{CanLIIR|Sahota|ghk63|2015 ONCA 336 (CanLII)}}{{TheCourtONCA}}{{atL|ghk63|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> | ||
{{CanLIIR|Ellahib|2088f|2008 ABCA 281 | {{CanLIIR|Ellahib|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 | ; 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.<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> | ||
{{CanLIIR|Wilson|hqpn5|2018 ABPC 54 | {{CanLIIR|Wilson|hqpn5|2018 ABPC 54 (CanLII)}}{{perABPC| Van de Veen J}}{{atL|hqpn5|27}}<br> | ||
{{CanLIIR|Athwal|h2ph5|2017 ONCA 222 | {{CanLIIR|Athwal|h2ph5|2017 ONCA 222 (CanLII)}}{{perONCA|Juriansz JA}} <br> | ||
{{CanLIIR|Deol|h2ph6|2017 ONCA 221 | {{CanLIIR|Deol|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{{perONCA|Charron JA}} | ''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 19:48, 27 January 2021
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] Section 718.2 states that :
718.2 A court that imposes a sentence shall also take into consideration the following principles:
- [omitted (a)]
- (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
- [omitted (c), (d) and (e)]
1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; 2012, c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16; 2017, c. 13, s. 4; 2019, c. 25, s. 293.
[annotation(s) added]
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]
To fulfil this requirement sentencing judges must consider the "range" of sentences of "similar offenders for similar offences committed in similar circumstances".[4]
- Purpose of Parity
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".[5] It does not however override the individualized approach to sentencing. [6]
- Parity Does Not Trump Proportionality
The parity principle "does not preclude disparity where warranted by the circumstances, because of the principle of proportionality".[7] The principle of parity is "secondary to the fundamental principle of proportionality".[8]
- Parity and Individualization of Sentence
The parity principle is complementary to the individualization of the sentencing process. Where a sentence must be tailored to the individual, circumstances that are similar should be treated similarly, while dissimilar cases case justifiably be treated differently.[9]
- Court of Appeal Sets Range
One of the goals of the provincial courts of appeal is to maintain parity in sentence and minimize the differences in sentencing approaches.[10] However, the judges must also be sensitive to the needs of local community.[11]
- Duty to Keep With Precedent
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." [12]
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.[13]
- Mandatory Minimums
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.[14]
- Deviations from Range Must be Justified
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."[15]
- No Such Thing as a Single Appropriate Sentence
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".[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 Tuglavina, 2011 NLCA 13 (CanLII), [2011] N.J. No. 25 (NLCA), per Wells JA
Nash, supra, at para 54 - ↑
R v WE, 2010 NLCA 4 (CanLII), per Rowe JA, at para 33 quoting Clayton C. Ruby, Sentencing, 7th ed. (Markham, ON: LexisNexis, 2008), at p. 33
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 LM, 2008 SCC 31 (CanLII), [2008] 2 SCR 163, per LeBel J, at para 36
- ↑
R v Lacasse, [2015] 3 SCR 1089, 2015 SCC 64 (CanLII), per Wagner J, at para 92
- ↑ R v Pham, [2013] 1 SCR 739, 2013 SCC 15 (CanLII), per Wagner J, at para 9 ("As a corollary to sentence individualization, the parity principle requires that a sentence be similar to those imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b) of the Criminal Code). In other words, “if the personal circumstances of the offender are different, different sentences will be justified” (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at §2.41).")
- ↑
R v Arcand, 2010 ABCA 363 (CanLII), per Fraser and Watson JJA
R v Nasogaluak, 2010 SCC 6 (CanLII), per LeBel J
- ↑ Nasogaluak, ibid.
- ↑ R v Oake, [2010] N.J. No. 94 (NLCA)(*no CanLII links)
- ↑
Oake, supra
cf. 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 KDH, 2012 ABQB 471 (CanLII), per Manderscheid J, at paras 6 to 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
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, supra, 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
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