Jump, Step and Gap Principles: Difference between revisions
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==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> | ||
{{ | {{CanLIIRP|Bernard|flrt1|2011 NSCA 53 (CanLII)|275 CCC (3d) 545}}{{perNSCA|Saunders JA}}{{atL|flrt1|26}}<br> | ||
{{ | {{CanLIIRPC|Frigault v R|fpvch|2012 NBCA 8 (CanLII)|991 APR 266}}{{perNBCA|Quigg JA}}{{atL|fpvch|17}}<br> | ||
{{CanLIIRP|Robitaille|1dc39|1993 CanLII 2561 (BCCA)|31 BCAC 7}}{{perBCCA|Lambert JA}}{{atL|1dc39|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 | {{CanLIIRP|Robitaille|1dc39|1993 CanLII 2561 (BCCA)|31 BCAC 7}}{{perBCCA|Lambert JA}}{{atL|1dc39|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> | ||
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==Jump/Step Principle== | ==Jump/Step Principle== | ||
The "jump" or "step" principle (also called the "ladder principle" or 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 "ladder principle" or 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> | ||
{{ | {{CanLIIRP|White|1rvsv|2007 NLCA 44 (CanLII)|822 APR 351}}{{perNLCA|Cameron JA}}<br> | ||
{{ | {{CanLIIRP|Muyser|22xkv|2009 ABCA 116 (CanLII)|457 AR 216}}{{perABCA|Fraser JA}}<br> | ||
{{CanLIIRP|Murphy|2fn2v|2011 NLCA 16 (CanLII)|[2011] NJ No 43 (CA)}}{{perNLCA|Welsh JA}}</ref> | {{CanLIIRP|Murphy|2fn2v|2011 NLCA 16 (CanLII)|[2011] NJ No 43 (CA)}}{{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> | ||
| Line 28: | Line 28: | ||
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> | ||
{{CanLIIRP|Borde|1c062|2003 CanLII 4187 (ON CA)|63 OR (3d) 417}}{{perONCA|Rosenberg JA}}{{atL|1c062|39}} ("[the jump] principle cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past. It has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.")<br> | {{CanLIIRP|Borde|1c062|2003 CanLII 4187 (ON CA)|63 OR (3d) 417}}{{perONCA|Rosenberg JA}}{{atL|1c062|39}} ("[the jump] principle cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past. It has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.")<br> | ||
{{ | {{CanLIIRP|Courtney|frz4k|2012 ONCA 478 (CanLII)|294 OAC 346}}{{TheCourtONCA}}<br> | ||
</ref> | </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> | ||
{{CanLIIRPC|Re Morand and Simpson|g7b2r|1959 CanLII 235 (SK CA)| (1959), 30 CR 298 (Sask CA)}}{{perSKCA|Martin CJ}}<br> | {{CanLIIRPC|Re Morand and Simpson|g7b2r|1959 CanLII 235 (SK CA)| (1959), 30 CR 298 (Sask CA)}}{{perSKCA|Martin CJ}}<br> | ||
See {{ | See {{CanLIIRx|Clark|1jxww|2005 ABPC 40 (CanLII)}}{{perABPC|Lamoureux J}} citing Ruby on Sentencing | ||
</ref> | </ref> | ||
Or where the sentence goes from probation to 8 years.<ref> | Or where the sentence goes from probation to 8 years.<ref> | ||
| Line 44: | Line 44: | ||
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> | ||
{{CanLIIRP|Borde|1c062|2003 CanLII 4187 (ON CA)|63 OR (3d) 417}}{{perONCA|Rosenberg JA}}{{atL|1c062|39}} ("[The jump principle] has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.")<br> | {{CanLIIRP|Borde|1c062|2003 CanLII 4187 (ON CA)|63 OR (3d) 417}}{{perONCA|Rosenberg JA}}{{atL|1c062|39}} ("[The jump principle] has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.")<br> | ||
{{ | {{CanLIIRx|JG|1lr4j|2005 CanLII 36170 (ON SC)}}{{perONSC|R. Smith J.}}<br> | ||
{{ | {{CanLIIRP|Courtney|frz4k|2012 ONCA 478 (CanLII)|294 OAC 346}}{{TheCourtONCA}}{{atsL|frz4k|10| to 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> | ||
{{ | {{CanLIIRP|Muyser|22xkv|2009 ABCA 116 (CanLII)|457 AR 216}}{{perABCA|Fraser JA}}{{atL|22xkv|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> | ||
{{ | {{CanLIIRPC|Frigault v R|fpvch|2012 NBCA 8 (CanLII)|991 APR 266}}{{perNBCA|Quigg JA}}<br> | ||
</ref> | </ref> | ||
And also where rehabilitation is not realistic and record is related to the offence.<ref> | And also where rehabilitation is not realistic and record is related to the offence.<ref> | ||
{{ | {{CanLIIRP|Lohnes|1qnz5|2007 NSCA 24 (CanLII)|217 CCC (3d) 392}}{{perNSCA|Roscoe JA}}{{atsL|1qnz5|40|}}, {{atsL-np|1qnz5|42}}<br> | ||
{{ | {{CanLIIRx|Thomson|fxbhx|2013 BCCA 220 (CanLII)}}{{perBCCA|Harris JA}}{{atsL|fxbhx|7| to 8}}<br> | ||
</ref> | </ref> | ||
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The jump principle cannot trump the principle of proportionality.<ref> | The jump principle cannot trump the principle of proportionality.<ref> | ||
{{ | {{CanLIIRP|Blair|1m3vk|2005 ABCA 414 (CanLII)|380 AR 383}}{{perABCA|Costigan JA}}{{atL|1m3vk|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> | ||
{{ | {{CanLIIRP|Bush (D.F)|1p29n|2006 BCCA 350 (CanLII)|70 WCB (2d) 287}}{{perBCCA|Ryan JA}}{{atL|1p29n|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> | This principle however should not be applied where denunciation and deterrence are the primary goals.<ref> | ||
{{ibid1|Bush}}{{atL|1p29n|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> | {{ibid1|Bush}}{{atL|1p29n|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> | ||
| Line 80: | Line 80: | ||
==Gap Principle== | ==Gap Principle== | ||
The "gap principle" directs courts to take into consideration the gaps of time between offences.<ref> | The "gap principle" directs courts to take into consideration the gaps of time between offences.<ref> | ||
{{ | {{CanLIIRP|Smith|1p11l|2006 NSCA 95 (CanLII)|211 CCC (3d) 107}}{{perNSCA|Saunders JA}}{{atL|1p11l|36}}: extensive citation from Ruby on Sentencing</ref> | ||
It gives credit to someone who has made an effort to avoid criminal charges. | 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> | ||
The purpose of the principle is to ensure that an offender "who has rectified past behaviour for a substantial period of time should be considered as having better prospects for individual deterrence and rehabilitation".<ref> | The purpose of the principle is to ensure that an offender "who has rectified past behaviour for a substantial period of time should be considered as having better prospects for individual deterrence and rehabilitation".<ref> | ||
{{ | {{CanLIIRP|MacLeod|1gmn6|2004 NSCA 31 (CanLII)|182 CCC (3d) 470}}{{perNSCA|Cromwell JA}}{{atL|1gmn6|25}} | ||
</ref> | </ref> | ||
Revision as of 18:04, 10 August 2021
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), 275 CCC (3d) 545, per Saunders JA, at para 26
Frigault v R, 2012 NBCA 8 (CanLII), 991 APR 266, per Quigg JA, at para 17
R v Robitaille, 1993 CanLII 2561 (BCCA), 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 "ladder principle" or 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), 822 APR 351, per Cameron JA
R v Muyser, 2009 ABCA 116 (CanLII), 457 AR 216, per Fraser JA
R v Murphy, 2011 NLCA 16 (CanLII), [2011] NJ No 43 (CA), per Welsh JA - ↑
Muyser, supra, at para 8
- ↑ White, supra, at paras 5 to 8
- ↑ Muyser, supra
- ↑
R v Borde, 2003 CanLII 4187 (ON CA), 63 OR (3d) 417, per Rosenberg JA, at para 39 ("[the jump] principle cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past. It has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.")
R v Courtney, 2012 ONCA 478 (CanLII), 294 OAC 346, per curiam
- ↑
Re Morand and Simpson, 1959 CanLII 235 (SK CA), (1959), 30 CR 298 (Sask CA), per Martin CJ
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 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), 63 OR (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 JG, 2005 CanLII 36170 (ON SC), per R. Smith J.
R v Courtney, 2012 ONCA 478 (CanLII), 294 OAC 346, per curiam, at paras 10 to 11 - ↑
R v Muyser, 2009 ABCA 116 (CanLII), 457 AR 216, per Fraser JA, at para 9
- ↑
Frigault v R, 2012 NBCA 8 (CanLII), 991 APR 266, per Quigg JA
- ↑
R v Lohnes, 2007 NSCA 24 (CanLII), 217 CCC (3d) 392, per Roscoe JA, at paras 40, 42{{{3}}}
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 CanLII 16828 (ONSC), , 2007 CarswellOnt 3072 (S.C.), per Molloy J, at paras 8 to 12
- ↑ R v Blair, 2005 ABCA 414 (CanLII), 380 AR 383, 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), 70 WCB (2d) 287, 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]
The purpose of the principle is to ensure that an offender "who has rectified past behaviour for a substantial period of time should be considered as having better prospects for individual deterrence and rehabilitation".[3]
- ↑ R v Smith, 2006 NSCA 95 (CanLII), 211 CCC (3d) 107, 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)
- ↑ R v MacLeod, 2004 NSCA 31 (CanLII), 182 CCC (3d) 470, per Cromwell JA, at para 25