Purpose and Principles of Sentencing: Difference between revisions

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The principles stated in s. 718.2(a),(b) and (c) are simply "restatements of the jurisprudence".<ref>
The principles stated in s. 718.2(a),(b) and (c) are simply "restatements of the jurisprudence".<ref>
R v MacDonald (1997), 113 CCC (3d) 418 at para 146 per Lane JA<br>
R v MacDonald (1997), 113 CCC (3d) 418, [http://canlii.ca/t/1mcs1 1997 CanLII 9710] (SK CA), per Lane JA, at para 146 <br>
</ref>
</ref>
Sections 718.2(d) and (e) however are more than mere directions from Parliament to consider "sanctions other than imprisonment". They require courts to consider restraint as a principle equal to all other principles found in s. 718.2 and "reduce institutional incarceration".<ref>
Sections 718.2(d) and (e) however are more than mere directions from Parliament to consider "sanctions other than imprisonment". They require courts to consider restraint as a principle equal to all other principles found in s. 718.2 and "reduce institutional incarceration".<ref>

Revision as of 13:28, 23 October 2018

Introduction

The purpose and principles of sentencing provide a guidance to judges in applying the available sentences for particular offenders. The sentencing regime in the Criminal Code and case law sets out the goals at play in all sentencings. These goals can come in conflict with each other and so must be balance against each other in every case. The principles of sentencing guide a judge to determine how these goals are balanced and how to achieve the most appropriate disposition.

Sentencing is limited to addressing what offender have done in the past and it not per se intended to remove dangerous people merely in anticipation of future harm.[1]

Sentencing is "the fixing of a fit sentence [which] is the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender".[2]

Sections 718 to 718.2 codify the objectives and principles of sentencing and are intended to “bring greater consistency and clarity” to sentencing.[3]

Sections 718 to 718.2 are to be interpreted as "remedial" and be "given such fair, large and liberal" interpretation to obtain its objectives.[4]

The system of sentencing is not simply a method of imposing penalties or costs upon an offender to prevent harmful conduct, but rather the system is to impose sentences which "positively instills the basic set of values shared by all Canadians as expressed by the Criminal Code."[5]

The courts must bring the law, including sentencing, into harmony with the prevailing social values and so must reflect changes in these values.[6]

The purpose of sentencing is not uniformity of sentence as that would be impossible and undesireable. Rather, the goal is the ensure uniformity of approach.[7]

The process of sentencing involves consideration of the following principles with each decision:[8]

  • the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment of and reparations for the harm they have done (s. 718) (see Appendix);
  • the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1); and
  • the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (s. 718.2).

Judges are not permitted to apply their own personal belief or views that are contrary to the principles of sentencing.[9]

  1. ↑ R v Knoblauch, [2000] 2 SCR 780, 2000 SCC 58 (CanLII), per Arbour J, at para 16 ("There is no mechanism in criminal law to remove dangerous people from society merely in anticipation of the harm that they may cause. The limit of the reach of the criminal sanction is to address what offenders have done.")
  2. ↑ R v Hamilton, 2004 CanLII 5549 (ON CA) at para 87
  3. ↑ R v Nasogaluak, 2010 SCC 6 (CanLII) at para 39
  4. ↑ section 12 of the Interpretation Act
    considered in R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC) at para 26 per Cory and Iacobucci JJ
  5. ↑ R v C. A. M., 1996 CanLII 230 (SCC), [1996] 1 SCR 500, at para 81
  6. ↑ R v Stone, 1999 CanLII 688 (SCC) citing R v C.A.M.
  7. ↑ R v Christie, 2004 ABCA 287 (CanLII) at para 42, 52
  8. ↑ R v L.M., [2008] 2 SCR 163, 2008 SCC 31 (CanLII), at para 17
  9. ↑ R v Song 2009 ONCA 896 (CanLII)

Determining a Fit and Proper Sentence

Sentencing of often referred to as "art" rather than science.[1] It is a "profoundly subjective process".[2] It is also a "profoundly contextual" process with wide discretion of the judges.[3] They must balance "all the relevant factors in order to the objectives being pursued in sentencing".[4]

It is "one of the most delicate stages" of a criminal proceedings.[5]

The sentencing process involves balancing "the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence".[6]

Without specific guidance from an appellate level court, the range of possible sentence for an offence is broad.[7]

A sentence should be based on the facts, including the conduct of the accused and not the philosophy or preferences of the judge.[8]

The judge must take into account all the circumstances of the offence and offender.[9]

Where precedent has not established paramount sentencing objectives, "a sentencing court has discretion to determine which sentencing objectives should be considered paramount in the particular circumstances of each case."[10]

A judge should begin by "consider[ing] and assess[ing] the overall gravity of the offence or offences committed and the circumstances in which they were committed. This reflects the basic tenet of fairness that the punishment fit the crime." [11] The nature and gravity of the offence are the "central factor in sentencing".[12]

A mischaracterization of the judicial categorization of the offence does not amount to an error of law or error in principle. It will only be appealable if the analysis results in an unfit sentence.[13]

Judge's Relationship to the Jurisdiction
It is said that a sentencing judge, "by virtue of his proximity to the communities he serves, in well placed to understand how sentencing goals can be achieved with respect to a particular offender in a particular community".[14]

  1. ↑ e.g. R v Pilon, 2014 ONCA 79 (CanLII), at para 18
    R v Arganda (J.R.), 2011 MBCA 54 (CanLII), at para 38
  2. ↑ R v Shropshire, [1995] 4 SCR 227, 1995 CanLII 47 (SCC) at para 46
  3. ↑ R v LM, [2008] 2 SCR 163, 2008 SCC 31 (CanLII) at para 51
  4. ↑ R v Lacasse, 2015 SCC 64 (CanLII) at para 1
  5. ↑ Lacasse, ibid. at para 1
  6. ↑ R v CAM, [1996] 1 SCR 500, 1996 CanLII 230 (SCC) at para 91
  7. ↑ Arcand, 2010 ABCA 363 (CanLII) at para 68
  8. ↑ Arcand at para 70
  9. ↑ R v Nasogaluak, [2010] 1 SCR 206, 2010 SCC 6 (CanLII) at para 44
  10. ↑ R v Yau, 2011 ONSC 1009 (CanLII) at para 13
  11. ↑ R v F. (D.G.), 2010 ONCA 27 (CanLII) at para 18
  12. ↑ F(DG) at para 18
  13. ↑ R v J.A.G., 2008 MBCA 55 (CanLII) at para 9
  14. ↑ R v Macintyre-Syrette, 2018 ONCA 259 (CanLII), per Juriansz JA, at para 25

Secondary Principles

The secondary principles of sentencing are listed in s. 718.2:

718.2
...

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; [1] and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

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.


– CCC

The principles stated in s. 718.2(a),(b) and (c) are simply "restatements of the jurisprudence".[2] Sections 718.2(d) and (e) however are more than mere directions from Parliament to consider "sanctions other than imprisonment". They require courts to consider restraint as a principle equal to all other principles found in s. 718.2 and "reduce institutional incarceration".[3]

  1. ↑ R v Hamilton, 2004 CanLII 5549 (ON CA)
    R v D.L., 1990 CanLII 5415 (BC CA), (1990), 53 CCC 365 (BCCA)
  2. ↑ R v MacDonald (1997), 113 CCC (3d) 418, 1997 CanLII 9710 (SK CA), per Lane JA, at para 146
  3. ↑ MacDonald, ibid. at para 147

Topics

Purpose and Principles of Specific Types of Offences

Case Digests

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