Proportionality

From Criminal Law Notebook

General Principles

No matter what the balance between objectives, the sentence must always satisfy the fundamental principle of sentencing under s. 718.1.[1]

Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
R.S., 1985, c. 27 (1st Supp.), s. 156; 1995, c. 22, s. 6.


– CCC

Where the sentence is not proportionate it is not just. [2] Thus, it is central to the sentencing process. [3]

Proportionality is a fundamental principle of sentences that is "the sine qua non of a just sanction".[4]

Proportionality relates to both gravity of the offence and the responsibility of the offender.[5]

The sentence must be no greater than the offenders moral culpability. [6] The severity sanction should reflect the seriousness and gravity of the criminal conduct. [7] And when the sentence is not adequate to address the seriousness of the offence then it is not proportionate. [8]

"Moral blameworthiness" is "measured by the gravity of the offence and the degree of responsibility of the offender."[9] This requires the court to consider the (1) individual offender, (2) the harm to the victim, and (3) the harm to society at large.[10]

A proper sentence is not just about the offender but also about the harm to the victim and community. Harm is one of the "central elements" in proportionality.[11]

Related to this principle, "those causing harm intentionally [should] be punished more severely than those causing harm unintentionally".[12]

When crafting a sentence for multiple offences, proportionality can be achieved either "by imposing concurrent sentences" or "by applying the totality principle to consecutive sentences".[13]

A proper sentence consistent with s. 718.1 can become difficult to gauge where the gravity of the offence may operate against the "factors mitigating personal responsibility."[14]

Totality
A component of the principle of proportionality is the principle of totality.[15]

  1. ↑ R v Nasogaluak, [2010] 1 SCR 206, 2010 SCC 6 (CanLII), at 40
  2. ↑ R v Arcand, 2010 ABCA 363 (CanLII) at para 52 (proportionality is “the overarching principle since a disproportionate sanction can never be a just sanction.”)
  3. ↑ R v Solowan, 2008 SCC 62 (CanLII), [2008] 3 SCR 309, at para 12
    R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC)
  4. ↑ R v Safarzadeh-Markhali, 2016 SCC 14 (CanLII), at paras 70-71 ("[p]roportionality in the sense articulated at s 718.1 of the Code — that a sentence be proportionate to the gravity of an offence and an offender’s degree of responsibility — is a fundamental principle of sentencing ... proportionality is “the sine qua non of a just sanction")
    R v Ipeelee, 2012 SCC 13 (CanLII) at para 37
  5. ↑ R v Lacasse, 2015 SCC 64 (CanLII) at para 51 to 54
  6. ↑ R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, at para 40 to 42
    R v C.A.M., at para 40 ("the principle of proportionality in punishment is fundamentally connected to the general principle of criminal liability which holds that the criminal sanction may only be imposed on those actors who possess a morally culpable state of mind")
    R v Martineau, 1990 CanLII 80 (SCC) (“punishment must be proportionate to the moral blameworthiness of the offender”)
  7. ↑ Arcand, supra, at para 48 (“severity of sanction for a crime should reflect the...seriousness of the criminal conduct”)
    R v C.A.M., 1996 CanLII 230 (SCC), [1996] 1 SCR 500 at para 40
    Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 SCR 486 at 533, 24 D.L.R. (4th) 536 ("It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system.")
  8. ↑ Arcand, supra, at para 54
  9. ↑ R v Paradee, 2013 ABCA 41 (CanLII) at para 9
  10. ↑ Paradee, ibid. at para 10
  11. ↑ Arcand, supra at para 67 ("The process is also about the harm to the victim and the community from the crime. Harm properly occupies a prominent place in the sentencing process, representing as it effectively does one of the central elements in the proportionality principle, the gravity of the offence.")
  12. ↑ R v Martineau, 1990 CanLII 80 (SCC), [1990] 2 SCR 633 at 645, 58 CCC (3d) 353
  13. ↑ R v Guha, 2012 BCCA 423 (CanLII) at para 39
  14. ↑ R v Hamilton, 2004 CanLII 5549 (ON CA), at para 93
  15. ↑ R v Sidwell, 2015 MBCA 56 (CanLII) at para 16 ("An important component of the principle of proportionality is the principle of totality, which is embedded in s. 718.2(c) of the Code")

Individualization

From this, it is well established that sentencing is a highly discretionary endeavour. Each sentence is to be custom tailored to match the particular offender. [1]

Based on the purposes and principles set out in 718 and 718.2, sentencing is a highly individualized process that takes into account the offence, as well as the offender.[2]

There is no "one size fits all" penalties.[3]

Sentencing is “an inherently individualized process.”[4]

It is also a "profoundly subjective process."[5]

The process is considered particularly difficult when "otherwise decent, law-abiding persons persons commit very serious crimes in circumstances that justifiably attract understanding and empathy".[6]

Gravity of an offence can be measured in part by the lasting emotional effects of the offence upon the victim.[7]

The individualization of a sentence to account with the characteristics of a particular offender should not reduce a global sentence to the point where it not proportionate with the misconduct.[8]

While a sentence may occasionally seem "harsh for the individual", but the court must "reflect the degree of injury to our common values as well as to the victim of the offence".[9]

  1. ↑ R v Bottineau, 2011 ONCA 194 (CanLII)(sentencing “is a fact-sensitive process. Imposing a sentence depends very much on the facts of a particular case and the circumstances and culpability of the particular offender. That said, the sentence imposed must be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”)
  2. ↑ R v Angelillo 2006 SCC 55 (CanLII), (2006), 274 D.L.R. (4th) 1
    R v Briand and Matthews (No. 3), 2010 NLCA 67 (CanLII), [2010] N.J. No. 339 (C.A.)
    R v Shoker, [2006] S.C.J. No. 44, 2006 SCC 44 (CanLII)
    R v Hamilton, [2004] O.J. No. 3252, 2004 CanLII 5549 (ON CA) at 87 ("Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint-by- numbers landscape is to the real thing. The fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence and the unique attributes of the specific offender.")
    R v Grady (1971), 5 N.S.R. (2d) 264(*no CanLII links) at p. 266:("It would be a grave mistake, it appears to me, to follow rigid rules for determining the type and length of sentence in order to secure a measure of uniformity, for almost invariably different circumstances are present in the case of each offender. ...")
  3. ↑ R v Lee, 2012 ABCA 17 (CanLII) at para 12
  4. ↑ R v CAM, [1996] 1 SCR 500, 1996 CanLII 230 (SCC), para 92
  5. ↑ R v Shropshire, [1995] 4 SCR 227, 1995 CanLII 47 (SCC), at para 46
  6. ↑ R v Hamilton, 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252 (Ont. C.A.) at para 1
  7. ↑ R v Butler, 2008 NSCA 102 (CanLII)
  8. ↑ R v Innes, 2008 ABCA 129 (CanLII), 429 A.R. 164
  9. ↑ R v JCK, 2013 ABCA 50 (CanLII) at para 31 ("The unhappy duty of the Courts on occasion is to impose sentences that may seem harsh for the individual, but are driven by the need to reflect the degree of injury to our common values as well as to the victim of the offence.")

Moral Culpability and Blameworthiness

The law does not require foresight into the consequences of the criminal act for a person to be liable for those consequences. Parliament may then treat offences with certain consequences as more serious than others.[1] Consequently, it is incorrect to equate the same level of moral blameworthiness between impaired driving and impaired driving causing death. [2] A more serious consequence then warrants a greater penalty.[3]

  1. ↑ R v DeSousa, 1992 CanLII 80 (SCC) at p. 964 ("it is acceptable to distinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused")
  2. ↑ e.g. discussion at R v Smith, 2013 BCCA 173 (CanLII) at paras 40 - 46
  3. ↑ Smith at para 45
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