Denunciation and Deterrence

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 81160)

General Principles

See also: Purpose and Principles of Sentencing and Enumerated Purposes of Sentencing
Purpose

718 The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;

[omitted (c), (d), (e) and (f)]
R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6; 2015, c. 13, s. 23.

– CCC

Note up: 718

It is generally considered that as the gravity fothe offence increases the weight to the objectives of deterrence and denunication increase.[1]

Effect Upon Law-abiding vs Chronic Offenders

Denunciation and deterrence are particularly important in sentencing law-abiding offenders as harsh sentences will have a greater effect on those who are otherwise law-abiding when compared to chronic offenders.[2]

Consequence of Emphasis on Denunciation and Deterrence

When an offence requires priority on denunciation and deterrence, the judge must place greater focus on the offence rather than the offender.[3] The purpose is to "better reflect the gravity and wrongfulness of the conduct and the serious harm it causes".[4]

Denunciation and Deterrence of an Intermittent Sentence

The intermittently served jail sentence "strikes a legislative balance" between the objectives of denunciation and deterrence while preserving rehabilitation through the maintenance of employment, family relationships and responsibilities, and community obligations.[5]

  1. ↑ R v Ahmed, 2021 ONSC 6968 (CanLII), per Schreck J, at para 15 ("As a general rule, the weight to be attached to the objectives of general deterrence and denunciation will increase as the gravity of the offence increases")
    R v Morris, 2021 ONCA 680 (CanLII), per curiam, at para 69
  2. ↑ R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, per Wagner J, at para 73 ("While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinarily law‑abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences. ")
  3. ↑ R v LR, 2021 BCPC 7, per Doulis J(complete citation pending) ("When the principles of denunciation and deterrence have priority, the sentencing judge’s focus is more on the offence than on the offender.")
  4. ↑ R v KNDW, 2020 MBCA 52 (CanLII)(complete citation pending), at para. 21 ("The reason for this priority focus on conduct is to better reflect the gravity and wrongfulness of the conduct and the serious harm it causes”)
    R. v. Friesen, 2020 SCC 9(complete citation pending) at para 82
  5. ↑ R v Middleton, 2009 SCC 21 (CanLII), [2009] 1 SCR 674, per Fish J, at para 45 ("Intermittent sentences strike a legislative balance between the denunciatory and deterrent functions of “real jail time” and the rehabilitative functions of preserving the offender’s employment, family relationships and responsibilities, and obligations to the community.")

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 denunciatory sentence must also "positively instill the basic set of communal values shared by all Canadians as expressed by the Criminal Code."[2]

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."[3]

Retribution

Retribution is an important consideration in sentencing.[4] It is a principle of sentencing "based on an offender's moral blameworthiness or culpability, and the seriousness of the offence and its circumstances."[5]

Denunciation should not be equated with retribution which is a separate legitimate purpose of sentencing.[6] Nor should retribution be equated with vengance.[7]

Symbolism and Impossible Sentences

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".[8]

Character Evidence

It is generally said that character evidence, including that from uncharged-offences, is usually only connected to specific deterrence and not denunciation.[9]

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."[10]

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. [11]

Conditional Sentence

Where denunciation is a paramount consideration a conditional sentence is not necessarily ruled out.[12]

A conditional sentence under s. 742.1 that includes "onerous" conditions may provide some denunciation but incarceration will generally provide greater denunciation.[13]

  1. ↑ R v Proulx, 2000 SCC 5 (CanLII), [2000] 1 SCR 61, per Lamer CJ, at para 102
    R v CAM, 1996 CanLII 230 (SCC), [1996] 1 SCR 500, per Lamer CJ ("A sentence which expresses denunciation is simply the means by which these values are communicated.") and 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. ↑ M(CA), supra, at para 81
  3. ↑ R v Latimer, 2001 SCC 1 (CanLII), [2001] 1 SCR 3, per curiam, at para 86
  4. ↑ 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. ")
  5. ↑ 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)
  6. ↑ CAM, supra, at para 81 ("Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation...")
  7. ↑ CAM, supra, at para 80
  8. ↑ R v Klaus, 2018 ABQB 97 (CanLII), 67 Alta LR (6th) 328, per Macklin J, at para 110
    R v McArthur, 2019 ONSC 963 (CanLII), per McMahon J, at para 96
  9. ↑ R v Lindsay, 2021 ABQB 839 (CanLII), per Lema J, at paras 40 to 45
  10. ↑ R v Safarzadeh-Markhali, 2016 SCC 14 (CanLII), [2016] 1 SCR 180, per McLachlin CJ
  11. ↑ R v Ewanchuk, 2002 ABCA 95 (CanLII), 164 CCC (3d) 193, per curiam, at para 65
    R v Ambrose, 2000 ABCA 264 (CanLII), 234 WAC 161, per curiam, at para 134
    R v Kneale, [1999] OJ No 4062 (SCJ)(*no CanLII links) , at para 35
  12. ↑ R v Wells, 2000 SCC 10 (CanLII), [2000] 1 SCR 207, per Iacobucci J, at paras 31 to 35
  13. ↑ 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] When it is targeting the offender in court, it is referred to as "specific deterrence", when it is targeting others, it is "general deterence".[2]

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.[3]

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."[4]

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".[5]

Achieving Deterrence

There continues to be controversy outside of the courts about whether deterrence is effective.[6] Some have suggested that the availability of conditional sentences is an concession that general deterrence is "speculative".[7]

Given that incarceration is harsher than a conditional sentence it is considered more effective at providing deterrence.[8]

It has been said that conditional sentences are not necessarily capable of providing general deterrence.[9] 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."[10]

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.[11]

  1. ↑ R v BWP; R v BVN, 2006 SCC 27 (CanLII), [2006] 1 SCR 941, per Charron J, at para 2
  2. ↑ BVN, ibid. at para 2 ("When deterrence is aimed at the offender before the court, it is called “specific deterrence”, when directed at others, “general deterrence”.)
  3. ↑ R v Roussy, [1977] OJ No 1208 (Ont. C.A.)(*no CanLII links) , per Zuber JA, at para 5
  4. ↑ R v Safarzadeh-Markhali, 2016 SCC 14 (CanLII), [2016] 1 SCR 180, per McLachlin CJ
  5. ↑ R v Tran, 2010 ABCA 317 (CanLII), 263 CCC (3d) 512, per Moen JA, at para 12
    R v Song, 2009 ONCA 896 (CanLII), 249 CCC (3d) 289, per curiam, at paras 8 to 12
  6. ↑ e.g. see BWP, supra, at para 3
  7. ↑ R v Wismayer, 1997 CanLII 3294 (ON CA), CR (5th) 248 (CA), per Rosenberg JA (3:0), at paras 49 to 50
    Biancofiore, supra, at p. 356 (cited to CCC)
  8. ↑ R v Proulx, 2000 SCC 5 (CanLII), [2000] 1 SCR 61, per Lamer CJ, at para 107 ("Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence")
  9. ↑ Frost, supra ("The question is whether a conditional sentence is capable of providing general deterrence. ...The answer is clearly no.")
  10. ↑ Wismayer, supra, at para 52
  11. ↑ Rogers, supra, at para 43

Specific Deterrence

Specific deterrence targets the specific offender before the court.[1]

The character and background of the offender, including prior bad conduct, is relevant to analysis for specific deterrence.[2]

Character evidence is admissible to assess the danger to the community while serving the sentence.[3]

Prior Criminal Record

Judges must avoid punishing an accused again for previous convictions.[4]

However, a record can be used to determine the "normative character of the accused" and may be viewed as aggravating.[5] It is also used to assess how the protection of the public can be best achieved and what are the prospects of rehabilitation.[6]

  1. ↑ R v BWP; R v BVN, 2006 SCC 27 (CanLII), [2006] 1 SCR 941, per Charron J, at para 2
  2. ↑ BM, 2008 ONCA 645(complete citation pending) at para 11 ("prior abusive conduct may … be relevant at the sentencing stage to show the character and background of the offender as it relates to the principles of sentencing: ... . The background and character of the offender may be considered, for example, in order to assess the need for individual deterrence, rehabilitation, or the protection of the public. Such information is essential for crafting a sentence suitable for a particular offender.")
    R v. Edwards (2001), 2001 CanLII 24105 (ON CA), 155 C.C.C. (3d) 473 (Ont. C.A.) at para. 63(complete citation pending)
    R v. Roberts (2006), 2006 ABCA 113 (CanLII), 208 C.C.C. (3d) 454 (Alta. C.A.) at para. 28(complete citation pending)
  3. ↑ R v Flis, 2003 ABQB 44, per Greckol J(complete citation pending), at para 36 ("Such evidence may be admissible to help assess the danger to the community posed by the offender while serving his sentence in the community in terms of the risk of his failing to comply with court orders or re-offending")
  4. ↑ R v Wright, 2010 MBCA 80 at para 16(complete citation pending)
  5. ↑ Wright, ibid. at para 16 ("a prior criminal record can assist that judge in determining the normative character of that accused and, when that record shows repeated related criminal behaviour, it may be viewed as an aggravating factor (thereby causing the sentence to be increased along the appropriate range of sentences) in order to better address certain objectives of sentencing more particular to the offender, such as specific deterrence, protection of society and/or the prospects of rehabilitation.)
  6. ↑ Wright, ibid. at para 16

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." [1] R v McGinn, 1989 CanLII 4784 (SK CA), 49 CCC (3d) 137, per Cameron JA, (general deterrence is "punishment of the offender for what other might do")
</ref> 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.” [2]

When general deterrence is emphasized, the deterrent effect of incarceration can be somewhat speculative and so should be used with great restraint.[3] A lengthy sentence is not the only way of achieving the objective of general deterrence.[4]

Crimes committed out of desperation or addiction, such as much drug trafficking, are not offences for which general deterrence has much effect.[5]

Crimes motivated by profit, which can also be drug trafficking, will be addressable by general deterrence.[6]

Offences against recognized classes of vulnerable victims require the Courts to heighten their emphasis on general deterrence.[7]

Vulnerable classes have included young female victims of distribution of intimate images.[8]

A court cannot impose a "grossly disproportionate" sentence for the purpose of sending "send a message to discourage others from offending".[9]

Character Evidence

It is generally said that character evidence, including that from uncharged-offences, is usually only connected to specific deterrence and not general deterrence.[10]

General Deterrence Without Custody

In some cases, the use of a suspended sentence, with the risk of jail on breach of conditions can provide general deterrence.[11]

Publicity

The degree to which the case is covered by media is relevant to general deterrence.[12] Where there is no publicity of the case at all then there can be no general deterrence.[13]

  1. ↑ R v BWP; R v BVN, 2006 SCC 27 (CanLII), [2006] 1 SCR 941, per Charron J, at para 2
  2. ↑ BWP, supra, at para 2
  3. ↑ R v Biancofiore, 1997 CanLII 3420 (ON CA), 119 CCC (3d) 344, per Rosenberg JA, at para 23
  4. ↑ See R v Morrissette, 1970 CanLII 642 (SK CA), 1 CCC (2d) 307, per Culliton J, at 310
  5. ↑ R v Frost, 2012 NBCA 94 (CanLII), 1024 APR 305, 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")
  6. ↑ 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")
  7. ↑ R v Petrovic, 1984 CanLII 2003 (ON CA), 47 OR (2d) 97, per Lacourciere JA
    R v Inwood, 1989 CanLII 263 (ON CA), 48 CCC (3d) 173, per Howland CJ
  8. ↑ 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
  9. ↑ R v Nur, 2015 SCC 15 (CanLII), [2015] 1 SCR 773, at para 45
  10. ↑ R v Lindsay, 2021 ABQB 839 (CanLII), per Lema J, at paras 31 to 39
  11. ↑ R v R. v. Thompson (1983), 58 NSR (2d) 21 (NS CA){{{2}}}(*no CanLII links) , per Hart JA ("In my opinion when there is a strong chance of complete rehabilitation of the young offender the suspension of sentence with the imposition of controls to bring about that rehabilitation is a suitable method of protecting the public. Although the general deterrence of a period of imprisonment does not appear on the surface of this arrangement it must always be remembered that it is there. The offender who chooses to avoid the controls chosen for his rehabilitation may very well end up in prison, and as long as the public is assured of this then all the proper elements of sentencing are there.")
  12. ↑ R v Matheson, 2007 NSPC 43 (CanLII), 820 APR 174, 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"
  13. ↑ Clarke, ibid.
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