Jump, Step and Gap Principles

From Criminal Law Notebook

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]

  1. ↑ R v Bernard, 2011 NSCA 53 (CanLII), per Saunders JA, at para 26
    Frigault v R, 2012 NBCA 8 (CanLII), per Quigg JA, at para 17
    R v Robitaille, 1993 CanLII 2561 (BC CA), (1993), 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 "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]

  1. ↑ R v White, 2007 NLCA 44 (CanLII), per Cameron JA
    R v Muyser, 2009 ABCA 116 (CanLII), per Fraser JA
    R v Murphy, [2011] N.J. No. 43 (C.A.), 2011 NLCA 16 (CanLII), per Welsh JA
  2. ↑ Muyser, supra, at para 8
  3. ↑ White, supra, at paras 5 to 8
  4. ↑ Muyser, supra
  5. ↑ R v Borde, 2003 CanLII 4187 (ON CA), (2003), 63 O.R. (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)(complete citation pending)
  6. ↑ Re Morand and Simpson, (1959), 30 C.R. 298 (Sask. C.A.), 1959 CanLII 235 (SK CA), per Martin CJ
    See R v Clark, 2005 ABPC 40 (CanLII), per Lamoureux J citing Ruby on Sentencing
  7. ↑ 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.

  1. ↑ R v Borde, 2003 CanLII 4187 (ON CA), (2003), 63 O.R. (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), per curiam, at paras 10-11
  2. ↑ Muyser, supra, at para 9
  3. ↑ Frigault v R, 2012 NBCA 8 (CanLII), per Quigg JA
  4. ↑ R v Lohnes, 2007 NSCA 24 (CanLII), per Roscoe JA, at paras 40, 42
    R v Thomson, 2013 BCCA 220 (CanLII), per Harris JA, at paras 7 to 8
  5. ↑ R v Westerman, 2002 CarswellOnt 1041 (C.J.)(*no CanLII links) , at paras 28 to 30, 44 to 49
    R v Ferrigon, 2007 CarswellOnt 3072 (S.C.), 2007 CanLII 16828 (ON SC), per Molloy J, at paras 8 to 12
  6. ↑ R v Blair, 2005 ABCA 414 (CanLII), 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]

  1. ↑ R v Bush (D.F), 2006 BCCA 350 (CanLII), 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.")
  2. ↑ 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]

  1. ↑ R v Smith, 2006 NSCA 95 (CanLII), per Saunders JA, at para 36: extensive citation from Ruby on Sentencing
  2. ↑ see §8.83 of Clayton Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008)

See Also

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