Criminal Law Notebook

Offences of Violence (Sentencing)

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General Principles

A key societal right for all people is the right to be "free from unconsented invasions on his or her physical security or dignity".[1] It is a "central purpose" of the criminal law to protect the public from such invasions.[2]

Provocation will have an effect on sentence for assault. Where the injury occurred while in an initially consensual fight the sentence will be less than where the attack was unprovoked and against a defenceless victim.[3]

In offences of violence involving a weapon, "the primary sentencing objectives to be applied are deterrence and protection of the public."[4]

Random acts of violence upon strangers will often attract jail sentence. [5]

Sports-related violence can frequently allow for discharges.[6]

  1. ↑ R v Ogg-Moss, [1984] 2 SCR 173, 1984 CanLII 77 (SCC), per Dickson J (5:0) ("One of the key rights in our society is the individual’s right to be free from unconsented invasions on his or her physical security or dignity and it is a central purpose of the criminal law to protect members of society from such invasions.")
  2. ↑ Ogg-Moss, ibid.
  3. ↑ R v Johnson, [1998] BCJ NO.2924 (BCCA)(*no CanLII links)
  4. ↑ R v Philpott, 2011 NLTD 30 (CanLII), per LeBlanc J
  5. ↑ R v Lewis, 1983 OntCA -- 9 mo for random unprovoked assault
  6. ↑ R v Carroll (1995) 38 CR 238 (BCCA)(*no CanLII links)

General Factors

Key Aggravating Factors

  1. History of spousal abuse / previously assaulted same victim
  2. Criminal record for violence or related convictions
  3. Spouse or common law spouse is victim = breach of trust
  4. Serious injuries to complainant
  5. Planned or pre-meditated
  6. Use of weapon
  7. Children witnessed the assault or were present when the assault occurred
  8. Offence occurred in the home
  9. Degradation of victim
  10. Separate acts occurring over a period of time
  11. No remorse
  12. Home invasion
  13. Intoxicated at time of offence

Other Factors

  1. degree of provocation
  2. circumstances that make it desirable to preserve the family relationship
  3. evidence that it was out of character or isolated event

Domestic Violence

Section 718.2(a)(ii) provides that “evidence that the offender, in committing the offence, abused the offender’s spouse or common law partner...shall be deemed to be an aggravating factor." This can include those who are in a sexual relationship but may not be co-habitating.[1]

A spousal connection between the offender and victim is an aggravating factor at common law.[2]

Denunciation and Deterrence are Primary
The primary principles are denunciation and general deterrence for domestic violence offences.[3]

Offences of violence that are between ex-partners would not be considered a case of domestic violence.[4]

Courts are not to tolerate domestic violence within the communities.[5]

Custodial sentences are considered the norm where significant bodily harm has been inflicted in a domestic violence situation.[6] This is in part due to courts recognizing that domestic violence is often part of continuous abuse ongoing in the relationship.[7]

  1. ↑ R v Wenc, 2009 ABCA 328 (CanLII), per curiam (3:0) at para 23 to 25
  2. ↑ R v Doyle, (1991), 108 N.S.R. (2d) 1 (C.A.), 1991 CanLII 2535 (NS CA), per Hallett JA
    R v Brown, 1992 ABCA 132 (CanLII), (1992), 13 C.R. (4th) 346, 73 CCC 242 (Alta.C.A.), per curiam
    R v Pitkeathly, 1994 CanLII 222 (ON CA), (1994), 29 C.R. (4th) 182 (Ont.C.A.), per curiam
    R v Jackson, 1996 ABCA 195 (CanLII), (1996), 106 CCC (3d) 557 (Alta.C.A.), per O'Leary JA (3:0)
    R v Edwards, 1996 CanLII 1522 (ON CA), (1996), 28 O.R. (3d) 54, 105 CCC (3d) 21 (C.A.), per Finlayson JA
    R v Stone, 1999 CanLII 688 (SCC), (1999), 134 CCC (3d) 353 (SCC), per Bastarache J (5:4)
  3. ↑ R v McCarthy, 2005 NLCA 36 (CanLII), per Cameron JA
    R v Dodd, 1999 CanLII 18930 (NL CA), (1999), 180 Nfld. & P.E.I.R. 145, per Marshall JA at 38
    R v O'Keefe, (1997), 158 Nfld. & P.E.I.R. 138 (NLPC)(*no CanLII links) at p. 252
    R v Rahaman, 2008 ONCA 1 (CanLII), per Watt JA at para 46 (The primary objectives in offences of "violence arising out of an existing or failed domestic or romantic relationship" is denunciation and deterrence.)
    R v Saghier, 2017 ONSC 227 (CanLII), per Garson J at para 46
    also see R v Dodd, [1999] N.J. No. 262 (Nfld. C.A.), 1999 CanLII 18930 (NLCA)/1999 CanLII 13904 (NL CA), per Marshall JA at para 38 -39
    R v Campbell, 2003 CanLII 48403 (ON CA), per curiam
    R v Wishlow, 2013 MBCA 34 (CanLII), per Steel JA (3:0) ("Domestic violence is a serious problem in our society and the paramount sentencing principle for assaults of this nature should be deterrence and denunciation.")
  4. ↑ R v Wesslen, 2015 ABCA 74 (CanLII), per curiam (3:0)
  5. ↑ R v Wilhelm, 2014 ONSC 1637 (CanLII), per Hill J at para 101
    R v Menary, 2012 ONCA 706 (CanLII), per curiam, at para 7
  6. ↑ R v Inwood, [1989] O.J. No. 428 (C.A.), 1989 CanLII 263 (ON CA), per Howland CJO
    Saghier, supra at para 46
  7. ↑ R v Bates, 2000 CanLII 5759 (ON CA), (2000), 146 CCC (3d) 321 (Ont. C.A.), per Moldaver and Feldman JJA at para 30

Position of Trust

Position of Trust as a Factor in Sentencing

Child Victims

See also: Victims as a Factor in Sentencing

Offences of violence against children by their parents requires a strong response due to their inability to defend themselves and the fiduciary duty towards them.[1]

The most important factors to consider is the child's exposure to harm and the forseeability of the harm.[2]

Certain courts have divided offences involving the assault of children into three categories:[3]

  1. cases involving the application of force with the expectation of causing injury or indifference to it;
  2. cases involving the application of force where a parent was immature and unskilled and acting out of emotional upset, frustration or temper and did not fully appreciate the serious injuries which might result; and
  3. cases involving diminished responsibility through mental disorder where the abnormal mental condition of the accused requires the treatment of the offender to be given priority over the principles of general and individual deterrence.
  1. ↑ R v Laberge, 1995 ABCA 196 (CanLII), per Fraser CJ at para 28
  2. ↑ R v Nickel, 2012 ABCA 158 (CanLII), per Watson JA (3:2) at paras 34, 35
  3. ↑ R v MacDonald (K.), 2009 MBCA 36 (CanLII), 236 Man.R. (2d) 239, per Scott CJ at para 14

Peace Officers

Police officers put themselves in harm's way to protect the community and preserve a just, peaceful and safe society. "Violent attacks upon police officers who are doing their duty are attacks on the rule of law and on the safety and well-being of the community as a whole. Sentences imposed for those attacks must reflect the vulnerability of the police officers, society's dependence on the police, and society’s determination to avoid a policing mentality which invites easy resort to violence in the execution of the policing function."[1]

  1. ↑ R v MacArthur, [2004] O.J. No. 721 (ONCA)(*no CanLII links) at para 49

Transit Workers

Aggravating circumstance — assault against a public transit operator
269.01 (1) When a court imposes a sentence for an offence referred to in paragraph 264.1(1)(a) or any of sections 266 to 269, it shall consider as an aggravating circumstance the fact that the victim of the offence was, at the time of the commission of the offence, a public transit operator engaged in the performance of his or her duty.

Definitions
(2) The following definitions apply in this section.
“public transit operator” means an individual who operates a vehicle used in the provision of passenger transportation services to the public, and includes an individual who operates a school bus.
“vehicle” includes a bus, paratransit vehicle, licensed taxi cab, train, subway, tram and ferry.
2015, c. 1, s. 1.


– CCC

Offender a Persons in Authority

Factors to offences of violence by police officers:[1]

  1. Was the officer on duty at the time or off duty?
  2. Was the offence committed spontaneously in the heat of the moment or was it committed continually or with time for the officer to consider his actions?
  3. Was there a concern for his personal or fellow officers’ safety at the time of the assault?
  4. Was the victim a prisoner in the officer’s custody in an institution?
  5. What was the nature of the assault?
  6. What were the injuries suffered by the victim?
  7. Was the sentencing at the conclusion of a trial or was it a result of a guilty plea?
  8. Did the officer express or show remorse?
  9. Did the officer impede or assist the resulting police investigation of his actions?
  10. What was the experience and rank of the officer at the time of the offence?
  1. ↑ R v Gillian, 2009 BCPC 241 (CanLII), per Watchuk J at para 69


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