Criminal Law Notebook

Proportionality

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General Principles

See also: Parity Principle

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 (CanLII), (DOJ)

Note up: 718.1

The purpose of proportionality is founded in "fairness and justice". It is to prevent unjust punishment for the "sake of the common good."[2] It is considered another form of "just deserts."[3]

Proportionality as a Combination of Gravity of Offence and Responsibility of Offender

Proportionality relates to both gravity of the offence and the responsibility of the offender.[4]

The sentence must be no greater than the offender's moral culpability.[5] This is to ensure that there is "justice for the offender."[6] The severity of a 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]

Likewise, a sentence must be "severe enough to denounce the offence" but should not exceed the moral blameworthiness of the offender and gravity of the offence.[9]

Proportionality as a Combination of Individualization and Parity

A proportionate sentence has been described as a "reconciliation" between the necessary individualization and necessary party of a sentence.[10]

Making an "example" of an offender in the face of evidence of rehabilitation is "incompatible" with the individualization principle.[11] In that sense, proportionality has a "restraining function" to a sentence.[12]

The principle of "parity" is an expression of the broader principle of proportionality.[13]

Proportionality and a Just Sentence

Proportionality is a fundamental principle of sentences that is "the sine qua non of a just sanction."[14]

Where the sentence is not proportionate it is not just.[15]

Proportionality is necessary to maintain public confidence in the fairness and rationality of the system.[16]

Proportionality and General Deterrence

An offender cannot be subject to a "grossly disproportionate punishment" in order to send a message to others.[17]

A Just Sentence Involves Community and Victim

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.[18]

A court may be in error if it fails to consider the "needs and conditions" of the community in which the offence occurred.[19]

Proportionality, Multiple Offences and Totality

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."[20]

A component of the principle of proportionality is the principle of totality.[21]

History

The inclusion of s. 718.1 in 1996 with An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 (Bill C-41) did not create the principle but rather codified a "central tenent of the sentencing process."[22]

  1. ↑ R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J (9:0), at para 40
  2. ↑ R v Priest, 1996 CanLII 1381 (ON CA), , 30 OR (3d) 538, 110 CCC (3d) 289, per Rosenberg JA, at pp. 546-47 (cited to OR), at pp. 297-98 (CCC) ("The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.")
  3. ↑ R v Arcand, 2010 ABCA 363 (CanLII), per J, at para 47
  4. ↑ R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, per Wagner J (5:2), at paras 51 to 54
    R v Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 SCR 433, per LeBel J (6:1), at para 36 ("The fundamental principle of sentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender.") and at para 38 ("In every case, an appellate court must be satisfied that the sentence under review is proportionate to both the gravity of the offence and the degree of responsibility of the offender.")
  5. ↑ Nasogaluak, supra, at paras 40 to 42
    R v CAM, 1996 CanLII 230 (SCC), [1996] 1 SCR 500, per Lamer CJ, 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), [1990] 2 SCR 633, per Lamer CJ (“punishment must be proportionate to the moral blameworthiness of the offender”)
  6. ↑ Ipeelee, supra, at para 37 ("...the principle serves a limiting or restraining function and ensures justice for the offender.")
  7. ↑ Arcand, supra, at para 48 (“severity of sanction for a crime should reflect the...seriousness of the criminal conduct”)
    CAM, supra, at para 40
    Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 SCR 486 at 533, 24 DLR (4th) 536, per Lamer J ("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 Bissonnette, 2022 SCC 23 (CanLII), 414 CCC (3d), per Wagner CJ, at para 50
  10. ↑ R v Evans, 2019 ONCA 715 (CanLII), 377 CCC (3d) 231, per Watt JA, at para 275 (“[w]e determine proportionality both on an individual basis, by looking at the individual offender and his or her offence or offences, and also by comparison with sentences imposed on similar offenders for similar offences committed in similar circumstances. To be proportionate, a sentence must reconcile both individualization and parity of sentences”)
  11. ↑ Bissonnette, supra, at para 51
  12. ↑ Bissonnette, supra, at para 51
  13. ↑ R v Friesen, 2020 SCC 9 (CanLII), per Wagner CJ and Rowe J, at paras 30 to 32
  14. ↑ R v Safarzadeh-Markhali, 2016 SCC 14 (CanLII), 334 CCC (3d) 1, per McLachlin CJ (9:0), at paras 70 to 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")
    Ipeelee, supra, at para 37
  15. ↑ R v Arcand, 2010 ABCA 363 (CanLII), 264 CCC (3d) 134, per curiam, at para 52 (proportionality is “the overarching principle since a disproportionate sanction can never be a just sanction.”)
  16. ↑ Bissonnette, ibid., at para 50
  17. ↑ Bissonnette, ibid., at para 51
  18. ↑ 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."), at para 57
  19. ↑ CAM, supra ("The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community")
  20. ↑ R v Guha, 2012 BCCA 423 (CanLII), 98 CR (6th) 177, per Smith JA (3:0), at para 39
  21. ↑ R v Sidwell, 2015 MBCA 56 (CanLII), 319 Man R (2d) 144, per Steel JA (3:0), 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")
  22. ↑ Ipeelee, supra, at para 26

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), 269 CCC (3d) 227, per Watt JA (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.”)
    R v Creighton, 1993 CanLII 61 (SCC), per McLachlin J at p. 375 ("the sentence can be and is tailored to suit the degree of moral fault of the offender")
  2. ↑ R v Angelillo, 2006 SCC 55 (CanLII), Charron, per Charron J
    R v Briand and Matthews (No. 3), 2010 NLCA 67 (CanLII), [2010] NJ No 339 (CA), per Rowe JA (3:0)
    R v Shoker, 2006 SCC 44 (CanLII), [2006] SCJ No 44, per Charron J (7:0)
    R v Hamilton, 2004 CanLII 5549 (ON CA), [2004] OJ No 3252, per Doherty JA (3:0) 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 Gradyjsjnj(*no CanLII links) , per McKinnon CJ, 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), 290 CCC (3d) 506, per Berger JA (2:1), at para 12
    R v Briand, 2010 NLCA 67 (CanLII), NJ No. 339, per Rowe JA
    R v Shoker, 2006 SCC 44 (CanLII), [2006] 2 SCR 399, per Charron J
    R v Hamilton, 2004 CanLII 5549 (ON CA), OJ No. 3252, per Doherty JA, at para 87
  4. ↑ R v CAM, 1996 CanLII 230 (SCC), [1996] 1 SCR 500, per Lamer CJ (9:0), at para 92
  5. ↑ R v Shropshire, 1995 CanLII 47 (SCC), [1995] 4 SCR 227, per Iacobucci J (9:0), at para 46
  6. ↑ Hamilton, supra, at para 1
  7. ↑ R v Butler, 2008 NSCA 102 (CanLII), 239 CCC (3d) 97, per Bateman JA
  8. ↑ R v Innes, 2008 ABCA 129 (CanLII), 429 AR 164, per curiam (3:0)
  9. ↑ R v JCK, 2013 ABCA 50 (CanLII), 543 AR 242, per curiam (2:1), 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.")

Gravity of the Offence

Sanctions must be scaled according to the seriousness of the conduct.[1]

Gravity is directed to what the "offender did wrong." It has two components: "(1) the harm or likely harm to the victim; and (2)the harm or likely harm to society and its values."[2]

The gravity or seriousness of an offence is determined by its "normative wrongfulness."[3]

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."[4]

Proportionality can be looked at as having the two dimensions of "ordinal proportionality" and "cardinal proportionality". The former being the relative severity of punishment measured against offences of any other type. The latter is the relative severity measured against the other categories of gravity within a particular offence.[5]

Gravity does not merely reflect the seriousness of the offence based on maximum available penalty, but also the "extent of the harm caused by the commission of the offence."[6]

When considering harm, it is not limited to the harm upon the victim. The "[h]arm to one member of the community affects the rights and security of others."[7]

Culpability can include not only harm intended but also harm that was foreseeable.[8]

  1. ↑ R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, per Wagner J (5:2), at paras 87 to 89
    R v Arcand, 2010 ABCA 363 (CanLII), 264 CCC (3d) 134, per curiam, at para 49 ("sactions should be scaled according to the seriousness of the criminal conduct".)
  2. ↑ R v Hamlyn, 2016 ABCA 127 (CanLII), 38 Alta LR (6th) 1, per curiam, at para 9
  3. ↑ R v Morris, 2021 ONCA 680 (CanLII), per curiam, at para 68
  4. ↑ R v Hamilton, 2004 CanLII 5549 (ON CA), 186 CCC (3d) 129, per Doherty JA (3:0), at para 93
  5. ↑ Arcand, supra, at paras 49 to 52
    R v Friesen, 2020 SCC 9 (CanLII), [2020] 1 SCR 424, at paras 75 to 76
  6. ↑ Hamilton, supra, at para 90 ("The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.")
  7. ↑ R v Arcand, 2010 ABCA 363 (CanLII), 264 CCC (3d) 134, at para 179
  8. ↑ e.g. R v BO, 2020 CanLII 103005 (NL PC), per Gorman J citing R. v. Huggins [2016] EWCA Crim 1715

Moral Culpability, Responsibility and Blameworthiness

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

The higher the degree of moral blameworthiness, the longer the sentence that is to be imposed.[3]

Related to this principle, "those causing harm intentionally [should] be punished more severely than those causing harm unintentionally."[4]

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.[5] Consequently, it is incorrect to equate the same level of moral blameworthiness between impaired driving and impaired driving causing death.[6] A more serious consequence then warrants a greater penalty.[7]

Personal Responsibility

The assessment of responsibility requires consideration of the offender's state of mind at the time of the offence.[8] That consideration can include factors such as:[9]

  • "the level of planning and/or intentionality brought to the crime";
  • "the degree, nature and extent of the offender’s personal participation in the offence";
  • "the means or method by which the crime was committed";
  • "the motive or reasons for the offender’s participation";
  • "the offender’s awareness of the legal and moral wrongfulness of their conduct";
  • "their awareness of the actual or reasonably foreseeable harms flowing from their conduct (immediate and long-term)"; and
  • "their persistence in perpetrating the offence despite that awareness"
Drug-Induced Psychosis

A violent offence committed while in a drug-induced psychosis can still receive a serious penalty based on the paramountcy of general deterrence.[10] Any mitigating effect of psychosis can be attenuated as the accused is responsible for consuming the drug that caused the psychosis.[11]

  1. ↑ R v Paradee, 2013 ABCA 41 (CanLII), 542 AR 222, per Paperny JA (3:0), at para 9
    see also R v Hamilton, 2004 CanLII 5549 (ON CA), 186 CCC (3d) 129, per Doherty JA, at para 91 ("The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.")
  2. ↑ Paradee, ibid., at para 10
  3. ↑ R v Isadore, 2022 NSSC 209 (CanLII), per Duncan ACJ, at para 57
  4. ↑ Martineau, supra
  5. ↑ R v DeSousa, 1992 CanLII 80 (SCC), [1992] 2 SCR 944, per Sopinka J (5:0), 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")
  6. ↑ e.g. discussion at R v Smith, 2013 BCCA 173 (CanLII), 296 CCC (3d) 386, per Bennett JA (3:0), at paras 40 to 46
  7. ↑ Smith, ibid., at para 45
  8. ↑ R v CK, 2023 BCCA 468 (CanLII), at para 71
    R v M(CA), 1996 CanLII 230 (SCC)(complete citation pending), at para 79
  9. ↑ CK, ibid., at para 71
    R v Okimaw, 2016 ABCA 246 (CanLII), 340 CCC (3d) 225, per curiam, at para 85
    R v Vader, 2019 ABCA 488 (CanLII), per curiam, at para 16
  10. ↑ R v McCormick, 2017 BCSC 145 (CanLII), per MacKenzie J, at para 65
  11. ↑ R v Florence, 2018 ONCJ 872 (CanLII), per J, at para 31
    Hamlyn
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