Totality Principle

From Criminal Law Notebook

General Principles

See also: Proportionality

The common law principle to totality is found codified in s. 718.2(c), which states as follows:

Obligations of court

718.2 A court that imposes a sentence shall also take into consideration the following principles:...

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;...

1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; 2012, c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16; 2017, c. 13, s. 4; 2019, c. 25, s. 293.


– CCC

Totality as Proportionality

The principle of totality is a component of the principle of proportionality.[1] In some sense, totality is a "subsidiary" of proportionality.[2]

Purpose

The totality principle was "intended to avoid sentences that cumulatively are out of proportion to the gravity of the offences"[3]

The principle is also seen as "in service of" the principle of restraint.[4]

  1. ↑ R v Sidwell (KA), 2015 MBCA 56 (CanLII), per Steel JA, 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.")
  2. ↑ R v May, 2012 ABCA 213 (CanLII), per curiam, at para 7
  3. ↑ R v DFP, 2005 NLCA 31 (CanLII), (2005), 197 CCC 498 (N.L.C.A.), per Welsh JA (2:1), at para 24
    See also Ruby, Sentencing, 4th edition (Toronto: Butterworths, 1994) ("...The purpose [of the totality principle] is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate "just and appropriate". A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects.”)
  4. ↑ R v Ranger, 2014 ABCA 50 (CanLII), per curiam, at para 50

Application

The principle of totality comes into play where there is a sentence for multiple offences. The principle requires the court to craft a global sentence of all offences that is not excessive. [1] If the total sentence is excessive the court must adjust the sentence so that the "total sentence is proper". [2]

The sentence may violate the totality principle where the global sentence considerably exceeds the "normal" level of the most serious of the individual offences.[3]

The sentence may also violate the principle where the global sentence "exceeds what is appropriate given the offender's overall culpability.[4]

Offences Not Before the Court

While not always the case, an offender's past convictions and sentences may be relevant to the calculation of totality.[5]

  1. ↑ R v M(CA), [1996] 1 SCR 500, 1996 CanLII 230 (CanLII), per Lamer CJ, at para 42
  2. ↑ R v Keshane, 2005 SKCA 18 (CanLII), per Cameron JA
    R v Hicks, 2007 NLCA 41 (CanLII), per Rowe JA
    R v Murray, 2009 BCCA 426 (CanLII), per Bennett JA, at para 13
  3. ↑ R v ETP, 2001 MBCA 194 (CanLII), per Philp JA
  4. ↑ R v Wharry, 2008 ABCA 293 (CanLII), 234 CCC (3d) 338, 437 AR 148, per Watson JA, at para 35
    R v Abrosimo, 2007 BCCA 406 (CanLII), 225 CCC (3d) 253, per Frankel JA, at paras 20 to 31
    see also R v Tiegs, 2012 ABCA 116 (CanLII), 2012 ABCA 116, [2012] AJ No. 378, per Watson JA
  5. ↑ R v Barrett, 2012 NLCA 46, per Hoegg JA, at para 24 ("In ordinary circumstances, a judge who is imposing sentence for multiple offences conducts his or her totality analysis on considerations relating to sentencing for the multiple offences which are before him or her and does not usually consider a sentence previously imposed by another judge. This is not to say that consideration of an offender’s past convictions and sentences is not relevant to his sentencing for the current offences. ")

Effect of Totality

The only effect of totality should be that the sentence "cannot exceed the overall culpability of the offender".[1]

Totality will have a balancing effect when applied after considering the denunciatory and deterrent objectives.[2]

It should not have the effect of "wip[ing] out punishment for serious aggravating factors".[3]

  1. ↑ R v Khawaja, 2012 SCC 69 (CanLII), per McLachlin CJ, at para 126
    Ranger, ibid., at para 50
  2. ↑ e.g. R v Foley, 2013 ONCJ 26 (CanLII), per Renaud J, at paras 57, 58
  3. ↑ Ranger, supra, at para 50
    R v Lemmon, 2012 ABCA 103 (CanLII), per Martin JA, at para 23 (“We must remember that the ultimate objective is a sentence that reflects the gravity of the offence and the degree of responsibility of the offender, not a mindless application of sentencing principles.”)

Single Transaction

Where there are multiple counts arising from a single transaction, the court should consider the sentencing of the worst of the counts "then go on to assess what effect the other collateral or associated crimes has on the overall culpability of the offender". [1] Generally, the other offences are "essentially modifiers or adjectives" that deserve concurrent sentences.[2]

  1. ↑ R v May, 2012 ABCA 213 (CanLII), per curiam, at para 8 ("this application of totality is primarily in service of the principle of restraint and is secondarily in service of the principle of proportionality. This application does not operate to wipe out punishment for serious aggravating factors")
  2. ↑ May, ibid., at para 8

Procedure

Depending on the jurisdiction, this process can be done either by summing the individual sentences and then adjusting accordingly [1] or by making a global sentence and calculating individual sentences from that number.[2] It is more frequently the former than the latter.[3]

In Newfoundland and Labrador Court of Appeal the "guidelines for the analytical approach to be taken" when considering applying the principle of totality:[4]

  1. "When sentencing for multiple offences, the sentencing judge should commence by identifying a proper sentence for each offence, applying proper sentencing principles."
  2. "The judge should then consider whether any of the individual sentences should be made consecutive or concurrent on the ground that they constitute a single criminal adventure, without consideration of the totality principle at this stage."
  3. "Whenever, following the determinations in steps 1 and 2, the imposition of two or more sentences, to be served consecutively, is indicated, the application of the totality principle is potentially engaged. The sentencing judge must therefore turn his or her mind to its application."
  4. "The approach is to take one last look at the combined sentence to determine whether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender."
  5. "In determining whether the combined sentence is unduly long or harsh and not proportionate to the gravity of the offence and the degree of responsibility of the offender, the sentencing court should, to the extent of their relevance in the particular circumstances of the case, take into account, and balance, the following factors:"
    1. "the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved;"
    2. "the number and gravity of the offences involved;"
    3. "the offender’s criminal record;"
    4. "the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing;"
    5. "such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender’s degree of responsibility."
  6. "Where the sentencing judge concludes, in light of the application of those factors identified in Step 5 that are deemed to be relevant, that the combined sentence is unduly long or harsh and not proportionate to the gravity of the offences and the offender’s degree of responsibility, the judge should proceed to determine the extent to which the combined sentence should be reduced to achieve a proper totality. If, on the other hand, the judge concludes that the combined sentence is not unduly long or harsh, the sentence must stand."
  7. "Where the sentencing court determines that it is appropriate to reduce the combined sentence to achieve a proper totality, it should first attempt to adjust one or more of the sentences by making it or them concurrent with other sentences, but if that does not achieve the proper result, the court may in addition, or instead, reduce the length of an individual sentence below what it would otherwise have been."
  8. "In imposing individual sentences adjusted for totality, the judge should be careful to identify:"
    1. "the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, without considerations of totality;"
    2. "the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and"
    3. "the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are, for this purpose, to be made concurrent or to be otherwise reduced."
  9. "Finally, the sentencing judge should indicate whether one or more of the resulting sentences should be further reduced to reflect any credit for pre-trial custody and if so, by how much."

After all the sentences for each count have been combined, the following step is to determine whether the sentence is "unduly long or harsh".[5]

It has been suggested that where there are multiple counts from a single transaction, the best practice is to first consider the worst of the offences and then assess what affect the collateral offences have on the overall culpability, thus treating the lesser offences as modifiers of the initial sentence.[6]

  1. ↑ R v Newhook, 2008 NLCA 28 (CanLII), per Rowe JA
    R v Li, 2009 BCCA 85 (CanLII), per D Smith JA, at paras 26 to 28
    R v Lapointe, 2010 NBCA 63 (CanLII), per Robertson JA, at para 32
  2. ↑ R v Lombardo, 2008 NSCA 97 (CanLII), per Saunders JA
  3. ↑ e.g. R v Adams, 2010 NSCA 42 (CanLII), per Bateman JA, at para 23
  4. ↑ R v Hutchings, 2012 NLCA 2 (CanLII), per Green CJ, at para 83
    R v Murray, 2009 BCCA 426 (CanLII), per Bennett JA, at para 13
  5. ↑ see s. 718.2(c)
    R v CAM, 1996 CanLII 230 (SCC), per Lamer CJ, at para 42
    R v DJD, 2010 ABCA 207 (CanLII), per curiam, at para 144
  6. ↑ May, supra, at para 8
    see e.g. R v Fait, 1982 ABCA 148 (CanLII), (1982) 68 CCC (2d) 367, 37 AR 273 (CA), per Laycraft JA
    R v Raber, 1983 ABCA 325 (CanLII), (1983) 57 AR 360, per curiam
    R v Keough, 2012 ABCA 14 (CanLII), 519 AR 236, per Slatter JA (2:1), at paras 17, 26 to 30, but cf. paras 58 to 63 from dissent

Sprees

Totality can be applied to spree crimes, a string of similar offences over a short period of time. Though they are separate offences, the courts can treat them as a single transaction due to the linkage between them.[1] This form of totality must be considered carefully as it should not give the impression that offences are "cheaper" when done in succession. It has a reduction effect in part due to the frequency that the offender is young and rehabilitation is still a major consideration.

It is wrong to treat "sprees" of crime as a reason to deduct the overall sentence as crime should not be treated as "cheaper by the dozen".[2]

  1. ↑ R v May, 2012 ABCA 213 (CanLII), per curiam, at para 9
    R v Johnas, 1982 ABCA 331 (CanLII), (1982) 2 CCC (3d) 490, 41 AR 183, per curiam
  2. ↑ May, supra, at para 10
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