Denunciation and Deterrence

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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

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.[1]

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.[2]

  1. ↑ 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. ")
  2. ↑ 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]

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."[9]

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. [10]

Conditional Sentence

Where denunciation is a paramount consideration a conditional sentence is not necessarily ruled out.[11]

A conditional sentence under s. 742.1 that includes "onerous" conditions may provide some denunciation but incarceration will generally provide greater denunciation.[12]

  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 Safarzadeh-Markhali, 2016 SCC 14 (CanLII), [2016] 1 SCR 180, per McLachlin CJ
  10. ↑ 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
  11. ↑ R v Wells, 2000 SCC 10 (CanLII), [2000] 1 SCR 207, per Iacobucci J, at paras 31 to 35
  12. ↑ 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]

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.[2]

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."[3]

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".[4]

Specific Deterrence

Specific deterrence targets the specific offender before the court.[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. ↑ R v Roussy, [1977] OJ No 1208 (Ont. C.A.)(*no CanLII links) , per Zuber JA, at para 5
  3. ↑ R v Safarzadeh-Markhali, 2016 SCC 14 (CanLII), [2016] 1 SCR 180, per McLachlin CJ
  4. ↑ 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
  5. ↑ BWP, supra, at para 2
  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

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] 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]

Publicity

The degree to which the case is covered by media is relevant to general deterrence.[10] Where there is no publicity of the case at all then there can be no general deterrence.[11]

  1. ↑ BWP, supra, at para 2
    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")
  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 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"
  11. ↑ Clarke, ibid.
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