Offences of Violence (Sentencing)

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2018. (Rev. # 80712)

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]

Sports-related violence can frequently allow for discharges.[5]

  1. ↑ R v Ogg-Moss, 1984 CanLII 77 (SCC), [1984] 2 SCR 173, 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), 958 APR 119, per LeBlanc J
  5. ↑ R v Carroll, 1995 CanLII 1123 (BC CA), (1995) 38 CR 238, per Donald JA

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 intimate partner or a member of the victim or the offender’s family...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), AJ No 1075, per curiam (3:0), at paras 23 to 25
  2. ↑ R v Doyle, 1991 CanLII 2535 (NSCA), , 108 NSR (2d) 1 (CA), per Hallett JA
    R v Brown, 1992 ABCA 132 (CanLII), 13 CR (4th) 346, 73 CCC 242, per curiam
    R v Pitkeathly, 1994 CanLII 222 (ON CA), 29 CR (4th) 182, per curiam
    R v Jackson, 1996 ABCA 195 (CanLII), 106 CCC (3d) 557, per O'Leary JA (3:0)
    R v Edwards, 1996 CanLII 1522 (ON CA), 28 OR (3d) 54, 105 CCC (3d) 21, per Finlayson JA
    R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J (5:4)
  3. ↑ R v McCarthy, 2005 NLCA 36 (CanLII), 198 CCC (3d) 383, per Cameron JA
    R v Dodd, 1999 CanLII 18930 (NL CA), 180 Nfld. & PEIR 145, per Marshall JA at 38
    R v O'Keefe, (1997), 158 Nfld. & PEIR 138 (NLPC)(*no CanLII links) , at p. 252
    R v Rahaman, 2008 ONCA 1 (CanLII), 76 WCB (2d) 138, 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 CanLII 18930 (NLCA), , [1999] NJ No. 262 (Nfld. C.A. and 1999 CanLII 13904 (NL CA), per Marshall JA, at paras 38 to 39
    R v Campbell, 2003 CanLII 48403 (ON CA), 170 OAC 282, per curiam
    R v Wishlow, 2013 MBCA 34 (CanLII), 291 Man R (2d) 149, 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), 599 AR 159, per curiam (3:0)
  5. ↑ R v Wilhelm, 2014 ONSC 1637 (CanLII), OJ No 1176, per Hill J, at para 101
    R v Menary, 2012 ONCA 706 (CanLII), 298 OAC 108, per curiam, at para 7
  6. ↑ R v Inwood, 1989 CanLII 263 (ON CA), , [1989] O.J. No. 428 (CA), per Howland CJO
    Saghier, supra, at para 46
  7. ↑ R v Bates, 2000 CanLII 5759 (ON CA), 146 CCC (3d) 321, per Moldaver and Feldman JJA, at para 30

Position of Trust

Position of Trust as a Factor in Sentencing

Group Violence

When sentencing for group violence, it is not permitted to argue that a particular individual’s contribution was less than others and so deserves a lower sentence. They are responsible for the group that they contributed to. [1]

  1. ↑ R v MacIntyre and Liron, 1992 ABCA 319 (CanLII), 18 WCB (2d) 123, per Fraser CJ at para 3 (“...when individuals act as part of a group or gang and perpetrate criminal acts, this gang-like feature of their activities does not permit each individual to offer his individual involvement alone ignoring, for sentencing purposes, the seriousness of their collective actions. When a person acts in concert with other members of a group or gang to victimize a single victim, that person must accept the consequences which flow from this group action. Each member of the group must be taken to know that by committing individual assaults upon a victim, he advances and even encourages the violence of the others.”)

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), 27 WCB (2d) 176, per Fraser CJ, at para 28
  2. ↑ R v Nickel, 2012 ABCA 158 (CanLII), 545 WAC 366, 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 as Victim

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

Peace Officers as Offender

See also: Assaults Relating to Persons in Authority (Sentencing Cases)

Principles

All persons working in the justice system "owe a duty to the public to uphold the values of that system".[1]

Police officers, as officials discharging public duties, occupy a special position of trust in the community.[2]

The administration of justice “depend[s] on the fidelity and honesty of the police”.[3]

The commission of an offence while acting as a peace officer will generally be treated as a breach of trust offence.[4]

Police powers give them access to "places and situations" that ordinary persons do not experience. In those circumstances they can commit offences without raising suspicions.[5]

Objectives of Sentencing

Breach of trust offences committed by peace officers must emphasize denunciation and deterrence.[6]

Absent exceptional mitigating factors, a peace officer who commits a criminal offences should receive more severe sentences than those of regular citizens.[7]

  1. ↑ R v Cook, 2010 ONSC 5016 (CanLII), per Hill J, at para 29
    R v Feeney et al., 2008 ONCA 756 (CanLII), 238 CCC (3d) 49, per curiam, at para 5
    Hill v Hamilton Wentworth, 2007 SCC 41 (CanLII), , per Charron J, at para 116 in dissent “[p]olice officers are the main actors who have been entrusted to fulfil this important function” of upholding the law.
  2. ↑ Cook, supra, at para 29
    R v LeBlanc, 2003 NBCA 75 (CanLII), 180 CCC (3d) 265, per Drapeau CJ, at para 32
    R. v. McClure (1957), 118 CCC (3d) 192 (Man. C.A.) at 200
    R v Berntson, 2000 SKCA 47 (CanLII), 145 CCC (3d) 1, per Tallis JA, at para 24 ("[A] heavy trust and responsibility is placed in the hands of those holding public office or employ")
  3. ↑ McClure, supra, at 200
  4. ↑ e.g. Cook, supra
  5. ↑ Cook, supra, at para 32 (" The police, in the execution of their duties, gain access to places and situations which the ordinary person does not experience: ... In such situations, an officer may be in a position “where he can commit offences without arousing suspicions”: ... For example, where a police officer victimizes a drug dealer, “the offender is likely to escape scot-free”:")
    LeBlanc at para 27 ("Police officers have opportunities, practically on a daily basis, to cross the line and engage in prohibited conduct. The public trusts them to resist the temptation and relies upon the courts to deal firmly with those who stray.")
  6. ↑ Cook, supra at para 38
    R v Cusack, 1978 CanLII 2283 (NS CA), per Hart JA ("If one unbundles the several principles that come into play in shaping a fit sentence for conduct by an on-duty police officer amounting to criminal breach of trust under s. 122, general deterrence and denunciation overshadow all others. Those principles command more than lip service; they must impact upon the sentencing process and help shape its outcome.")
    see also s. 718.2(a)(iii) of the Code
  7. ↑ Cook, supra at para 38
    Cusack, supra at 2
    R v Gabruch, 2016 ABPC 16 (CanLII), per Fraser J, at para 9
    R v Bal, 2013 BCPC 21 (CanLII), at para 95

Factors

Good Character

A peace officer will usually come with the ability to adduce a great deal of good character evidence as it is this quality of character that allows the person to attain a position of trust.[1]

Impact on Employment

While loss of employment as a peace officer is a factor to be considered in sentence it cannot "trump" or undermine the need for denunciation and deterrence.[2] Loss of employment should be considered an ancillary consequence that is strictly speaking not a mitigating factor.[3]

Terms of Custody

A peace officer serving incarceration will almost inevitably be expected to serve the sentence in protective custody and can be mitigating.[4]

General Considerations

Factors to offences of violence by police officers can include:[5]

  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?
Ranges

In Ontario a custodial sentence in excess of 60 days is generally required for assaults by peace officers or court officers on prisoners.[6] Cases with custody involve some form of aggravation such as:[7]

  • "ongoing assaults by a group of officers";
  • "defenceless prisoners who were handcuffed or shackled";
  • "cover-ups with falsified notes and false reports"; and
  • "the laying of charges against the innocent victim of the assault".

In such cases, 30 to 60 days is considered "lenient".[8]


  1. ↑ R v Cook, 2010 ONSC 5016 (CanLII), per Hill J, at para 36
    R v Lepine, 2010 ABPC 374 (CanLII), per Rosborough J, at para 24
  2. ↑ Cook, supra, at paras 41 to 42
    R v Preston, 2008 ONCA 530 (CanLII), per curiam, at para 3 (The trial judge "understood the appellant’s job was significantly at risk but as he correctly said that factor “ought not in this case on these facts trump the pressing need for denunciation and deterrence”.")
  3. ↑ Lepine, supra at para 26 citing Manson, et al in Sentencing and Penal Policy in Canada, 2nd ed, Manson, Healy, Trotter, Roberts and Ives, Edmond Montgomery Publications Limited, Toronto, 2008 at p. 124
    R v Mand, 1999 ABPC 160 (CanLII), 334 AR 398, per Ayotte J ("[The offender] also makes a more troubling submission ...to take into account the possible effect on the constable’s employment, on his career as a police officer, if a conviction is entered. ... I hasten to add that sentencing courts cannot be held hostage to what employers might do. Every employed offender must face the reaction of his employer to his or her conviction for a criminal offence. Indeed courts hear every day about the likely loss of a job upon conviction for impaired driving, for example. That is an inevitable side-effect of breaking the law. Employers have the right to make decisions about employment; courts have a duty to impose an appropriate sentence.")
    R v Lindsay, 2021 ABQB 839 (CanLII), per Lema J, at para 98 ("This offence effectively ended Mr. Lindsay’s career with the Calgary Police Service, but as a not-unexpected consequence, it does not mitigate here...")
    R v Partington, 2021 ABPC 301 (CanLII), per Ayotte J
  4. ↑ Cook, supra, at para 43
  5. ↑ R v Gillian, 2009 BCPC 241 (CanLII), per Watchuk J, at para 69
  6. ↑ R v Thomas, 2012 ONSC 6653 (CanLII), 104 WCB (2d) 704, per Code J, at para 49
  7. ↑ Thomas, ibid., at para 49
  8. ↑ Thomas, ibid., 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) [threats – causing harm or death] or any of sections 266 to 269 [forms of assault], 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

Note up: 269.01(1) and (2)

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