Parity Principle

From Criminal Law Notebook
This page was last substantively updated or reviewed August 2021. (Rev. # 81264)

General Principles

The parity principle means that a sentence should be "similar to sentences imposed on similar offenders for similar offences committed in similar circumstances". [1] Section 718.2 states that :

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

[omitted (a)]
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
[omitted (c), (d) and (e)]

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.
[annotation(s) added]

– CCC

Note up: 718.2

Given the subjective nature of the sentencing process it is necessary that all sentences "must respect the parity principle".[2]

Offenders being sentenced to the same or similar offence should not have disparate sentences. The sentences should be approximately the same, taking into account the aggravating and mitigating factors unique to the individual. [3]

To fulfil this requirement sentencing judges must consider the "range" of sentences of "similar offenders for similar offences committed in similar circumstances".[4]

The judge is not required to apply the parity principle with respect to the co-accused where he is not provided with necessary information to undertake a meaningful comparison.[5]

It has been suggested that precedent should not be treated as binding. They can "inform" a sentence bu are merely "historical statements" of penalties.[6]

Purpose of Parity

The purpose of the parity principle is to ensure fairness "by avoiding disproportionate sentences among convicted persons where, essentially, the same facts and circumstances indicate equivalent or like sentences".[7] It does not however override the individualized approach to sentencing. [8]

Parity promotes "consistency, fairness, and rationality" in sentencing.[9]

It also "gives meaning to proportionality".[10]

Parity Does Not Trump Proportionality

The parity principle "does not preclude disparity where warranted by the circumstances, because of the principle of proportionality".[11] The principle of parity is "secondary to the fundamental principle of proportionality".[12]

Parity and Individualization of Sentence

The parity principle is complementary to the individualization of the sentencing process. Where a sentence must be tailored to the individual, circumstances that are similar should be treated similarly, while dissimilar cases case justifiably be treated differently.[13]

Court of Appeal Sets Range

One of the goals of the provincial courts of appeal is to maintain parity in sentence and minimize the differences in sentencing approaches.[14] However, the judges must also be sensitive to the needs of local community.[15]

Duty to Keep With Precedent

A judge has a responsibility to "impose sentences in line with precedent, noting always that for each offence and each offender some elements are unique." [16]

It has been suggested that courts have a duty "to impose sentences in line with precedent" while still taking into account the uniqueness of the offender and offence.[17]

Mandatory Minimums

Increases in minimum sentences will have the effect of "shifting" or "inflating" the range of appropriate sentence. This is not considered a violation of the parity rule.[18]

Deviations from Range Must be Justified

A judge is permitted to deviate from the range where it is permitted in accordance with the principles and objectives of sentencing.[19]

Where the judge deviates from the regular range established by case law the judge "should explain how it is in accordance with the principles and objectives and objectives of sentencing."[20]

No Such Thing as a Single Appropriate Sentence

Given the individualized process of sentencing, "the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction".[21]

Appellate Review

In certain cases a failure to conduct a parity analysis may be a legal error.[22]

  1. ↑ see s. 718.2(b) Criminal Code
    Sentencing, 7th ed. (Markham: LexisNexis, 2008), at ss.2.21
  2. ↑ Nash v R, 2009 NBCA 7 (CanLII), 240 CCC (3d) 421, per Robertson JA, at para 54
  3. ↑ R v Roche, 1990 CanLII 6483 (NL CA), 84 Nfld. & PEIR 1, per Goodridge JA, at para 10
  4. ↑ R v Tuglavina, 2011 NLCA 13 (CanLII), [2011] NJ No 25 (NLCA), per Wells JA
    Nash, supra, at para 54
  5. ↑ R v Pearce, 2021 ONCA 239 (CanLII), per curiam, at para 18
  6. ↑ R v Laite, 2017 CanLII 74199 (NL PC), per Gorman J
  7. ↑ R v WE, 2010 NLCA 4 (CanLII), 251 CCC (3d) 213, per Rowe JA, at para 33 quoting Clayton C. Ruby, Sentencing, 7th ed. (Markham, ON: LexisNexis, 2008), at p. 33
    R v Rawn, 2012 ONCA 487 (CanLII), 34 MVR (6th) 175, per Epstein JA, at para 18
  8. ↑ R v Knife, 1982 CanLII 2569 (SKQB), 16 Sask R 40 (CA), per Cameron JA, at p. 43
  9. ↑ R v Robinson, 2021 NSPC 20 (CanLII), per Buckle J, at para 47
  10. ↑ R v Friesen, 2020 SCC 9 (CanLII), 391 CCC (3d) 309, at para 33(complete citation pending)
    R v Dawson; R. v. Ross, 2021 NSCA 29 (CanLII), at para 94
  11. ↑ R v LM, 2008 SCC 31 (CanLII), [2008] 2 SCR 163, per LeBel J, at para 36
  12. ↑ R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, per Wagner J, at para 92
  13. ↑ R v Pham, 2013 SCC 15 (CanLII), [2013] 1 SCR 739, per Wagner J, at para 9 ("As a corollary to sentence individualization, the parity principle requires that a sentence be similar to those imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b) of the Criminal Code). In other words, “if the personal circumstances of the offender are different, different sentences will be justified” (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at §2.41).")
  14. ↑ R v Arcand, 2010 ABCA 363 (CanLII), 264 CCC (3d) 134, per Fraser and Watson JJA
    R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J
  15. ↑ Nasogaluak, ibid.
  16. ↑ R v Oake, [2010] NJ No 94 (NLCA)(*no CanLII links)
  17. ↑ Oake, supra
    cf. R v Day, 2013 BCCA 172 (CanLII), per Kirkpatrick JA, at para 17 (It is “trite law that the sentences imposed in other cases are of limited assistance in determining a fit sentence.”)
  18. ↑ R v KDH, 2012 ABQB 471 (CanLII), 102 WCB (2d) 621, per Manderscheid J, at paras 6 to 8
  19. ↑ R v Nasogaluak, 2010 SCC 6(complete citation pending) at 44 ("A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.")
  20. ↑ R v Cluney, 2013 NLCA 46 (CanLII), NJ No 256, per Barry JA
  21. ↑ R v M(CA), 1996 CanLII 230 (SCC), [1996] 1 SCR 500, per Lamer CJ , at para 92
  22. ↑ R v Hynes, 2022 NSCA 51 at para 144(complete citation pending)
    R. v. Hawkins, 2011 NSCA 7
    R. v. White, 2020 NSCA 33

Ranges of Sentence

One of the roles of appellate courts is in "maintaining some degree of uniformity in the sentences imposed for crimes of the same general character" by setting direction of appropriate sentences.[1]

A Court referring to a "range" of sentence can be interpreted in multiples ways.[2] It its descriptive sense, considering a range of sentence is simply a "check" to ensure that the sentence is not unduly harsh or lenient when compared against other cases. It "reflects individual cases, but does not govern them".[3]

In a prescriptive sense, a range is set by an appellate court to instruct lower courts on the "appropriate penalty for a category of crime".[4]

When a range is defined prescriptively, care should be taken as problems may arise in defining the parameters.[5]

Regardless of the sense, ranges are considered "guidelines" and not "hard and fast rules". The judge may go outside the range as long as it conforms to the principles and objectives of sentencing.[6]

Some courts have stated that deviation from the range requires something "special" or "unusual" about the case.[7]

  1. ↑ R v Robert, 1996 CanLII 1725 (BC CA), 108 CCC (3d) 83, per Goldie JA, at para 23
  2. ↑ R v Johnston, 2011 NLCA 56 (CanLII), 274 CCC (3d) 388, per White JA, at para 36
    R v O’Flaherty, 1997 CanLII 14649 (NL CA), 155 Nfld. & PEIR 150 (NFCA), per Steele JA , at para 20
  3. ↑ Johnston, supra, at para 36
  4. ↑ Johnston, supra, at para 37
    R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J, at para 244
  5. ↑ Johnson, supra, at para 42
    R v Murphy, 2001 NLCA 16 (CanLII), 672 APR 181, per Marshall JA
  6. ↑ R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J , at para 44
  7. ↑ Johnston, supra, at para 39

Parity to Co-Accused

Co-accused who are equally responsible for the offence should, with all else being equal, expect to have similar sentences.[1]

In a situation of co-accused, the roles of the parties will be considered as well as their personal circumstances. [2]

The principle of parity does not require equal sentences for participants in the same offence. Rather, they must "only [be] understandable sentences when examined together."[3]

Where there is disparity between offenders who participated in a "common venture", the judge must show justification.[4]

Where accomplices who commit the crime at the orders of a principal and agree to testify against he principal can be afforded lesser sentences than the principal.[5]

Uncharged Co-Accused

Uncharged accomplices who sign an immunity agreement in exchange for testimony of the accused is not a relevant factor to sentencing of the accused.[6]

  1. ↑ R v Reitmeier, 2016 ABCA 269 (CanLII), AJ No 936, per curiam , at para 10
  2. ↑ R v Knife (1982), 16 Sask R 40 (CA)(*no CanLII links) , at p. 43
  3. ↑ R v Issa (T.), (1992), 57 OAC 253(*no CanLII links) , at para 9
    R v Rawn, 2012 ONCA 487 (CanLII), 34 MVR (6th) 175, per Epstein JA, at para 30
  4. ↑ R v Sahota, 2015 ONCA 336 (CanLII), per curiam, at para 7
  5. ↑ R v Ellahib, 2008 ABCA 281 (CanLII), 78 WCB (2d) 802, per Rowbotham JA -- 20 years for the principal and the 16 and 15-year sentences accomplices justified because the principal was the instigator and the accomplices entered guilty pleas and testified against him.
  6. ↑ R v Wilson, 2018 ABPC 54 (CanLII), per Van de Veen J, at para 27
    R v Athwal, 2017 ONCA 222 (CanLII), per Juriansz JA
    R v Deol, 2017 ONCA 221 (CanLII), 352 CCC (3d) 343, per Juriansz JA
    R v Perciballi, 2001 CanLII 13394 (ON CA), [2001], 54 OR (3d) 346, per Charron JA

See Also

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