Concurrent and Consecutive Sentences

From Criminal Law Notebook
Revision as of 20:03, 21 June 2024 by Admin (talk | contribs)


This page was last substantively updated or reviewed July 2021. (Rev. # 94497)

General Principles

Cumulative punishments arising from a single sentencing hearing on multiple offences are known as consecutive sentences. This only applies to jail sentences, all other sentences run concurrently.

All sentences are presumed to be served concurrently. The Code provides for cumulative punishments at section 718.3:

718.3
[omitted (1), (2) and (3)]

Cumulative punishments

(4) The court that sentences an accused shall consider directing

(a) that the term of imprisonment that it imposes be served consecutively to a sentence of imprisonment to which the accused is subject at the time of sentencing; and
(b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, including when
(i) the offences do not arise out of the same event or series of events,
(ii) one of the offences was committed while the accused was on judicial interim release, including pending the determination of an appeal, or
(iii) one of the offences was committed while the accused was fleeing from a peace officer.
Cumulative punishments — fines

(5) For the purposes of subsection (4) [degrees of punishment limitations – cumulative punishments], a term of imprisonment includes imprisonment that results from the operation of subsection 734(4) [fine – imprisonment in default of payment].

[omitted (6), (7) and (8)]
1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182; 2015, c. 23, s. 17.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 718.3(4) and (5)

Generally, sentences for offences that occur at separate occasions will be served consecutively.[1] While where the offences arise out of the same transaction, the sentences will be typically concurrent.[2]

If the court does not indicate whether sentences are concurrent or consecutive it is presumed concurrent.[3]

It has been observed that the “proper approach to sentencing an offender for multiple offences is unsettled.”[4]

Consideration

Judges should be cautious not to "slavishly impose consecutive sentences merely because offences are... committed on different days." Instead, where there is a "reasonably close" nexus, concurrent sentences can be imposed. [5]

When deciding whether a sentence should be consecutive or concurrent, the court should consider 1) the time frame of the offences, 2) the similarity of the offences, 3) whether a new intent broached each offence, and 4) whether the total sentence is fit and proper.[6]

Procedure

The recommended procedure for dealing with multiple offences suggests that the sentencing judge must first determine whether the sentences should be served consecutively or concurrently. If consecutive, appropriate sentence for each offence is calculated, following this, the totality principle is applied which would adjust the sentence as needed.[7]

Consecutive When There is Single Transaction

A judge may order a sentence to be served consecutively despite the offences arising from the same transaction or incident, such as where the offences "constitute invasions of different legally protected interests, although the principles of totality must be kept in mind"[8] , where the offences "protect different societal interests" or the gravamen of the two offences are different.[9]

Nevertheless, the decision of consecutive sentences is a discretionary one and is entitled to deference.[10]

Sentences may be imposed consecutively in relation to a single transaction where the punishments protect "different societal interests" or "different legal interests."[11] A judge should consider the time frame within which the offences occurred, the similarity of the offences, whether a new intent or impulse initiated each of the offences and whether the total sentence is fit and proper under the circumstances.[12]

Where offences "protect different social interests" the principle requiring concurrency of sentence when the offences arise from the "same transaction or incident" does "not necessarily apply when the offences constitute invasions of different legally protected interests."[13]

Consecutive Intermittent Sentences

It is not possible to order consecutive sentences that total more than 90 days and have the time served intermittently.[14]

  1. ↑ R v Dube, 2006 QCCA 699 (CanLII), per curiam
    R v Leroux, 2015 SKCA 48 (CanLII), [2015] 9 WWR 709, per Caldwell JA
  2. ↑ R v Mascarenhas, 2002 CanLII 41625 (ON CA), 58 WCB (2d) 492, per Abella JA, at para 31
    R v Veysey, 2006 NBCA 55 (CanLII), 211 CCC (3d) 558, per Larlee and Robertson JJA
    R v Desmarest (1986), 2 QAC 151 (*no CanLII links)
    R v Charchuk, 1973 CanLII 2351 (NS CA), 6 NSR (2d) 519, per MaKeigan JA
  3. ↑ cf. R v SPM, 2005 NLCA 36 (CanLII), 198 CCC (3d) 383, per Cameron JA, at para 11
  4. ↑ R v Wozny, 2010 MBCA 115 (CanLII), 267 CCC (3d) 308, per MacInnes JA
    R v Ahmed, 2017 ONCA 76 (CanLII), 346 CCC (3d) 504, per van Rensburg JA, at para 85
  5. ↑ R v Hatch, 1979 CanLII 4379 (NS CA), [1979] NSJ 520, per MacKeigan JA
  6. ↑ R v GAW, 1993 CanLII 5618 (NS CA), NSR (2d) 312 (NSCA), per Roscoe JA
    R v Maroti, 2010 MBCA 54 (CanLII), 256 CCC (3d) 332, per Steel JA
    R v Naugle, 2011 NSCA 33 (CanLII), 271 CCC (3d) 321, per Beveridge JA
  7. ↑ R v Draper (T.G.), 2010 MBCA 35 (CanLII), 253 CCC (3d) 351, per Steel JA, at paras 29 to 31
  8. ↑ Mascarenhas, supra, at para 31
    R v Gummer (1983), 1 OAC 141, 25 MVR 282(*no CanLII links) , at p. 144
  9. ↑ R v Berezowsky, 2006 CanLII 7030 (ON SC), per Fuerst J, at para 20
    R v Dua, [1999] OJ No 5068 (SCJ) (*no CanLII links)
  10. ↑ R v TEM, 1997 CanLII 389 (SCC), [1997] 1 SCR 948, per Sopinka J, at para 46
    Maroti, supra
  11. ↑ R v Gillis, 2009 ONCA 312 (CanLII), 248 OAC 1, per curiam
    R v Clarke, 1994 CanLII 4071 (NS CA), 94 CCC 249 (NSCA), per Hallett JA
  12. ↑ GAW, supra
    Naugle, supra
  13. ↑ R v Clouthier, 2016 ONCA 197 (CanLII), 129 OR (3d) 481, per Watt JA, at para 55 - failing to stay at scene of accident consecutive to impaired driving causing bodily harm
    Gummer, supra, at para 13
    R v Van Puyenbroek, 2007 ONCA 824 (CanLII), 226 CCC (3d) 289, per Feldman JA, at para 63
  14. ↑ see Intermittent Sentences

Consecutive Sentencing Based on Type of Offence

Where offences are committed in prison "must be consecutive", particularly when it involves violence against correctional officers.[1]

Offences committed while out on bail awaiting trial will be consecutive even where the latter offence may be part of an ongoing spree.[2]

Where an offender is convicted of a possession offence and then an offence involving "using or dealing with it". The sentences should be concurrent.[3]

Crime Sprees

Where a judge is sentencing an offender for a series of alike offences, he may order that the individual sentences be all served concurrently to each other and sentence the series of offences as a whole amounting to a "crime spree" or simply a "single" criminal transaction.[4] For the sentences be concurrent as a "crime spree" the acts must be "similar, continuous and recurring" with "the same gravamen within a sustained and relatively short period of time."[5]

Life Sentences

At common law, sentencing judge may not impose consecutive life sentences.[6] It is a logical impossibility to order any sentence to be consecutive to a previously imposed life sentence.[7] Accordingly, where a sentence is required by statute to be served consecutively to any other sentence, the court must order it concurrent to a life sentence.[8]

Appellate Review

The decision to give a concurrent or consecutive sentence should be given the same deference as the judge's decision on the length of sentence.[9]

  1. ↑ Ruby, Sentencing (7th ed.) Markham:LexisNexis Canada Inc 2008, at p. 524
    R v Healey, 2016 CanLII 26778 (NL PC), per Orr J, at para 15
  2. ↑ R v McKinney, 1963 CanLII 360 (SK QB), [1963] SJ No 17, per Disbery J
    Healey, supra, at para 16
  3. ↑ Healey, supra, at para 18
    Ruby, supra, at p. 530
    R v KDH, 2012 ABQB 471 (CanLII), 102 WCB (2d) 621, per Manderscheid J, at paras 13 to 54
  4. ↑ e.g. R v Arbuthnot, 2009 MBCA 106 (CanLII), 248 CCC (3d) 219, per Chartier JA, at paras 19 and 24
    R v Osachie, 1973 CanLII 2354 (NS CA), NSJ 112 (NSCA), per MacKeigan JA, at para 10
  5. ↑ Arbuthnot, ibid., at para 24
  6. ↑ R v Hawkins, 2011 NSCA 7 (CanLII), 265 CCC (3d) 513, per Beveridge JA, at para 39
  7. ↑ R v Cochrane, 1994 CanLII 1733 (BC CA), 88 CCC (3d) 570, per Lambert JA, at para 9 ("These decisions all establish and agree that a term of years cannot be imposed on the basis that it be served consecutively with a life sentence, but only on the basis that it be served concurrently with a life sentence. The reason is that such a sentence, that is a sentence imposed consecutively to a life sentence, is a logical impossibility.")
  8. ↑ Cochrane, ibid.
  9. ↑ R v McDonnell, 1997 CanLII 389 (SCC), [1997] 1 SCR 948, per Sopinka J

Cumulative Sentences for Sexual Offences

Treatment of sexual offences are addressed in s. 718.3(7). That section states:

718.3
[omitted (1), (2), (3), (4), (5) and (6)]

Cumulative punishments — sexual offences against children

(7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct

(a) that a sentence of imprisonment it imposes for an offence under section 163.1 [child pornography] be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another section of this Act committed against a child; and
(b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under section 163.1 [child pornography], be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under section 163.1 [child pornography].

[omitted (8)]
1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182; 2015, c. 23, s. 17.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 718.3(7)

This section must still be subject to the principle of totality.[1]

History

This section was added with the Tougher Penalties for Child Predators Act, 2015, c. 23, which came into force July 16, 2015.

Constitutionality

There is some appellate authority finding s. 718.3(7) unconstitutional.[2]

  1. ↑ R v Dichrow, 2022 ABCA 282 (CanLII), per curiam, at para 28
    R v Kalliraq, 2022 NUCA 6 (CanLII), per curiam, at para 19
  2. ↑ R v Camacho, 2021 QCCA 683 (CanLII), per Vauclair JA - on crown concession only
    R v Kalliraq, 2022 NUCA 6 (CanLII), per curiam, at paras 21 to 23


Mandatory Consecutive Sentences

Certain sentences must be ordered to be served consecutively:

  1. Possession of Explosive Substance in association with criminal organization (s. 82 and 82.1)
  2. offences under s. 83.02 to 83.04 and 83.18 to 83.23
  3. Commission of indictable offence to advantage a terrorist group (s. 83.2 and s. 83.26)
  4. Instructing activity for terrorist group (s. 83.21(1) and s. 83.26)
  5. Instructing terrorist activity (s. 83.22(1) and s. 83.26)
  6. Using Firearm in Commission of Offence (s. 85(4))
  7. offences under s. 270(1), 270.01(1) or 270.02 committed against a law enforcement officer (270.03)
  8. Killing or injuring certain animals (445.01)
  9. Instructing commission of offence for criminal organization (s. 467.13(1) and s. 467.14)

The decision on whether a sentence should be concurrent or consecutive "should be treated with the same deference owed by appellate courts to sentencing judges concerning the length of sentences ordered."[1]

  1. ↑ R v McDonnell, 1997 CanLII 389 (SCC), [1997] 1 SCR 948, per Sopinka J, at para 17

Youth Sentencing

See also: Sentencing Young Offenders and Concurrent and Consecutive Youth Sentences

History of s. 718.3

The previous version of 718.3(4) read:

718.3.
...

Cumulative punishments

(4) The court or youth justice court that sentences an accused may direct that the terms of imprisonment that are imposed by the court or the youth justice court or that result from the operation of subsection 734(4) or 743.5(1) or (2) shall be served consecutively, when

(a) the accused is sentenced while under sentence for an offence, and a term of imprisonment, whether in default of payment of a fine or otherwise, is imposed;
(b) the accused is found guilty or convicted of an offence punishable with both a fine and imprisonment and both are imposed;
(c) the accused is found guilty or convicted of more than one offence, and
(i) more than one fine is imposed,
(ii) terms of imprisonment for the respective offences are imposed, or
(iii) a term of imprisonment is imposed in respect of one offence and a fine is imposed in respect of another offence; or
(d) subsection 743.5(1) or (2) applies.

1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182.

– CCC (CanLII), (DOJ)

Sections 718.3(5) to (7) were first introduced in 2012.

See Also

Retrieved from "https://criminalnotebook.ca/index.php?title=Concurrent_and_Consecutive_Sentences&oldid=94497"