Framework of Sentencing

Prepared by R. Paul Nadin-Davis, B.A., M. Phil, LL.M. formerly of the Faculty of Law, University of Ottawa

Updated by Brenda Waddle-Lynn, B.A. (Hons.), LL.B. of the Alberta Bar

Sentencing — Part I.1.(a) — Framework of Sentencing — Choice of Emphasis — Introduction

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I.1.(a) — Introduction

§1 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceable and safe society by imposing just sanctions that have one or more of the following objectives: to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society, where necessary; to assist in rehabilitating offenders; to provide reparation for harm done to victims or the community; and to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and the community. Societal change results in a constant reassessment of which of these aims should underlie an appropriate sentence. At times one or more of these factors may assume more importance that others, but all should be considered as part of the sentencing process. The relative weights, or mix, of the factors varies not only with reference to the nature, history and character of the offender but also with the kind of offence. In any case, the decision as to whether to sentence with primary reference to the offender or the offence may be referred to as deciding between "subjective" and "objective" sentencing. Academic writers appear to prefer the terms "individualized" and "tariff" sentencing. A sentencing court which fails to make a clear decision and attempts to compromise among conflicting objectives risks impossibility of achieving any purpose. The sentencing process in Canada is an individualized one, and always has been.

§2 A fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Without limiting the generality of the foregoing, the following factors are deemed to be aggravating circumstances: evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression or any other similar factor; evidence that the offender, in committing the offence, abused his or her spouse or common-law partner; evidence that the offender, in committing the offence, abused a person under the age of 18 years; evidence that the offender, in committing the offence, abused a position of trust or authority, in relation to the victim; evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation; evidence that the offence was committed for the benefit of, at the direction of, or in association with, a criminal organization; evidence that the offence was a terrorism offence; or, evidence that the offence was committed while the offender was subject to a conditional sentence under the Criminal Code or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act.

§3 A court that imposes a sentence on an organization shall also take into consideration the following factors: any advantage realized by the organization as a result of the offence; the degree of planning involved in carrying out the offence and the duration and complexity of the offence; whether the organization has attempted to conceal its assets, or convert them, in order to show that it is not able to pay a fine or make restitution; the impact that the sentence would have on the economic viability of the organization and the continued employment of its employees; the cost to public authorities of the investigation and prosecution of the offence; any regulatory penalty imposed on the organization or one of its representatives in respect of the conduct that formed the basis of the offence; whether the organization was — or any of its representatives who were involved in the commission of the offence were — convicted of a similar offence or sanctioned by a regulatory body for similar conduct; any penalty imposed by the organization on a representative for their role in the commission of the offence; any restitution that the organization is ordered to make or any amount that the organization has paid to a victim of the offence; and any measures that the organization has taken to reduce the likelihood of it committing a subsequent offence.

§4 A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The notion of uniformity of sentence is an essential consideration in the fair and just administration and enforcement of the criminal law. To promote this goal, the courts have frequently developed tariff sentencing guidelines, which refer to a "range" of acceptable sentences for the type of crime before the court. Lower courts must have due regard to the policy laid down by the Court of Appeal concerning punishment of particular types of offences and the severity of punishment that would be appropriate except where special circumstances exist. An appellate court must be able to rationalize any marked departure from sentences customarily imposed in the same jurisdiction for the same or similar crimes. If it cannot, the court should increase or decrease the sentence so as to attain a rational relationship. Precedents, including those from other provinces, are particularly useful where a court is faced with a type of offence relatively unusual in its locality or where a common approach is required to deal with a nationwide problem.

§5 The exercise of ensuring that sentences should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances cannot be given priority over the principle of deference to the trial judge's exercise of discretion, where that sentence is not vitiated by an error in principle and the trial judge has not imposed a sentence that is clearly unreasonable. §6 Appellate courts may attempt to achieve uniformity by fixing ranges for particular categories of offences as guidelines for lower courts, but this approach must not interfere with a sentencing judge's duty to consider all relevant circumstances in sentencing.

§7 It must be remembered that, while courts should pay heed to the sentencing ranges set out in the case law, they are guidelines rather than hard and fast rules. As a result, a deviation from a sentencing range is not synonymous with an error of law or an error in principle. The sentencing ranges must in all cases remain only one tool among others that are intended to aid trial judges in their work.

§8 Care must be taken that the court does not tie itself to rigid and inflexible rules in its pursuit of uniformity. Minimum, maximum or "standard" penalties are the exclusive prerogative of Parliament, and in the absence of legislative mandate a court is in error in following such self-imposed strictures. Thus a trial judge is in error in exercising his or her discretion in law by adhering to a policy of never imposing fines.

§9 Where consecutive sentences are imposed, the combined sentence is not to be unduly long or harsh. An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community, should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. A court must take judicial notice of the history of colonialism, displacement, and residential schools. The effects of this history are multi-generational and continue to translate into lower educational attainment, lower incomes, higher unemployment, substance abuse, suicide, and higher levels of incarceration for Aboriginal peoples.

§10 After hearing the recommendations from both Crown and Defence, a judge may go above the range recommended by Crown counsel but must do so after giving reasons for the sentence given.

§11 If the sentencing judge's preliminary assessment of a fit sentence excludes both a suspended sentence and a penitentiary sentence, and the statutory prerequisites for a conditional sentence have been fulfilled, then the judge, in determining the appropriateness of a conditional sentence, is required to consider the sentencing principle that all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community, should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. A consideration of this sentencing principle does not displace the need to take into account all of the other sentencing principles and objectives.

§12 Although a sentencing judge must take into account an accused's Aboriginal background, the principles of restorative justice should not outweigh the principles of denunciation and deterrence in all cases.

§13 The sentencing judge is required to craft a sentence which is appropriate for the offence and the offender; it would be a misapplication of the Criminal Code to automatically reduce a sentence or exclude imprisonment merely because a particular accused is of Aboriginal descent. However, a sentencing judge is called on to undertake a fundamentally different analysis when sentencing an Aboriginal person, because Aboriginal persons have unique circumstances. Such an analysis must begin with an assessment of the degree to which systemic and background factors unique to Aboriginal offenders have played a role in a particular accused's life and appearance before the court. These factors will often include poverty, substance abuse, lack of education, and lack of employment opportunities. Where these factors have played a significant role in an Aboriginal accused's life, the analysis shifts to an assessment of the availability of appropriate alternatives to imprisonment as a sentence. Any such analysis must be informed by the model of "restorative justice" emphasized in many Aboriginal cultures and as an element of the Criminal Code, which is grounded in a need for offenders to take personal responsibility for their actions and by a desire to heal the victim, offender and community from the damage caused by antisocial behaviour. The final step in any sentencing analysis is the same for all offenders, Aboriginal and non-aboriginal. The sentencing judge must craft a fit sentence, having regard to all of the aims and principles of sentencing.

§14 Courts must take into account not only the direct effect on an Aboriginal offender of systemic background issues, but consider offenders in the context of those issues generally and take into account the offender's relationship to his or her community.

§15 The sentencing principle that all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community, should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders, applies to all Aboriginal persons both on- and off-reserve and in large cities as well as small communities.

§16 Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court convicting a person who commits the offence. Where an enactment prescribes a punishment in respect of the offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court convicting a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment.

§17 If the effect of a statutory provision constitutes a violation of the rights guaranteed by the Canadian Charter of Rights and Freedoms, including the right not to be subjected to cruel or unusual treatment or punishment, the appropriate remedy is to strike down the provision as being of no force or effect, not to grant a constitutional exemption. To do so would unduly infringe on Parliament's power to craft legislation and undermine the rule of law.

§18 Mandatory minimum sentence provisions must be interpreted in a manner that does not offend the integrity of the criminal justice system. If the Criminal Code is interpreted so as to prevent credit being given for pre-sentencing custody under a mandatory minimum offence, the result would be offensive both to rationality and justice.

§19 A fit sentence for a hybrid offence is neither a function nor a fraction of the sentence that might have been imposed had the Crown elected to proceed otherwise than it did. There should be no reduction from the maximum on a summary conviction simply because the accused would have received less had he or she been prosecuted by indictment. There should also be no increase in the sentence when prosecuted by indictment instead of by summary conviction. When the Crown elects to prosecute a hybrid offence by way of summary conviction, the sentencing court is bound by the Crown's election to determine the appropriate punishment within the limits established by Parliament for that mode of procedure.

§20 A court must, as soon as practicable after an offender has been found guilty, conduct proceedings to determine the appropriate sentence to be imposed. The court may, with the consent of the attorney general and the offender and after considering the interests of justice and of any victim of the offence, delay sentencing to enable the offender to attend a treatment program approved by the province under the supervision of the court, such as an addiction treatment program or a domestic violence counselling program.