History of Punishment and Sentencing
Historical Approaches to Punishment
Ancient Societies
The common forms of punishment in ancient communities like Greece and Rome
included:
capital punishment (over time, capital punishment has taken many forms: stoning,
throwing the offender off a cliff, burning at the stake, crucifixion, being buried alive,
being hanged (dragged, quartered, entrailed), the guillotine, electrocution, gas
chamber, etc.)
physical mutilation (e.g., cutting the hand off of a thief, or cutting off a tongue or
ear, or branding)
corporal punishment (e.g., whipping, torture etc.)
confiscation of property
exile (as an alternative to capital punishment)
loss of civil status
forced labour (e.g., working in the salt mines or in the galley of a boat or forced to
participate in gladiatorial combat)
prison was usually only used to hold persons awaiting trial or execution, or for debtors
public shaming or denunciation was used for minor offences.
Medieval England
In England many of the same punishments were in effect. Punishment was often
conducted in public to deter others.
For serious crimes, capital punishment, exile, transportation (e.g. to Austalia, other
colonies) or physical mutilation were used.
By 1800, capital punishment was available for as many as 200 offences (felonies).
Benefit of clergy was used as a way to avoid capital punishment (p. 8). [Clergy were
only answerable under ecclesiastical law. Therefore common law courts could not
impose capital punishment. As benefit of clergy expanded, Parliament enacted
statutes saying that many serious crimes were not "clergyable".]
For less serious crimes various forms of public shaming were used -- the stocks, the
pillory and branding.
In the 1600s, and especially in the 1700s, transportation to new colonies [involving
forced labour in a penal colony or indentured servitude] became a popular form of
punishment (especially as an alternative to capital punishment).
Forced labour (in workhouses or ship galleys) was another form of punishment for less
serious offenders, especially for beggars and vagrants.
In England anyone convicted of a felony also lost all property rights (existing property and
the right to inherit property) [attainder and corruption of blood] [page 8 and 9].
Rise of the Penitentiary
In the late 1700s transportation to the new colonies became less and less popular (to
those inhabiting the new colonies). It was at this time that penitentiaries arose as an
alternative to capital punishment or transportation. Penitentiaries were designed for
long-term imprisonment. Two main models of penitentiaries arose.
-2The Pennsylvania Model -- or separate system -- involved keeping prisoners confined
separately at all times. Prisoners would eat, work and pray separately and alone.
Theoretically this was to give them time to reflect upon their waywardness and to
keep them away from the bad influences of others while they engaged in a process of
self-correction.
The other penitentiary model was the congregate or Auburn model where prisoners
were confined in separate cells, but came together for work, study and prayer. In this
system the prisoners were still prohibited from communicating with each other,
except in exceptional circumstances.
The first penitentiary in Canada was opened in Kingston, Ontario in 1835 and it,
like other subsequent Canadian penitentiaries, adopted the congregate or
Auburn system.
Punishment in Canada
Punishments for crimes in Canada at the beginning of the 19th century were similar to
England -- capital punishment, corporal punishment, transportation or banishment, pillory
and branding.
In 1800, fines were introduced in Upper Canada as an alternative to branding, [p. 15]
as was imprisonment with hard labour (for 6 to 24 months) in work houses or local
jails.
In 1830, branding was abolished as a punishment in Upper Canada.
Corporal punishment in the form of public flogging was abolished in the 1830s, but
whipping in the private confines of the prison continued in force for serious crimes.
Whipping remained an available punishment for sexual offences in Canada until 1972.
Capital punishment was also losing favour. In 1833 the Upper Canada legislature
restricted capital punishment to 9 serious crimes, including treason, murder, rape,
buggery, bestiality, robbery, arson, and burglary.
Codification of Punishment and Sentencing
At the time of Confederation in 1867, the federal government was given exclusive
legislative jurisdiction for determining crimes and punishments.
In 1869, the federal government enacted a number of Consolidation Acts. One of
those Acts largely adopted the penalty structure which had been set out in a similar
English Act of 1861.
That penalty structure for offences started with -- capital punishment, then life
imprisonment, then terms of imprisonment of 14, 10, 7, 5 or 2 years or 6 months
(summary conviction) imprisonment. That penalty scheme was then adopted in the
first Canadian Criminal Code of 1892 and has pretty much remained in effect.
The BNA Act [s. 91(28)] also assigned responsibility to the federal government for
establishing and maintaining "penitentiaries" and s. 92(6) assigned responsibility
for local jails and reformatories to the provinces.
Capital punishment (hanging) was officially abolished in 1975, but the last hanging to
occur in Canada was in 1962.
New rules for parole ineligibility were set for murder -- no parole eligibility for 25
years, subject to a "faint hope clause" application to a jury after 15 years to reduce
parole eligibility to something less than 25 years.
-3Throughout the 20th century, imprisonment remained as the primary sentencing
response to crime, although fines and probations gained some ground during the
course of the twentieth century.
Imprisonment is available to every offence in the Criminal Code!
Changing Focus of Punishment
The "Changing Focus of Punishment" from the 18th to the 21st centuries is summarized as
follows:
At the end of the eighteenth century, most sentences were directed at the body of the
offender either in the form of execution or mutilation.
Exclusion was also a dominant feature, achieved through transportation, banishment,
and civil disability.
The birth of the penitentiary provided a change in course, to stipulated periods of
deprived liberty during which, optimistically, some reformative process would take
place.
Initially, the engines of reformation were thought to be penitence, discipline, and
hard labour.
Later, the rehabilitative ideal replaced these regimes with psychological,
vocational, and education programs.
In the twentieth century, various factors produced a renewed interest in fines and the
new sanction, probation.
Now, at the beginning of the twenty-first century, we are in the midst of a debate
about the overuse of imprisonment and the continuing search for non-custodial
alternatives. One can anticipate that various disparate factors like rapidly expanding
costs of imprisonment, the enthusiasm for restorative justice, and dissatisfaction
about the state of criminal justice in aboriginal communities will combine to
encourage new community-based alternatives with a large role for members of the
community, both as contracted service providers and volunteers.
Developments Leading to Reform of Sentencing in
Bill C-41 (1996)
Earlier reports on sentencing reform:
Archambeau – 1939
Fauteux – 1956
Ouimet – 1969
Law Reform Commission of Canada (LRCC)
Established in 1972 – commission composed judges and well-known academics
First act was for draft a new Criminal Code
1970s - Produced a number of reports on sentencing
1984 – Established a sentencing commission
1987 – Released a detailed report on sentencing
1996 – Bill C-41
Statutory Structure of Sentencing Before Bill C-41
-4No legislative statement of penal purposes (aims and objectives of sentencing). Courts
said sentence must be a wise blending of conflicting goals:
Retribution/denunciation
Deterrence [general/specific]
Incapacitation [long term imprisonment and Dangerous Offender designation]
Rehabilitation [probation/parole etc.]
No legislative statement that one purpose has priority over another [Sentencing is
an art, not a science.]
No legislative statement of sentencing principles in the Code
E.g., proportionality, least restrictive sanction, parity (similar sentence for similar
case)
Only guidance in the Code: maximum punishment is specified.
Max. is based on "worst case" scenario
Even then, max. is grossly beyond realistically fair sentence
Thus there is no guidance for ordinary, usual, unusual or average offence.
No guidance for the most critical decision: jail/no jail, [in/out decision]; i.e. no
guidance on when to use probation or fine rather than jail
Over-reliance on imprisonment: i.e. available for all criminal offences. Treats
imprisonment as the primary sentencing option.
Offence descriptions are too broad:
E.g. offences not sub-divided into Robbery 1st, 2nd, 3rd degree etc. - same penalty
available for all levels of robbery
Code's existing scale of offence seriousness needs review (100-150 yrs. old)
E.g. B & E of a dwelling house = life; forgery of passport = 14 years max.; while assault
causing serious bodily harm is 10 years max.
Prosecutorial discretion can greatly affect sentence - no legislative guidelines or
supervision on exercise of prosecutor's discretion
Number of charges
Indict/summary
Agreed facts
Plea bargaining
Joint sentencing submissions
Even who your judge is
Parole and remission: reduction of judge's sentence of imprisonment by as much as
2/3rds by parole or 1/3 by statutory remission release results in "lack of truth" in
sentencing and creates public cynicism.
Victim is ignored (no victim impact statements, restitution seldom granted).
Sentencing law is largely inaccessible / unknowable to ordinary person.
Criminal Code provides little guidance – bulk is from the unwritten common law
Conclusion
The above structure leads to (i) arbitrary sentencing; (ii) unequal and disparate
sentencing; and (iii) confusion, uncertainty and loss of respect for the system
-5Sentencing is largely "lawless" discretion: each judge may apply there own sentencing
philosophy, so there is often no unifying model and results vary widely
Statutory delegation to judges with virtually no structure or guidance
Synopsis of Sentencing Reform Chronology
Between 1972 and 1977, the LRCC produced several Working Papers and Study Papers on
sentencing, culminating in A Report on Dispositions and Sentences in the Criminal Process
(1977). Although the LRCC recommendations were not converted into legislation, its
studies and reports did stimulate changes in judges’ sentencing practices. [e.g., more use
of restitution, community work orders and fine option programs]
Sentencing reform was an acknowledged part of the government’s Criminal Law Review
Initiative. General principles for the reform of criminal law and sentencing appeared in
the government’s 1982 Report, The Criminal Law in Canadian Society.
In 1984 Justice Minister MacGuigan introduced the Criminal Law Reform Act 1984, known
as Bill C-19. Bill C-19 was a massive bill involving changes in procedure, substantive
criminal law and virtually a new code in regard to sentencing. Bill C-19 was
approximately 300 pages in length. Parliament was dissolved in July 1984 before the
Bill received second reading.
Justice Minister MacGuigan also released a Report entitled Sentencing in February 1984,
which discussed sentencing issues and concerns and explained the rationale for the
sentencing proposals found in Bill C-19. The Report also announced that a Sentencing
Commission would be established.
The Sentencing Commission was established in May, 1984 to examine the current level
of maximum penalties, to develop model sentencing guidelines, and to advise on the
best use of sentencing guidelines.
After the 1984 election, John Turner’s Liberals were defeated and Brian Mulroney’s
Conservatives came into power. The Criminal Law Amendment Act of 1984 was
reintroduced as Bill C-18 in the next legislative session which began on December 19,
1984. However, Bill C-18 was substantially pared down in size (172 pages) and did not
involve the sentencing reforms that were found in Bill C-19.
The Sentencing Commission published its final Report in 1987, calling for extensive
changes.
The Commission’s recommendations were studied by the House of Commons Standing
Committee on Justice and Solicitor General. That Committee, chaired by David Daubney,
produced its Report, Taking Responsibility, in August 1988, containing 97
recommendations for change.
In 1990, the Department of Justice issued a Discussion Paper entitled “Sentencing:
Directions for Reform”.
In June, 1992 the Government gave first reading to Bill C-90, An Act to Amend the
Criminal Code on Sentencing. The Bill received second reading May 7, 1993 and then died
on the order paper when the general election was called.
Following the election and further consultations, Justice Minister Rock introduced Bill C41 in 1995. It was ultimately passed and proclaimed in force on September 3, 1996.
Bill C-41 involved significant sentencing reform, although it did not incorporate the
Sentencing Commission’s recommendations for presumptive guidelines and the
establishment of a permanent Sentencing Commission.
-6-
Synopsis of Law Reform Commission of Canada Ideas and
Proposals
The first comprehensive attack on Canada's sentencing laws and structure was
initiated by the Law Reform Commission of Canada. Between the years 1974 to 1977,
the Commission issued a number of Research Papers, Working Papers and Final Reports on
Sentencing.
Many of the ideas and proposals advocated by the Law Reform Commission were
considered at that time to be novel, some even heretical, to lawyers, judges and others
involved in the criminal justice system. Amongst other things, the Commission argued:
that widespread and unwarranted disparity in sentencing existed; uncritical acceptance of
the legitimacy of "individualized sentencing" (i.e. each case is different, therefore
sentences are understandably different) was wrong;
that imprisonment was over-used as a sanction;
that "just deserts" should be the operational principle in determining sentences;
that rehabilitation and deterrence were largely ineffective, and were not legitimate goals
in determining length or severity of sentences;
that restraint, and the least restrictive option, should be used at all stages of the criminal
justice system including the imposition of sanction;
that imprisonment in default of payment of fines was commonplace and should not be;
that greater regard should be paid in sentencing to reconciliation and repairing the harm
done;
that compensation and restitution orders should become an integral part of sentencing;
that community-based alternatives to imprisonment be developed and that community
work orders be used where an offender could not afford to make financial compensation
or restitution.
Although Parliament did not immediately enact legislation to embrace the Commission's
proposals, the Commission's work has been very influential informally in changing
sentencing practices and especially encouraging experimental projects on communitybased sanctions, restitution and fine-option programs. It is testimony to the Commission's
influence that many of their ideas today sound commonplace.
Synopsis of Canadian Sentencing Commission Ideas and
Proposals
In the early 1980s the Canadian government realized that Canada's sentencing laws were
in need of substantial reform and they also realized that if substantial alterations in
judges' sentencing powers were to be made, it would be politically wise to have such
changes recommended by judges themselves. So in May, 1984, the Canadian
government appointed a Sentencing Commission composed of six judges, one lawyer,
one native court worker and one criminologist.
The Commission's Terms of Reference clearly indicated where the government wanted
the Commission to go. In the preamble to the Terms of Reference, mention is made of
the importance of fairness and certainty in sentencing, of the undesirability of
unwarranted disparity in sentencing and of the use of sentencing guidelines in other
jurisdictions. In particular, the Commission was directed in its Terms of Reference:
to examine the current level of maximum penalties and to recommend changes;
-7to develop model guidelines for sentencing and advise on the most feasible and
desirable means for their use and for their ongoing review for purposes of updating;
to advise on the use of sentencing guidelines and their relation to prosecutorial
discretion, mandatory minimum sentences, and parole and remission provisions.
After nearly three years of deliberation and study, in February 1987, the Sentencing
Commission released its report entitled "Sentencing Reform: A Canadian Approach". The
Report is the most detailed, extensive and empirically researched study of sentencing
laws which has ever been conducted in Canada. The Commission's recommendations are
far-reaching, generally well-reasoned and in some respects novel. In general, the Commission
has tried to steer a middle path between unfettered discretion and total inflexibility in
sentencing.
In its Report, the Sentencing Commission analyzed the various deficiencies in Canada's
sentencing structure and concluded the most serious deficiencies included the following:
the absence of a uniform approach to the theory, purpose or principles of sentencing;
almost no systematic knowledge of current sentencing practice;
maximum penalties provide almost no realistic guidance as to the relative seriousness of
offences or actual practice;
the perceived inequity of mandatory minimum penalties;
wide range of behaviour subsumed under one offence category;
little unambiguous and systematic guidance from Courts of Appeal;
over 1,000 judges, with varying sentencing philosophies, regularly imposing sentences
in criminal matters across the country with few opportunities for communication
among them;
an acceptance of the concept of "individualized sentencing";
the lack of accountability in either the charging practices of police and prosecutors or
plea negotiations;
variation across and within provinces in the availability of many sanctions other than the
imposition of terms of imprisonment;
As the Sentencing Commission has noted, imagine the outcry that would occur if the
determination of taxes was as vague, uncertain and discretionary as the determination of
sentences currently is!
The Commission also noted that there was a lack of clarity and predictability in sentencing,
that the general public did not understand sentencing laws and practices, but were critical of
them nonetheless and that the sentencing system did not provide sufficient mechanisms to
consider victims' concerns. The Commission also concluded that there was an over-reliance
on imprisonment, an expensive sanction which accomplished little. The Commission was of
the view that the basic structural flaws in the sentencing system could not be eliminated by
tinkering with the existing system or by encouraging judges to improve what they do. Thus
the Commission recommended the creation of a comprehensive and integrated sentencing
structure with a view to making sentencing more equitable, predictable and
understandable.
The Commission's central recommendations for this new integrated sentencing structure can
be summarized as follows:
the enactment by Parliament of a statement of purpose and principles of sentencing; DONE by Bill C-41
the abolition of all mandatory minimum penalties (other than for murder and high
treason); - NOT DONE
-8replacement of the current maximum penalty structure for all offences (other than
murder and high treason) with a structure of maximum penalties of 12 years, 9 years, 6
years, 3 years, 1 year, 6 months; - NOT DONE
the abolition of parole (except for mandatory life sentences); - NOT DONE
a reduction in statutory remission from one-third to one-quarter of the sentence imposed;
- DONE
the abolition of "automatic" imprisonment for offenders who default in the payment of
fines (except in cases where there is no other way to deal with wilful fine defaulters); NOT DONE
the establishment of presumptive guidelines that indicate whether a person convicted of a
particular offence should normally be given a custodial or a community sanction. In
appropriate cases the judge could depart from these guidelines provided written reasons
are given; the establishment of a "presumptive range" for each offence normally requiring
incarceration. Again the judge could depart from the guidelines in appropriate cases;
the creation of a permanent sentencing commission to develop presumptive ranges for all
offences, to collect and distribute information about current sentencing practice, and to
review and, in appropriate cases, to recommend to Parliament the modification of the
presumptive sentences in light of current practice or appellate decisions; - NOT DONE
the provision of necessary financial resources to develop and encourage widespread use of
community sanctions and the development of principles and criteria for the use of
community sanctions. – NOT DONE
Synopsis of Some Sentencing Reforms in Bill C-41
Bill C-41 represents a significant effort to reform Canada's sentencing laws. However,
it falls short of many of the sentencing reforms which had been proposed by the Law
Reform Commission of Canada and the Sentencing Commission.
In terms of structuring sentencing, Bill C-41 basically adopts the second approach -- a
statement of sentencing principles.
Bill C-41 rejected recommendations for the introduction of presumptive guidelines and
there is no direction to appellate courts to provide greater guidance to sentencing judges.
Bill C-41 rejected recommendations for the establishment of a permanent sentencing
commission.
Bill C-41 did give greater prominence to the use of alternatives to imprisonment. (See
alternative measures: s. 717.)
Bill C-41 created the controversial (and strangely named) Conditional Sentence of
Imprisonment.
Bill C-41 sets out a statement of purposes and principles of sentencing in sections 718,
718.1 and 718.2.
The objectives of sentencing set out in section 718 are for the most part the
traditional justifications of punishment. By themselves, these objectives will not lead
to any significant restructuring of sentencing laws.
Section 718.1 does acknowledge the important principle that sentences must be
"proportionate" to the gravity of the offence and the degree of responsibility of the
offender. Once again, this has been pretty much accepted in existing sentencing case
law.
Section 718.2(a) only sets out five aggravating circumstances and lists no
mitigating circumstances.
-9Section 718.2(b) specifies the important principle of equity in sentencing by stating
"the sentence should be similar to sentences imposed on similar offenders for similar
offences committed in similar circumstances".
And sections 718.2(d) and (e) set out important principles in regard to restraint in the
use of imprisonment:
"(d) An offender should not be deprived of liberty, if less restrictive sanctions may
be appropriate in the circumstances; and
All available sanctions other than imprisonment that are reasonable in the
circumstances should be considered for all offenders with particular attention to the
circumstances of aboriginal offenders."
The Philosophical Dimensions of Punishment
Introduction to Sentencing and Punishment
First it is important to note the distinction between sentencing and punishment.
Sentencing is the process which we use to determine and impose an appropriate
sanction for a person who has been found guilty of a crime.
Punishment is the intentional infliction of pain, suffering or deprivation on a person.
Punishment is, and has traditionally been, the primary response to and sanction for crime
While punishment is not, and need not be the only response to crime, it is nonetheless
the primary response. Other responses can include reprimand, counselling, treatment
and/or compensation to victims.
The concept of restorative justice emphasizes restoration, reconciliation and
compensation, rather than punishment, but restorative justice is still situated on the
outer fringes of the current criminal justice system. Restorative justice practices, like
conferencing or circle sentencing, do not necessarily exclude punishment as part of the
restorative resolution.
A system which is arguably there to supplement or replace our punitive, adversarial
criminal justice system.
Justifications for Punishment
For centuries, there has been a philosophical debate in regard to the question what
justifies the state in imposing punishment on offenders (i.e. intentional infliction of pain,
suffering or deprivation).
There have been two primary schools of thought:
retributivist theories
Vengeance, retribution, just desserts
utilitarian or consequentialist theories
Punishment is justified because of the consequence it is intended to bring about
E.g. incapacitation of the offender, or deterrence of the offender or others, or
rehabilitation of the offender.
As we will see these two theories need not be mutually exclusive. The modern
approach to justifying punishment is not to pick one or the other theoretical rationale,
but rather to rely upon or borrow from both.
- 10 -
Retributivist Theories
Retributivist theories have three key aspects:
offenders "deserve" to be punished
the state has an obligation to punish offenders
the notion of proportionality, i.e. the offender should be punished no more or no
less than that which is "deserved".
An early and rudimentary form of proportionality was "an eye for an eye"; retributivists
no longer demand that type of "copy cat" proportionality.
Kant (1770s) and Hegel (early 1800s) were two of the leading philosophical proponents of
the retributivist justification for punishment.
Kant's view of punishment and responsibility are deeply embedded in our criminal law
system. His views are premised on his notion of human beings as "rational, autonomous
persons". In other words, humans had the capacity to reason and to choose. If a human
being had the capacity to reason between right and wrong and chose to do wrong,
then Kant argued that he or she "deserved" to be punished and that the state had an
obligation to impose that punishment.
Children, the insane, were not rational beings and therefore did not “deserve”
punishment in the same way
Don’t generally accept the determinist view that we are pre-conditioned. Rather, we
are moral agents with the free will to make choices.
But there are ranges of voluntariness. Need to consider social conditions such as
poverty, drug addiction, health, etc.
For Kant, punishment should not be administered merely as a "means" for promoting some
other social goal -- deterrence, protection etc. Where punishment was deserved, it
should be imposed whether or not those other goals would or could be met by
punishment. For Kant, to punish people to achieve other social goals, is to treat
human beings as "means" rather than as "ends" (and that for Kant would be a violation
of human dignity).
Kant argued that retribution includes the notion of proportionality which he referred
to as an equality between the offence and the punishment. A proportionate
punishment would be determined by both the seriousness of the offence and the
circumstances of the offender (including the offender's intention when committing the
crime).
Hegel's conception of the retributivist justification for punishment was premised on the
notion of a "moral balance sheet". A wrong or crime required a response by the state to
balance out that wrong and to restore the right. In other words punishment annulled
the wrong and reasserted the right or value which had been violated. Punishment
restored the moral balance in society.
Hegel also recognized that retributive forms of punishment required some degree of
proportionality.
Retribution in Modern Sentencing Practice
- 11 James Fitzjames Stephen -- the 19th century "father" of the Canadian Criminal Code -considered retribution as the primary justification for punishment. One of his earlier
codification predecessors -- Jeremy Bentham -- argued that punishment should be
justified upon utilitarian grounds -- deterrence, incapacitation or rehabilitation.
In Anglo-Canadian sentencing law -- as reflected in judges' decisions -- retribution was
the principal rationale -- although courts would also refer in some instances to
deterrence or incapacitation, and less frequently rehabilitation.
In the latter half of the 20th Century, the word "retribution" fell into some disfavour -and many courts began to refer more frequently to deterrence and rehabilitation as
primary sentencing goals.
The use of the word retribution fell into some disuse because of its comparison to the
more distasteful word "vengeance". [See R. v. Hinch (BCCA, 1968) at 36 in your Text.]
However, as C.J. Lamer stated in R. v. M.(C.A.) [1996], retribution is a legitimate and
important justification for punishment [see Text p. 37 and Coursepack p. 29-32].
Lamer distinguishes retribution from vengeance. Vengeance is uncalibrated
(disproportionate), based on emotions such as anger, imposed by the victim rather
than the state; whereas retribution according to Lamer represents an objective,
reasoned and proportionate response by the state to the wrongdoing of the
offender.
Just Deserts
For the past 30 years, the retributivist approach to punishment has been usually
characterized as "just deserts" -- which is seen as a more palatable expression than
"retribution".
Andrew von Hirsch is one of the better known philosophical proponents of the "just
deserts" approach. von Hirsch, and other modern retributivists, do however recognize
that punishment has important utilitarian objectives as well. But they would argue that
those objectives should be achieved within the context of what is otherwise a "justly
deserved sentence".
von Hirsh's conception of just deserts includes the creation of a penalty scale to
reflect different levels of offence seriousness.
For von Hirsch, denunciation and censure are key societal objectives for a "just deserts"
sentencing model.
The Law Reform Commission of Canada and the Canadian Sentencing Commission
(1987) both advocated "just deserts" as the primary rationale for sentencing.
It is also interesting in this context to examine whether retribution or just deserts appear
in the statement of sentencing objectives and principles enacted under Bill C-41 in 1996:
ss. 718, 718.1 and 718.2.
Michael Tonry and others are critical of "just deserts" as:
Over simplified - "real cases can not be so easily grouped to produced categories of
"like-situated offences and offenders:
Unfair in giving similar punishments to persons from vastly different socio-economic
life experiences and situations, and
Just deserts is contrary to the principle of applying the least restrictive
penalty/punishment possible.
- 12 -
Consequentialist or Utilitarian Justifications
Under consequentialist or utilitarian theories, punishment is justified by the assumed
benefits that the punishment will provide to society -- e.g.,
Incapacity: imprisonment separates the offender from society and thereby diminishes
the offender's capacity to offend at least outside the prison walls
Rehabilitation: if effective, further law-breaking is prevented and the offender is
returned as a productive member of society
Deterrence: both specific and general
Bentham (in the late 1700s and early 1800s) was one of the key proponents of utilitarian
justifications for punishment. Some of his key utilitarian conceptions of punishment are
summarized in your Text at page 42.
Utilitarians recognize that utilitarian benefits must be pursued within some framework of
justice (i.e. it is not just and therefore appropriate to punish the innocent even if that
would achieve some greater measure of general deterrence).
In the past thirty years these utilitarian goals of incapacitation, rehabilitation and
deterrence have been subjected to various empirical studies which studies have cast
considerable doubt on whether these goals can actually be achieved by the imposition of
punishment
Deterrence
Deterrence (both specific and general) has been a popular goal and rationale for
punishment for many centuries. In the 18th and 19th centuries, deterrence was premised
on the belief (by Bentham, Mill and others) that humans are "rational actors" weighing the
advantages and disadvantages of all their actions -- including the choice to commit
crimes. Thus for deterrence to work, the pain of punishment must be equal or be
greater than the pleasure of crime in order to deter both the individual -- and others - from choosing to commit further crimes.
By the beginning of the 20th century, the "deterministic" beliefs that crime was very often
a function of an offenders, psychological, social and economic background rather than
simply a matter of rational, autonomous decision-making, shifted some of the utilitarian
focus of punishment onto the other utilitarian functions of incapacity and rehabilitation,
and not simply deterrence.
In regard to specific deterrence, it is appropriate to ask whether punishment deters the
specific offender from reoffending. If punishment deters the specific offender, one would
expect a drop in the recidivism rates. In your Text at page 44 there is a reference to a
1999 meta-analysis of over 50 studies (involving over 336,000 offenders). That study
concluded there was no evidence that prison sentences reduced recidivism. In fact,
the study indicated that prison sentences produced a slight increase in recidivism.
The authors of that meta-analysis list four important policy implications which flow from
the results of their study (see Text p. 44):
Prisons should not be used with the expectation of reducing criminal behaviour:
The excessive use of imprisonment has enormous cost implications.
- 13 It is important to determine who is being adversely affected by imprisonment and this
requires repeated, comprehensive assessments of offenders' attitudes, values and
behaviours during incarceration. and
Incapacitation should be the primary justification of imprisonment."
In regard to general deterrence, does punishment create a general deterrent effect on the
rest of us?
Empirical evidence to date has not convincingly confirmed the existence or the
amount of general deterrence gained by imposing sanctions.
There is an overall belief by the public, the judiciary and even the Canadian
Sentencing Commission that legal sanctions do have some overall deterrent effect
on crime but how much deterrent effect is quite unknown.
Deterrence studies also confirm that whatever deterrent effect exists, it has more
to do with the certainty of punishment (i.e. the probability of getting caught),
rather than the severity of the punishment. (See e.g., the recent 1999 University of
Cambridge study cited at p. 46 of your Text.) A very important implication of this
deterrence research -- an implication which is not yet embedded in the minds of
either judges or legislators -- is the empirically proven fact that an increase in
sentence severity is not likely to produce an increase in either general or specific
deterrence.
Incapacitation
It is generally agreed that imprisonment, for example, produces an incapacitative effect
on the individual offender. Apart from the commission of crimes within the prison, the
offender cannot normally commit crimes against the rest of society while imprisoned
(although there have been exceptions to that), (e.g., mob bosses directing some activities
from prison).
The major difficulty with incapacitation is determining the extent of incapacitation which
arises from imprisoning an offender. This calls for a determination of the unknown:
How much crime would the offender commit if they were not imprisoned?
Imprisoning this offender may not prevent those crimes which the offender would
otherwise have committed, e.g. the job of the drug trafficker who is now imprisoned
will simply be taken over by another drug trafficker.
Another disturbing aspect of incapacitation is our inability to accurately predict -- at
least on a statistically relevant basis -- which offenders will reoffend and which will
not.
Psychiatric and psychological predictions of dangerousness are notoriously bad.
Forensic psychiatrists and psychologists are typically wrong two times out of three
when it comes to predicting dangerousness -- they are predisposed to overpredicting
dangerousness, since underpredicting dangerousness will leave society at risk and their
professional reputation in tatters.
Although new forms of actuarial assessment of future dangerousness has reduced the
number of false predictions of dangerousness, the accuracy of dangerousness predictions
is still except in the most obvious of cases, disturbingly inaccurate.
- 14 -
Rehabilitation
In the mid-1970s, Robert Martinson's article "What Works? Questions and Answers About
Prison Reform" provided a very pessimistic view of the reformative impact of any and all
rehabilitation programs in prison. Martinson's claims were overstated, but they did have a
chilling impact on the pursuit of rehabilitative programs in prisons.
More recent studies have resurrected some enthusiasm for rehabilitative programs in
prisons. While imprisonment should not be justified on the basis of achieving
rehabilitative goals, there is a strong belief that rehabilitative opportunities should be
provided to those inmates who wish to take advantage of them.
Generally non-prison sentences are seen as a more legitimate method for pursuing
rehabilitative goals (probation and conditional sentencing).
Conclusion
As already noted, there are two main weaknesses with utilitarian justifications for
punishment:
There is little or no achievement of the utilitarian goals, whether that be
deterrence, incapacitation or rehabilitation;
Utilitarian rationales run into the moral problem of using individuals as a means to
achieve a collective end -- a proposition which at least some philosophers feel is a
serious threat to the notion of human dignity and autonomy.
Communicative or Expressive Justifications for Punishment
More recently a third form of justification for punishment has emerged. Duff refers to
this as the communicative or expressive function of punishment.
This is expressed in terms of punishment being a denunciation of and a censure of
wrongful conduct, and this denunciation and censure is seen as an important function
of punishment for both the individual and society at large.
As Duff says "punishment expresses condemnation: it denounces and formally
disapproves the criminal's act; it disavows that act as one which is not to be tolerated
or condoned." It also satisfies the victim's need to hear public disapproval of the
wrong which has been committed.
Censure and denunciation are also important elements of restorative justice which
requires acknowledgement of the wrong done and efforts to repair the harm caused to
both the victim and the community.
Manson suggests that denunciation and censure have aspects of both just deserts and
deterrence.
David Garland expresses the communicative theory of punishment in different language.
At page 53 of your Text he states: "In the course of routine activities, punishment
teaches, clarifies, dramatizes, and authoritatively enacts some of the basic moralpolitical categories and distinctions which help form our symbolic universe. It
routinely interprets events, defines conduct, classifies action, and evaluates worth, and,
having done so, it sanctions these judgments with the authority of law, forcefully
projecting them on to offenders and the public audience alike."
Merged Theories
- 15 As noted at the beginning, punishment is best explained and rationalized by the
merger of both retributive and utilitarian explanations. As the legal philosopher H.L.A.
Hart has observed, any morally tolerable explanation and justification for the institution
of criminal punishment must exhibit a compromise between the distinct and partly
conflicting principles of retribution and utility.
Judicial Approaches to Sentencing
Sentencing in Canada is, in the vast majority of cases, discretionary:
One of the biggest criticisms of the system is that the Criminal Code gives very little
guidance to the judge. Before Bill C-41, there wasn’t even a statement of objectives.
Criminal Code itself specifically recognizes judicial discretion: CC s. 718.3 indicates
that the choice of sentence is at the discretion of the judge:
“the punishment to be imposed (subject to the limitations prescribed in the
enactment, is at the discretion of the court convicting a person who commits an
offence.”
Discretion is subject only to a small (but growing) group of offences that carry
minimum penalties
Statue may also impose a maximum sentence (more common)
Statement of objectives (CC s. 718) intended to give some direction to the judge, but
does not give any priority to those objectives.
2005 Amendment s. 718.01 – When a court imposes a sentence for a crime involving
the abuse of person under the age of 18 (abuse against children), the court shall
give primary (but not exclusive) consideration to the objectives of denunciation
and deterrence.
Focus is on the offence itself, rather than on the characteristics of the offender.
Does not give specific direction on the quantum of sentencing. Maximum sentences
still exist, and most are unrealistically high.
No direction on whether the offender should be placed in custody or not
Bill C-41 served as an effort to structure sentencing to make it more uniform.
There is a direction in Bill-C-41 to use restraint in ordering imprisonment and to
consider alternative sentences – imprisonment should be a last resort.
Many of the structural problems with sentencing continued even after the introduction
of Bill C-41.
Sentencing Commission recommended the abolition of parole:
However, will not necessarily reduce the sentence that is imposed. Abolishing parole
would necessitate some lowering of the initial sentence. Otherwise, would significantly
increase the prison population.
Descriptions of Sentencing
Traditional judicial justification for sentencing is to describe it as an individualized
process – assumption that each case must be decided on its merits.
R. v. Willaert (1953) (OCA)
“a wise blending of the deterrent and reformative, with retribution not entirely
disregarded…”
However, wise judges can blend in many different ways
“an art – a very difficult art… [not a science]” – cannot provide scientific exactitude,
but rather takes a more artistic finesse.
- 16 This suggests an individualized discretionary process without hard and fast rules.
Instead the judge relies on experience to select the appropriate purpose for the
sentence.
But what objective(s) should be emphasized?
R. v. M(CA) (1996) (SCC) – “In a rational system, the respective importance of
prevention, rehabilitation, deterrence, and retribution will vary depending on the
nature of the crime and the circumstances of the offender.” (para. 77)
R. v. McDonell (1997) (SCC)
The determination of a just and appropriate sentence is a “delicate art” engaged in
balancing which attempts to balance societal goals against moral blameworthiness
and the circumstance of the crime, all the while taking into account the needs and
conditions of the current community.
It has been repeatedly stressed that there is no such thing as a uniform sentence for a
particular crime. Sentencing is an inherently individualized process. The search for a
single appropriate sentence for similar offenders for similar crimes in similar
circumstances will continue to be a fruitless endeavour.
Gave some indication that starting points ought not to entirely remove
individualized sentence. Didn’t say that starting points are wrong, but looked down
on them. Argued that starting points would do a disservice the individualized approach
of sentencing.
Methods for Structuring Sentencing Laws
There are at least three principal mechanisms which can be used to bring greater
structure to sentencing laws:
Legislatively prescribed guidelines. Such guidelines have been adopted in many
American states. Generally these schemes prescribe a narrow range of sentence based on
the seriousness of the offence and the offender's previous record.
Sentencing laws may be structured through a careful statement of legislatively
prescribed sentencing principles and relevant sentencing factors (e.g. aggravating and
mitigating circumstances).
Thirdly, sentencing laws can be structured by frequent and careful guidance from
appellate courts. A systemic assimilation of appellate decisions will provide a guide fro
sentencing discretion - Alberta attempted this approach with its "starting point"
sentences, but the Supreme Court of Canada was somewhat critical of this approach in R.
v. McDonnell (1997).
BUT: Appellate panels vary widely. Different panels have different approaches. Each
province may also take very different approaches at the appellate level.
Appellate court can direct a sentencing trend in the opposite direction or inhibit a
newly observed trend.
Sentencing Guidelines
Sentencing Commission made two important recommendations to reduce disparity in
sentencing. Neither have been completed.
Develop presumptive guidelines (discretionary rather than mandatory) to look at
particular offences and within those offences to set standards of:
Custodial or non-custodial sentence
If non-custodial, the type of sentence
Aggravating and mitigating factors that would move you away from the norm
- 17 Establish a permanent Sentencing Commission to develop and continue to amend
model guidelines to be tabled in parliament.
Criticism of guidelines:
Many judges are concerned about the proposition of sentencing guidelines, largely
because of the negative experience in the American judicial system with rigid, inflexible
guidelines.
If they’re set in a particular political climate (e.g. fallout from 9/11), the standard may
be set higher than is reasonable in normal circumstances.
Starting Point Sentences – Alberta Approach
Some provinces discuss starting point sentences. Others prefer to discuss a “range” of
sentences.
Ontario has taken the “range of sentencing” approach
E.g. importing < kg of cocaine = 4-6 years
Importing > kg of cocaine = 6-8 years
Very much the same approach as starting point sentences!
Starting point sentencing began in Alberta and was further developed in Sandercock:
R. v. Sandercock (1985) (ABCA) Approach
1) Court begins by selecting an offence (e.g. robbery).
2) Within that offence, next select a typical subset of that offence (e.g. robbery
with a gun).
3) Decide on a starting point sentence.
4) Then individualize the sentence by looking at particular aggravating and
mitigating factors.
Normally assume that this is an adult, first time offender.
Variations from the starting point are generally expected to be modest.
Starting point sentence is based primarily on the gravity of the offence. Individual
aggravating and mitigating factors are then a secondary consideration.
Examples:
R. v. Johnas (1982) (ABCA)
Starting point sentence for robbery of a convenience store: 3 years.
Unsophisticated youthful offender (18-24), does not inflict physical harm, and is armed
with a weapon like a knife: 3 years (relatively high)
Denunciation and deterrence are emphasized – individual circumstances ought not to
significantly alter the starting point.
R. v. Christie (2004) (ABCA) CP pg. 69
Facts: Robbery of a gas station. Youthful offender (19 yrs), no physical harm, armed with a
knife, was addicted to cocaine.
Judge imposed a conditional sentence of two years.
AB CA changed to two years in custody.
Reasoning: Rehabilitation is not the primary consideration.
Para 37: “Sentence must be proportional to the gravity of the offence – crafted based on
the crime itself, not simply whether there is a criminal record or not. Where deterrence
and denunciation have been decided to be key considerations should not be improperly
discounted in the quest for individualized sentences.”
- 18 Starting point sentences focus on the offence, which tends to elevate the starting
point.
Once you have the starting point, if the primary concern is deterrence and
denunciation, then individual circumstances of the offender will play little role in
determining the sentence.
R. v. McDonnell (1997) (SCC)
Facts: Involved two sexual assaults, seven years apart, on two young girls (14 and 16
years old).
Sandercock had imposed a starting point of 3 years for major sexual assault.
Trial judge did not classify these as major sexual assaults and imposed 1 year for the first
assault and 6 months for the second, to be served concurrently (1 year in prison to be
served)
Case was appealed to the ABCA – classified as major sexual assault, some aggravating
factors (different assaults, different victims, significant time between)  moved first
assault up to 4 years and second assault up to 1 year, to be served consecutively (5 years
in prison to be served).
Held (5-4 split): Discusses the appropriateness of starting point sentencing - first time the
SCC looked at the starting point approach. The wide split in the rulings of the court tends to
throw into doubt the efficacy of the starting point approach.
Majority (Sopinka): uphold the trial judges ruling  1 year sentence
Majority is unclear about whether starting point sentences are a useful tool to
guide sentencing.
The sentencing judge’s failure to place an offence into a category carved out by
the appellate court can never, by itself, be a reversible error.
Para 43: BUT “I add, that I do not disagree with the dissent that the appellant
courts may set out starting point sentences to guide lower courts… But we should
not put too much emphasis on the fact that a trial judge has deviated far from
the starting point.
Rigid starting points establish quasi-minimum sentences which intrude on
individualization and thereby usurp the function of parliament.
No legal basis for the judicial creation of a category an offence within a statutory
offence for the purpose of sentencing.
Majority is certainly not endorsing starting point sentencing, but acknowledge that
they are not rigid and just because you deviate from the starting point does not
mean that the sentence is unfit
Not an error in principle to use starting points by themselves, but could be an
error in principle to apply them too rigidly!
Dissent (McLachlin): uphold the AB CA decision  5 year sentence
Supports the use of starting point sentences. Further, the dissent read the
majority as rejecting starting point sentences! (para 78)
Starting point sentences are “theoretically sound and mark an advance in the need to
find a principled approach to the dual goals of individualization and the need for
uniformity.”
Starting Points After McDonnell
Starting points are still alive and relatively healthy, and are in use.
- 19 -
Overall, the majority in McDonnell contemplated a diluted form of starting point that
provides guidance but does not entrench a template that will trigger appellate
intervention if it is not applied.
Much disagreement among academics and critics as to whether the majority actual
rejected starting point sentences or not!
Stone provides an indication of this
Hoggart wrote a study in 1977: the most important sentencing factor depended upon the
hidden values of the judge  who your judge was!
Represents a disturbing trend  there is huge disparity in what different judges will
consider to be a fit sentence.
Consider the split even within the Supreme Court of Canada!
Ultimately, your sentence should not depend on who your judge is, but it often does!
R. v. Stone (1999) (SCC)
Confirmed that appellate courts can “fix ranges”, including starting points, as
guidance for lower courts.
Courts must be clear in describing the category of offence to which the guideline is
applied.
R. v. Christie (2004) (ABCA)
SCC rearticulate that they are simply starting points, but emphasize that the entire
point is that there should be some adherence to the starting point (although individual
factors may still be taken into account).
R. v. Proulx (2000) (SCC)
First SCC case to looking at conditional sentencing – leading case on the use of conditional
sentencing
Starting point sentences can be a useful tool, but are not necessary in all cases.
Authority of Appellate Court to Alter Sentences
R. v. McDonnell
Facts: Appellate review of a sentencing judges sentence.
Issue: How much deference should the appeal court show to the sentencing judge?
Held:
Two recent cases by the SCC R.v. Shropshire (1995) and R. v. M(CA) set the applicable
standard of review:
Criminal Code sets out the standard for appealing case to the appeal court –
CC s. 687(1): Where an appeal is taken against a sentence, the appeal court shall
consider the fitness of the sentence and may vary the sentence or dismiss the
appeal.
Parliament expressly vested sentencing judges with the authority to set the degree
and type of sentence. Therefore, significant deference is given to the trial judge’s
decision. Four bases for intervening:
An error in principle
A failure to consider a relevant factor
An overemphasis on one of the factors that is appropriate
- 20 If the sentence is demonstrably unfit (clearly unreasonable)
To determine if demonstrably unfit, an appeal court should only intervene to minimize
the disparity of sentencing where the trial judge is in substantial and marked
departure from the sentences are customarily imposed for similar offences in
similar circumstances.
Legal standard for appellate intervention is narrow. But, appellate court judges can,
when they want to intervene, find ways to justify there intervention. When they don’t
want to intervene, they simply say that they are unable too.
Easy to say that the trial judge failed to consider a relevant factor, or overemphasized
an appropriate factor. Lots of factors to tinker with.
Although there is written in law a great deal of deference to the sentencing judge, the
appellate courts still hold a great deal of discretion. SCC sets out the reasons for this
deference:
Sentencing judge has the benefit of having heard the testimony of the witnesses to the
crime.
Ferguson: but 80% of sentences arise from guilty pleas, where there are no witnesses
called!
Even when there is no trial, sentencing judge can hear the submissions of both Crown and
defence counsel
Ferguson: But counsels are often ill prepared, and the appellate court still has access
to all of the documents that have been filed with the court.
Sentencing judge has the unique qualifications of having been on the front lines of
sentencing
Ferguson: But appeal judges usually started out as trial judges, and have much more
time for deliberation. Unrealistic to think that they would be less experienced in
sentencing.
Will normally preside near or in the community where the crime was committed – will
have a better understanding of the sentencing goals and priorities of that particular
community.
Ferguson: this only tends to increase disparity!
Objectives and Principles of Sentencing
Criminal Code Provisions
Purpose Clause – CC s. 718
718. The fundamental purpose of sentencing is 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;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done
to victims and to the community.
- 21 2005 Amendment s. 718.01 – When a court imposes a sentence for a crime involving the
abuse of person under the age of 18 (abuse against children), the court shall give
primary (but not exclusive) consideration to the objectives of denunciation and
deterrence.
Fundamental Principle – CC s. 718.1
718.1 A sentence must be proportionate to the gravity of the offence and the
degree of responsibility of the offender.
Other Sentencing Principles – CC s. 718.2
718.2 A court that imposes a sentence shall also take into consideration the following
principles:
(a) a sentence should be increased or reduced to account for any relevant
aggravating or mitigating circumstances relating to the offence or the offender,
and, without limiting the generality of the foregoing,
(i) 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 any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the
offender's spouse or common-law partner or child,
(iii) evidence that the offender, in committing the offence, abused a position
of trust or authority in relation to the victim, or
(iv) evidence that the offence was committed for the benefit of, at the
direction of or in association with a criminal organization
shall be deemed to be aggravating circumstances;
Note that there are no mitigating circumstances listed!
(b) a sentence should be similar to sentences imposed on similar offenders for
similar (not necessarily equal) offences committed in similar circumstances; parity principle
(c) where consecutive sentences are imposed, the combined sentence should not
be unduly long or harsh; - principle of totality
(d) an offender should not be deprived of liberty, if less restrictive sanctions may
be appropriate in the circumstances; – principle of restraint
(e) all available sanctions other than imprisonment that are reasonable in the
circumstances should be considered for all offenders, with particular attention to
the circumstances of aboriginal offenders. – principle of restraint
Effect of Codification
When sentencing provisions were codified in 1996, there were a number of positions taken
about the effect of this codification:
One view was that codification simply put into writing our existing practice  does not
represent any change or shift in emphasis.
However, in a number of decisions, the Supreme Court has clearly articulated that in
codifying sentencing, Parliament is clearly issuing new direction to sentencing judges.
R. v. Gladue (1999) (SCC)
Facts: Aboriginal offender charged with manslaughter.
Issue: Court’s interpretation of a provision in the new sentencing law: CC s. 718.2(e) –
principle of restraint, with particular attention to the circumstances of aboriginal offenders.
- 22 More generally, also raised issues of whether the new statutorily entrenched
principles of sentencing was simply the codification of already accepted principles.
Reasoning: Court considered a number of contextualized factors, such as the high and rising
rate of incarceration in Canada compared to other industrialized countries and the even
more disturbing rate of incarceration among aboriginal people.
Para. 26: Highlights the importance of s. 12 of the Federal Interpretation Act:
Every enactment is deemed remedial, and shall be given such fair, large and liberal
construction and interpretation as best ensures the attainment of its objects.
718.2(e) was intended to remedy a past situation
Para.33: s. 718.2(e) is more than simply a re-affirmation of existing sentencing
principles… What s. 718.2(e) does alter is the method of analysis which each sentencing
judge must use in determining the nature of a fit sentence for an aboriginal offender.
Para 39: The enactment of the new Part XXIII was a watershed, marking the first
codification and significant reform of sentencing principles in the history of Canadian
criminal law.
Para 40: The availability of the conditional sentence of imprisonment, in particular,
alters the sentencing landscape in a manner which gives an entirely new meaning to the
principle that imprisonment should be resorted to only where no other sentencing option
is reasonable in the circumstances.
Para. 41: Further support for the view that s. 718.2(e)'s expression of the principle of
restraint in sentencing is remedial, rather than simply a codification, is provided by the
articulation of the purpose of sentencing in s. 718.
Para 43: Clearly, s. 718 is, in part, a restatement of the basic sentencing aims, which
are listed in para. (a) through (d). What are new, though, are paras. (e) and (f), which
along with para. (d) focus upon the restorative goals of repairing the harms suffered
by individual victims and by the community as a whole, promoting a sense of
responsibility and an acknowledgment of the harm caused on the part of the offender,
and attempting to rehabilitate or heal the offender.
R. v. Proulx (2000) (SCC)
Leading case on the interpretation of conditional sentencing (house arrest):
Para. 14: In September 1996, Bill C-41 came into effect. It substantially reformed Part
XXIII of the Criminal Code, and introduced, inter alia, an express statement of the
purposes and principles of sentencing, provisions for alternative measures for adult
offenders and a new type of sanction, the conditional sentence of imprisonment.
Para. 15: In R. v. Gladue, the SCC noted two of Parliament's principal objectives in
enacting this new legislation:
(i) reducing the use of prison as a sanction, and
(ii) expanding the use of restorative justice principles in sentencing.
Para. 17: Parliament has sought to give increased prominence to the principle of
restraint in the use of prison as a sanction through the enactment of s. 718.2(d) and (e).
Para. 19: Canadian sentencing jurisprudence has traditionally focussed on the aims of
denunciation, deterrence, separation, and rehabilitation… With the introduction of Bill C41, however, Parliament has placed new emphasis upon the goals of restorative
justice.
Para. 20: Parliament has mandated that expanded use be made of restorative
principles in sentencing as a result of the general failure of incarceration to rehabilitate
offenders and reintegrate them into society. Pg: 83 – Principles deal with a broader
phenomenon; rules deal with a more specific problem.
- 23 -
Substantive Principles of Sentencing
Principles:
Aggravating and mitigating factors
Proportionality – the fundamental principle
Parity
Totality
Restraint
Proportionality
Proportionality is at the very heart of what we consider to be a just sanction - it is not
just to punish people for more than they deserve.
There are two dimensions to looking at the gravity of the offence:
First, must properly reflect the relation in terms of gravity that the offence generally
bears to other offences:
Ranking of offences in terms of most serious and least serious:
Gravity of the offence depends on societal choices  Expect more substantial
sentences for more serious offences
Top: murder, treason, etc.
Bottom: causing a disturbance in a public place, etc.
Must also be gradations within each offence  May need to create subcategories of
offences
E.g. some robberies are more serious then others, such as those involving weapons
Ranking of punishments in terms of most severe and least severe:
Must have some gradation in sentences to correspond to the seriousness of the
offence.
Highest sanction: mandatory life imprisonment
Lowest sanction: discharge (the process of calling to court is punishment enough)
Second, must reflect the various degrees of seriousness which might apply to the range of
conduct covered by the offence.
Degree of responsibility:
Keep in mind that sometimes there are multiple offenders.
CC s. 21: You are guilty of an offence if you are the principle offender. But you are also
guilty if you aid, abet or counsel the principle offender.
Not a separate crime to aid a robbery, but your role in the crime may reduce your
level of culpability in that particular offence.
Need to look at the degree of participation in the offence: all guilty of the same crime,
but don’t necessarily get the same punishment.
Aider or abettor may in fact be the more culpable figure – e.g. drug kingpin
Concept of Causation:
Offences can occur through multiple causes – not a simple linear concept.
May be intervening events, thin skull principle, etc.
R. v. Smithers – accused involved in fight. Victim had a malfunctioning epiglottis and
ended up dying. Convicted of manslaughter (punishment can be anywhere from 0 to life).
In this case, low punishment because of unforeseeability of death.
R. v. Shanks (1996) (Ont. CA) – Court specifically stated that the degree of causation is
relevant to sentencing.
Victim was in a fight and later dies of a heart attack – classic thin skull.
- 24 Accused in found guilty of manslaughter.
To be convicted of manslaughter, the level of connection can be very low. True
culpability will be reflected in sentencing.
Causation is an aspect of degree of responsibility  he more foreseeable the death,
the higher the level of culpability.
Causation is to a large extent a matter of chance.
Blameworthiness
Need to consider moral blameworthiness of the offender, but these parameters are far
from certain
Substantive law case of R. v. Martineau: SCC unanimously indicated the need for a
proportionate relation between punishment and blameworthiness as principle of
fundamental justice.
Proportionality must be a central feature of a constitutional sentencing system
At the individual level, proportionality must be present but will take the form of a
complicated calculus.
Proportionality and Harm
There is a need to draw distinctions in moral blameworthiness: someone who
intentionally or recklessly inflicts harm on another (has subjective foresight of harm)
is more blameworthy than someone who is simply negligent in causing harm.
Our sentencing structure generally reflects this principle intentionality tends to
serve as an aggravating factor
Once conception of a just sanction is that moral blameworthiness is a subjective state of
mind – people deserve to be punished for consequences which they intend or risks they
intentionally run (recklessness). Actual harm should not be the determination of the
punishment  consequences turn mainly on good or bad luck. Rather, the intention
should be more determinative.
Arose in R. v. Sweeney, a series of sentencing cases involving impaired driving causing
death and bodily harm:
Dangerous driving: haven’t injured any person or property, but is a crime because you
are risking causing such harm to others  what is wrong is taking the risk of causing
harm to others.
Impaired driving simpliciter: haven’t caused any harm to another, but is prohibited
because of the assumption that people who drive while impaired will ultimately cause
harm: minimum fine of $600; maximum is imprisonment for 6 months (for a summary
conviction)
Impaired driving causing bodily harm: maximum 10 years imprisonment (indictable)
Impaired driving causing death: maximum of life imprisonment (indictable)
Shows that in the Criminal Code, consequences are important! There greater the harm
that results, the greater the sanction.
Probably under punish for impaired driving simpliciter – almost always impose the
minimum punishment ($600 fine), although repeat offenders tend to get higher
penalties.
In reality, all these impaired driving offences generally involve similar conduct by
the offender running a similar risk of harm to others – difference is based on luck in
actually causing harm to others, and the seriousness of the harm that is caused.
Gravity is influenced by consequence rather than just by risk!
R. v. Petrovic (1984) (Ont. C.A.)
- 25 Facts: Husband had physically and verbally abused his wife in the past. After one incident,
she subsequently committed suicide by jumping of their apartment balcony. Husband is not
charged with a homicide – evidentiary burden too high. Instead, he is charged with assault, of
which an eventual consequence was the death of his wife.
Trial judge: imposed sentence of 5 year
On appeal: inappropriate to take the death into account  reduced the charge to two
years (which is still very high for the charge of assault).
Comment: Here, causation was apparent but there was no criminal culpability in relation to
the consequence.
Court seems to say that only consequences which fit within the scope of a probable
result of the criminal act will be relevant in determining a fit sentence.
R. v. Brown (1991) (SCC)
Facts: Accused charged with dangerous driving causing death, but jury only convicted him of
dangerous driving simpliciter  death would have occurred regardless of whether he had
been driving dangerously.
Held: Sentencing must proceed on a factual basis consistent with the verdict – death could
not be considered.
Principle of Parity
718.2(b): a sentence should be similar to sentences imposed on similar offenders for
similar (not necessarily equal) offences committed in similar circumstances; - parity
principle
Unwarranted disparity violates a principle of fundamental justice
Sentences should be similar, but not identical  too many individualized factors
System still acknowledges and accepts a considerable degree of disparity:
Courts continue to say that sentencing is an individualized process.
Sentencing judge use “wise blending” in different ways. Difficult to distinguish what
characteristics should be considered as relevant aggravating and mitigating factors.
There is no legislatively set presumptive guidelines to help lay out a normal or average
sentence.
May be starting points and ranges, but should not interfere with individualization.
Supreme Court has focused more on the concept of appellate deference, than on strict
adherence to the starting point or range.
Parity is an accepted principle, but is approached differently by different judges
R. v. M(CA): recognizes geographic diversity – should expect different sentences in
different communities based on local values
Appropriate sentence” is influenced by the resources available in the jurisdiction:
E.g. availability of rehabilitation programs, community programs, etc.
Principle of Restraint
Generally used to establish the principle that prison should be the sentence of last resort.
Should be an onus of proof on the court to show that other sanctions are not appropriate.
Arises in three circumstances:
718(c): one objective is to separate offenders from society, where necessary 
effectively saying that should only imprison people when no other option available
But “where necessary” is a discretionary consideration
- 26 718.2(d): Offender should not be deprived of liberty if less restrictive sentences are
available – should apply the least restrictive means that are appropriate in the
circumstances
But “appropriateness” is discretionary on the judge
718.2(e): All available sanctions that are reasonable in the circumstances should be
considered for all offenders, with particular attention paid to Aboriginal offenders.
Against “reasonableness” is determined by the judge
Principle of Totality
Frequently, there are multiple charges against an accused within the same trial
Must decide whether a new sentence for a separate offence should be served
consecutively or concurrently to existing sentences.
Concurrent: sentence runs at the same time as the other sentences – lesser
punishment
Consecutive: sentences will be served one after the other – higher punishment
Notion of having consecutive sentences has to meet the principle of totality  puts a
brake on imposing consecutive sentences.
Must look at the bigger picture – totality of the circumstances
718.2(c): Where consecutive sentences are imposed, the combined sentences should
not be unduly long or harsh.
At common law, sentences generally begin to run at the time they are imposed – run
concurrently.
Codified in the Criminal Code, with exceptions
CC s. 719.1: A sentence commences when it is imposed, except where a relevant
enactment otherwise applies
Therefore, concurrent sentences are the default position – presumption of concurrent
sentence
However, the court has discretion to impose consecutive sentences:
CC s. 718.3(4): Court that sentences may direct that the terms of imprisonment are to
be served consecutively
Further, the law can mandate consecutive sentences:
CC s. 85(4): where firearms (or imitation firearms) are used in the commission of an
offence (e.g. assault, robbery), you are guilty of a second offence (separate firearms
offence)  sentence for the second offence shall be consecutive
CC s. 82.1: explosives
CC s. 83.26
CC s. 467.14: criminal organization or gang offences
Offence to commit a particular offence (e.g. trafficking, robbery)
Committing the offence as part of a criminal organization / gang constitutes as
second offence  shall be served consecutively
In exercising discretion, the court should ordinarily be guided by the principle that:
Offences that are committed together (e.g. a crime spree) should be considered a one
large transaction and served concurrently,
Whereas discrete offences which form separate transactions should be served
consecutively
R. v. P(ET)
- 27 Facts: Accused physically abused his mentally disabled brother – charged with four counts of
assault with a weapon. Assaults occurred over a 4.5 year period.
Trial judge: treated these as four separate transactions, although they had the same
victim. Imposed 2 years for each count. Not part of the same transaction so should be
served consecutively  2x4 = 8 years.
Court of Appeal: there was a close nexus between these assaults and they could be
considered as a single transaction.
Four year time span doesn’t prevent them from being a single transaction, since the
same type of offence on the same victim  multiple assaults on a vulnerable person
are aggravating factors
Impose 6 years for the first assault, with sentences for the subsequent offences to be
served concurrently.
R. v. Cazzetta (2003) (Que. C.A.)
Facts: Accused had previously been convicted of two unrelated drug trafficking offences
(different times, different drugs), for which he was sentenced for 9 years and 4 years to
be served consecutively. Subsequently convicted of two charges (related to each other) of
conspiracy to possess and possession of stolen goods. Sentenced to five years for these
two crimes together.
Issue: is the possession, arising from his criminal lifestyle, part of the same transaction as
the drug trafficking>
Held: Court acknowledges the principle that it is entirely appropriate to impose a
concurrent sentence if the two possession charges were closely related to the trafficking
charges.
However, on the facts, the property which formed the basis of the charge occurred over a
longer period of time then the two trafficking charges. In these circumstances, not seen
as part of the same transaction.
Therefore, sentence for new charges to be served consecutively.
R. v. McCarthy (2005) (NL CA)
Facts: Accused convicted of a range of assaults on his girlfriend, for which he was charged
and convicted – 11 months. Also convicted of assaulting his previous girlfriend – 23
months. Judge didn’t indicate if they should be concurrent or consecutive.
Trial: default rule applied – to be served concurrently
Court of Appeal: Ruled that these were separate transactions and imposed consecutive
sentences.
Quote para 11:
R. v. McDonnel (1997) (SCC)
Facts: Two sexual assaults: one on a foster child and one on a babysitter. Committed
while accused was intoxicated. Had no previous criminal record. Assaults separated by
seven years, with separate victims.
Held: treat the second offence as concurrent.
Youthful Offenders and First Time Offenders
Where the offender is youthful or a first time offender, then the principles of restraint
and rehabilitation should be primary guiding considerations:
Restraint in the use of imprisonment
Although restraint in the use of imprisonment is an important consideration, many do
still end up being sent to jail – only one factor of many to consider.
- 28 Focus of the possibility of rehabilitation
Youthful offender: generally those between 18 and 25.
Not a legal term, but more a matter of maturity.
R. v. Patterson (2003) (Ont. CA)
Facts: Lawyer in Ontario forced a young women to engage in continuing acts of
prostitution under threats of violence.
Sentenced to 7 years  Argued that the court should be more lenient because he was a
first time offence.
Held: The fact that he was a first time offender paled in comparison to the gravity of
the offence.
Use of Maximum Sentences
Maximums in the Code are very high, often unrealistically so.
Traditional approach taken by the courts is to say that the maximum should be reserved
for “the worst offence by the worst offender”
In this context, the courts often develop descriptions of some cases that involved
particularly egregious or cruel crimes that might deserve a maximum sentence –
“cases of stark horror”
R. v. Cheddesingh (2002) (Ont. CA)
Facts: Case of manslaughter involving a break and enter and rape of a 76 year old victim.
Victim died a month later of complications arising from the rape.
Ont. CA: Penalty for manslaughter is 0 to life. Judge imposed the maximum sentence of
life imprisonment. Just characterized the case as one of “stark horror”
Held: The Supreme Court upheld the maximum sentence in this case, but noted that the
terms “start horror”, “worst of the worst” etc. add nothing to the analysis and ought
to be avoided.
Rather should be considering the gravity of the offence and the circumstances of
the offender in determining a fit sentence.
In this case, the gravity of the offence warranted the maximum sentence.
R. v. MacArthur (2004) (Ont. CA)
Imposing a maximum sentence, not a precondition that it be a case of the worst offence
of the worst offender.
41: Danger of the worst offence, worst offender principle is that it moves the focus aways
from a detailed examination of the specific offences sommited byt eh specific
offendender to a comparison of the offender’s crimes and background with those of the
hypothetical worst offender who has committed the hypothetical worst offence. Humman
behaviour bing what it it , it is always possible to imagine worse case.
R. v. M(CA) (SCC)
Facts: Father engaged in repeated physical and sexual abuse of his children. Offences he
was charged with had max sentences of 10 and 14 years.
Judge imposed a series of concurrent and consecutive sentences for a global fixedterm sentence of 25 years.
For a life sentence, can apply for parole after 7 years.
For most other sentences, can apply for parole after serving 1/3 of your sentence.
- 29 In this case, would mean that the accused would not be eligible for parole for a
longer period than if he had been given a life sentence (which is a more severe
sentence).
Accused appealed on the grounds that the sentence was excessive.
Court of Appeal: Sentence reduced to 20 years
Held: Reinstated trial judges sentence of 25 years. There is no ultimate upper limit on a
fixed sentence.
However, Court could only point to a handful of cases where a fixed term sentence
exceeded 20 years.
Pre-Trial Custody
Originally, pre-trial custody was not considered to be relevant in counting time served.
CC s. 719(3): In determining the sentence to be imposed on a person convicted of an
offence, the court may take into account any time spent in custody as the result of
the offence.
Note that this is discretionary, not mandatory
However, in R. v. Rezaie (1996) (Ont CA), the court stated:
Although this section is discretionary, not mandatory… a sentencing judge should
ordinarily give credit for pre-trial custody.
At least, the judge should not deny credit without good reason – to do so offends
one’s sense of fairness. Incarceration at any stage of the criminal process is a denial of
an accused’s liberty.
Exceedingly rare today to not take pre-trial custody into account, although the court has
discretion not too.
Should give an explanation of their reasons for not giving credit if denied.
In R. v. M(CA), the trial judge refused to give credit to the accused for 1.5 years spent in pretrial custody.
BCCA did give credit on a one-to-one basis
SCC said that the trial judge was entitled to decide as he did, but did not explain why.
Amount of Credit to be Given for Pre-Trial Custody
Where pre-trial custody is taken into account, next faced with the issue of how much
credit should be given for this time.
Starting point standard is that pre-trial custody is worth more than regular custody:
two-to-one rule
Two reasons generally given for the greater credit accorded to pre-trial custody:
Pre-trial custody is a harsher form of custody than regular custody
Harder time because of the nature of the confinement. Normally are in a holding
cell 24 hours a day – no programs or activities.
Pre-trial custody is real time: there is no running parole or statutory release time
R. v. Wust (SCC)
Two-to-one credit is entirely acceptable (for the two reasons above), although the
court has discretion to vary from the normal two-to-one rule.
There are many cases where the court has moved up or down:
- 30 -
R. v. Kravchov (2002) (Ont. CJ)
Should look at the impact of the pre-trial custody on the individual offender
Conditions of pre-trial detention were so horrendous that they deserved more than
the regular two-to-one credit.
Confined during a strike of the guards, so conditions were particularly horrendous.
Credit given at a little over three-to-one
R. v. Young (2004) (Man. CA)
Sentencing judge gave the regular two-to-one credit.
On appeal, was reduced to 1.5-to-1 on the grounds that the pre-trial custody
conditions were similar to regular custody conditions at the time in Manitoba.
R. v. Donovan (2004) (NBCA)
Sentencing judge failed to credit the accused with time served awaiting trial
On appeal, granted the accused two-to-one credit for his pre-trial detention  justified
on the basis that the accused had tried to enter a guilty plea at the first opportunity bit
was unable to do so because of the continuing police investigation.
R. v. Neudorf (2004) (BCCA)
Accused convicted of manslaughter. Spent 18 months in pre-trial custody. Given one-toone credit because of his conduct: had hidden the body and interfered with the
investigation.
On appeal, post-offence conduct ought not to be a factor to reduce the credit given
for pre-trial detention. Rather, should be considered under the gravity of the offence
or charged under obstruction of justice.
Mandatory Minimum Sentences After Considering Pre-Trial Custody
There is considerable disagreement over whether a court can use pre-trial custody time
to count towards a mandatory minimum sentence.
If the Criminal Code imposes a mandatory minimum sentence, the sentence cannot be
reduced below that minimum.
R. v. McDonald (1998) (Ont. CA)
Credit could be given for pre-trial custody even if it brought the sentence below the
mandatory minimum.
R. v. Wust (SCC)
Agreed that pre-trial detention can be taken into account, even if it has the effect of
going below the mandatory minimum sentence.
Stated that the two-for-one credit is entirely appropriate, but may vary depending on
the circumstances of the detention
Pre-Sentence Custody is Not Relevant in Determining the Availability of
Conditional Sentences
CC s. 742.1: Where there is a sentence of two years or less, could be considered for a
conditional sentence.
R. v. Fice (2005) (SCC)
- 31 Facts: Plead guilty to fraud. Spent 16 months in pre-trial custody. Given credit at
approximately two-for-one  30 months credit. Sentenced to 44 months – 30 months credit =
14 months left to be served.
Issue: Whether the 14 months left to be served could be considered for a conditional
sentence, even though the overall sentence was more than two years.
Held: Look only at what would be considered a fit sentence, not the sentence less pretrial custody credit. Therefore, not eligible for conditional sentencing.
Inappropriate Not to Award Credit for Pre-Trial Custody When Maximum
Sentence Imposed
R. v. Leblanc (2005) (NBCA)
Facts: Accused convicted of uttering death threats, unlawful confinement and assault
causing bodily harm. Judge imposed maximum sentence of 10 years, but refused to give
the accused credit for 13.5 months spent in pre-trial custody.
On appeal, held that trial judge had erred in not giving granting credit for pre-trial
custody and granted credit on a one-for-one basis.
Found him to be less deserving of enhanced consideration for pre-sentence custody
(i.e. regular 2:1 credit)
While pre-trial detention is not intended as punishment when it is imposed, it is, in
effect, deemed to be part of the punishment following the offender’s conviction.
To deny any credit for time spent in custody and then impose the maximum sentence
for the offence is inappropriate.
R. v. Downey (2003) (Ont. S.C.J.)
While two-for-one credit is often given, there is no mechanical formula for crediting
pre-trial custody.
A sentencing judge is not bound to give credit for the full period of pre-trial custody
Amount of Credit Awarded When Custodial Sentence Substituted for Conditional
Sentence
Addresses the issue of the amount of credit that should be imposed when an appellate
court substitutes a custodial sentence for a conditional sentence:
R. v. F(GC) (2004) (Ont. CA)
In all cases in which a custodial sentence has been substituted, some credit or discount
was incorporated in the custodial sentence based on the length of the conditional
sentence served at the time of appeal
Corrects the reversible error arising from the imposition of an unfit sentence
Credit for Pre-Trial House Arrest
Sometimes people released on bail are subject to significant restrictions  strict pre-trial
bail release similar to house arrest.
Should this be taken into account, and if so, how much?
R. v. Hilderman (2005) (ABCA)
Yes: one-for-one credit
R. v. Perrault (2005) (BCCA)
Yes: one-for-one credit
- 32 R. v. Machinsikinic (2004) (Sask. QB)
Yes, but less than one-for-one credit
R. v. Downes (2006) (Ont. CA)
Yes, but much less than one-for-one: gave 5 months credits for 18 months of pre-trial bail
R. v. Panday (2007) (Ont. C.A.)
Five judge panel
Offence had a mandatory minimum sentence of four years.
Held 3:2 that credit should not be given for strict conditions of pre-trial bail in order
to reduce a mandatory minimum sentence of imprison ment.
Note: this only applies to cases with a mandatory minimum (unlike the cases listed
above – distinguished from Downes).
Can’t use strict bail to go below the four years, but could be used to reduce the
amount above the minimum sentence.
Strict pre-trial bail is a mitigating factor that cannot be used to go below the
minimum
Conditional Release Decisions
Parole Ineligibility for High Treason and Murder (Mandatory life imprisonment)
These two offences are treated differently because they are the only two in the Criminal
Code which have as a penalty mandatory life imprisonment:
Adult Offenders
745(a): 25 years for high treason or first degree murder [subject to "faint hope"
application]
 No discretion
745(b): 25 years for second degree murder if offender has a previous murder conviction
[no faint hope application: s. 745.6(2)]
 No discretion
745(c): between 10 and 25 years for other cases
 Jury recommends: s. 745.2; but the judge decides based on the criteria in s.
745.4
 Faint hope application available if judge imposes more than 15 years of parole
ineligibility: s. 745.6(1)
745(d): "normal eligibility period" for life sentence for offences other than murder or high
treason ["normal" period is specified as 7 years under the Corrections and
Conditional Release Act]
Persons Under 18
745.1(a): Between 5 and 7 years for first or second degree murder where the offender is
under 16
 Some discretion: jury may recommend (s. 745.3); but judge decides (s. 745.5)
- 33 745.1(b): 10 years for first degree murder where offender is 16 or 17
745.1(c): 7 years for second degree murder where the offender is 16 or 17
Faint Hope Applications for Offenders With Parole Ineligibility of More Than 15
Years
745.6: Offender may apply for a reduction in parole ineligibility periods which are longer
than 15 years:
Can't apply if convicted of more than one murder: s. 745.6(2)
Can't apply until offender has served 15 years of sentence: s. 745.6(1)
 Any time spent in custody before conviction and sentence counts in
determining time served: s. 746
Offender must first apply in writing to the Chief Justice of the Province: s. 745.6
If Chief Justice is of the opinion that there is "a reasonable prospect" that the
application could succeed (based on the criteria in s. 745.63(1)), then the Chief
Justice will designate a Superior Court judge to empanel a jury to hear the
application: s. 745.61(5)
A full hearing before a jury will then be held: s. 745.63. The jury by unanimous
vote may reduce the offender's parole ineligibility date to any date they
consider appropriate: s. 745.63(3) and (5).
Why do we have a faint hope clause?
Goes back to the abolition of capital punishment in 1976 (last actual punishment in 1962)
With capital punishment, there was always the possibility of executive clemency to
substitute life imprisonment for the death penalty
After 1962, executive clemency was granted in all cases until the death penalty was
abolished in 1976
After the death penalty, ensure that there would be mandatory life imprisonment for
murderers and that they would not be eligible for parole for at least 25 years.
But recognition that there are different degrees of “badness” amongst murderers –
needed to be a ways to help differentiate them in their punishment.
As part of the political compromise, Parliament instituted the faint hope clause – not
just in the hands of the parole board, but rather needs to be retried by judge and jury
to reset parole eligibility.
Clifford Olsen – plead guilty to 11 murders automatic life imprisonment.
After 15 years, applied for the faint hope clause
At this point, no screening of applications so pretty much anyone could get their hearing
even if they didn’t have a hope of succeeding.
Huge public outcry over this development  bad idea to let just anyone apply and
aggravate the justice system.
Movement to abolish the faint hope clause
However, instead implemented judicial screening  before a jury hearing will be
held, need to determine if there is any chance of success – middle ground solution
Also implemented restrictions, such as bar on multiple murderers from applying
Parole Eligibility for Offences Other Than Murder and High Treason
"Normal" parole eligibility dates are set out in the Corrections and Conditional Release
Act
- 34 The "normal" parole eligibility date for full parole is after one-third of a sentence has
been served (or after 7 years for a life sentence for an offence other than murder or
high treason)
Under s. 743.6(1), a sentencing judge "may" delay parole eligibility by ordering no
parole eligibility "for one-half of the sentence or ten years, whichever is less" in the
case of a long list of serious offences set out in Schedule I and II after s. 743.6.
Parole eligibility will be delayed where the sentencing judge is of the opinion that the
objectives of denunciation or deterrence so warrant.
Under s. 743.6(1.2) the sentencing judge "shall" order no parole eligibility "for one half
of the sentence or ten years, whichever is less" for a terrorism offence or a criminal
organization offence under ss. 467.11 to 467.13 unless the sentencing judge is satisfied
that denunciation and deterrence would be adequately served by the "normal" parole
eligibility dates.
After an offender has served his sentence up to the parole eligibility date, the
offender "may" apply for parole and the Parole Board decides at a parole hearing
whether or not to release the offender on parole.
Manson (p. 116, n. 65) indicates that 40-45% of offenders are paroled between onethird and two-thirds of their sentence.
Forms of Conditional Release Other Than Full Parole
Temporary Absence Pass (1-3 days) with or without escort – generally for humanitarian
purposes (e.g. death in the family) – governed by Corrections and Conditional Release
Act.
Day Parole – spend day out of custody at school, work, etc. and return to prison or
halfway house at night. Generally may apply for day parole after serving one-sixth of a
sentence as governed by the Corrections and Conditional Release Act.
First step towards full parole
Generally reserved for people with very good rehabilitative potential and low risk of
re-offending.
For life sentences for adults, s. 746.1 of the Criminal Code states there will be no
temporary absences or day parole until three years before the parole eligibility date
(and for murderers under 18, until four-fifths of their parole ineligibility period has been
served).
Mandatory Release Under Supervision:
The Corrections and Conditional Release Act indicates that if an offender has not
been "paroled" by the time the offender has served two-thirds of his/her sentence,
the offender shall be released on mandatory supervision.
Theory is that if you just throw people out at the end of their sentence without
any support, they are more likely to return to criminal activity  better to support
reintegration through mandatory supervision
However, if the prison officials believe there is a serious risk that the offender will
commit a serious offence while on mandatory release, the prison officials will refer
the offender's name to the National Parole Board.
Now only a presumptive approach: the Parole Board will hold a hearing and may
decide not to release the offender from prison until the expiry of the offender's
full sentence: Corrections and Conditional Release Act, ss. 129-132.
Judicial Discretion and Parole Ineligibility Dates
- 35 In determining the appropriate length of a sentence of imprisonment, sentencing
judges are not to consider the possibility that an offender will be released on parole
(Manson: 115).
In M(C.A.) (Manson: 115), the Supreme Court emphasized that conditional release
(parole and mandatory release) does not shorten a sentence, it merely changes the
conditions under which it is served.
Offenders remain under sentence under supervision and may be returned to prison if
they violate their release conditions.
Conditional release periods still served denunciatory and deterrent goals [even if at a
somewhat reduced level].
There are two instances where the sentencing judge can set the parole ineligibility
period:
(1) for second degree murder (set parole ineligibility date between 10 and 25 years)
[s. 745(c)]; and
(2) delay parole eligibility date for serious offences in Schedule I and II from one-third
or 7 years to one-half or 10 years under s. 743.6(1).
Increasing Parole Ineligibility under s. 743.6
Section 743.6 provides that a sentencing judge may order that the offender is not eligible
for parole until "one half of the sentence or 10 years, whichever is shorter" has been
served.
The criteria for that decision for Schedule I or II offences are specified in s. 743.6 as
"having regard to the circumstances of the offence and the character and
circumstances of the offender", the sentencing judge is satisfied that denunciation or
specific or general deterrence require an increase in parole ineligibility.
Manson (pp. 118-119) discusses how some appellate courts such as Ontario (Goulet) and
Quebec (Dankyi) have treated the power to increase parole ineligibility as an
"exceptional measure" to be applied to offenders who demonstrate "unusual violence,
brutality or degradation" or offenders who clearly demonstrated they could not be
deterred or rehabilitated within the normal parole ineligibility period.
On the other hand, New Brunswick, Newfoundland and Alberta (Matwiy) have indicated
there is no requirement for "exceptional or special circumstances" or "particularly
aggravating factors".
In R. v. Zinck (2003), the S.C.C. has taken a position somewhere between the two
extremes.
Delaying parole eligibility "is a decision that remains out of the ordinary" (para. 29)
and "should not be exercised in a mechanical or automatic way".
A two-step process is required:
(1) determine the appropriate length of sentence applying all the relevant
sentencing principles and factors; and
(2) then consider the decision to delay parole eligibility considering all relevant
sentencing factors, but giving priority to denunciation and deterrence. The
prosecution has the burden of demonstrating that an increase in parole ineligibility
is required (para. 31).
Procedure
Crown is not required to give the defence written notice of its intent to seek a delay in
parole ineligibility
- 36 However, the defence must be given sufficient opportunity and time to respond (which
may necessitate an adjournment if notice has not been given to the offender)
A sentencing judge must give reasons, if he or she increases the parole ineligibility
date.
In Cheddesingh (S.C.C., 2004), the SCC held that moving the parole ineligibility
period from 7 years to 10 years was entirely appropriate considering the brutality of
the offence in that case.
Parole Ineligibility for Second Degree Murder
Under s. 745(c) the parole ineligibility period for second degree murder is 10 years
unless the sentencing judge decides to increase the parole ineligibility period to any
length between 10 years and 25 years.
Section 745.4 indicates that the judge will make that decision based on "the
character of the offender, the nature and circumstances of the offence and the
recommendation, if any, of the jury".
In Van Osselaer (B.C.C.A., 2004), the accused's murder of his elderly landlord was
horrific. Under s. 745.2, the jury recommended no parole eligibility for the maximum 25
years.
Held: The B.C.C.A. (following its earlier decision in Mafi) held that the jury's
recommendation must be carefully considered but not given too much weight since
the jury is not schooled in the principles of sentencing before making their
recommendation. The BCCA held that the sentencing judge's order of 18 years of
parole ineligibility was appropriate.
The jury may, but are not required to, make a recommendation to the judge whether the
parole ineligibility date for second degree murder should be increased to more than 10
years but no more than 25 years (s. 745.2). The absence of a recommendation from the
jury on parole ineligibility should not be interpreted in favour of the accused nor
against the accused: R. v. Cerra (B.C.C.A., 2004) [Handout, p. 9]
Illustrations of the judicial application of this provision:
In Reid (Ont. C.A., 2003), the Court of Appeal reduced the parole ineligibility period
from 15 years to 12 years on the basis that the sentencing judge did not take into
account the offenders rehabilitative prospects.
In Kianipour (B.C.C.A. 2003), the accused killed three of his relatives. He received life
sentences with no parole eligibility for 20 years. The B.C.C.A. held that his sentence was
appropriate.
And in Sohhi (Ont. C.A, 2003), the Court of Appeal upheld a 14 year parole ineligibility
period as appropriate based on the brutality with which the accused murdered his wife.
In Cece (Ont. C.A., 2004), the Court of appeal agreed that "the importance of
denouncing the killing of a police officer requires a significant increase in the
minimum period of parole ineligibility" even though the two accused did not know the
victim was a police officer. They received periods of 16 and 18 years ineligibility
respectively.
In Falkner (B.C.C.A., 2004), the Court of Appeal held that s. 745(b) which imposes a
mandatory 25 years parole ineligibility period for second degree murder if the offender
has been previously convicted of murder is not contrary to the Charter.
And in Cousins (Nfld. C.A., 2004) the Court held that the fact that multiple murderers
are barred from making a faint hope application after 15 years is no basis for considering a
reduction in the mandatory minimum period of 25 years of parole ineligibility.
- 37 -
Pre-trial custody is not a relevant consideration in setting the length of the parole
ineligibility date: R. v. Toor (B.C.C.A., 2005).
However, section 746 states that any time in custody before conviction and
sentence is counted as part of the sentence served and therefore counts in regard
to determining the date when the accused is entitled to apply for parole.
In Jenson (Ont. C.A., 2005), the Court of Appeal held that the Gladue factors are
relevant sentencing factors in determining the parole ineligibility period, but they do
not necessarily guarantee a shorter parole ineligibility period for an Aboriginal offender.
Aggravating and Mitigating Factors
Introduction
S. 718.1 - the Principle of Proportionality is the fundamental principle of sentencing
A sentence must be proportionate to (1) the gravity of the offence and (2) the degree
of responsibility of the offender.
S. 718.2(a) states that a court should increase or reduce a sentence based upon "any
relevant aggravating or mitigating circumstances relating to the offence or to the
offender".
S. 718.2(a) goes on to list six aggravating circumstances
bias or hate
abuse of spouse
abuse of a person under 18 years of age
See also 718.01 which mandates that primary consideration be given to
denunciation and deterrence for abuse of persons under 18
abuse of position of trust or authority
organized crime offence
terrorist offence
S. 718.2(a) does not list any mitigating circumstances
Most aggravating and mitigating circumstances are therefore judge-created as a matter
of common law!
Manson (chapter 6) lists 16 mitigating factors and about the same number of aggravating
factors (see below).
But note that these are not an exhaustive list!
Any factor can be asserted as an aggravating or mitigating circumstance if it can be
rationally related to the gravity of the offence or the degree of responsibility of
the offender.
May also be relevant to an objective or principle of sentencing
Note also that there is no particular scale in determining the amount of reduction or
increase in a sentence that each aggravating or mitigating factor should have!
Certain aggravating or mitigating factors may influence a judge to select one
sentencing objective over another
E.g. Denunciation or deterrence, or rehabilitation and reparation.
Certain aggravating and mitigating factors will influence the judge to pick one
sentencing option rather than another
E.g. Probation vs. conditional sentence vs. prison
However, the overriding influence remains the principle of proportionality!
- 38 -
Mitigating Factors
Note: should be able to articulate not just the mitigating factor, but the rationale behind
its mitigative effect.
First time offender:
Significant mitigating factor  both a presumption against custody and a significant
reducing effect if custody is mandated
Good rehabilitation prospects  60% of first time offenders do not re-offend
Also consistent with showing good character prior to the offence
The very process of prosecution and public shaming is punishment in itself!
Crown does not assert any previous convictions:
Even if the accused does have a previous criminal record, may not be advanced by the
crown if it is stale or unrelated to the present charge
If no mention is made of a prior convictions, accused should be treated as a first-time
offender
Prior good character:
May be relevant to "good rehabilitation prospects"
May point to the fact that the offence is "totally out of character", a "one time thing"
that will not reoccur  therefore no need for individual deterrence
Evidence which shows values that are antithetical to those which underlie the offence
are generally most helpful
Good character claims generally inappropriate when dealing with offences committed in
the dark corners of peoples lives  low probative value
Guilty Plea:
Mitigating because it can imply remorse and "taking responsibility" (objective 718(f))
It can save witnesses, esp. complainant, the trauma of testifying
Saving CJS "time and money" is not an official rationale for giving lighter sentence but
it is an actual reality
However, should not simply be a matter of administrative efficiency!
Plays a very large role  Guilty pleas account for 70-90% of convictions!
“Not guilty” plea (demanding right to trial) can never be an aggravating factor
But since a guilty plea is a mitigating factor, there is often a big difference between
sentence after a guilty plea and sentence after a trial (England – suggestion of 25%)
The difference is especially big when the Crown offers (charge or sentencing
concessions) if, and only if, the Accused pleads guilty.
Although they are officially only recognized as mitigating factors, in reality guilty pleas
a HUGE role in determining sentencing!
Drug or Alcohol impairment:
Can be mitigating where it shows the offence was spontaneous rather than planned
 detracts from the mens rea element
However a history of violence while impaired may be aggravating due to the
offender's failure to deal with his problem
Gambling Addiction:
- 39 Horvath (Sask. C.A.) (1997) – Accused was pathologically addicted to video lottery
terminals – stole $200,000 from her employer to feed her addiction. An expert testified it
was the worst case of pathological gambling disorder he had ever seen. Sask. C.A.
treated her addiction as a mitigating factor, saying her offences were the product of a
distorted mind – she lacked normal control.
Where the offences were the product of a distorted mind, less culpable
Also note that the court was lenient because Horvath was a first time offender. Have
not been very sympathetic to gambling addicts with previous records.
In Harding (Sask. C.A.) (2006), the Sask. C.A. clarified that when the gambling
addiction is of a lesser order, it will provide very little mitigation.
In Alberta., the C.A. has consistently rejected gambling addiction as a mitigating factor
to theft and fraud:
McIvor (1996)
Holmes (1999)
McTighe (2005)
Reluctance by the court to give to much weight to “pathological” addictions  must be a
very sever case before it will be recognized!
People are still expected to exercise self-control
Good Employment Record:
Points to good prospects for rehabilitation  shows pro-social responsibility and
conformity to community norms
Police/courts assume unemployed persons commit more crimes than the employed
However, a seemingly class based assumption that perhaps needs more consideration
But be careful not to treat unemployment as an aggravating factor or as a sign that the
Offenders is necessarily anti-social
Wise to get your client out looking for a job before he/she is sentenced, although the
court may be sceptical
Not the employment itself you have to point to, but rather the accused’s intent to be
socially responsible!
Court may take into account whether the sentence will interfere with a person’s
employment – may lose their job!
Note: volunteer work may serve a similar mitigating effect
Indirect Consequences Suffered by Offender
As a result of committing the offence, the offender may suffer physical, emotional, social
or financial consequences  seen as already bearing some punishment
Requires careful consideration of each fact-specific case. Examples:
Charged with Impaired Driving/Dangerous Driving Causing Death/Bodily Harm, but was
seriously injured in the accident  can be seen as part of the punishment
Convicted of offence unrelated to job, but lose job or professional licence as a
consequence – e.g. lawyer disbarred for possession of child pornography
But where the adverse consequence is directly linked to the offence, then the
consequence is not a mitigating factor Eg. [M. 137 n. 16]
Can't complaint that you’re an orphan when you kill your parents
Can't complain that you are disbarred as a lawyer when you cheat your clients, or fired
as a teacher when you physically or sexually abuse your students
- 40 -
Post-offence Rehabilitation Efforts:
Progress is dealing with personal problems, and efforts to improve or repair one’s social
situation are always given mitigating credit  show a recognition of personal difficulties
an a commitment to remedying them
Depend on sincerity, actual progress and relevance to the offence
Lawyer may request that the sentencing be postponed so that the accused by seek some
sort of rehabilitation (rehabilitative remand)  trying to convince the court that the
accused is making efforts to improve themselves.
E.g. seeking employment, drug or alcohol rehab, community service, etc.
In sentencing, should be careful not to disrupt rehabilitative efforts
Shows good prospects for rehabilitation
Again, leads to class-based distinction  those from a higher social strata may be more
able to access (i.e. pay for) rehabilitative programs
Not all communities have appropriate resources
Not all programs are available at public expense
Accordingly, the court should be sensitive to resource difficulties
Unrelated Meritorious Conduct (e.g. save a drowning child):
Shows something positive about the offender's character  enhances their
rehabilitative prospects
Acts of Restitution and Compensation
Shows remorse, acknowledgement of wrong and efforts to put the wrong right
May be difficult to tell if really reflects remorse or is purely selfishly motivated, but
where uncertain, the offender should get the benefit of the doubt.
Provocation and Duress
When an accused acts out of duress or provocation it reduces his/her moral
blameworthiness
If the provocation or duress does not meet the requirements as substantive defences
to the offence, they may still be relevant as mitigating factors at sentencing
Delay in Prosecution or Sentencing (and other Charter Right Violations)
Unwarranted delay in prosecution or sentencing an offender caused by police, prosecutor
or judge can constitute an additional strain and burden on the offender and therefore
can be treated as a mitigating factor
Longer the unwarranted delay and the greater the impact the delay has on the
individual, the greater the mitigating effect
If the delay is not enough for the Court to stay the proceedings as a violation of the
accused's s. 11(b) Charter right to a trial within a reasonable time, then the Court can
treat the delay as a mitigating factor in sentencing.
In Spencer (Ont. C.A.) (2004) the Court acknowledged that delay can be a mitigating
factor when it is lengthy and it impacts adversely on the accused.
However, in R. v. Carpenter (BCCA) (2002) a majority of the B.C.C.A. held that where
violations of the offender's Charter rights such as s. 8 (search) and s. 10(b) (right to
counsel) occur but those rights violations do not result in the exclusion of evidence
under s. 24(2) of the Charter, a sentencing court should not seek an alternative
remedy by treating those Charter violations as mitigating factors at sentencing
- 41 Other provinces have recognized violation of Charter rights as a potential mitigating
factor
No Supreme Court decision yet
Will Charter delay be a mitigating factor at sentencing in B.C.?
Based on Carpenter, probably not, although one could argue that Carpenter did not
deal with Charter delay and therefore is not binding on that point.
Test Case
"Given the costs, rigours and uncertainties of protracted litigation, there can be a
mitigating effect for an accused" involved in a test case which goes on appeal because
of a novel or ambiguous aspect to the case.
In Hamilton (Ont. C.A.) (2004) the trial judge treated the case as a "test case" and gave
the accused some mitigation due to the long, protracted proceedings. The Ont. C.A.
held that this was not a true test case and mitigation was not warranted on that account.
Disadvantaged Background
Poverty, abuse, family dysfunction can help to explain – although not justify – some
criminal activity
Such factors can lessen blameworthiness and mitigate sentence: Sackanay (Ont. C.A.)
(2000)
However, as the offence increases in seriousness and the need for denunciation,
deterrence and separation increase, the mitigating effect of "disadvantage" will lessen or
disappear: Borde (Ont. C.A. 2003)
Mistaken Belief in the Nature of the Drugs
Selling or importing a narcotic is a far more serious offence (with a much higher maximum
penalty) than selling or importing marihuana or a prescription drug
A mistaken belief as to the nature of the illicit drug is not a substantive law defence
(Kundeus) but it should be a mitigating factor in sentencing.
This proposition was rejected in Madden (Ont. C.A.) (1996), but it has been accepted
in other cases including Sagoe (Ont. C.A.) (1998).
May need to consider is merely passive or wilfully blind
Other mitigating Factor (Not Listed in Manson)
Single Parent Status
Buan (S.C.C.) (2000): the fact that an offender is a sole parent or sole caregiver can
operate as a mitigating factor.
However, it will not keep a person out of jail, nor convert a prison sentence to a
conditional sentence, when the offence seriousness calls for a prison sentence
In Holub (Ont. C.A.) (2002), Hamilton (Ont. C.A) (2004) and Spencer (Ont. C.A.)
(2004), the Ont. C.A. refused to convert a person sentence to a conditional sentence
on the basis of single parent status
Adverse Publicity
It can be a mitigating factor where the adverse publicity is out of proportion to what is
normal and there is evidence that the adverse publicity has had a negative impact on
the offender
- 42 It was not a mitigating factor in Ewanchuk since he voluntarily participated in media
interview and there was no evidence of its negative impact on him
Offender's Disability
Serious illness or physical or mental disability can make a custodial sentence
disproportionately harsh and therefore these factors can be taken into account in
determining the type and length of sentence
Cooperation with the Police
Quick, full and potentially effective co-operation with the police in apprehending
and/or prosecuting others can be a very large mitigating factor: e.g. H.(C.N.) (Ont.
C.A.) (2002)
Leniency may come by prosecutorial reduction or elimination of charges, or by sentence
leniency from the judge (often supported by a Crown submission recommending sentence
leniency)
Deportation
If a non-Canadian citizen (this includes landed immigrants) is convicted of an offence and
sentenced to two years or more) the person is subject to deportation (by immigration
officials) without any right of appeal.
In To (Alta. C.A.) (2004) and Spencer (Ont. C.A.) (2004), the Courts of appeal held that
deportation status was not a sufficient mitigating factor to reduce 3½ year sentences
to 2 years less a day.
However in Mai (B.C.C.A.) (2006), a majority of the Court of Appeal held that
deportation status was a sufficient mitigating factor to reduce a two year penitentiary
sentence to a 2 years less a day provincial prison sentence. The Ont. C.A. did the same
thing in Curry (Ont. C.A.) (2005).
Statutory Aggravating Factors
Section 718.2(a) lists 6 aggravating factors:
bias or hate
abuse of spouse
abuse of a person under 18 years of age
See also 718.01 which mandates that primary consideration be given to denunciation
and deterrence for abuse of persons under 18
abuse of position of trust or authority
organized crime
terrorist offence
There is a growing Parliamentary tendency to add aggravating factors to certain specific
offences. These sections are not mentioned in Manson.
S. 348.1 – (added in 2002) – "Home Invasion"
B & E of an occupied dwelling is aggravated if the offender
knows or is reckless that it is occupied and
uses violence or threats of violence
S. 255.1 (added in 1999)
- 43 Where an offender's blood alcohol level is over .16 that fact constitutes an
aggravating factor for any offences committed with that motor vehicle
S. 264 – Criminal Harassment (added in 1997)
Where an offender commits criminal harassment while subject to a peace bond or
similar order that fact shall be considered an aggravating factor
Section 380.1 (enacted in 2004) states 4 circumstances which shall be considered
aggravating circumstances for the offence of fraud:
fraud exceeding $1 million
adverse effect or potential effect on the Canadian economy or financial markets
a large number of victims
the offender took advantage of his "high regard" in the community
Section 163.1 (4.3) – Child pornography (enacted in 2005)
Subsection (4.3) makes it an aggravating factor to commit a child pornography offence
(make, distribute, sell, possess, access) "with intent to make a profit"
Section 10(2) of the Controlled Drugs and Substances Act - states that the following are
aggravating factors:
use of a weapon
violence or threat of violence
trafficking or possession for the purposes of trafficking in or near a school or a public
place usually frequented by persons under 18
trafficking (or PPT) to a person under 18
previous conviction for a "designated drug offence" (everything except simple
possession)
use or involvement of a person under 18 to commit a designated drug offence
Judicially Recognized Aggravating Factors
Manson lists 12; there are others as well. The reason why these factors are aggravating is
generally self-evident.
Previous Convictions
Usually an aggravating factor because (1) offender loses the mitigation of being a first
time offence, (2) the offender demonstrates that greater individual deterrence and/or
denunciation are needed
More aggravating when offences are similar in nature and occur during or soon after
completion of a previous sentence
May not be treated as an aggravating factor:
if offences are quite dissimilar
e.g. previous impaired driving conviction not very relevant to current offence of
assault
if previous offence is quite old (5 to 10 years) ago that the first sentence was
completed), the previous offence will have little or no aggravating effect
Actual or Threatened Violence or Use of a Weapon
Regardless of the nature of the offence, it’s always more serious when a weapon is
used or threatened.
Many offences have a 4 year minimum when committed with a firearm
- 44 -
Cruelty or Brutality
Cruelty, degradation, and humiliation demonstrate a propensity often consistent with
some underlying pathology, psychology or deviance
Makes deterrence and denunciation more important
Offences Committed While Serving a Previous Sentence on Probation or
Parole/Statutory Release
By committing an offence in these circumstances, the offender is, on top of the
offence, showing disrespect to the processes of the law.
Aggravating effect depends on the nature of the release, the nature of the new offence,
and the time interval.
Multiple Victims or Multiple Incidents
Blameworthiness is compounded by the number of incidents
May be important in characterizing the offender as a predator who represents a
substantial danger to the safety of others
Group or Gang Activity
Group or gang activity may imply organized, planned and continuous criminal activity.
Group offence committed within an identifiable peer, especially where the offence would
likely become public knowledge, increases the need for deterrence.
Threats or Intimidation by Offender to Complaints or Witnesses to not report
crimes nor to testify
The justice system needs to ensure that people can invoke its processes and therefore
it must respond seriously to conduct intended to prevent someone from seeking its
protection
Substantial Economic Loss
Sentencing for frauds and thefts are influenced by the size of the loss.
Consider the impact on the individual or company in each case:
E.g. small loss to a senior citizen may be catastrophic while a large lost to a bank may
be inconsequential.
Planning and Organization
Evidence of pre-meditation or planning is aggravating because it shows that the
offender contemplated the offence and produced the harm in a calculated and not
spontaneous way.
Cannot claim rash action or temporary loss of judgement
Vulnerability of the Victim
Even if mostly symbolic, an integral part of the administration of justice is to provide
some degree of protection to vulnerable groups.
Especially aggravating when the offender intentionally sought out vulnerable victims
Typical vulnerable groups:
age (young or elderly)
physical or mental disability
- 45 -
Special Status of Certain Victims
The role of the victim in the community may make them worthy of special attention
Police Officers  leads to higher sentencing because of their dangerous and important
role in protecting society: Phillips (Ont. C.A.) (1999)
Want to deter crimes against people in vulnerable situations. Examples:
Taxi drivers
Convenience store clerks at night
Abortion Service Providers
Deliberate Risk Taking
Deliberate risk taking is more blameworthy than accidental or negligent risk taking
Factors That are Not Aggravating (Although they can be
Mitigating)
Pleading not guilty and presenting a vigorous defence: Kozy (Ont. C.A.) (1990)
Full answer and defence is both a statutory right and a Charter right  accused
cannot be impaired by the apprehension that a penalty may follow from pleading not
guilty
Not expressing remorse: Vu (B.C.C.A.) (2003)
Although showing of remorse can be a mitigating factor, absence of remorse is not an
aggravating factor  entitled to continue to deny guilt through appeal
However, callous or vindictive expressions go beyond an absence of remorse and can
be aggravating
Failure to Cooperate with Police/Prosecutor in the Investigation/ Prosecution: Winsten
(Ont. C.A.) (1999).
While courts will give credits to an offender for assisting police, they should not be
penalized for a failure to do so
No legal obligation to assist police  may exercise right to silence
But when a failure to cooperate shows callous disregard for survivors or a victim, then
legitimately aggravating.
Sentencing Hearings: Procedure and Evidence
Overview of Criminal Code Provisions
What are the relevant facts for sentencing? How are they proven? Who has the burden of
proof? The answers to these and similar questions are partly found in the Criminal Code
and partly in the case law.
Section 720 of the Criminal Code states that a judge "shall, as soon as practicable after
an offender has been found guilty, conduct proceedings to determine the appropriate
sentence to be imposed."
Should be some sentencing proceedings
As soon as practicable – cannot postpone unless good reason (e.g. need more info)
Section 721 gives the judge the power to order a pre-sentence report.
Only issued in limited circumstances since can be very time consuming
More likely to be ordered for young offenders, since more vulnerable
Section 722 indicates the content and procedure for giving a victim impact statement.
- 46 Section 723 indicates that the prosecutor and the offender are entitled to make
submissions and call relevant evidence, including hearsay evidence. Also empowers the
judge to compel the production of evidence on his/her own motion.
Section 724 deals with the manner of establishing and proving disputed facts.
Section 726 requires a Court to ask the offender if he/she has anything to say before
determining the sentence and s. 726.1 requires the Court to consider any relevant
information before determining the sentence.
Section 727 deals with proof of previous convictions and s. 729 deals with proof of
certificates of analysis for drugs.
Nature of the Sentencing Proceedings
As Manson notes (p. 163), the sentencing process is far less formal than a trial.
Hearsay evidence is admissible and there are few rules of evidence.
Most sentencing hearings are brief and normally involve "submissions" [assertions]
of relevant facts by Crown and defence (sometimes supported by letters of character
support] rather than the calling of direct evidence from witnesses to prove those
facts.
Other facts are obtained from pre-sentence reports, victim impact statements and
occasionally psychiatric/psychological reports. Only when there is a serious
dispute about a very relevant fact, will direct evidence be called.
Judges generally rely on what counsel say (and what is in the reports). Counsel will
normally end their sentencing submission with a specific sentencing recommendation
based on their analysis of the relevant facts and the relevant sentencing objectives,
principles and rules.
Usually specify a type of sentence, but will often speak in terms of a range
when discussing length of sentence
In Gardiner (1982), the S.C.C. described the general nature of sentencing hearings
[see Manson: 164] in roughly the following language:
"sentencing judges must have the fullest possible information concerning the
background of the accused so that the judges can fit the sentence to the offender,
and not just the offence"; thus "sentencing judges traditionally have had a wide
latitude as to the sources and types of evidence upon which to base their sentences";
Confirmed the informality of sentencing hearings and the admissibility of hearsay
evidence
“thus, sentencing hearings are "more informal than trials, without the
imposition of all the restrictive evidential rules common to a trial";
However, sentencing is an important part of individual liberty – looser than trial
but still required due process
"hearsay evidence may be used, but to ensure a fair proceeding, hearsay evidence
must be credible and trustworthy".
Role of the Judge at Sentencing Hearing
A sentencing hearing is largely adversarial, but it can also have some inquisitorial
aspects to it.
An adversarial process relies upon the Crown and defence to control the evidence
placed before the court.
- 47 Sections 723(1) and (2) reflect the adversarial nature of sentencing hearings by
indicating that the prosecutor and the offender are entitled to (and expected to) make
submissions and call relevant evidence where necessary  judge has passive role
However, sections 723(3) and (4) indicate the inquisitorial nature of a sentencing
hearing. Those subsections state:
723(3): the court may, on its own motion, after hearing argument from the
prosecutor and the offender require the production of evidence that would
assist the court in determining the appropriate sentence;
723(4): where necessary in the interest of justice, the court may, after
consulting the parties, compel the appearance of compellable witnesses to
assist the court in determining the appropriate sentence.
Sections 723(3) and (4) are inquisitorial in nature, rather than adversarial. But how active
should the judge be in this latter regard?
Can be very proactive, but may be struck down, as in:
In R. v. Hunter (Alta. Q.B.) (1997) [discussed in Manson: 167] where the sentencing
judge in effect instituted an inquiry into the social conditions, alleged corruption
and financial management on an Aboriginal reserve in circumstances where the
authorities on the reserve refused to pay for or make available necessary alcohol
abuse treatment for the accused who was being sentenced by the judge.
On appeal the open-ended nature of that inquiry was struck down and narrowed to
relate solely to relevant issues such as relevant social conditions then existing on
the reserve.
Note: special attention that must be paid to aboriginal offenders  should be
proactive (inquisitorial) in seeking necessary information:
In R. v. Gladue (S.C.C.) (1999) [discussed in Manson: 168], where the Supreme Court,
in regard to the application of s. 718.2(e) ("with particular attention to the
circumstances of Aboriginal offenders") stated:
However, even where counsel do not adduce this evidence (or maybe even
urepresented), where for example the offender is unrepresented, it is
incumbent upon the sentencing judge to attempt to acquire information
regarding the circumstances of the offender as an Aboriginal person.
Since Gladue, the practice varies across the country.
Some jurisdictions have specialized courts for aboriginal offenders – called
“Gladue court”
In Manitoba, order a pre-sentence report with a Gladue assessment
However, in a lot of cases, not much attention is paid to these issues  more
needs to be done
Again, appeal courts may criticize lower courts for overstepping their bound in the
sentencing inquiry:
In R. v. Hamilton and Mason (Ont. C.A) (2004), the Court of Appeal criticized the
trial judge (Hill J.), who was sentencing two, poor, single-parent Jamaican women
who were recruited to import cocaine by organized crime figures who preyed on
vulnerable persons in need, for turning the sentencing hearing into a inquiry into
broader societal problems covering race and gender bias.
Sentencing hearing went on for months – discussed many mitigating factors
Conducted a broad ranging inquiry into the conditions of these women  also
wanted to know about customs practice and government responses to social
problems
Produced over 1000 pages of his own research into the impact of racial
discrimination and poverty in the criminal justice system
- 48 Eventually makes a very powerful conclusion on racial, gender and income bias
that occurs in the criminal justice system  believed they should have a strong
influence on sentencing
Went well below the regular range in imposing the sentence - remorseful, single
parents, poor, etc.
Court of Appeal criticized the trial judge’s extensive inquiry:
Criticized many of the mitigating factors he considered – even if they were
mitigating, not to the extent suggested by the trial judge  unfit sentence
Court of Appeal was very critical of the way that the trial judge went off on his
inquiry
 System should be adversarial  judge should not be playing such an
inquisitive role; By assuming the role of advocate, witness and judge, the
sentencing judge lost the appearance of impartiality.
 Believed the trial just had spent considerable time exploring issues
irrelevant to sentencing
 Sheer volume of research created a risk of inaccurate fact finding.
 Although limited inquiries (such as those in Gladue) are appropriate, wide
ranging inquiries (such as those found in Hunter and Hamilton) go beyond the
role of the judge.
However, the Court of Appeal has in turn been criticized by a number of academics
for trying to shut down this type of relevant inquiry.
Tanovich: Notes that Justice Hill based his information on reliable resources and
presented it to the parties  Crown chose not dispute any of the information
 “The Court of Appeal’s narrow approach to judicial notice and gratuitous
criticism of Justice Hill is not only unprincipled and unfounded, but will serve
to perpetuate the erasure of race in the conduct of litigation.”
Kaiser: The Court of Appeal’s approach “represents a suppressing the raising and
exploration of issues, removing the incentive to do judicial research and
sapping the energue required to pursue sentencing goals.”
 “Court of Appeal restores a status quo which will not inure (come into effect)
to the benefit of a modern judiciary trying to grapple with complex social
problems in a manner which befits the expectations of the Canadian public”
Conclusion: Although the sentencing judge has some power to conduct an inquiry, this
power is fairly narrowly restricted
The powers in s. 723(3) and 724(4) are available to a sentencing judge on their own
initiative so long as the matters pursued are relevant to the sentencing function Hunter
Burden and Standard of Proof
While originally unclear, the S.C.C. in Gardiner (1982) [Manson: 169] made it clear that
the Crown bears the burden of proving beyond a reasonable doubt all aggravating
facts in regard to sentencing  now been codified in s. 724(3)(e).
When the Crown asserts a relevant aggravating fact and the offender denies it, the
Crown has the burden of proving that fact beyond a reasonable doubt by calling
evidence.
If the Crown declines to call evidence, or otherwise fails to prove the fact, the
sentencing judge will proceed on the assumption that the fact or circumstance in
question did not exist: Poorman (Sask. C.A.) (1991) [Manson: 170].
- 49 Gardiner did not address the burden or quantum of proof for mitigating factors.
However, since 1996, s. 724(3)(d) indicates that the offender bears the burden of
establishing mitigating facts on a balance of probabilities.
There is often room for debate as to whether or not a particular fact is an aggravating
or a mitigating fact.
In its widest sense, all factors that tend to make the offence graver will be treated as
aggravating facts
Whereas factors relevant to the offender's character which tend to lessen the
degree of responsibility of the offender, will more readily be classified as mitigating
facts.
Generally, the offender is entitled to be sentenced on the version of the facts that is
most favourable to the offender, unless the prosecutor proves a more serious version
of the facts beyond a reasonable doubt.
For example, if the evidence could reasonably support the claim that the offender was
a "small drug dealer" supporting his own habit and not a "commercial trafficker", then
the offender is entitled to be sentenced on that version of the evidence unless the
prosecutor proves otherwise beyond a reasonable doubt: Boulet and Holt [Manson:
170-171].
However, the most favourable version of the facts alleged by the offender must have a
"air of reality" to them (i.e. "within the bounds of reasonable reality") before the
sentencing judge acts upon that version of the facts: Boulet [Manson: 170].
The provision in the Criminal Code on burden of proof enacted in 1996 is worded a bit
strangely. Section 724(3) states:
Where there is a dispute with respect to any fact that is relevant to the determination
of a sentence,
A) the court shall request that evidence be adduced as to the existence of the fact
unless the court is satisfied that sufficient evidence was adduced at the trial;
B) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;
C) either party may cross-examine any witness called by the other party;
D) subject to paragraph (e), the court must be satisfied on a balance of
probabilities of the existence of the disputed fact before relying on it and
determining the sentence; and
E) the prosecutor must establish, by proof beyond a reasonable doubt, the
existence of any aggravating fact or any previous conviction by the offender.
On its face, subsection (d) appears to change the onus of proof to the balance of
probabilities in respect to dispute facts, unless they are aggravating facts as set out in
subsection (e).
However, in reality, unless the facts are either aggravating or mitigating, the fact
that they are disputed is really a moot issue.
In practice, the Crown proves all aggravating factors beyond a reasonable doubt
and the accused proves all mitigating factors on a balance of probabilities.
If a fact neither aggravates nor mitigates a sentence, it is unlikely to provoke a
hearing for the purpose of proving it. Remember the court will accept the most
favourable interpretation of the facts for the benefit of the offender provided that
version of the facts contains an air of reality
- 50 -
Evidence and Fact Determination at a Sentencing Hearing
The determination of facts for sentencing can vary depending upon the procedure by
which the accused has been found guilty. There are three possibilities:
the accused pleads guilty,
the accused is found guilty after trial by judge alone,
the accused is found guilty after trial by judge and jury.
When there is a guilty plea, the only facts that are implicitly admitted are the
essential elements of the offence. All other facts will be presented by counsels'
submissions or by the calling of evidence. The sentencing judge will determine which
facts are accepted. Important disputed facts must be proven. Occasionally at the time
of plea, Crown and defence will submit an agreed statement of facts.
When an accused is found guilty after trial by a judge alone, the judge will have heard
all the evidence presented at trial and will therefore have an evidentiary basis for
determining many relevant facts. However, other facts relevant to sentencing which
were not presented at trial, will be introduced by submissions by Crown or defence, or
proven by evidence where those important facts are disputed.
Fact Determination and Jury Trials
When an accused is found guilty after trial by a jury, the trial judge will have heard the
same evidence that the jury heard. If a jury returns a verdict of guilty, that verdict will
represent a determination of the essential elements for the offence. However, there will
often be other facts which are relevant to sentencing including facts about the nature
or degree of the harm, which the jury verdict will not reveal since jurors do not give
reasons for their verdict.
For example, in a trial for assault causing bodily harm, a wife testifies that her
husband beat her viciously several times. The husband testifies that he punched his
wife once in the face and only on one occasion. The jury convicts the accused of
assault causing bodily harm. It is not known for sentencing purposes whether the jury
believed the wife, the husband or something in between.
On what basis of the facts should the judge impose a sentence?
Before 1996, the Criminal Code was silent on this issue. The cases of Speid (Ont. C.A.,
1985), Lawrence (Ont. H.C., 1987) and then Tempelaar (S.C.C., 1995) held that the
trial judge should decide on the version of the facts for the purposes of sentencing.
Those courts frowned on the practice of asking juries to deliver special verdicts, rather
than general verdicts (i.e. to answer a number of specific questions rather than the
general question: guilty or not guilty).
Since the facts are aggravating, the judge will have to be convinced beyond a
reasonable doubt that the more serious version of the events occurred: Gauthier
(No. 2) (B.C.C.A., 1996) and Cooney (Ont. C.A., 1995).
For issues that were litigated during the trial (i.e. the degree of harm inflicted on the
complainant), neither the Crown nor defence counsel are entitled to re-litigate the
issue by introducing evidence which would contradict or be inconsistent with that
issue which was litigated at trial [see Braun in Manson: 182].
The sentencing judge must impose a sentence on facts which are consistent with the
jury's verdict.
- 51 E.g. If an accused is charged with dangerous driving causing death, but the jury
returns a verdict on the lesser charge of dangerous driving, the sentencing judge must
interpret the verdict as an indication that the jury was not convinced beyond a
reasonable doubt that the dangerous driving was the legal cause for the death. Thus,
the offender should not be sentenced on the more serious assumption that he or she
caused death by his or her dangerous driving: see Brown (S.C.C., 1991) [Manson: 180].
Since 1996, s. 724(2) codifies the Tempelaar and Brown principles.
Section 724(2): Where the court is composed of a judge and jury, the court
A) shall accept as proven all facts, express or implied, that are essential to the
jury's verdict of guilty; and
B) may find any other relevant fact that was disclosed by the evidence at the
trial to be proven, or hear evidence presented by either party with respect to
that fact.
Should not be seen as a chance to re-litigate the issue
Factual Basis For Sentencing
Introduction
In addition to evidence heard at trial (if any), and evidence called at a sentencing
hearing (if any) and submissions made by Crown and defence, relevant sentence
information may be obtained by (1) a pre-sentence report (PSR) and/or (2) a victim
impact statement (VIS).
It is also necessary to look briefly at an offender's right to speak.
The Offender's Right to Speak
Before 1996
Historically the offender was given the right to speak before a sentence (often it was a
sentence of death which was being passed). This has been referred to as the right of
allocution:
Do you have anything you wish to say before sentence is passed upon you?
This was an opportunity to seek benefit of clergy or to seek mercy for any other
reason.
Arose out of the fact that the accused was previously (prior to the Criminal Code) not
given the right to be a witness in his own trial
This right to speak was enacted in the first Criminal Code of Canada in 1892 (s.
733(1)) [Manson: 190, n. 86] and later became s. 668 of the Criminal Code. Section 668
stated:
"the judge shall ask the accused whether he has anything to say before sentence is
passed on him, but an omission to comply with this section does not affect the
validity of the proceedings."
In R. v. Dennison (N.B.C.A., 1990) [Manson: 190] the Court held that an inadvertent
omission of the right to speak will not affect the validity of the sentencing hearing,
but a deliberate denial of the accused's right to speak is a violation of s. 7 of the
- 52 Charter and, on appeal, the Court can lower the accused's sentence as a Charter
remedy [which the Court did in Dennison – from 12 years to 9 years].
Comment: perhaps would have been more practical to just give the accused a chance
to speak on appeal, rather than reducing his sentence
After 1996
The 1996 sentencing amendments abolished s. 668 and substituted s. 726 which
states:
Before determining the sentence to be imposed, the court shall ask whether
the offender, if present, has anything to say.
Does not specify the previous clause “but an omission to comply does not
affect the validity of the proceedings”
This right is separate from the right of the accused to be represented by
counsel.
In R. v. Senek (Man. C.A., 1998), the Court held that an inadvertent failure to comply
with s. 726 did not affect the validity of the sentencing hearing, and where there was
no evidence on appeal that the accused had anything of relevance to add to the
submissions of his counsel at the time of sentencing, no remedy was required since
the offender suffered not prejudice.
A similar result was reached in R. v. Holub (Ont. C.A. 2002) where the accused was
permitted on appeal to file a letter describing his feelings of remorse and shame as a
remedy for an inadvertent omission of his right to speak at sentencing where he was
fully represented by counsel (the sentencing hearing lasted three days).
The Criminal Code also provides the following provisions dealing with the accused's right
to present evidence and submissions before determination of sentence:
723.(1) Before determining the sentence, a court shall give the prosecutor
and the offender an opportunity to make submissions with respect to any facts
relevant to the sentence to be imposed.
(2) The court shall hear any relevant evidence presented by the prosecutor or
the offender.
726.1: In determining the sentence, a court shall consider any relevant
information placed before it, including any representations or submissions made
by or on behalf of the prosecutor or the offender.
When necessary, a distinction will be drawn between s. 726 (the right to speak) and
ss. 723/724 (proof of disputed facts).
The right of allocution is an unsworn statement (essentially equivalent to a
submission) – contrast with the accused taking the stand to provide sworn testimony
If, under the right to speak, the offender alleges a mitigating factor which the
Crown disagrees with, the proper procedure is to have the disputed fact proven in
accordance with burden of proof in s. 724(3)(d) and (e).
In Izard, the accused asserted during his right to speak that he did not know his
accomplice had a knife at the robbery. Although the Crown argued that this disputed
fact should be given under oath and be subject to cross-examination etc., the
sentencing judge ignored that objection and sentenced the accused to one year
imprisonment (which seemed to reflect the judge's acceptance of the accused's
assertion). On appeal by the Crown, the Nova Scotia Court of Appeal held that the
disputed fact should have been proven in the ordinary way and increased the
- 53 sentence to two years (on the basis that it did not adequately reflect the objections
of deterrence and denunciation).
Comment: perhaps might be more appropriate to rehear the issue rather than
simply increasing the sentence
Pre-Sentence Reports
Not all cases will have a pre-sentencing report, but certain types of offences are more
likely to involve a sentencing report
The more severe the offence and/or the more serious the penalty, the higher the
likelihood that a pre-sentence report will be required.
The power to order a pre-sentence report is left in the hands of the judge, although
Crown or defence will frequently request the Court to order a PSR.
PSRs are prepared by the probation department (a division of the provincial Attorney
General's Ministry) – CC s. 721(1)
PSRs are governed by s. 721 of the Criminal Code.
Section 721(1) states that a probation officer shall, if required by a court to do so,
prepare and file with the court a report to assist the court in imposing a sentence.
Section 721(1) authorizes PSRs for all offenders, "other than an organization" (i.e.
corporations are excluded).
This is now a strange exception since organizations can be placed on probation
with conditions (s. 732.1(3)) [although this later provision was only enacted in
2003].
Section 721(1) and (2) empower the lieutenant-governor in counsel to make
regulations respecting the type of offences for which a court may require a PSR.
As Manson states [187], it is unlikely that any province would fetter a judge's
power to order a PSR with such regulations.
Section 721(5) provides that after the PSR is filed with the Court, the clerk of the
Court "shall provide a copy of the report, as soon as practicable after filing, to the
offender or counsel for the offender, as directed by the court and to the
prosecutor."
Where the accused is represented by counsel the report will normally be sent to
defence counsel, although s. 721(5) gives the trial judge discretion to send the
report to either the offender or counsel for the offender. It is unlikely that this
discretion is frequently resorted to.
Information in Pre-Sentence Report
Section 721(3) states that, wherever possible, the PSR must contain information on
the following matters:
A) "the offender's age, maturity, character, behaviour, attitude and willingness to
make amends",
B) previous convictions,
C) previous use of diversion [alternate measures]
The PSR can also contain information on the offender's family, education,
employment, community involvement and health.
Section 721(4) states that the PSR must contain information "on any other matter
required by the court, after hearing argument from the prosecutor and the offender"
and subject to any contrary regulations made by the LGW under s. 721(2).
- 54 This subsection can be used to seek information on treatment resources, Gladue
factors etc.
Section 721 does not specify what information a PSR should not include. However
courts have spoken strongly on this issue. In particular see Rudyk (N.S.C.A., 1978)
[Manson: 187-188]. The PSR should not:
include facts about the offence or the offender's role in the offence,
unproven offences or previous acts of misconduct,
the consequences for victims or victim attitudes to the offence [these matters are
to be covered in a victim impact statement].
In R. v. Donovan (N.B.C.A., 2004) the accused pled guilty to manslaughter. A presentence report was ordered. When interviewing the accused, the probation officer
sought information about the offence. The accused declined to discuss the circumstances
of the offence on the advice of his counsel. The Court of Appeal stated that the
probation officer should not have attempted to delve into the circumstances of the
offence. Questions relating to the offence are outside the bounds of a pre-sentence
report. The Court stated:
[28] A particularly disturbing aspect of the pre-sentence report is an unjustifiable
negative implication of a failure by Mr. Donovan to cooperate with the
interviewing probation officer. She, inappropriately, commenced her interview
with an attempt to question the accused about his involvement in the offence.
He consulted his lawyer and was advised, correctly, not to answer questions
relating to the commission of the offence. Such incursions are outside the bounds
of the report. The design of the report is governed by the wording of s. 721 of the
Code and any direction provided by the sentencing judge. It is not to be used as
an investigative arm of law enforcement, nor can it be used as a fact-finding
excursion for the inquisitive or the misinformed.
[30] A convicted person, including his or her counsel, may feel coerced to
discuss the crime for fear of getting a negative report from the probation
officer.
[31] The pursuit of pre-sentence-report-information about an offence has been
declared off-limits by trial and appeal courts in Canada for over a quarter of a
century. See, R. v. Martell (1984), 48 Nfld. & P.E.I.R. 79 (P.E.I. C.A.) where
MacDonald J. agreed with the Nova Scotia Court of Appeal in R. v. Craig (1975),
11 N.S.R. (2d) 695 (N.S. C.A.) that it is unwise to rely on statements in a report
that deal with the details of the commission of an offence. At para. 12,
MacDonald J. also agreed with the decision of the Nova Scotia Court of Appeal in
R. v. Bartkow (1978) (N.S. C.A.) per MacKeigan C.J.N.S. at para. 10, that a presentence report should be confined to portraying the background, family,
education, employment record, physical and mental health, associates, social
activities, potential and motivation of the person.
Disputed Facts
If the Crown, or more likely the accused, disagrees with any of the facts stated in the
PSR, the accused will be given an opportunity to state his or her disagreement.
If any of these disputed facts are considered relevant by the Crown, the Crown will be
required to prove them in the normal way. If the Crown chooses not to prove the
- 55 disputed facts, the accused shall be sentenced as if those facts were not present: see
R. v. Benson (B.C.C.A., 1951) [Manson: 168].
Victim Impact Statements
As Manson notes (194), the role of victims in the sentencing process "has changed
dramatically over the past two decades". In general the trial and sentencing has been
considered an adversarial process between two parties: the state (which represents all
community interests including that of the victims) and the accused. The trial and
sentencing still remains a two party system which sits rather uncomfortably with
finding an appropriate role for the victim.
At trial the victim remains outside the process (no standing) except to the extent
that the victim may be called as a witness.
At the sentencing hearing, the victim does not have the status of "a party to the
proceeding" but does now have some statutory rights to provide information to the
sentencing judge. See R. v. Gabriel (Ont. S.C.J., 1999) [Manson: 195].
Criminal Code Provisions
The first statutory recognition of victims' rights at the sentencing hearing was created in
1988 where the judge was given discretion to allow the accused to file a victim impact
statement. The statutory provisions have been amended a few times since then, and
s. 722 currently governs victim impact statements.
Section 722(1) states that the Court "shall consider any statement by a victim of the
offence, prepared in accordance with subsection (2), which "describes the harm done
to or the loss suffered by the victim arising out of the commission of the offence."
Section 722(2) states that a VIS must be
prepared in writing in accordance with the procedures and form set out by the LGW,
and
filed with the Court.
Section 722(2.1) states that "the court shall on the request of a victim, permit the
victim to read a statement prepared and filed in accordance with subsection (2) or to
present the statement in any other manner that the court considers appropriate".
Section 722(3) states that in addition to a VIS, "a court may consider any other
evidence concerning any victim of the offence".
Section 722(4) defines victim.
Section 722.1 states that the clerk of the court shall provide a copy of the VIS to the
offender, or counsel for the offender, and to the prosecutor as soon as practicable.
Section 722.2 states that the court shall inquire whether the victim or victims have
been advised of their right to prepare a VIS.
If the victims have not been so advised, section 722.2 gives the court the power to
adjourn the sentencing proceedings to permit the victim to file a VIS.
Content of a VIS
Courts have been relatively strict in limiting a VIS to "the consequences of the offence
on the victim".
For example in Gabriel the Court noted that the VIS "should not be structured so as to
foster or encourage any element of personal revenge" and can only contain relevant
information about harm and loss to the victim.
- 56 The VIS should not include criticisms of the offender, statements about the facts of
the case, or recommended punishments. In other words, the scope of the VIS is to
be restricted to personal statements of harm and loss.
To ensure this, the Court has the power to vet written statements prior to them being
filed or read orally.
Psychiatric/Medical Assessments
The defence is always entitled to submit expert evidence in relation to a psychological
or medical assessment.
Can generally be submitted in written format
However, expert may be called before the court to be cross-examined.
However, if the Crown wants to have the accused subjected to a medical assessment,
the accused must consent.
No Judicial Authority under the Criminal Code to Order a Psychiatric Evaluation
of a Non-Consenting Offender for Sentencing Purposes
Accused may be subjected to a state ordered psychiatric assessment – generally happens
prior to a trial or guilty plea when there is a question as to whether they are fit to stand
trial or whether they will likely plead insanity (NCRMD)
The purpose of assisting the judge to decide what to do with the accused if they are found
to be unfit or insane.
Is not a general provision to assist the judge in general psychological assessment for
the purposes of sentencing.
CC s. 672.11: authorizes an assessment order whenever there are reasonable grounds
to believe that such evidence is necessary to determine an issue of fitness.
However, it does not permit a compelled psychiatric assessment for the purposes
of sentencing following conviction
CC s. 672.21(2): Provides that a protected statement cannot be used without the
accused’s consent in any other proceeding except for specified purposes which do not
include sentencing
R. v. D.K.: a s. 672.11 assessment should not be admissible at the sentencing stage
without consent of the accused
R. v. Lenart (1998) (OCA): Confirms that you cannot use s. 672.11 for sentencing
R. v. Gettliffe-Grant (2006) (BCSC)
Facts: the Crown sought an order from the Court for a compulsory psychiatric assessment
of the offender for sentencing purposes pursuant to s. 721(4) or s. 723(3) of the Criminal
Code. The accused would not consent to a psychiatric assessment.
Held: Koenigsberg J. held that a sentencing judge has no authority under the Criminal
Code to order a psychiatric assessment of a non-consenting offender to assist the
Court in determining a fit sentence.
Sections 672.11 and 752.1 specifically authorize compulsory psychiatric examinations
of an accused or offender for the specific purposes of determining: fitness to stand
trial, the defence of mental disorder, the disposition of a person found unfit or
NCRMD, or for dangerous offender proceedings.
Those provisions do not extend to compulsory psychiatric evaluations for any other
sentencing or disposition purposes.
- 57 Section 721(4) of the Criminal Code authorizes a Court to direct a probation officer to
collect "information on any other matter required by the Court" and
Section 723(3) indicates that a sentencing Court "may, on its own motion, … require the
production of evidence that would assist it in determining the appropriate sentence."
Koenigsberg J. disagreed with R. v. Saba (1997) (BCSC), where a B.C. Supreme
Court judge held that sections 721(4) or 723(3) did authorize a compulsory
psychiatric assessment of a non-consenting offender for sentencing purposes.
Since compulsory psychiatric evaluations involve a profound invasion of the
privacy of the non-consenting offender, Koenigsberg J. held that sections 721
and 723 would have to be much more specific before a court could conclude
that those provisions authorized that sort of invasion.
Koenigsberg J. went on to note that even if there was jurisdiction under ss. 721 or
723 of the Criminal Code for compulsory psychiatric examinations for sentencing
purposes, there would have to be a clear factual foundation before ordering a nonconsensual psychiatric assessment.
Koenigsberg J. also noted that the Ontario Court of Appeal in R. v. Lenart (1998) Ont. CA),
and other subsequent cases in Ontario, have concluded that neither 721(4) nor 723(3)
authorized a compulsory psychiatric assessment for sentencing purposes.
R. v. Lenart (1998) Ont. CA)
Strangely, Finlayson J.A., for the majority of the Court in Lenart, held that a compulsory
psychiatric examination for sentencing purposes could be achieved by resort to the
powers under the Ontario Mental Health Act.
Ferguson: Goudge J.A. dissented on that point. In my opinion, Allan Manson in The Law
of Sentencing is correct in arguing that reliance on the provincial mental health
legislation for sentencing purposes is inappropriate and unconstitutional.
Joint Sentencing Submissions
A joint sentencing submission is where defence and Crown jointly agree to present to the
judge a united front on sentencing
Is usually very specific, but may also present a range of appropriate sentences
Defence and Crown speak in advance to come to an agreement on an appropriate
sentence
Arises frequently in plea bargaining – usually arising in a quid pro quo situation
Nonetheless, the ultimate decision rests with the trial judge – question of how much
deference they want to pay to the joint sentencing submission.
Problematic: judges are under pressure to accept the joint sentencing submission because
it was often obtained through a quid pro quo in plea bargaining. If the accused doesn’t get
what they bargained for, then the system may break down.
Further complicated by the fact that once the accused pleads guilty, they cannot
generally withdraw the guilty plea. May try to argue that they were misled by the plea
bargaining, but unlikely to succeed as plea bargaining is always a gamble on the part of
the accused.
Thus, the system depends upon the judge accepting the joint sentencing submission
the majority of the time.
- 58 PROVISO: When a judge rejects a joint sentencing submission, the accused may appeal
that the judge should have followed the joint sentencing submission.
In these appeals, 75-90% the court allows the appeal – reinforces that there must be
very strong reasons for deviating from the joint sentencing submission.
R. v. Sinclair (2004) (Man. C.A.)
Facts: the accused pled guilty to assault causing bodily harm. A joint sentencing
submission was made suggesting that the accused be released with a sentence of time
served, which was the equivalent of a 10 to 12 month sentence, assuming double credit.
The judge declined to follow the joint submission. He believed the recommended
sentence was unreasonably low and he imposed instead an additional three months’
imprisonment in light of the accused's previous convictions for violent offences, the
unprovoked nature of the assault and the need for specific and general deterrence. The
accused appealed, arguing that it was not appropriate for the Court to deviate from
the joint sentencing submission.
Held: In dismissing the appeal, the Manitoba Court of Appeal reviewed the case law in
Manitoba, Nova Scotia, Ontario, British Columbia, and Alberta. The Court found that
different courts use different terminology, but the principles are the same. The Court
summarized those principles as follows:
[17] Thus, the law with respect to joint submissions may be summarized as
follows:
(1) While the discretion ultimately lies with the court, the proposed
sentence should be given very serious consideration.
(2) The sentencing judge should depart from the joint submission only
when there are cogent reasons for doing so. Cogent reasons may include,
among others, where the sentence is unfit, unreasonable, would bring the
administration of justice into disrepute or be contrary to the public interest.
(3) In determining whether cogent reasons exist (i.e., in weighing the
adequacy of the proposed joint submission), the sentencing judge must
take into account all the circumstances underlying the joint submission.
Where the case falls on the continuum among: plea bargain, evidentiary
considerations (consider the strength of the Crown’s case), systemic pressures
(whether the case was facing important deadlines) and joint submissions will
affect, perhaps significantly, the weight given the joint submission by the
sentencing judge.
(4) The sentencing judge should inform counsel during the sentencing
hearing if the court is considering departing from the proposed sentence
in order to allow counsel to make submissions justifying the proposal.
(5) The sentencing judge must then provide clear and cogent reasons for
departing from the joint submission. Reasons for departing from the
proposed sentence must be more than an opinion on the part of the
sentencing judge that the sentence would not be enough. The fact that
the crime committed could reasonably attract a greater sentence is not alone
reason for departing from the proposed sentence. The proposed sentence
must meet the standard described, considering all the principles of
sentencing, such as deterrence, denunciation, aggravating and mitigating
factors, and the like.
- 59 -
R. v. McKay (2004) (Man. CA)
A differently constituted panel of the Manitoba Court of Appeal returned to the issue of
joint sentencing submissions in R. v. McKay.
Facts: the accused pled guilty to two counts of breach of probation, four counts of breach
of the terms of bail, and one count of uttering a threat. He had a lengthy criminal
record. Given that the accused had already spent seven months in custody, the Crown
and defence jointly recommended a sentence of time served and probation. The
sentencing judge departed from the joint submission; she sentenced the accused to an
additional 14 months of custody, to be followed by two years of probation.
Held: The Court of Appeal held the sentencing judge did not err in rejecting the joint
submission because the case did not involve a genuine plea bargain. The Court relied
on Sinclair where the Court specifically asserted that greater weight should be given to
joint sentencing submissions which are part of a plea bargain, where the accused has
made concessions in exchange for greater leniency. In Sinclair, the Court stated:
[13] There is a continuum in the spectrum of plea bargaining and joint submissions
as to sentence.
In some cases, the Crown's case has some flaw or weakness and the
accused agrees to give up his or her right to a trial and to plead guilty in
exchange for some consideration. This consideration may take the form of a
reduction in the original charge, withdrawal of other charges or an agreement
to jointly recommend a more lenient sentence than would be likely after a
guilty verdict at trial. Evidence always varies in strength and there is always
uncertainty in the trial process.
In other cases, plea negotiations have become accepted as a means to
expedite the administration of criminal justice.
The clearer the quid pro quo, the more weight should be given an
appropriate joint submission by the sentencing judge.
[14] The judge must have a solid factual basis on which to make an
independent, reasoned decision. If a trial judge is not given or fails to inquire
into the circumstances underlying a joint sentencing submission, then he or she
will be hard pressed to determine whether there is good cause to reject that joint
submission:
Criticisms of Sinclair and McKay
Don Stuart expresses concern about the principle stated in Sinclair and McKay that the
clearer the quid pro quo is, the greater should be the weight that is given to the joint
sentencing submission. He states:
The Court is crystal clear that in the trial judge should be very reluctant to depart
from the joint recommendation for sentence.
The remarks rest uneasily with established jurisprudence to the effect that the trial
judge should be satisfied that the plea was voluntary. There is recent authority that
a plea is not valid and may be allowed to be withdrawn on appeal when there is
evidence that it was entered under undue plea bargaining pressure.
From an ethical standpoint prosecutorial guidelines now often require prosecutors
not to proceed where there is no reasonable prospect of conviction.
- 60 -
R. v. Druken (2006) (Nfld. CA)
Court of Appeal reviewed and reaffirmed the appropriate test for rejecting a joint
submission on sentencing.
Facts: In this case, the accused was acquitted of the murder of his brother. The Crown
appealed his acquittal. The Court of Appeal ordered a new trial for manslaughter. The
Crown and defence counsel made a plea bargain. Mr. Druken pleaded guilty to
manslaughter and the Crown agreed to a joint sentencing submission of five years
imprisonment, with this term being fulfilled by time served for the two and a half years
in custody pending trial, credited on a "two for one" basis. The trial judge rejected the
joint submission and imposed a sentence of 12 years' imprisonment, less six years
credited for pre-trial custody.
Held: On appeal, the Court set aside that sentence and imposed the sentence in the joint
submission. Rowe J.A. quoted liberally from the reasons of Justice Fish (as he then was) in
R. v. Douglas (2002) (Que. CA), who affirmed the importance of having a high
threshold for rejecting joint submissions, Justice Fish stated:
This court has repeatedly held that trial judges should not reject joint submissions
unless the joint submission is contrary to the public interest and the sentence
would bring the administration of justice into disrepute: This is a high threshold
and is intended to foster confidence in an accused, who has given up his right
to a trial, that the joint submission he obtained in return for a plea of guilty
will be respected by the sentencing judge.
Whatever the language used, the standard is meant to be an exacting one.
Appellate courts, increasingly in recent years, have stated time and again that
trial judges should not reject jointly proposed sentences unless they are
"unreasonable", "contrary to the public interest", "unfit", or "would bring the
administration of justice into disrepute".
Rowe J.A. then concluded by summarizing the test as follows:
[17] To summarize, a sentencing judge should depart from a joint submission
by counsel only if accepting the submission would bring the administration of
justice into disrepute or would otherwise be contrary to the public interest.
[18] In making this determination, the question of whether the sentence is
unreasonable must be considered. This requires an assessment of the facts as
presented to the court, normally in the form of an agreed statement. Counsel
must provide sufficient facts to permit the sentencing judge to determine
whether the sentence is reasonable in the circumstances.
Sentence May Exceed that Suggested by Crown
Just as a sentencing judge may depart from joint submissions on a sentence, within
reason, so may a sentencing judge exceed sentences proposed by Crown so long as the
departure is not excessive and does not constitute an error in principle.
In R. v. Koenders (2007) (BCCA), the accused was convicted of cultivating marijuana and
possession of marijuana for the purpose of trafficking. The Crown suggested a sentence
approaching a one-year term of imprisonment and counsel for the accused recommended
a conditional sentence. The sentencing judge ultimately sentenced the accused to two
years less a day.
Held: The British Columbia Court of Appeal noted that the range of sentences available
for grow operation offences is difficult to establish because of the great variation in
- 61 sentences imposed in the province. Given the scope and value of the operation
underlying the offences charged, the sentence imposed in this case was not excessive.
In R. v. Donovan (2004) (NB CA) the accused pled guilty to manslaughter. The Crown
submitted that a 6-year sentence was appropriate whereas counsel for the accused
submitted that a custodial sentence of 4 years was appropriate. The judge imposed a
sentence of 8 years. On appeal, the accused argued that a lesser sentence ought to
have been imposed because there was an “implied” joint submission. The accused
argued that generally courts will not exceed the sentencing recommendations of
experienced counsel.
Held: The Court rejected this “creative but impoverished” argument, noting that even if
there was a joint submission, there is no obligation on the judge to adopt it.
Restorative Justice
Introduction
Restorative justice is an innovative and alternative way of viewing and responding to
crime (but can also be used for other forms of conflict).
Has arisen because of concerns about the existing adversarial system
Not simply a set of specific practices, but also a philosophy/set of values
Traditional criminal justice is a two party system: the state and the accused
Accusatorial, adversarial two party system where crime is defined as a violation of the
state
Restorative justice has three parties: community, specific victim, and the accused
The victim and community are virtually absent from the traditional system
Fundamental to restorative justice is the belief that crime is a breach of the
community  designed to provide a response to that breach
Has very different aims and structure from the traditional justice system
Restorative justice resolutions usually limited to minor crimes: shoplifting,
vandalism, etc.
Still on the very edges of the criminal justice system – accounts for much less
than 1% of criminal cases
Mostly operated by volunteers, and there is little government funding
Van Ness has suggested that restorative justice is based on three foundational
principles:
Crime results in harm to victims, offenders and communities;
Not only government, but victims, offenders and communities should be actively
involved in the criminal justice process; and
In promoting justice, the government should be responsible for preserving order,
and the community should be responsible for establishing peace.
A restorative justice framework or philosophy:
views crime as a violation of victim and community rather than the state;
attempts to make offenders accountable to the parties violated – the victims and the
community;
- 62 allows for a response to crime which involves the active participation of offenders,
victims and community;
tailors that response to “restore” the relationship and repair the harm;
measures accountability by the assumption of responsibility and taking action to repair
the harm; and
allows victims a central role in the process.
The Law Commission in its Restorative Justice Discussion Paper has also succinctly noted
how restoration has different meanings for victims, offenders and the community:
For victims, restoration has a healing component. It may involve restoring victims'
sense of control over their lives by providing them the opportunity to express their
anger, to get answers to questions they may have about the incident and to reestablish order and predictability in their lives.
For offenders, restoration involves accepting responsibility for their actions by
repairing the harm they have caused. It also means addressing the issues that
contribute to their propensity to engage in harmful behaviour. This may require
dealing with anger management or chemical dependency.
For the community, restoration involves denouncing wrongful behaviour and
reaffirming community standards. Restoration also includes ways of reintegrating
offenders [and victims] back into the community.
Formats of Restorative Justice
The Law Commission has succinctly described the three main types of restorative justice
programs:
Victim-Offender Reconciliation Programs
Victim-offender reconciliation programs are perhaps the best known and most
widespread type of restorative justice initiative.
These programs bring victims and wrongdoers together [directly or indirectly] with
a trained facilitator to discuss the conflict, identify strategies to repair the harm
done by the conflict and agree on schedules for restitution, follow-up and
monitoring.
Victim-offender reconciliation programs allow victims to express their anger in a
controlled environment and to ask questions of offenders. They also place wrongdoers
in a position to learn the consequences of their behaviour, to accept full responsibility
for their actions and to make appropriate reparations.
- 63 Family (or Community) Group Conferences
Family group conferences are similar to victim-offender reconciliation programs with
the exception that they include a larger number of participants. Along with the victim
and wrongdoer, family group conferences often include the victim's and
wrongdoer's family members, professionals such as teachers and social workers,
police officers and lawyers.
During a conference, victims and wrongdoers tell their version of the event. Other
participants are then given the opportunity to speak and the participants discuss what
reparations are required. Family group conferences rely heavily on the ability of
community members to evoke a sense of shame among wrongdoers.
The purpose of the exercise is to show the community's disapproval for the act
(but not the actor) and to provide an avenue for the offender to be welcomed back
into the community.
Sentencing Circles
Sentencing circles operate in many Aboriginal communities in Canada.
Sentencing circles allow victims, offenders, community elders, other community
members and court officials to discuss together the consequences of a conflict and to
explore ways of resolving the aftermath.
Restitution for damages and reintegrating the wrongdoer into the community are high
priorities.
Community members play an active role in assisting the victim and the wrongdoer
with the healing process. Youth justice committees operate similarly to sentencing
circles, although they are also used for non-Aboriginal offenders as well as Aboriginal
offenders.
Restorative justice principles and programs can be applied at various stages of the
criminal justice process.
Pre-charge: as a diversion program prior to the laying of a criminal charge
Post-charge/pre-trial: after the laying of a charge but before trial.
Sentencing: as part of the sentencing process once an accused has pleaded guilty
or been found guilty at trial.
Post-sentencing: after a sentence has been imposed whether it be a communitybased sentence, a sentence of imprisonment or as part of a parole release process.
Comparision: Traditional Criminal Justice vs. Restorative Justice
Traditional Criminal Justice
A. Philosophy
crime is defined by the state as an offence
against the state
punishment (infliction of pain for harm
caused) is the primary response used by the
Restorative Justice
A. Philosophy
crime (while defined by the state) is seen and
treated primarily as a harm to victims and
communities
punishment is not the primary focus
(although punishment as denunciation and
- 64 state to denounce a crime and prevent/deter
future crime
deterrence may form part of a restorative
resolution)
reparation, reconciliation and restitution are
seldom pursued
reparation, reconciliation and restitution are
the primary responses to crime
the process is operated and controlled by the
state and is primarily offender-oriented
the process is generally operated and
controlled by the participants and is primarily
victim-offender-community oriented
B. Parties
a two-party system: the state and the
offender
B. Parties
primarily a three-party system: victim,
offender and community (state may play a
support/supervisory role)
Victim
victim has no legal standing in the
investigation or prosecution of the
crime
Victim
victim is not a party to the investigation
but may influence the decision to
prosecute or not
victim has little or no role in formulating
resolution
victim's story/input is filtered through
rules of procedure and evidence
victim feels alienated and ignored
victim does not get to question the
offender (why me?)
Offender
a primary party, but may remain silent
passive and dependent (process
operated by professional agents:
prosecutor, defence lawyer and judge)
resolution (sentence) imposed by state
Community
no formal role
indirect, remote representation through
state agents
State
primary actor; monopolizes the process
victim is a central figure in a restorative
process; victim participates in defining
harm and appropriate reparation
victim tells his/her story in own words;
decides what is important to him/her
victim feels included in process
victim can question offender
Offender
a primary party who is centrally involved
in the process
speaks directly for him/herself (though may
be assisted by friend/family/lawyer)
resolution achieved by consensus of
victim, offender and community
Community
formal, primary role
helps to define crime as an injury to
community relations and helps to
facilitate victim reparation and offender
rehabilitation
State
varies by program from little or no role to
- 65 highly controlling role
acts through agents (judge, prosecutor,
police etc.)
victim, offender and community normally
participate directly, not through agents
pursues state priorities and needs
the pursuit of state priorities and needs
does not necessarily satisfy the priorities or
needs of the affected community
C. Process/Procedures
The traditional criminal justice system is
composed of two distinct processes: the
trial process and the sentencing process
Trial Process
accused may waive trial by pleading
guilty (70 to 90% of accused eventually
do plead guilty)
but a trial process will always be
required for accused persons who claim
they are innocent, or at least refuse to
admit guilt
every accused has the right to plead
not guilty and thereby require the state
to prove that he/she is guilty; this right
has the effect of discouraging early
admissions of guilt and sets up an
adversarial context between the offender
and the state/victim (e.g., the victim
often feels revictimized by aggressive,
adversarial cross-examination)
C. Process/Procedures
Restorative justice normally involves only
one process: the sentencing or restorative
resolution process
No Need for Trial
offender admits responsibility
not an appropriate or ideal process for
determining innocence/guilt
early admission of responsibility reduces
the risk of an adversarial tone arising in the
restorative process
not a major concern since the offender
voluntarily admits responsibility
the trial process is designed to avoid as
much as possible wrongly convicting
innocent persons (hence the saying "it is
better to acquit ten guilty persons than
to wrongly convict one innocent person"
to avoid convicting the innocent, the
trial process has been set up as an
adversarial proceeding with various
procedural safeguards for the accused
person such as the presumption of
innocence, the requirement of proof
beyond a reasonable doubt, the accused's
right to remain silent, and the exclusion
of certain types of evidence which are
unfair or unduly prejudicial
less concern for procedural safeguards
since accused consents to restorative
process and admits guilt
- 66 trial process is highly adversarial and
strictly regulated by formal rules of
procedure
the trial process is controlled by the
lawyers and judge
Sentencing Process
sentencing process, much like the trial
process, remains largely adversarial
and relatively formal (although hearsay
evidence is admissible)
process controlled by professional
lawyers and judges
victim has limited (and highly
regulated) opportunity to provide
victim impact statement and no
opportunity to question the offender
community has no direct say in
disposition
process does not permit direct victimoffender dialogue and thereby misses
the opportunity to begin a process of
reconciliation and reparation
punishment remains the primary
sentencing response
Resolution/Disposition Process
the process is generally a matter of
consensual dialogue and discussion;
relatively informal in terms of procedure;
circle sentencing process shows how a
sentencing can be transformed into a
non-adversarial restorative sentencing
process
process generally controlled by victim/
offender/community participants; process
involves participation of all parties
(including judge and lawyers in circle
sentencing)
victim has full opportunity to describe
harm and its effect on him/her and
others, as well as an opportunity to
question the offender
community participates in process
process generally involves direct victimoffender dialogue
reconciliation, reparation and restitution
are primary objectives
Select Issues and Challenges
Participation
The traditional criminal justice system is a coercive one, not a consensual one.
Offenders, victims and other witness are compelled to participate.
By way of contrast, restorative processes are consensual. It is generally agreed that
both offenders and victims must agree to participate if a restorative process is to
occur.
Research data from several victim-offender mediation programs indicate that in 40 to 60%
of cases either the victim or the offender is not prepared to participate in such programs.
Thus in many criminal cases, restorative justice can not be used.
Challenge: In what ways can the voluntary participation rate in restorative justice
programs be increased.
- 67 -
Procedural Safeguards
The traditional criminal justice system is sometimes criticized by victims and some
members of the public as having too many procedural safeguards for the accused person,
and little or no safeguards for victims and witnesses.
On the other hand, critics of restorative justice programs (as well as some advocates)
have raised concerns that restorative justice programs can result in unfair treatment
of either the victim, the offender or the community.
In restorative justice processes one of the parties -- victim, offender or community
participants -- may be more powerful than the other parties and as a result may
coerce one or more of the other parties to participate in the restorative process or
to accept a restorative resolution which the other party does not really consider to
be fair or appropriate.
Challenge: What procedural steps need to be taken to ensure that inherent power
imbalances between parties are recognized and dealt with to ensure truly voluntary and
equal participation by all parties?
Community Participation
The only role for the community in the traditional criminal justice system is as jurors.
Jurors decide on innocence or guilt but have no say in the sentence imposed by the judge
on those persons who are found guilty by the jury. Jury trials are reserved for serious
crimes and therefore only occur in less than one percent of criminal cases.
Although restorative justice theory speaks about the important role of "community" in
restorative processes, the definition of community for restorative purposes is often
quite vague.
Quaere: Who is the community? How are community representatives selected? How
many should there be?
Serious Crimes
In most cases, restorative justice has been used for relatively minor crimes.
Quaere: Is it appropriate to extend it to more serious crimes? If so, what protections are
necessary to ensure that victim/offender and community's interests are all met?
Sentencing Options
Overview
Least serious
Absolute discharge
Conditional discharge (set out in probation order)
Suspended sentence (with probation order)
Fine (sometimes accompanied by probation order)
Restitution order
Sentence of imprisonment
Conditional sentence of imprisonment (served in the community – e.g. house
arrest)
Intermittent prison sentence (max of 90 days) – e.g. serving your sentence on
weekends
Custody (traditional imprisonment in jail)
Prohibition order – normally accompanied by other sanctions
- 68 Prohibition on possession of firearms
Prohibition on driving
Special sentences for dangerous or long-term offenders (special terms of
imprisonment)
Most serious
For a significant period of time in last 50 years, there has been a concern about
the overuse of imprisonment and the adverse impact of a one time conviction (for
employment, travel, reputation, etc.)
In 1969, Ouimet Report argued for more community based sanctions
The sentencing options of absolute of conditional discharge were enacted in
1972 as a response to the Ouimet report – largely over the concern of the
impact of a criminal record on the lives of individuals committing relatively
minor offences
Recognition that going to jail can be very disruptive to your life – may mean
that you lose your job or be unable to attend school!
Intermittent sentences also enacted in 1972
1996 revisions for the Criminal Code: 718.2 – imprisonment only as a last resort
Conditional sentences enacted in 1996
Law Reform Commission of Canada has argued for more community based
sentences
Sentencing Commission also recommended reducing incarceration
Diversion
Diversion is not a sentencing option but rather diverting someone who has
committed an offence out of the justice system
There should be more diversion for less serious offences, and certainly for
youthful and first-time offenders.
Entering the formal justice system can sometimes do more harm than good
Diversion operates differently in each jurisdiction, but is generally administered by
the police or the prosecutor (Crown).
Diversion is often carried out by community groups, such as restorative justice
programs
In Victoria, used to be contracted out to the Diversion Centre
Now is carried out by the probation office
If Crown approved the diversion, will be sent to the probation office to be
administered
Informal diversion: police clearly engage in informal diversion
E.g. police just give you a warning (longstanding diversionary technique) – may be
a write-up of the warning
Frequent for young offenders – just return them to their parents
May divert the same person several times
- 69 Formal diversion: Charges are laid in BC by the Crown, based on information they
receive from the police. Police information includes a recommendation to lay a
charge or not, and then the Crown makes the decision – pre-charge approval
(In many other provinces, the police make the charge directly)
Formal Diversion
CC s. 717.(1) Alternative measures may be used to deal with a person alleged to have
committed an offence only if it is not inconsistent with the protection of society and the
following conditions are met:
(b) the person who is considering whether to use the measures is satisfied that they
would be appropriate, having regard to the needs of the person alleged to have
committed the offence and the interests of society and of the victim;
Crown must decide if prosecution is in the public interest (broad and somewhat
vague criteria)
Two criteria:
Crown satisfied that alternative measure would be appropriate
Alternative measure is in the interests of society and the victim
(c) the person, having been informed of the alternative measures, fully and freely
consents to participate therein;
If diversion is refused, the Crown will either lay a charge or discharge the case
(d) the person has, before consenting to participate in the alternative measures, been
advised of the right to be represented by counsel;
(e) the person accepts responsibility for the act or omission that forms the basis of the
offence that the person is alleged to have committed;
Diversion premised on the fact that the person being diverted accepts responsibility for
the offence – not pleading guilty, but essentially admitting to the commission of the
offence
(f) there is, in the opinion of the Attorney General or the Attorney General’s agent,
sufficient evidence to proceed with the prosecution of the offence; and
There should be no alternative measure unless there is sufficient evidence to
proceed – ought not to be able to divert a person when there is not sufficient
evidence to successfully prosecute
If the Crown is of the view that there is a substantial likelihood of the conviction
and its in the public interest, then the Crown can recommend that the person be
diverted
(g) the prosecution of the offence is not in any way barred at law.
CC. s. 717(3) - Admissions not admissible in evidence
No admission, confession or statement accepting responsibility for a given act or omission
made by a person alleged to have committed an offence as a condition of the person
being dealt with by alternative measures is admissible in evidence against that person in
any (subsequent) civil or criminal proceedings.
- 70 CC. s. 717(4) - No bar to proceedings
The use of alternative measures in respect of a person alleged to have committed an
offence is not a bar to proceedings against the person under this Act, but, if a charge is
laid against that person in respect of that offence:
(a) where the court is satisfied on a balance of probabilities that the person has totally
complied with the terms and conditions of the alternative measures, the court shall
dismiss the charge; and
(b) where the court is satisfied on a balance of probabilities that the person has partially
complied with the terms and conditions of the alternative measures, the court may
dismiss the charge if, in the opinion of the court, the prosecution of the charge would be
unfair, having regard to the circumstances and that person’s performance with respect to
the alternative measures.
Discharges
Court finds the accused guilty, but doesn’t register a conviction
Evidence of guilt is there, but by statute they are deemed not to be convicted 
no criminal record of conviction, but record of discharge
CC s. 730 governs discharges  discharges are not available in three
circumstances:
Where an accused is an organization
Corporations don’t get criminal records, so the concerns about impact on life is
not applicable
Where the accused pleads guilty or is found guilty of an offence with a
prescribed minimum sentence
Note: this broader than a minimum term of imprisonment and includes
measures such as a minimum fine, or minimum prohibition order
Where the offence can be punishable by imprisonment for 14 years or for life
HOWEVER, can deal with exceptions by creating presumptions – allows for a window
for a case that could rationally be considered by a court to be an appropriate option
CC s. 730(1): The court may discharge the accused absolutely or conditionally
(conditions proscribed in a probation order) if:
Discharging is in the best interest of the accused AND
Discharging is not contrary to the public interest
Not contrary to the public interest:
Courts may hold that a particular offence or offender demands a stronger
measure of deterrence and/or denunciation – ie a discharge will not give
sufficient deterrent or denunciation effect and thus is not in the public interest
Best interest of the accused: two early leading cases
Fallowfield (1973) (BCCA):
Sanchez (OCA) - Leading cases on the granting of a conditional or absolute
discharges
- 71 Conditional discharge is always in the accused best interest unless a stronger
sanction is needed to deter or rehabilitate this particular accused (which would
not occur through discharge).
Comment: But remember that a conditional discharge could meet the deterrent
or rehabilitative goal!
Conditional Discharges
Conditional discharges are not restricted to just minor or trivial cases  they
apply to any case any then the few specifically excluded in s. 730.
Discharges are not limited to first time offenders, although they more be more
common to youthful or first time offenders.
May be granted to those with a previous criminal record or those who have
been previously discharged.
Several cases have held that conditional discharges should “neither be rare nor
should they be applied routinely”
Bran??
Impact on Immigration Status
A criminal conviction can have serious consequence on an immigration
application.
This is a factor that the court will consider in determining whether to discharge
or not - Melo
However, this is only one factor and ought not to be so strong that it would
result in an otherwise inappropriate sentence being imposed
If a discharge is within a range of appropriate sentences, then will likely be an
applicable option
But if otherwise would not consider discharge, then this will not be an option
Melo (1975) (OCA): conditional discharge denied to a shoplifter even though it
would impact his immigration status
Held that this was a multiple shoplifting case and too serious to warrant a
discharge
Chilkohi (1972) (BCCA): accused had refugee status and stole a cell phone left in
a public place
Held: granted a conditional discharge because was within the range of
appropriate sentences
Wisnewski Tried to claim the insurance on his car by pushing it into a river and
claiming that it had been stolen
Quotes from Melo: factor but not a determinative factor
Alberta is tougher on getting discharges than a lot of other provinces – don’t
care so much about your immigration status
- 72 -
Impact on Employment Status
Impact on employment status is a factor to be considered, but again is limited
If a discharge is clearly inappropriate for all other reasons, will not be granted
R. v. Burke (1996) (Nfld CA): Burke convicted of significant corporal punishment –
charged with severely spanking a youngster. Found guilty of physical assault.
Evidence was that he was otherwise a person of good character. Burke wanted to
continue his teaching career in BC.
Held: Court granted him an absolute discharge.
Referred to that fact that he was good person and that a conviction
would mean that he wouldn’t be able to get a teaching position.
Comment: Denunciation can be achieved in other ways – the very fact that
he was tried and received significant media attention was a form of
denunciation in itself.
HOWEVER, sometimes the nature of your employment will actually make the
circumstances of the crime more serious (e.g. lawyer breaching trust):
The more the offence is related to your employment, the less likely you are to
get a discharge.
Similarly, you are more likely to get a discharge if the offence is unrelated to your
employment (E.g. a nurse charged with dangerous driving)
Police officers:
R. v. Batterell (BCCA): a police officer assaulted a prisoner
Held: a conditional discharge was inappropriate notwithstanding the impact
on this employment as a police officer.
R. v. Blackburn (2004) (OCA): Police officer went into road rage while off duty.
Went to great length to harass other drivers and caused an accident. Involved very
serious dangerous driving.
Held: discharge was refused  Not in the public interest to grant a
discharge – requires greater denunciation.
Politicians:
E.g Svend Robinson: good guy, but stole a very expensive ring from an auction
house (worth $65,000)
Granted a conditional discharge in the public interest
Sports Cases
Discharge
McSorley
Bertuzzi: convicted of assault – discharge allowed.
Probation
Guest lecturer: Mike Mulligan
S. 731(1): Two different circumstances where probation is available:
- 73 S. 731(1)(a): As a component of a suspended sentence
Must be a conviction for an offence which has no minimum sentence
Where the judge elects to suspend passing a sentence and enters probation
Where a probation order is breached, much more common to charge anew
for breach of probation rather than pass a sentence for the original
conviction
S. 731(1)(b): probation attached to a sentence, either a fine or a jail sentence
Cannot attach a probation order to BOTH a fine and a jail sentence together
Where there is a period of probation imposed in addition to a jail sentence, the
custodial sentence cannot exceed two years
If a second concurrent or consecutive sentence is imposed and the
aggregate time in custody then exceeds two years, the probation order
must be repealed (considered void)
Probation also available for intermittent sentences:
S. 732(1)(b): Intermittent sentences: available where a sentence of 90 days or
less would be appropriate.
Requires that the person be placed on a period of probation which covers
the time when the offender is not in custody – e.g. use of electronic
monitoring
Use of electronic monitoring has declined significantly in BC over the last
few years
Commencement and Duration of Probation
Commencement
Since the 1996 amendment, s. 732.2(1)(b) provides that a probation order commences
“as soon as the offender is released from prison, or, if released from prison on
conditional release, at the expiration of the sentence of imprisonment.
There is no overlap of supervision
If the offender is subsequently incarcerated (for failure to pay a fine or because of a
new sentence of imprisonment), the probation term continues to run, although
continued. compliance with some of the terms of probation may be impossible
BUT if the period of incarceration exceeds two years, the period of probation is
considered illegal and of no effect.
Duration
The probation order must specify the period for which it is to remain in force
S. 732.2(2)(b): no probation order shall continue in force for more than three
years after the date on which the order cam into force
However, probation can be extended for a year if the probation order is part of
a suspended sentence and the offender commits another offence
Available Probation Conditions – s. 732.1
Compulsory conditions of probation order - s. 732.1(2)
S. 732.1(2) The court shall prescribe, as conditions of a probation order, that the
offender do all of the following:
- 74 (a) keep the peace and be of good behaviour;
Stone: good behaviour obligation extends to lawful conduct and requires meeting a
“standard of conduct expected of all law-abiding and decent citizens”
R v. R (D): good behaviour is broader than keeping the peace, but any actionable
non-compliance must invoke a breach of the law
 Uncertain whether this would include breach of a municipal bylaw
(b) appear before the court when required to do so by the court; and
(c) notify the court or the probation officer in advance of any change of name or
address, and promptly notify the court or the probation officer of any change of
employment or occupation.
Optional conditions of probation order – s. 732.1(3)
The nature of the probation provides a context which limits both the scope and
availability of certain conditions.
Probation orders should be geared to personal rehabilitation and should not include
conditions which are purely punitive
Optional conditions can be varied at any time during the period of probation on
application of the offender, probation officer or prosecutor.
May decrease the duration, or relieve compliance either absolutely or on terms
In many local jurisdictions, judges may decide their own common probation
conditions
S. 732.1(3) The court may prescribe, as additional conditions of a probation order, that
the offender do one or more of the following:
(a) report to a probation officer
(i) within two working days, or such longer period as the court directs, after
the making of the probation order, and
(ii) thereafter, when required by the probation officer and in the manner
directed by the probation officer;
(b) remain within the jurisdiction of the court unless written permission to go
outside that jurisdiction is obtained from the court or the probation officer;
(c) abstain from
(i) the consumption of alcohol or other intoxicating substances, or
(ii) the consumption of drugs except in accordance with a medical
prescription;
Note: these can only be used when there is a link between the use of
alcohol or drugs and the offence
(d) abstain from owning, possessing or carrying a weapon;
(e) provide for the support or care of dependants;
(f) perform up to 240 hours of community service over a period not exceeding
eighteen months;
(g) if the offender agrees, and subject to the program director’s acceptance of the
offender, participate actively in a treatment program approved by the province;
Rogers (1990) (BCCA): Offender was a chronic schizophrenic
 Held: A probation order which compels an accused person to take
psychiatric treatment or medication is an unreasobale restraint on liberty
and security and violates Charter s. 7
 Instead, imposed an obligation on the offender to take reasonable steps to
control his chronic schizophrenia so as not to be a danger to himself or others
- 75 Only pressing and immediate danger can justify compulsory treatment by the
state
Laycock (1995) (Sask QB): psychiatric treatment as a condition of probation was
permitted since the accused was not opposed to the condition
(g.1) where the lieutenant governor in council of the province in which the probation
order is made has established a program for curative treatment in relation to the
consumption of alcohol or drugs, attend at a treatment facility, designated by the
lieutenant governor in council of the province, for assessment and curative treatment
in relation to the consumption by the offender of alcohol or drugs that is
recommended pursuant to the program;
(g.2) where the lieutenant governor in council of the province in which the probation
order is made has established a program governing the use of an alcohol ignition
interlock device by an offender and if the offender agrees to participate in the
program, comply with the program; and
(h) comply with such other reasonable conditions as the court considers desirable,
subject to any regulations made under subsection 738(2), for protecting society and
for facilitating the offender’s successful reintegration into the community. (basket
clause)
Proulx (2000) (SCC): language is clearly consistent with the rehabilitative
purpose of probation
Use of electronic monitoring falls under the residual category – R. v. M (DES)
Where there is no presumption of incarceration and the goal is purely rehabilitative, or
where custody of less than two years is suggested, electronic monitoring can be
considered as an adjunct to probation
Unreasonable or Unlawful Conditions
Conditions often go beyond what is reasonable or what is necessary – probation offices
substantially overloaded
Lamb (2005): Sentence imposed by trial judge included a period of probation – CA
removed the probation because said the offender was not a risk to re-offend so the
probation order had no purpose
Comment: less is often more – more likely to actually be able to adhere and enforce
Unlawful Conditions: if a condition or entire probation order is illegal, then a failure to
comply with the condition is a defence
Probation order attached to a sentence of more that two years incarceration
Keiling: not permissible to require the accused to take medication as a condition of
probation
Requiring the youth to abstain from the consumption of alcohol and requiring them to
submit to a breathalyser test – any reading would be considered a breach
Wormwood: period of probation was imposed for possessing child pornography. Imposed a
condition of probation to permit random searches of his computer, home and office.
Challenged on the basis of breaching Charter s. 8
Held: Court modified the condition so that the search could only be in relation to
his home computer and conducted only between 6AM to 9PM
Red zones: prohibit person from being in a certain area (e.g. downtown) – very difficult
if many social support services are in this area (e.g. homeless shelters, medical clinics,
food programs)
- 76 R. v. Reid (1999) (BC Prov Crt): Offender convicted of possession of marijuana for the
purpose of trafficking. Crown argued that offender should be prohibited from entering
a “red zone” in the downtown core where trafficking was frequent.
Held: The condition of an area restriction is unconstitutional and violates an
individuals rights under the Charter
However, probation could include orders to stay away from a victim or to stay away
from places where certain adults congregated.
Must not be based solely on the type of offence, but rather on the
circumstances of the individual offender
Charitable donation conditions
Order someone to make a charitable donation instead of imposing a fine
Consequences of Breaching Probation
If a condition of probation is breached, a number of options are available:
May choose to take no action
May prosecute for non-compliance with probation order
S. 733.1(1): an offender who is bound by a probation order and who, without
reasonable excuse, fails or refuses to comply with that order is guilty of a hybrid
offence
Punishable by up to two years imprisonment (indictable) or 18 months (summary)
May apply for variation on the conditions of probation
S. 732.2(3) allows the probation officer to apply to the court to vary the probation
order.
HOWEVER, the period of probation cannot be increased
Revocation (applies only where probation was the subject of a suspended sentence)
Although rarely used, when an offender is convicted of another offence, (including
breach of probation under s. 733.1) the prosecution may apply for a hearing to
revoke the suspended sentence and impose the sentence that would have been
imposed.
Fines and Restitution
A fine is defined in s. 716 as a pecuniary penalty or other sum of money, but
does not include restitution.
Although fines have a punitive aspect to them, fines are generally perceived by
the public as being soft on crime  assumption that imprisonment is the bedrock
of criminal law
Regardless of its amount, public considers fines to be an act of leniency
Five things that changed with the 1996 Criminal Code amendments:
Before 1996, a fine could not stand alone for any offence punishable by five
years or more in prison
Could impose a fine, but had to be in addition to imprisonment
To get around this, some offenders would be sentenced to one day in prison,
plus a fine
NOW: S. 734: Fines can now be used as a sole sentencing option for any
offence except where there is a minimum term of imprisonment
- 77 Before 1996, the court had broad discretion to determine the number of days
in imprisonment that would occur if the accused failed to pay their fine.
Further, the default punishment for non-payment was also stated at the time of
the sentence, and often in a very rote manner – no particular guidance given to
judges.
NOW: Criminal Code provides more guidance on imposing fines, with
specific formula for calculating jail time if in default of payment
Prior to 1996, there was no requirement for the court to enquire into whether the
offender was able to pay the fine.
NOW: Duty to inquire into ability to pay
Non-payment must also be wilful, as opposed to simply unable to pay
Under the old law, no fine option programs – if you didn’t pay, you go to jail.
NOW: there are fine options so that if you cannot pay, there are other
alternative then being sent to jail
Imposing a Fine
Two options for imposing a fine - S. 734(1):
As a standalone sanction, unless there is a mandatory minimum term of
imprisonment, OR
In addition to another sanction
Duty on the court to inquire into the ability to pay - s. 734(2):
Except where there is a mandatory minimum fine (e.g. impaired driving), a
court may fine an offender only if the court is satisfied that the offender is
able to pay the fine or to discharge is under a fine option program
Amount of the fine: generally, the amount of the fine is within the discretion of
the court.
With some exceptions, the code does not set the limit on the size of the fine.
Exceptions:
For summary conviction offences - s. 787: states that if no punishment is
specified, the maximum penalty is a $2000 fine and/or 6 months in jail.
Corporations and other organizations - s. 735(1)(b): – can be punished by up to
$100,000 for a summary conviction offence. No specified limit for an indictable
offence
Also subject to the fundamental sentencing principle of proportionality – s. 718.1
Must be proportionate the severity of the offence and the degree of
responsibility of the offender
Net worth: General trend that the higher an offender’s net worth, the higher the
fine. There is no specific articulation of this principle in the Code.
However, must always be cognizant of proportionality  can’t simply impose a
massive fine for a small offence just because the offender is wealthy
- 78 Day Fines: Try and determine a person’s daily wage and, depending on the
significance of the offence, then apply the fine based on a certain number of days
Sentencing Commission thought this approach had merit because it attempts to
treat all offenders equally, especially having regard to the disproportionate impact
of fine on the poor.
However, this approach was not adopted.
Corporations and Fines
Corporations can be charged and convicted of most criminal offences. But because
a corporation cannot be sent to jail, fines and probation are the two sanctions that
are imposed on corporations
Corporations regularly charged with regulatory offences, but rarely prosecuted for
criminal offences.
If a corporation is charged and convicted with a criminal offence, then there are
some substantive principles relating to mens rea and actus reas in ss. 22.1 + 22.2
A corporation’s human actors can also be held liable in a personal capacity in
addition to the corporation – frequently both are charged and will plea bargain
to drop charges against one or the other:
Larger corporations will often fight more to get charges dropped against the
corporation itself (i.e. charge the officers instead) since they have such an
important public image to maintain
As individuals, corporate officers are subject to the regular sanctions of
imprisonment
If we move towards conviction of the corporation, all the factors of sentencing
apply with the following qualifications:
S. 718.21 (added 2003) -the court that imposes a sentence on an organization
shall also take into consideration the following factors:
(a) any advantage realized by the organization as a result of the offence;
(b) the degree of planning involved in carrying out the offence and the duration and
complexity of the offence;
(c) 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;
(d) the impact that the sentence would have on the economic viability of the
organization and the continued employment of its employees;
(e) the cost to public authorities of the investigation and prosecution of the offence;
(f) any regulatory penalty imposed on the organization or one of its representatives
in respect of the conduct that formed the basis of the offence;
(g) 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;
(h) any penalty imposed by the organization on a representative for their role in the
commission of the offence;
(i) any restitution that the organization is ordered to make or any amount that the
organization has paid to a victim of the offence; and
(j) any measures that the organization has taken to reduce the likelihood of it
committing a subsequent offence.
- 79 -
Corporations and Probation
S. 735: Organizations can not only be fined, but can also be placed on probation
with conditions attached.
S. 732(2): sets out the mandatory conditions for probation orders
S. 732(3): sets out the optional provisions
S. 732(3.1) - The court may prescribe, as additional conditions of a probation order made in
respect of an organization, that the offender do one or more of the following:
(a) make restitution to a person for any loss or damage that they suffered as a result
of the offence;
(b) establish policies, standards and procedures to reduce the likelihood of the
organization committing a subsequent offence;
(c) communicate those policies, standards and procedures to its representatives;
(d) report to the court on the implementation of those policies, standards and
procedures;
(e) identify the senior officer who is responsible for compliance with those policies,
standards and procedures;
(f) (shaming order) provide, in the manner specified by the court, the following
information to the public, namely,
(i) the offence of which the organization was convicted,
(ii) the sentence imposed by the court, and
(iii) any measures that the organization is taking — including any policies,
standards and procedures established under paragraph (b) — to reduce the
likelihood of it committing a subsequent offence; and
(g) comply with any other reasonable conditions that the court considers desirable
to prevent the organization from committing subsequent offences or to remedy the
harm caused by the offence (basket clause)
Failure to Pay a Fine
Written order
S. 734.1: Requires the court imposing a fine to make a written order which
specifies the amount of the fine and the manner and which the fine is to be
paid, including deadlines and other terms.
Court will set the deadline for payment in full, and may also specify a payment
schedule in instalments.
Default = when you fail to pay the fine as set out in the order
S. 734(3): A person is in default of a fine if the payment has not been paid in
full under the order set out in 734.1
Prison is the default penalty for failure to pay a fine:
734(4): A term of imprisonment will by default be deemed to apply if an
offender is in default of paying a fine
734(5): Formula for determine the length of imprisonment:
a) Amount of time served is determined by:
Numerator: Amount of unpaid fine (may have paid some) + cost of
transportation to imprisonment (set out in Regs.)
Denominator: 8 hours x minimum hourly wage
- 80 Essentially converting to how long it would take you to pay off that fine if
you were working a minimum wage job.
Round any fraction down to the lowest whole number
b) OR the maximum term of imprisonment for that offence
You are liable to A or B, whichever is the lesser
Procedure for Imposing a Fine – 734.1
734.1 A court that fines an offender under section 734 shall do so by making an order that
clearly sets out
(a) the amount of the fine;
(b) the manner in which the fine is to be paid;
(c) the time or times by which the fine, or any portion thereof, must be paid; and
(d) such other terms respecting the payment of the fine as the court deems appropriate.
Court wants to ensure that the offender knows exactly the amount, timing and
terms of the fine: also more specifications under 734.3 and 734.4
Jail
Want to avoid sending people to prison for default on payment of a fine
Can pay in instalments
Court must inquire into ability to pay
Enforcement Procedures - sets up two alternatives other than jail:
734.5: Withhold a license or renewal of a licence (e.g. withhold your driver’s
license)
734.6: File the fine order as a civil judgement (expensive process, so would only
use for very large fines)
734.7: If offender still in default, can go to court to obtain a warrant to send them to
prison. Court shall not issue a warrant of committal:
A) Until the expiry of the time for payment in full (not for failing to pay the
instalment)
B) unless the court is satisfied that the alternative mechanisms are not
appropriate in the circumstances or that the offender has, without reasonable
excuse, failed to pay the fine or discharge it under a fine option program
Offender must be wilfully defaulting
Want jail to be limited to cases of wilful contempt for the fine order.
Can’t send you to jail if you simply don’t have the money – inability to pay is
a reasonable excuse!
Wu (SCC)
Facts: Wu was in possession of 300 cartons of contraband cigarettes. Led to a fine
of $9600. Wu was unable to pay this amount in the foreseeable future.
Trial: Court still had to impose the minimum fine, so imposed a conditional
sentence of imprisonment instead of custody for defaulting on payment
SCC: Rejected. Criminal Code assumes that the sanction for failure to pay the
fine is imprisonment in actual rather than conditional custody. However, went
- 81 onto say that the code doesn’t authorize him to be sent to prison if offender
has a true inability to pay.
Fine Option Program
736: Authorizes a province to set up a fine option program
Intention is to allow an offender who has been sentenced to a fine to pay off
that fine through community work.
BC does not have a fine option program, neither do Ontario or Newfoundland
Prairie provinces do: judges advise offenders of the existence of the fine option
program – may apply to it initially or upon default of payment
Note: Different from a community service order, which is a component of a probation
order
732(3)(f): as a condition of probation, can perform up to 240 hours of community
service over a period not exceeding 18 months
Victim Surcharge
737: A person who is convicted or discharged of an offence under the Criminal
Code or Narcotics Control Act shall pay a victim surcharge in addition to any
other punishment imposed (subject subsection 5)
737(2): Amount of the surcharge is:
a) 15% of the fine (paid in addition to the fine) OR
b) If no fine is imposed, then:
$50 for a summary conviction and
$100 for an indictable offence
Exemption Order
737(5) When the offender establishes to the satisfaction of the court that undue
hardship to the offender or the dependants of the offender would result from
payment of the victim surcharge, the court may, on application of the offender,
make an order exempting the offender from the application of subsection
Rationale is to provide the province with some revenue to finance victims
services:
737(7): Victim surcharge shall be provided for the purpose of assisting victims
Other provision relate to the procedure – timing, method of payment, etc.
737(10): Fine options programs cannot be used to pay victim surcharges (i.e. want
money)
Comment: Provinces may not be properly tracking victims surcharges and ensuring
that they actually go to helping victims. Even where funding does go to helping
victims, very little money available so not much can be done.
Waiving victim surcharges:
- 82 In provincial court, victims surcharges are routinely waived for those who are
attending on legal aid certificates  assumption that could involve undue
hardship. Exemption easily raised and accepted.
Restitution
History
For centuries we separated civil law and criminal law  compensation was seen as a
matter for civil courts and criminal courts have been reluctant to adopt and
centralize the restitutionary concept.
If not monetarily, can also symbolically make restitution
Don’t give restitution for pain and suffering as you might in civil court
Since 1996, restitution has been given a primary focus in the legislation. Two of
the sentencing objectives speak to it:
S. 718:
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the
harm done to victims and to the community.
However, courts have not and do not give those two objective priority  Tends to
still be a focus on denunciation, deterrence and rehabilitation.
Restitution Orders
738(1): Where an offender is convicted or discharged, the court may order the
offender to make restitution to another person. May be ordered when:
a) In the case of damage, loss or destruction of property rising out of the crime
in an amount not exceeding the replacement value of the property and where
the amount is readily ascertainable
Criminal court does not want to get bogged down with assessing the value
of the property (more of a matter for a civil court)
b) Bodily or psychological harm, including loss of income and medical expenses.
Amount must not exceed the cost of the harm (no punitive aspect). Again,
where the amount is readily ascertainable
c) Relates to a spouse or child having to move out of a home, usually as the result
of an abusive relationship. Offender may have to provide moving expenses.
Restitution orders under s. 738 are a separate sentencing option:
Before 1996, court recognized that a restitution order could be attached to a
probation order as a condition.
738(1)(3) lists the conditions of a probation:
Restitution is not specifically listed, but it could fall under subsection (h) basket clause
However, some controversy surrounding whether restitution should be a
component of a probation order or as a separate order under s. 738
Failing to pay a restitution order is not an offence. However, breaching a
condition of probation is a separate offence!
- 83 McAdam (PEI CA) (2003): Court takes a strong position that restitution orders
should be made as freestanding orders and not as probation conditions.
S. 738(2): LG in C may make regulations precluding a restitution order as part of a
condition of probation
Code doesn’t preclude restitution as a condition of probation, but rather
delegates the power to the provinces.
Probably brought in over the concern that the provinces might not want to be a
collection agency for restitution payments.
Ability to pay:
740: Where question of whether an offender can pay, restitution will be ordered
before a fine and before forfeiture.
When considering a fine, there are circumstances where an object used in the
commission of a fine may be forfeited
Restitution given priority over fines and forfeiture
Comment: little evidence that this provision is followed regularly!
Note on Corporations
732.1(31): Corporations can be ordered to pay restitution as a component of
probation
Enforcement of Restitution Orders
741: Two ways to enforce non-payment of restitution:
Can file your restitution order as a civil judgement - but again this is a
difficult and expensive process.
If the offender has had money seized as a result of the offence, restitution
can be paid out of money found on the offender, provided that there is no
dispute over the ownership of the money (e.g. stolen property).
Note: Licence suspension available for fines, but not for restitution (unfair?)
741.1: Where a court makes a restitution order, the court is required to give
notice to the victim that a restitution order has been made
741.2: Any civil remedy that might exist for the act or omission by the offender
is not affected by the issuing of a restitution order (except to the extent that
may impact the damages awarded through the civil action)
Prohibition Orders Against Driving and Possession of
Firearms/Weapons
** Warning **
The length of prohibition orders referred to in Manson is out of date. Consult instead
the 2008 version of s. 259 and ss. 109 and 110 of the Criminal Code attached at the
end of these notes.
- 84 -
Driving Prohibitions
Prohibitions on operating a vehicle after conviction for offences involving a motor vehicle
are divided in the Criminal Code into mandatory prohibitions (s. 109) and discretionary
prohibitions (s. 110)
Mandatory Driving Prohibitions
Section 259(1) states that a person who is convicted (or receives a discharge)
under s. 253 (impaired driving and over 08) or s. 254 (refusing to submit to a
breathalyzer demand) shall, in addition to any other punishment, be prohibited
from operating a motor vehicle for the following periods (plus any period to which
the offender is sentenced to imprisonment):
(i)
(ii)
(iii)
1st offence - minimum 1 year; maximum 3 years
2nd offence - minimum 2 years; maximum 5 years
3rd and subsequent offences - minimum 3 years; maximum 5 years
Exemptions: See s. 259(1.1) and (1.2) for exemptions to the above time periods for
offenders registered in a provincial alcohol ignition interlock device program after
serving a prohibition of at least 3 months for a first offence, 6 months for a second
offence and 12 months for each subsequent offence.
Street Racing
In December 2006, Parliament created 5 new dangerous driving/criminally
negligent driving offences while street racing which parallel the existing
dangerous driving, criminally negligent driving offences in the Criminal Code.
These new street racing offences involve mandatory minimum and maximum
driving prohibitions for the periods (plus any period to which the offender is
sentenced to imprisonment):
Section 259(3.1) - Dangerous Driving while Street Racing
1st offence -- minimum 1 year; maximum 3 years
2nd offence -- minimum 2 years; maximum 5 years
3rd offence -- minimum 3 years; maximum life
Section 259(3.2) - Dangerous Driving or Criminally Negligent Driving Causing
Bodily Harm while Street Racing
1st offence -- minimum 1 year; maximum 10 years
2nd offence -- minimum 2 years; maximum 10 years
3rd offence -- minimum 3 years; maximum life
if caused death on a previous offence -- minimum life [s. 259(3.4)]
Section 259(3.3) - Dangerous Driving or Criminally Negligent Driving Causing
Death while Street Racing
1st offence
criminal negligence causing death - minimum 1 year; maximum life
- 85 dangerous driving causing death - minimum 1 year; maximum 10 years
2nd offence and subsequent offence - minimum life
Discretionary Driving Prohibitions
Section 259(2) sets out the discretionary driving prohibition orders for the
following offences when committed by means of a motor vehicle:
s.
s.
s.
s.
s.
s.
s.
s.
s.
s.
220 - Criminal Negligence Causing Bodily Harm
221 - Criminal Negligence Causing Death
236 - Manslaughter
249 - Dangerous Driving
249.1 - Fleeing a Police Officer
250 - Failure to Keep Watch
251 - Unsafe Vessel/Aircraft
252 - Failure to Stop at Scene of Accident
255(2) - Impaired Driving Causing Bodily Harm
255(3) - Impaired Driving Causing Death
Maximum length of prohibition:
maximum of life where offence punishable by life
maximum of 10 years where offence punishable by more than 5 years but less than
life
maximum of 3 years for any other offence
Offence of Driving While Prohibited
Section 259(4) makes it an offence to drive while prohibited punishable on
indictment by a maximum of 5 years imprisonment or punishable on summary
conviction (per s. 787).
Firearms and Weapons Prohibitions
Section 109 of the Criminal Code sets out mandatory firearms/weapons
prohibition orders for certain offences.
Section 110 of the Criminal Code sets out discretionary firearms/weapons
prohibitions for other offences.
Section 113 of the Criminal Code sets out an exemption to a firearms/weapons
prohibition order when the firearm/weapon is required for sustenance or
employment.
Mandatory Firearms/Weapons Prohibitions
Section 109(1) states that a court shall, in addition to any other punishment, make
an order prohibiting a person from possessing "any firearm, cross-bow, prohibited
weapon, restricted weapon, prohibited device, ammunition, prohibited
- 86 ammunition and explosive substance for any of the offences listed in paragraphs
(a) to (d) of s. 109(1).
a) Indictable offence where violence against a person was used, threatened or
attempted and where the person was sentence to imprisonment for 10 years
or more
b) Using firearm in commission of a(b) an offence under subsection 85(1)
(using firearm in commission of offence), subsection 85(2) (using
imitation firearm in commission of offence), 95(1) (possession of
prohibited or restricted firearm with ammunition), 99(1) (weapons
trafficking), 100(1) (possession for purpose of weapons trafficking),
102(1) (making automatic firearm), 103(1) (importing or exporting
knowing it is unauthorized) or section 264 (criminal harassment),
c) For contravening certain sections of the Controlled Drugs and Substances
Act
d) Committing an offence involving a weapon that the person was
prohibited from having
Section 109(2) sets out the duration of the firearms/weapons prohibition order:
for a first offence of not less than 10 years (after any period of imprisonment)
for certain firearms and weapons,
and not less than life for other more serious firearms and weapons.
Section 109(3) indicates that the prohibition is for life for all subsequent
firearms/weapons offences.
Discretionary Firearms/Weapons Prohibitions
Section 110(1) indicates that for offences described in paragraph (a) or (b) of that
subsection, the court, in addition to any other punishment, "shall consider
whether it is desirable in the interest of the safety of others" to make a
firearms/weapons prohibition.
a) Offence not listed in the mandatory section in which violence against a
person was used, threatened or attempted
b) Involving a weapon that the person was not prohibited from using
If the court decides that it is desirable to do so, s. 110(2) indicates that the
prohibition can be made for a maximum of 10 years (after any release from
imprisonment).
Where the court does not make such an order, s. 110(3) requires the court to
include a statement of its reasons for not doing so.
Intermittent Sentences
Created in 1972 as away to try and relieve or mitigate the impact of a person going to
jail full time – often results in loss of employment, loss of school year, interruption in
family obligations
- 87 Provided a way to not eliminate imprisonment, but to allow it to accommodate
peoples other obligations
Set out in s. 732 of the Criminal Code
Intermittent sentences can be imposed in cases where the total sentence is 90
days or less
List
Court may order that the sentence be served intermittently and comply with a
probabtion order when not in confinement
Typical intermittent sentence might be served on weekends, because of typical
work and school schedules
While not in custody are on probation
Custodial institutions have often complained about the administrative overhead
caused by intermittent sentences – interrupts normal flows of the institution
“Availability of appropriate accommodation to ensure compliance”
Prison may be fully booked on the weekend
Judges should be cautious about not ordering an intermittent sentence merely
because the prison are complaining that they are at capacity – should not frustrate
the ends of justice
Can be particularly helpful where there is mandatory minimum short term
imprisonment (e.g. second conviction on impaired driving has a minimum sentence
of14 days imprisonment)
Conditional Sentences
“Conditional sentence of imprisonment”, with the imprisonment to be served in the
community
Introduced as a new sentencing option in the 1996 amendemnt. Since then, it has become
a significant sentencing option. (Over 40,000 cases in the first 3 years)
Intended to be an intermediate sentence between probation and custody
Media generally refer to a conditional sentence as “house arrest” – not a fully accurate
description, but reflects its position between probation and custody
Proulx: created with two purposes:
Imprisonment as a sanction was used too often – some people who were sent to jail
didn’t need to be sent to jail. Imprisonment can have adverse impacts – disrupt
employment, negative associations, hard on family situation, cost of imprisonment
Conditional sentences allow for a regime with some punitive aspects that doesn’t
involve custody
To promote restorative justice principles – easier to do when the offender is in the
community – however, this has largely fallen off the page
In Proulx, the SCC looked at conditional sentencing and set out a reasonable detailed
structure for their application
Pg. 128 -129 Lamer summarizes the case in 13 points:
742.1 (prior to December 2007)
- 88 Where a person is convicted as an offence, except one that is punishable by a minimum
term of imprisonment, the court may:
Impose a sentence of less than two year, and if satisfied that would not endanger the s
Order that the offender serve their sentence in the community
If there is a minimum term of imprisonment (custody), then a conditional sentence
cannot be imposed
Where a sentence of less than two years was appropriate
Where satisfied that would not endanger the safety of the community and was
consistent with the purpose and principles of sentencing
Amendments to Conditional Sentences -- Bill C-9
Royal Assent, May 31, 2007; in force December 1, 2007
Bill C-9 repeals and re-enacts s. 742.1 of the Criminal Code which authorizes the
imposition of conditional sentences.
Section 742.1 now eliminates the availability of conditional sentences for
indictable offences punishable by 10-years or more if those offences are
a serious personal injury offence (s. 752)
a terrorism-related offence or
a criminal organization-related offence
Automatic exclusion based on categories, but may result in circumstances where
Still available for a large body of cases.
(b)
The Legislative Provisions

The new amendments to s. 742.1 are italicized below.
742.1 If a person is convicted of an offence, other than a serious
personal injury offence as defined in section 752, a terrorism offence
or a criminal organization offence prosecuted by way of indictment for
which the maximum term of imprisonment is ten years or more or an
offence punishable by a minimum term of imprisonment, and the court
imposes a sentence of imprisonment of less than two years and is
satisfied that the service of the sentence in the community would not
endanger the safety of the community and would be consistent with
the fundamental purpose and principles of sentencing set out in
sections 718 to 718.2, the court may, for the purpose of supervising the
offender’s behaviour in the community, order that the offender serve
the sentence in the community, subject to the offender’s compliance
with the conditions imposed under section 742.3.

Serious Personal Injury Offence. Section 752 of the Code states:
“serious personal injury offence” means
- 89 -
(a) an indictable offence, other than high treason, treason, first degree murder
or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another
person or inflicting or likely to inflict severe psychological damage on
another person,
and for which the offender may be sentenced to imprisonment for ten years or
more, or
(b) an offence or attempt to commit an offence mentioned in section 271
(sexual assault), 272 (sexual assault with a weapon, threats to a third party or
causing bodily harm) or 273 (aggravated sexual assault).

Terrorism Offence. Section 2 of the Criminal Code states:
“terrorism offence” means
(a) an offence under any of sections 83.02 to 83.04 or 83.18 to 83.23,
(b) an indictable offence under this or any other Act of Parliament committed
for the benefit of, at the direction of or in association with a terrorist group,
(c) an indictable offence under this or any other Act of Parliament where the
act or omission constituting the offence also constitutes a terrorist activity, or
(d) a conspiracy or an attempt to commit, or being an accessory after the fact
in relation to, or any counselling in relation to, an offence referred to in
paragraph (a), (b) or (c);

Criminal Organization Offence. Section 2 of the Criminal Code states:
“criminal organization offence” means
(a) an offence under section 467.11, 467.12 or 467.13, or a serious* offence
committed for the benefit of, at the direction of, or in association with, a
criminal organization, or
(b) a conspiracy or an attempt to commit, being an accessory after the fact in
relation to, or any counselling in relation to, an offence referred to in
paragraph (a);
* Note: Section 467.1 of the Criminal Code defines a "serious offence" in respect
to a criminal organization offence as an indictable offence punishable by
five years or more.
(c)
Comments
(1)
Not all serious personal injury offences, terrorism offences or criminal
organization offences are punishable by imprisonment for ten years or more.
For example, the offences of attempted sexual assault and attempted sexual
assault causing bodily harm are included in the above definition of "serious
personal injury offence" but those two offences are punishable by a maximum
- 90 of 5 and 7 years respectively.1 Since these two offences are not punishable by
imprisonment for ten years or more, conditional sentences are still an option
for these offences.
Before 1996, there was case law where courts did impose conditions of probation with
electronic monitoring to impose a curfew.
(2)
Bill C-9 brings about a relatively limited restraint on the use of conditional
sentences. As a practical reality, prior to this amendment, it would have been
a fairly small group of cases where a court would impose a conditional
sentence for an offence which qualified as a serious personal injury offence, a
terrorism offence or a criminal organization offence and was also punishable by
ten years or more. However, there have been at least some cases in this
category where courts have rationally determined that a conditional sentence
is appropriate. For example, the offences of criminal negligence and
dangerous driving causing bodily harm or death fit the definition of "serious
personal injury offence" and are punishable by ten years imprisonment or
more. Thus these offences no longer qualify for a conditional sentence even
though there are some cases where the circumstances of the offence or the
offender make a conditional sentence the most appropriate sentence. 2
Could the exclusion of conditional sentences in such cases lead to the
somewhat perverse result of the sentencing court imposing a lesser sanction
such as probation with a condition of house confinement?3
The First Reading Version

The First Reading version of Bill C-9 tried to exclude the option of conditional
sentences for a much larger group of offences. That version of the Bill
provided that a person convicted of an offence prosecuted by way of
indictment for which the maximum term of imprisonment is ten years or more
is not eligible for a conditional sentence.4
o Might seem reasonable, but there are a huge number of offences that
have a maximum sentence of more than 10 years, even if the average
1
See s. 463(b) of the Criminal Code.
2
See R. v. Bhalru; R. v. Khosa, [2003] BCCA 645, where the Court of Appeal upheld conditional sentences for
criminal negligence causing death and bodily harm, although these conditional sentences were controversial.
Two recent examples of where a conditional sentence was found to be appropriate for youthful offenders who
were convicted of impaired driving causing death and criminal negligence causing death are R. v. Fineday
(2007), 46 C.R. (6th) 108 (Sask. P.C.) and R. v. Kutsukake (2006), 213 C.C.C. (3d) 80 (Ont. C.A.).
3
See R. v. M.(D.E.S.) (1993), 80 C.C.C. (3d) 371 (B.C.C.A.) and R. v. McLeod (1993), 81 C.C.C. (3d) 83 (Sask.
C.A.), as examples of probation with conditions of house arrest (prior to the enactment of conditional sentences
in 1996).
4
Bill C-9, An Act to amend the Criminal Code (conditional sentence of imprisonment), 1st Sess., 39th Parl., 2006,
summary (first reading version).
- 91 imposed sentence is less than 10 years. (e.g. Robbery has maximum of
life imprisonment)

The House of Commons Debates in respect to the First Reading Bill reveal that
although many members of Parliament agreed that violent crime needed to be
targeted, they argued that this Bill "overreached its boundaries"5 and signaled
an "ideological approach to justice that can in no way be supported by
statistics, rigour or documented analysis."6

There were calls to amend Bill C-9 by eliminating some of the less serious
offences like "fraud over $5,000, the filing of a false prospectus, wilful mischief
over $5,000, wilful mischief of other property, theft from the mail, false
pretense, and obtaining credit by false pretense"7

Ultimately the First Reading Bill was referred to the Committee for Justice and
Human Rights. The Canadian Bar Association’s National Criminal Justice Section
prepared a submission for the Committee arguing that "Bill C-9 would severely
curtail judges’ ability to make the punishment fit the crime and directly
conflicts with established sentencing principles of proportionality, restraint and
the obligation of imposing the least restrictive sanction appropriate to the
circumstances."8 The Committee amended the Bill and it was then passed by
Parliament in the form described above, a form which will have a practical,
albeit unfortunate, impact in only a relatively small group of cases.
Research Findings That Support the Judicious Use of Conditional Sentences
A study by Paciocco and Roberts indicates that increasing sentence severity has little
or no appreciable impact on deterrence in impaired driving causing bodily
harm/death cases. Removing the option of conditional sentences will do nothing to
deter the offender or others from impaired driving when the facts of a case warrant
such a disposition.
In a study by Roberts and Roach,9 the authors conclude:
 Most rehabilitation programs can be more effectively implemented when
the offender is in the community rather than in custody.
 Prison is no more effective a deterrent than more severe intermediate
punishments, such as enhanced probation or home confinement.
5
House of Commons Debates, No. 028 (29 May 2006) at 1120.
6
House of Commons Debates, No. 030 (31 May 2006) at 1555.
7
House of Commons Debates, No. 028 (29 May 2006) at 1120.
8
“CBA Says Bill C-9 Goes Too Far In Limiting Conditional Sentences” (4 October 2007), online: The Canadian
Bar Association <http://www.cba.org/CBA/News/2006_Releases/2006-10-04_conditional.aspx>.
9
J. Roberts and K. Roach, "Conditional Sentencing and the Perspective of Crime Victims" (2005), 30 Queen's L.J.
560-600, as summarized in R. MacKay, Legislative Summary to Bill C-9 (revised Jan. 29, 2007),
<http://www.parl.gc.ca/Legisinfo>.
- 92  Keeping offenders in custody is significantly more expensive than
supervising them in the community.
 The public has become more supportive of community-based sentencing,
except for serious crimes of violence.
 Widespread interest in restorative justice has sparked interest in
community-based sanctions. Restorative justice initiatives seek to promote
the interests of the victim at all stages of the criminal justice process, but
particularly at the sentencing stage.
 The virtues of community-based sanctions include the saving of valuable
correctional resources and the ability of the offender to continue or seek
employment and maintain ties with his or her family.
Mandatory conditions of a conditional sentence order
742.3(1): The court shall prescribe, as conditions of a conditional sentence order,
that the offender do all of the following:
(a) keep the peace and be of good behaviour;
(b) appear before the court when required to do so by the court;
(c) report to a supervisor
(i) within two working days, or such longer period as the court directs, after
the making of the conditional sentence order, and
(ii) thereafter, when required by the supervisor and in the manner directed by
the supervisor;
(d) remain within the jurisdiction of the court unless written permission to go outside
that jurisdiction is obtained from the court or the supervisor; and
(e) notify the court or the supervisor in advance of any change of name or address,
and promptly notify the court or the supervisor of any change of employment or
occupation.
Optional conditions of conditional sentence order
(2) The court may prescribe, as additional conditions of a conditional sentence order,
that the offender do one or more of the following:
(a) abstain from
(i) the consumption of alcohol or other intoxicating substances, or
(ii) the consumption of drugs except in accordance with a medical
prescription;
(b) abstain from owning, possessing or carrying a weapon;
(c) provide for the support or care of dependants;
(d) perform up to 240 hours of community service over a period not exceeding
eighteen months;
(e) attend a treatment program approved by the province; and
But does not require consent as it does with probation!
(f) comply with such other reasonable conditions as the court considers
desirable, subject to any regulations made under subsection 738(2), for
securing the good conduct of the offender and for preventing a repetition by
- 93 the offender of the same offence or the commission of other offences. (basket
clause)
742.4(1) indicates that a supervisor may apply to the court to alter one of the
conditions, either because it is too harsh or because something has arisen where a
different condition is needed.
742.4(5) Conditional sentence can be altered upon the application of the prosecutor
or the defence counsel.
742.6 procedures and conditions of a breach of a conditional sentence (either
mandatory or optional)
Proulx (2000) (SCC)
Facts: Serious case of dangerous driving by a youthful offender which resulted in the
death of one of his passengers and serious injury to the driver of the other vehicle.
Had only been driving for 7 weeks and after a night of drinking at a party, drove
erratically for 15-20 minutes before the accident.
Trial judge imposed 18 months in prison.
Court of appeal overturned and allowed an conditional sentence
SCC: based upon deference to the decision of the trial judge, upheld the trial judges
decision
Often difficult to determine when a case is appropriate for conditional sentencing,
but still a great deal of variation – in the end, who the judge is has the biggest impact
on whether a conditional sentence is granted or not
Manson summarizes the other 4 accompanying cases – 271-272
In three of those four cases, SCC was split on what the appropriate sentence was.
Bundt (breach of – 5-3
LFW (history of sexual assault) – 4-4
R. v. R. (sexual assault on employee) – 6-2
(i)
Conditional Sentence Not an Available Option for Default Payment of Fine
In R. v. Wu (2004), 16 C.R. (6th) 289 (S.C.C.), a majority of the Supreme Court held
that there is no statutory authority for a judge to impose a conditional sentence
(as opposed to a sentence of incarceration) in circumstances where the accused
has defaulted in the payment of a fine.
- 94 Pre-Sentence Custody Relevant in Determining Availability of Conditional Sentence
In R. v. Fice,10 the accused pleaded guilty to aggravated assault, fraud over $5,000,
personation, forgery and breach of recognizance. The accused spent 16 months in
pre-sentence custody and six months on bail in circumstances similar to house
arrest. The trial judge treated the period of pre-sentence custody as the equivalent
of three years' imprisonment and determined that another 14 months of imprisonment
was an appropriate sentence. Without the credit for pre-sentence custody, the
accused would have been facing a penitentiary term of more than four years. In spite
of this, the trial judge imposed a conditional sentence of imprisonment. The Ontario
Court of Appeal dismissed an appeal by the Crown from the imposition of a
conditional sentence. On further appeal, a majority of the Supreme Court held
that the trial judge erred in imposing a conditional sentence of imprisonment.
The majority summarized the issue and their conclusion in the following words:
Issue: whether pre-sentence custody should affect a sentencing judge's
determination of the availability of a conditional sentence. The problem here is
one of statutory interpretation. Section 719(3) of the Criminal Code, R.C.S. 1985,
c. C-46, authorizes a court to take into account time spent in custody in
determining the sentence to be imposed, while s. 742.1(a) of the Criminal Code
provides that a sentence of imprisonment of less than two years must be imposed
before a conditional sentence can be authorized. Does a sentencing judge decide
on the availability of a conditional sentence on the basis of the actual time to be
spent in jail after sentencing, or the total punishment of the offender, which
reflects the degree of punishment warranted by the gravity of the offence and the
moral blameworthiness of the offender?
[2] Section 742.1(a) was interpreted in a purposeful manner in R. v. Proulx
, [2000] 1 S.C.R. 61, 2000 SCC 5 (S.C.C.). This Court decided that the
requirement that the court must impose a sentence of imprisonment of less
than two years before a conditional sentence can be authorized should be
fulfilled by a preliminary determination of the appropriate range of
available sentences. In the course of this determination, the judge need
only exclude two possibilities: (a) probationary measures; and (b) a
penitentiary term. The judge need not impose a term of imprisonment of a
fixed duration in the first stage of the application of s. 742.1(a). Thus, it
can be stated that the object of the requirement in s. 742.1(a) is to
exclude categories of offenders from the conditional sentencing regime
on the basis of the range of sentence that would apply to them. In
particular, offenders for whom probation or a penitentiary sentence
would be considered appropriate are barred from receiving a
conditional sentence.
10
(2005), 196 C.C.C. (3d) 97 (S.C.C.).
- 95 For criticism of the majority's interpretation as illogical, inequitable and leading to
absurd results, see the dissenting opinion of Fish J. and recent commentary on Fice.11
(iii)
The Safety of the Community Criterion in Domestic Violence Cases
In R. v. MacDonald,12 the accused severely beat his common law wife while in a
drunken rage. This was his second assault on his spouse. The first assault involved a
weapon and resulted in a conditional sentence and probation. While under that
sentence he consumed alcohol and was thereby convicted of breaching a condition of
his probation order. He was a member of Alcoholics Anonymous but had not attended
meetings for some time. He pled guilty to aggravated assault and was sentenced to a
conditional sentence of two years less a day with conditions, including house arrest,
reporting, counselling, and abstinence from alcohol. The Crown appealed the
sentence, arguing that a conditional sentence was not appropriate. The Court
concluded that a conditional sentence was not available to the accused because the
safety of the community criterion in s. 742.1(b) was not met. The Court held that the
trial judge erred in failing to take the safety requirement into consideration:
[35] The judge, in granting this conditional disposition, did not expressly
and could not have turned his mind to the requirement that such a
sentence not endanger the safety of the community. Failure by the
sentencing judge to do so, was, in my view, a material error in principle
which requires this Court to intervene (C.A.M., supra, at para. 90, per
Lamer C.J.C.). After conducting the required analysis I am not satisfied
that a conditional sentence would not endanger Ms. Gass. Factors
militating against such a sentence include Mr. MacDonald’s prior offence
for the same crime on the same victim; the plan to resume co-habitation
with Ms. Gass; and Mr. MacDonald’s lack of sustainable success in previous
alcohol and anger management programs. In view of the couple’s stated
intent to co-habitat, there are no conditions which can reasonably ensure
Ms. Gass’s safety. …
The Court also stated that the need for rehabilitation must give way to the need
to protect the safety of the community:
[47] I agree with the sentencing judge that Mr. MacDonald’s circumstances
cry out for a rehabilitative sentence. While rehabilitation might better
be accomplished in the community, this opportunity has been provided
in the past, without lasting success.
Here, the desirability for
rehabilitation outside an institutional setting conflicts with the goal of
protecting the public from a dangerous person and must therefore give
way to that end.
11
P.A. Schreck, Annotation to Fice (2005), 28 C.R. (6th) 202; T. Quigley, Annotation to Fice (2005), 28 C.R. (6th)
203; and J. Norris, “Conditional Sentence after Fice” (2005), 28 C.R. (6th) 225.
12
(2003), 173 C.C.C. (3d) 235 (N.S.C.A.).
- 96 The appeal was allowed and a sentence of 22 months’ imprisonment and 3 years’
probation was imposed after giving 2 months' credit for time served in remand.
(iv)
Insufficient Stigma
In R. v. Mohamad,13 the accused was convicted of two counts of possession of property
obtained by crime in excess of $5,000. He was involved in a sophisticated scheme to
steal vehicles, replace their vehicle identification numbers, and export them from
Canada. Although the trial judge concluded that the accused fit within the category
of persons on whom a conditional sentence might be imposed, he imposed a custodial
term of imprisonment for the following reasons:
[78] … He declined to impose a conditional sentence … on the grounds that
the offences of which the appellant was convicted were serious and
because, in the trial judge's view, the service of a conditional sentence
within the community in this case would not carry the same stigma as it
would in other cases as evidence by the fact that the appellant's
convictions were unknown both to his community and to his family.
On appeal, the Court held that the trial judge did not err in refusing to impose a
conditional sentence. The offences were serious, the accused was an active
participant, and the enterprise was sophisticated and organized.
(v)
Blended Sentence Combining Incarceration and Conditional Sentence
In R. v. Davies,14 the accused lawyer was convicted of fraud and breach of trust. The
trial judge refused to impose a conditional sentence and instead imposed a period of
incarceration. The accused was diagnosed with bipolar disorder. Evidence was
offered that the accused had not taken an adequate amount of medication for the
disorder. The Court of Appeal held that the sentencing judge erred in respect to the
evidence pertaining to the accused’s use of medication. The Court then considered a
sentencing proposal presented to the sentencing judge by the Crown for a blended
sentence. The Court held that a blended sentence was appropriate, stating:
[33] However, there are compelling reasons in this case for an approach to
sentencing that contemplates the restorative objectives of rehabilitation,
reparation and promotion of a sense of responsibility in the offender, as
well: see Proulx at 494. Mr. Davies is clearly a good candidate for
rehabilitation. He is remorseful and, judging by his statement to the court
on sentencing, is prepared to recognize and take responsibility for his
actions. He is now on a medication regime that is more likely to control
and prevent his manic episodes, thus reducing the risk of repetition of
these sorts of incidents. He has no prior criminal record.
13
14
(2004), 184 C.C.C. (3d) 427 (Ont. S.C.J.).
(2005), 199 C.C.C. (3d) 389 (Ont. C.A.).
- 97 [34] A proper balancing of all the foregoing factors leads me to the
conclusion, therefore, that a blended sentence combining both
incarceration (for the breach of trust offences) and a conditional sentence
(for the fraud offences) is the appropriate disposition in the circumstances
of this case. This court has held that it is legally permissible to blend a
custodial sentence with a conditional sentence, when an offender is being
sentenced for more than one offence, so long as the sentences, in total, do
not exceed two years less one day and the court is satisfied that the
preconditions in s. 742.1(b) have been met in respect of one or more of the
offences: R. v. Ploumis (2000), 150 C.C.C. (3d) 424 (Ont. C.A.) at 431-432.
See also R. v. R.(R.A.) (2000), 140 C.C.C. (3d) 523 (S.C.C.). In arriving at
this conclusion I draw upon the comprehensive reasons of the sentencing
judge analysing this offender and the aggravating and mitigating
circumstances at play since -- as noted earlier -- except for the errors
identified above, I think they are flawless.
(vi)
Uneven Appellate Deference on Conditional Sentencing?
Quigley, in a brief article entitled "Uneven Deference on Conditional Sentencing",15 suggests that
the deferential standard for appellate review of sentencing decisions continues to be uneven in its
application. Quigley reviews three decisions from three different appellate courts -- MacAdam,16
S(M)17 and MacDonald.18 In each case, the appellate court changed the sentencing judge's
decision to impose, or not impose, a conditional sentence.
The following 16 cases in 2004 also involved appellate review of the appropriateness of
imposing, or not imposing a conditional sentence. It is worth observing that in the first 11 of
these cases, the appellate court did not interfere with the sentencing judge's decision to impose or
not impose a conditional sentence, although in the eleventh case the Court did lengthen the term
of the conditional sentence. Only in the last five cases, did the appellate court reverse the
sentencing judge's decision to impose or not impose a conditional sentence.
(1)
In Munson,19 the Saskatchewan Court of Appeal refused to interfere with the trial judge's
decision not to impose a conditional sentence on two police officers for forcibly confining an
aboriginal person, driving him to the outskirts of Saskatoon, and leaving him to walk back.
(2)
In Vu,20 the B.C. Court of Appeal refused to interfere with the trial judge's decision not to
impose a conditional sentence on the accused who was convicted of possession of marihuana for
the purposes of trafficking (a grow-op involving 1878 marihuana plants).
(3)
In Fice,21 the Ontario Court of Appeal refused to interfere with the trial judge's decision
to impose a conditional sentence on the accused who pled guilty to aggravated assault, fraud,
15
(2003), 12 C.R. (6th) 117.
(2003), 171 C.C.C. (3d) 449 (P.E.I.S.C.A.D.)
17
(2003), 173 C.C.C. (3d) 526 (Sask. C.A.).
18
(2003), 173 C.C.C. (3d) 235 (N.S.C.A.).
19
(2003), 172 C.C.C. (3d) 515 (Sask. C.A.).
20
(2003), 176 C.C.C. (3d) 568 (B.C.C.A.).
16
- 98 -
personation, forgery, and breach of recognizance. [But the Supreme Court reversed for the
reasons -- see page 1 above.]
(4)
In R. v. Connolly,22 the Newfoundland Court of Appeal refused to interfere with the trial
judge's decision not to impose a conditional sentence on the accused who was convicted of
conspiracy to traffick in 9.5 pounds of cannabis resin.
(5)
In R. v. L.(G.),23 the Ontario Court of Appeal held that, even though the trial judge erred
in relying upon the accused's young offender record, the trial judge's decision not to impose a
conditional sentence on the accused who was convicted of sexual touching and sexual assault of
his 13-year-old sister-in-law was the correct decision, having regard to the principle of general
deterrence and the need to express society's condemnation of the accused's conduct.
(6)
In R. v. White,24 the Ontario Court of Appeal refused to interfere with the trial judge's
decision not to impose a conditional sentence on the accused who was convicted of criminal
harassment, although a majority of the Court did lower the sentence of 18 months imprisonment
to time served (which was an effective sentence of 12 months).
(7)
In R. v. Nikitin,25 the Ontario Court of Appeal refused to interfere with the trial judge's
decision to impose a conditional sentence of 22 months on the accused for manslaughter arising
out of a motor vehicle accident.
(8)
In R. v. Power,26 the Court refused to interfere with the trial judge's decision to impose an
18-month conditional sentence on the accused for cruelty to animals and mischief.
(9)
In R. v. Weber,27 the Ontario Court of Appeal refused to interfere with the trial judge's
decision to impose a 14-month conditional sentence on the accused for possession of child
pornography and distribution of child pornography.
(10) In R. v. Alexander,28 the B.C. Court of Appeal refused to interfere with the trial judge's
decision not to impose a conditional sentence on the accused who had been convicted of theft of
lumber for the third time over the past six years.
(11) In R. v. H.(D.A.),29 the Ontario Court of Appeal held that a conditional sentence for incest
by a 24-year-old aboriginal accused was in the special circumstances of that case a fit sentence,
but the Court increased the length of the conditional sentence from 18 months to two years and
imposed more stringent conditions on the conditional sentence.
21
(2003), 177 C.C.C. (3d) 566 (Ont. C.A.)..
(2001), 176 C.C.C. (3d) 292 (Nfld. C.A.).
23
(2003), 175 C.C.C. (3d) 564 (Ont. C.A.).
24
(2003), 176 C.C.C. (3d) 1 (Ont. C.A.).
25
(2003), 176 C.C.C. (3d) 225 (Ont. C.A.).
26
(2003), 176 C.C.C. (3d) 209 (Ont. C.A.).
27
(2003), 178 C.C.C. (3d) 17 (Ont. C.A.).
28
(2003), 176 C.C.C. (3d) 366 (B.C.C.A.).
29
(2003), 171 C.C.C. (3d) 309 (Ont. C.A.).
22
- 99 -
(12) In R. v. MacIvor,30 the Nova Scotia Court of Appeal held that a six month conditional
sentence jointly recommended by Crown and defence was a demonstrably fit sentence and that
the trial judge erred in imposing a sentence of four months in prison on the accused who
cultivated and possessed marihuana primarily for his own medical purposes.
(13) In R. v. Hirnschall,31 the Ontario Court of Appeal held that an eighteen month conditional
sentence for an accused who intentionally burned down a hotel to collect the insurance money
was demonstrably unfit.
(14) In R. v. Ma,32 the Alberta Court of Appeal held that a conditional sentence of two years
less a day was a demonstrably unfit sentence for a 19-year-old, first-time offender who pled
guilty to possession of 238 grams of crack cocaine for the purposes of trafficking.
(15) In R. v. Wilson,33 the Ontario Court of Appeal held that the trial judge erred in imposing a
conditional sentence on a doctor who defrauded the hospital system of a large amount of money
over a four year period by submitting false invoices.
(16) In R. v. Duchominsky,34 the Manitoba Court of Appeal held that the trial judge erred in
refusing to impose a conditional sentence on the accused who was convicted of two counts of
dangerous driving causing death, and three counts of dangerous driving causing bodily harm,
after inadvertently driving through a red light. The Court substituted a conditional sentence of
two years less a day.
(vii)
Generally
In R. v. Proulx,35 the Supreme Court of Canada noted that there are four
prerequisites to the imposition of conditional sentences:
(1) that the charge carry no minimum sentence;
(2) that the length of the sentence imposed be less than two years;
(3) that the imposition of a conditional sentence not unduly endanger the
community; and
(4) that the sentence be consistent with the fundamental purpose and
principles of sentencing.
A sentencing judge must consider and explain why a conditional sentence would
or would not be consistent with these factors. While no offence meeting the
above factors is excluded from consideration for a conditional sentence,
conditional sentences are less likely for some types of offences than others. For
convenience, the following conditional sentencing cases are organized by offence
type.
30
(2003), 176 C.C.C. (3d) 420 (N.S.C.A.).
(2003), 176 C.C.C. (3d) 311 (Ont. C.A.).
32
(2003), 177 C.C.C. (3d) 535 (Alta. C.A.).
33
(2003), 174 C.C.C. (3d) 225 (Ont. C.A.).
34
(2003), 171 C.C.C. (3d) 526 (Man. C.A.).
35
[2000] 1 S.C.R. 61, at para. 46.
31
- 100 -
(1)
Manslaughter
In R. v. Machiskinic,36 the female Aboriginal accused pled guilty to a charge of
manslaughter. She killed her common law husband while they were both intoxicated
during an argument. The Court found the accused at a medium risk to reoffend. The
Court considered the accused’s history of abuse and the Gladue principles. The
sentencing judge found that a conditional sentence was not appropriate. It would not
protect the community and would not satisfy the interests of justice. Instead, a
period of two and a half years of incarceration was imposed on the accused.
In R. v. Henry (2002), 164 C.C.C. (3d) 167 (N.S.C.A.), a two years less a day conditional
sentence for manslaughter for a first time offender was quashed and a four-year prison term was
substituted on the grounds that the trial judge erred in over-emphasizing restorative principles
and minimizing denunciation and deterrence. There were not sufficient mitigating circumstances
in this case to warrant a conditional sentence for manslaughter. [But see R. v. Nikitin at p. 5(7)
above where a conditional sentence was imposed for motor vehicle manslaughter.]
(2)
Robbery
In R. v. Christie,37 the accused pled guilty to robbery of a convenience store contrary
to s. 344(b) of the Criminal Code, and to having his face masked during the course of
the robbery, contrary to s. 351(2). The sentencing judge imposed a conditional
sentence of two years less one day for the robbery, and a six-month concurrent
conditional sentence on the s. 351(2) charge. On appeal, the Court of Appeal allowed
the Crown’s appeal and imposed a custodial sentence of two years less a day. The
accused and his two accomplices brandished knives at the clerk and then locked the
clerk in the bathroom. The trio stole over $1600 in cash and cigarettes. The accused
was an addict and was high on cocaine at the time of the robbery. The other accused
in separate proceedings received sentences of imprisonment of at least two years, as
a result of joint submissions. The Court of Appeal held that a conditional sentence
was unfit, and particularly so in light of the principle of parity in respect to the
sentences of custody imposed on the other co-accused.
In R. v. R.(J.M.),38 the accused pled guilty to being a party to a robbery. The trial
judge imposed two years less a day from which the accused appealed. The accused
had a long list of convictions. On appeal, Esson J.A. (Mackenzie J.A. concurring)
noted that the accused suffered from Fetal Alcohol Spectrum Disorder. Esson J.A.
held that the conditional sentence which had been proposed, but rejected at trial,
would likely provide more effective protection in the long run to society and
therefore he concluded that the rejection of the conditional sentence resulted in an
unfit sentence. Ryan J.A. (dissenting) held that the sentence was not unfit.
36
37
38
(2004), 25 C.R. (6th) 93 (Sask. Q.B.).
(2004), 189 C.C.C. (3d) 274 (Alta. C.A.).
(2004), 191 C.C.C. (3d) 486 (Alta. C.A.).
- 101 (3)
Sexual Assault, Sexual Interference
In R. v. Edmondson,39 the accused was convicted of sexual assault. The trial judge
imposed a sentence of two years less a day but ordered that the sentence be served
in the community. The Court of Appeal held that a conditional sentence for this type
of case was unfit (although they did not alter that sentence under the special
circumstances existing at the time the appeal was decided). The Court stated:
[124] The trial judge was alive to this case authority, and certainly
respectful of it, but he thought the circumstances of the present case were
sufficiently removed from those of the other cases to warrant departure.
With the greatest of respect, we cannot agree with him. The fundamental
principle of sentencing, found in section 718.1, is that a sentence must be
proportionate to the gravity of the offence and the degree of responsibility
of the offender. The offence committed on this occasion, while reduced to
sexual assault simpliciter, was nevertheless a grave offence by any
measure, but especially so in light of the fact Mr. Edmondson took
advantage of the desperate and vulnerable circumstances in which this
young girl found herself. Her person, her dignity, her intrinsic worth, and
her child's sense of trust were badly violated and, as might be expected,
she was profoundly shaken by the experience.
[125] In the circumstances the case called out for an unequivocal measure
of denunciation, and a clearly effective measure of general deterrence. It
also called for a fair measure of parity, having regard for the sentences
imposed upon similar offenders who committed similar offences in similar
circumstances, as contemplated by section 718.2(b).
[126] In our respectful view, then, it was not open to the trial judge to
invoke section 742.1 in this case.
In R. v. Nicholson,40 the accused was convicted of sexual assault of an acquaintance.
The accused's defence of consent of the complainant was rejected by the jury at his
third trial for that offence, after two previous convictions had been set aside on
appeal. The trial judge imposed a conditional sentence of two years less a day. The
Crown appealed. The Court of Appeal dismissed the Crown’s appeal, stating:
[2] We have concluded that the appeal must be dismissed. A conditional
sentence is not precluded following a conviction for sexual assault and is
not outside the range of appropriate sentences for that offence: see R. v.
Kain, 2004 ABCA 127 [reported 185 C.C.C. (3d) 501], and the authorities
cited therein. A conditional sentence was therefore an option open to the
sentencing judge. A conditional sentence may achieve the sentencing goals
of public denunciation and general and specific deterrence. The sentencing
39
40
(2005), 196 C.C.C. (3d) 164 (Sask. C.A.).
(2004), 191 C.C.C. (3d) 26 (Alta. C.A.).
- 102 judge expressly recognized the importance of denunciation and deterrence
in sentencing for sexual assault. He also recognized that the respondent's
rehabilitation was an important goal in sentencing. In assessing the
appropriateness of a conditional sentence the sentencing judge followed
the correct approach, considered all the relevant facts and applied the
relevant sentencing principles. We cannot interfere with the sentence in
view of the deferential standard of review we must apply.
In R. v. D.(R.W.),41 the accused was convicted of two counts of sexual touching of his
12-year-old stepdaughter. The sexual touching included prodding the complainant
with his penis in the area of her vagina and rectum and touching her breasts and
performing oral sex. The trial judge imposed a conditional sentence of two years less
a day. The Court of Appeal rejected the conditional sentence and imposed a
sentence of 12 months incarceration. The Court held:
[12] … There was nothing to place the appellant's reaction to the
proceedings or his concern about going to jail beyond what one would
expect from a person facing the possibility of a significant jail term. The
other three factors referred to by the trial judge were important
considerations in determining the appropriate sentence and properly
mitigated the sentence to be imposed. However, we cannot agree with the
trial judge's assessment that they placed this case into the category of rare
cases where a conditional sentence would be appropriate for this kind of
crime. It is not unusual for individuals who commit this kind of offence to
have jobs or to otherwise be individuals of apparent good character. In our
view, the trial judge's determination that this case justified a conditional
sentence demonstrates an error in principle.
In R. v. Kemper,42 the accused pled guilty to the sexual touching of a child under the
age of 14 years. He received a 23-month conditional sentence and 10-year firearms
prohibition. The accused worked with the complainant’s mother and moved into her
home. The assaults began when the complainant was 10 or 11 years old and the
accused was 22. The touching of her breasts and vagina occurred between 30 and 50
times over a three year period. The complainant suffered serious, lasting emotional
harm. On appeal, the Alberta Court of Appeal held that a conditional sentence
imposed to facilitate the accused's treatment was not fit in a case such as this where
deterrence and denunciation are the paramount sentencing objectives. A two-year
prison term was substituted, allowing one-for-one credit for time served under the
conditional sentence.
(4)
Child Pornography
In R. v. North (2002), 165 C.C.C. (3d) 393 (Alta. C.A.), the accused pled guilty to the indictable
offence of possession of child pornography, contrary to s. 163.1(4) of the Criminal Code. The
41
42
(2005), 198 C.C.C. (3d) 541 (Ont. C.A.).
(2004), 190 C.C.C. (3d) 271 (Alta. C.A.).
- 103 -
accused was found in possession of 2,000 photos and 100 videos on computer disks depicting
explicit and degrading sexual activities between children and adults. He had no prior criminal
record. A psychologist’s report indicated that he would benefit from long-term communitybased treatment and that, although he was likely a pedophile, his risk for sexual offences
involving children was manageable. The sentencing judge was not satisfied that Parliament or
the “reasoning public” would expect a term of imprisonment for this type of offence and
offender and therefore he imposed a $750 fine, a victim fine surcharge of 15% and 2 years'
probation with conditions including mandatory counselling and community service. The Crown
appealed the sentence. The Court held that the sentence was not fit, noting that in R. v. Sharpe,
[2001] 1 S.C.R. 45, at p.75, the Supreme Court emphasized that the primary goal of child
pornography laws was to prevent harm to children. The Court (at para.11) held that denunciation
and deterrence are the primary sentencing objectives for this offence and that sentences of
incarceration are often imposed. See for example, R. v. Stroempl (1995), 85 O.A.C. 225, 105
C.C.C. (3d) 187 (C.A.); R. v. Huycke (15 May 1998), Alta. 71232011P-10101 (Alta. Prov. Ct.);
R. v. Ritchie, [1997] O.J. No. 5564 (QL) (Prov. Ct.); R. v. Lisk, [1998] O.J. No. 1456 (QL)
(C.A.); R. v. Weir (19 February 1998), Alta. 9703-0841C.1 (Alta. Q.B.). The Court also noted
cases in which conditional sentences have been imposed (R v. Schan, [2002] O.J. No. 600 (QL)
[reported 166 O.A.C. 273]; and, R. v. Turcotte (9 March 2001), Calgary 0001-0333S4 (Alta.
Q.B.), reversing [2000] A.J. No. 1402 (QL) (Prov. Ct.) [reported 279 A.R. 219]. Given the
circumstances of this offence and offender, the Court held that a twelve-month conditional
sentence, followed by probation was the appropriate sentence. See also R. v. Weber at p. 5 (9)
above where a 14-month conditional sentence was upheld.
In R. v. H.(M.) (2002), 166 C.C.C. (3d) 308 (B.C.C.A.), the Court held that the
principles of general deterrence and denunciation could be met by a conditional
sentence for convictions of sexual assault and making child pornography. In this case,
the accused, a 51-year-old man, had repeatedly and surreptitiously videotaped his 15year-old stepdaughter. He also fondled her breasts on one occasion. In R. v. H.(W.E.)
(2002), 166 C.C.C. (3d) 392 (Alta. C.A.), the Court held that making child pornography
for commercial purposes will not generally fall within the range of conditional
sentences.
(5)
Break, Enter and Assault Causing Bodily Harm
In R. v. Pakoo,43 the accused was convicted of break and enter to commit an assault,
use of a firearm in the commission of an offence, two counts of pointing a firearm and
assault causing bodily harm, amongst other offences, all related to one incident. The
trial judge imposed an aggregate sentence of 36 months in prison. On appeal, the
Court of Appeal held that the trial judge correctly rejected any consideration of a
conditional sentence being appropriate in this case, since a penitentiary term was
clearly warranted for these offences.
43
(2004), 198 C.C.C. (3d) 122 (Man. C.A.).
- 104 (6)
Common Nuisance Endangering Life
In R. v. Koebel,44 the accused Stan Koebel and Frank Koebel pled guilty to
committing a common nuisance by failing to discharge a legal duty, thereby
endangering the lives, safety or health of the public. The charges originated from
the Walkerton tainted water tragedy that lead to seven deaths. Durno J. of the
Superior Court of Justice sentenced Stan to one year in jail and Frank to a ninemonth conditional sentence.
(7)
Property Offences
In R. v. Olotu,45 the accused pled guilty to seven offences of fraudulent use of credit
cards obtained by identity theft. He had previously been placed on a recognizance
for similar offences and at the time of these offences was on probation on other
charges. The sentencing judge imposed a conditional sentence of two years less a day
with strict conditions. In dismissing the Crown’s appeal, the Court of Appeal held
that the conditional sentence was not demonstrably unfit and the sentencing judge's
reasons did not otherwise demonstrate any error in principle.
In R. v. Bradbury,46 the accused was found guilty of two counts of fraud over $5,000.
The trial judge imposed a custodial sentence of one year, composed of nine months
on the first count and three months on the other count, followed by two years
probation. The trial judge also ordered restitution in the amount of $66,070. A
majority of the Court of Appeal held that the sentencing judge erred in not imposing
a conditional sentence.
In R. v. McKinnon,47 the accused was convicted of forging 20 cheques payable to
herself, worth more than $61,000 in total. She was the sole employee and
bookkeeper of the victim. The accused had a record of previous fraud and theft
convictions. The trial judge imposed a conditional sentence of two years less a day.
The Court of Appeal held that a conditional sentence was unfit. The Court stated:
[76] One can find an occasional appellate decision which approves a
conditional sentence for embezzlement, but the great majority do not.
Those which do invariably involve special circumstances and a first
offender. The great majority of appellate decisions send embezzlers to jail.
That a few Provincial Court decisions have ignored such principles is at best
regrettable, not precedential.
....
[97] In my view, the serious aggravating factors, seriousness of the crime,
its continued and calculated manner, the failure of previous sentences
44
45
46
47
(2004), 25 C.R. (6th) 231 (Ont. Sup. Ct. J.).
(2004), 26 C.R. (6th) 187 (Man. C.A.).
(2004), 192 C.C.C. (3d) 199 (Nfld. & Lab. C.A.).
(2005), 192 C.C.C. (3d) 494 (Alta. C.A.).
- 105 (especially the previous conditional sentence order), and the moderate
nature of the mitigating circumstances, cry out for actual jail. Neither
specific deterrence, general deterrence, denunciation, nor rehabilitation,
is likely without jail, on these facts. At least one condition precedent to a
conditional sentence order is conspicuously absent here.
In R. v. McTighe,48 the Court of Appeal substituted a custodial sentence of two years
less a day for a conditional sentence of the same length. Over the course of seven
years the accused stole approximately $250,000 in 111 separate transactions from a
business client. The sentencing judge noted that it appeared that most of the money
the accused had stolen had been used to feed her gambling addiction. The sentencing
judge held that the accused’s gambling addiction was an extenuating circumstance,
which reduced the need for deterrence and denunciation. The Alberta Court of
Appeal held that this was an error. The Court had previously ruled in R. v. McIvor49
and R. v. Holmes (P.D.)50 that even when the accused’s actions can reasonably be
seen as a direct result of a gambling addiction, this is not a mitigating factor. The
Court also noted that in this case, the trial judge was wrong to conclude that the
accused’s behaviour was the result of a "vicious cycle". The accused’s conduct took
place over a long period of time, and the accused made a calculated choice to do
what she was doing.
In R. v. Bogart (2002), 167 C.C.C. (3d) 390 (Ont. C.A.), leave to appeal refused [2002]
S.C.C.A. No. 398, the Court set aside the accused's conditional sentence and imposed
a custodial sentence of 18 months. The Court held that health care professionals who
defraud provincial health care plans will normally receive a jail sentence. Large-scale
fraud will normally call for a jail sentence of at least four years. Only in extreme
situations will a conditional sentence be appropriate. In this case, the accused doctor
was convicted of defrauding OHIP of $923,780.53 over 7 years. The accused billed
OHIP for 19,892 services he never performed. The accused pled guilty and received a
two-year conditional sentence with three years' probation. He was also ordered to
pay restitution of $800,000. The Crown appealed, submitting that a conditional
sentence was inappropriate. The Court agreed and substituted a custodial sentence.
The accused's sentence of 18 months custody would have been substantially longer,
but for the existence of some unusual mitigating factors (para. 20) and the fact that
he had already served 13-1/2 months of his conditional sentence.
(8)
Dangerous Operation of a Motor Vehicle and Evading Police
In R. v. McLean,51 the accused pled guilty to evading a police officer, dangerous
operation of a motor vehicle and resisting a police officer. The sentencing judge
imposed a sentence of 18 months in custody and a restitution order. The Court of
Appeal held that the sentencing judge was in error in rejecting a conditional
48
49
50
51
(2005), 193 C.C.C. (3d) 522 (Alta. C.A.).
(1996), 106 C.C.C. (3d) 285 (Alta. C.A.).
(1999), 237 A.R. 146 (C.A.).
(2004), 190 C.C.C. (3d) 472 (Alta. C.A.).
- 106 sentence. The Court allowed the appeal and imposed a conditional sentence on the
accused.