History of Penal Sanctions
Sentencing v
punishment
Punishment: intentional infliction of pain or deprivation; social institution that reflects
cultural patterns (Manson); often a result of oppressive tyrannical state
Sentencing: doesn’t have to focus on punishing, can reflect different views i.e.
restorative justice while also having punitive aspects; aims to be fair, just and
principled process to give legitimacy
Before First
Criminal Code
First Criminal Code
-
Capital punishment, whipping, branding, banishment, transportation
Confederation 1867 affected sentencing (Manson p 19)
Enacted in 1892 (modeled off the British draft code)
Sentencing Law Reform
Ouimet Report 1969
Ouimet was a judge and chair of federally appointed commission with special attention
to corrections, jail etc – focus of report corrections but also discussed: overuse of
imprisonment, parole, greater use of fines, need intermediate sanction – should develop
discharge so youth don’t get criminal records
First step towards change in sentencing laws in Canada
Law Reform
Commission of
Canada
1972 – first task to revise Criminal law; 1960s new liberal reform effect
thought code reflected “embodied rationale of retribution and deterrence” – emphasis
on capital punishment and imprisonment
btwn 1972-1977 produced several working papers, studies and reports on sentencing;
- recommendations not converted into legislation immediately
- BUT increased education of judges led to shifts in practice (more use of restitution,
community work orders and fines)
Main Ideas and Proposals
- widespread disparity of sentencing under guise of individualized is problematic
- over-use imprisonment
- “just deserts” should be operational principle to determine sentence
- rehab and deterrence largely ineffective (not legit goals to determine length and
severity of sentence)
- restraint and least restrictive option should be used
- imprisonment for default payment of fines should not occur
- should focus on reconciliation and repairing harm
o compensation and restitution should be used more
- community-based alternatives to imprisonment should be developed and
community work orders used where offender cant afford restitution etc
Canadian Sentencing Established in 1984 to examine: level of maximum penalties, develop model
Commission
sentencing guidelines and advice on the best use of sentencing guidelines
- goal is to come up with sentencing provisions legal profession would support
- who was on it? 6 judges, 1 lawyer, 1 native court worker and 1 criminologist
Produced 20 background papers and two volume final report in 1987
**after extensive research emphasis is middle ground btwn unchecked discretion and
complete inflexibility
CSC Major Criticisms
1. *offence categories too big
2. *maximums do not give realistic guidance
3. *there is no uniform approach to theory, purpose, principles
4. no systematic knowledge of practice
5. perceived inequity of mandatory minimum penalties
6. very few opportunity for cross-communication btwn judges who are imposing
sentences
7. acceptance of “individualized sentencing”
8. lack of accountability for charging practices of police and crown
9. variation across and within sentence on sanctions
10. **think about the outcry is taxes were determined the way sentences are!
Presumptive/Discretionary Sentencing Guidelines
1. these would have set out what a fit sentence might be so then judge could
individualize it
2. CSC said needed a permanent sentencing commission to study and give
guidelines
3. Sentencing is recorded but not provided so judge’s don’t get their own data
4. Even with guideline judges wouldn’t always have to follow but if they go
outside of guideline they would have to articulate why
Sentencing Problems
prior to Bill C-41
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prior to Bill C-41 major issues = arbitrary sentencing; unequal and disparate
sentencing; confusion, uncertainty and loss of respect for system - - so much
judicial discretion with almost no structure or guidance
no legislative statement on purpose, principles of sentencing
only guidance in code is max punishment
o no guidance for ordinary, usual, unusual or average offence
o i.e. robbery has a max of life but no other help
offence descriptions too broad (same penalty for all levels of robbery, not subdivided into different degrees of robbery)
scale of seriousness needs review b/c max punishment don’t match up with
severity – i.e. forgery of passport is max 14 years and assault causing serious
bodily harm 10 years max
no guidance for jail v no jail
imprisonment treated as primary sentencing option
o fines as only sanction only if less than 5 years a max
no legislative guidelines or supervision of prosecutorial discretion
o i.e. number of charges, indict/summary, agreed facts
public cynicism b/c “lack of truth” given parole and statutory release
victim ignored (no VIS, seldom restitution)
inaccessible to ordinary person
so much judicial discretion!
o strong emphasis on common law (not parliament)
o so w/in boundaries of the rules most important factor is who is the judge
and what is their sentencing philosophy
o individualized sentencing
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every case depends on the facts (offence serious, charateristics, first
time offender etc)
code gives very little instruction to judges to help decide
hide all the choice and little discretion behind veil of individualized
sentencing
system allows for disparity but system wants to treat similar cases
similarly
*basically “lawless discretion”
1996 legislative
reforms – Bill C-41
Context: characterized as sentencing reform BUT many disappointed since it only
added a few new things (lots of things proposed by CSC and LRC were not adopted)
Content of the reforms:
1. *introduced statement of purpose of sentencing (s718)
a. “SCC has recognized that underlying the statement of purpose,
objectives and principles is parliamentary intention to reduce the use of
incarceration” (Manson 28)
2. re-numbering previously enacted provisions
3. technical adjustments to fines and probation
4. authorized adult diversion
5. introduced conditional sentence
Strengths of 1996
reforms
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alternative measures given greater prominence (s717)
created conditional sentence order
statement of purposes, principles (s718, 718.1 and 718.2)
Weaknesses of 1996
reforms
-
no recommendations for presumptive guidelines
no establishment of a permanent Sentencing Commission
no direction for role of appellate courts
set out 5 aggravating factors but no mitigating factors (718.2(a))
sentencing objectives (i.e. denunciation, deterrence, rehab, etc) introducted but no
direction as to when or how one or the other prevails (except for primary
consideration of denunciation/deterrence in offences against child 718.01 and
offences against peace officer 718.02)
Judicial Discretion
Methodology of
Sentencing
See 718.3(1) grants judicial discretion to determine sentence if there are different
degrees or kinds of sentence to impose (other than MMS)
743.6(1) – judicial discretion to delay parole eligibility for non-murder cases to ½ or 10
years, judges already have wide scope of discretion this adds to it (Zinck)
745(c) – set parole ineligibility date btwn 10 and 25 years for 2nd degree murder
Sources of
Sentencing
Discretion
Current Framework
for Judicial
Discretion
Deference and CA
interference with
trial judge sentence
Historical: trial courts, no appeal court until 1900s
Code always give max but not average sentence
1.
2.
3.
4.
purposes and general principles (718, 718.1, 718.2)
no guidance for jail/no jail
some have minumms
individualized sentencing
a. “wise blending of deterrence, reformation and retribution (affects
individual and society)…punishment is an art” (R v Willaert 1953
ONCA)
b. BUT – this individualization leads to issues with parity, inconsistency
and lack of uniform guidelines
c. No such thing as uniform sentence pursuite of academic abstraction
(McDonell) – Gerry thinks this is untrue
When can interfere with trial judge? (set out in Shropshire and confirmed and refined
by Lamer in M(CA))
1. an error in principle
a. departing from starting point sentence is not an error in principle b/c
judicially created category of offence that is not the role of judges
(McDonell majority)
2. treatment (or lack of treatment) of relevant factors
a. failure to consider a relevant factor
i. unfit sentence b/c failed to put appropriate weight on approprate
factors de-emphassis seriousness (dissent McDonell)
b. overemphasis of appropriate factor
i. this is where CA could get in easily BUT Laskin (McKnight)
thinks this doesn’t work and shouldn’t do b/c “weighing of
relevant factors [is] balancing process and that is what discretion
is about” (Nasogalauk)
3. sentence is demonstrably unfit
a. if there is a wide disparity btwn starting point and the sentence imposed
and if CA has set a reasonable starting point, the starting point can
suggest unfitness (but is not determinative), cant just rely on starting
point to alter sentence (majority McDonell)
b. should only intervene to minimize disparity of sentences where the
sentence imposed by trial judge is “a substantial and marked departure
from the sentences customarily imposed for similar offender committing
similar crimes (M(CA))
c. can’t just alter b/c would have given a different sentence – the sentence
has to be clearly unreasonable (McDonnell p 42)
d. “judge can order a sentence outside the range as long as it is in
accordance with the principles and objectives of sentencing”
(Nasogaluak)
Gerry thinks can open door and interfere whenever they like b/c test is amorphous BUT
in law they are being told it’s a rigid test and keep hands off – what is really going on?
- 1999: Lamer “longstanding principle that sentencing judges are owed tremendous
deference due to the delicate nature of the sentencing process” (Manson p 359)
- “the problem with deference is not that it is wrong but that it is not universally
right. There are situations where it out to be the guiding principle but the attempt
to make it universal ignores the fact that some of its justifications are absent in
many cases” (Manson 360)
- “offenders are entitled to know that an appellate court agrees with a sentence, not
just that it is close enough to an amorphous standard to avoid intervention”
(Manson 364)
Why defer to trial judge (McDonnell 1997 reflecting on Shropshire para16, CP 42)?
1. comparative advantage: saw and heard witnesses
a. Gerry: but during trial focus is not the facts, no VIS, no A’s background,
also overstating advantage b/c GP more
2. benefit of oral and written sentencing submissions
a. directly assess submissions of Crown and offender
i. Gerry: might be easier to do this at CA b/c have written
submissions, transcripts of submissions and new submissions
with research and depth at the CA
b. unique qualifications of experience and judgment…served on the front
lines
i. Gerry: Most CA judges have been on front lines
ii. Cuts both ways – seeing victim etc (Manson)
c. **will normally preside near or within the community which has
suffered consequences of offender’s crime and will know which
particular blend of objectives appropriate for that community
i. Gerry: this might be useful BUT problematize it (do judge’s
actually know community or removed from it b/c privilege)
3. R v M(L) – “trial judge enjoys considerable discretion b/c of the individualized
nature of the process”
Court of Appeal
S687 – powers of court on appeal against sentence = consider fitness of sentence
Starting Point
Sentencing
There are no presumptive guidelines b/c no sentencing commission to make them
ABCA – leading role in creation and application of starting point sentencing
- support starting point sentencing in ABCA – Ostertag, Rahine, Christie, Law
- criticize and abandon starting point in ABCA – Beaudry, Kain, White, Jefferson
R v McDonell: questioned legitimacy of starting point approach
- majority: did not support starting point
- dissent (McLachlin): support starting point if they are very descriptive
Starting Points post McDonell
- Stone (SCC- Bastarche): appellate courts can “fix ranges” as guidelines for lower
courts and this function could also include starting points
-
Clear guidelines (whether ranges or starting points) are encouraged as tools to
avoid disparity but cannot usurp individualization
R v Arcand (2010 ABCA)
- majority: support use of starting point
- minority: support use of starting point, but discuss limits by SCC
My thoughts
Ultimately judges will need to have some form of “starting point” or “range of
sentence” – what is crown proposes a reasonable starting point is on a high
range say over 10 years and defence suggests a reasonable starting point is
closer to 2 years – the discrepancy is large and then does the judge just pick
somewhere in the middle? Seems to give a lot of discretion to crown/defence to
provide a “starting point” if the judges themselves do not reasonable use their
own data/guidelines to give a range especially when the range is so broad (i.e.
from no time in jail to life)
Not only do sentencing guidelines make more sense for judge – it
creates clarity for accused, victims of crime and all those involved in the
process to have an idea of what the outcome is – when there is just a
huge discrepancy it is very hard to imagine a way forward
Objectives and Philosophies of Punishment
Retributivist
3 key aspects
- offender’s “deserve” to be punished
- state has obligation to punish offenders
- “just deserts”; proportionality
Key theorists: Kant and Hegel
James Fitzjames Stephen “father of Crim Code” – thought retribution = primary
justification for punishment
Retribution – accepted and important principle of sentencing M(CA)
- sentence in addition to utilitarian goals of deterrence and rehab, should also be
about sanctioning moral culpability of offender
- “just and appropriate” – link btwn finding guilt and responsibility in sentence
- represents objective, reasoned and measured determination of appropriate
punishment that reflects moral culpability of offender – incorporates restraint b/c it
is a just and appropriate sentence, nothing more (different from vengeance)
- different from denunciation b/c focuses on particular offender and not society’s
condemnation of offender’s conduct
Critique of Just
Deserts Rationale
(Michael Tonry etc)
1. over-simiplified
a. “real cases cannot be so easily grouped to produce categories of likesituated offences and offenders”
2. unfair
a. gives similar punishments to persons from vastly different socioeconomic life experiences and situations
3. contrary to principle of applying the least restrictive penalty/punishment
possible
Utilitarian or
Consequentialist
Critique of Utiliarian
Merged Theories
Communicative
Justify punished b/c of assumed benefits to society
- incapacity (separate offender – reduces capacity to offend outside prison)
- rehab (if effective, further law breaking prevented and becomes productive
member of society)
- deterrence (specific and general)
1. little or no achievement of goals (deterrence, incapacitation or rehab)
a. deterrence: prison slightly increases recidivism
b. incapacitation: crime persists w/o offender
c. rehab: non-prison sentences better at rehab
2. moral issues of using ppl as a means towards an end (threatens human dignity
and autonomy)
** best explained as a merger of all theories – learns to compromise btwn conflicting
ideologies
expresses condemnation *denounce wrongful conduct
Purposes and Principles of Sentencing
Purpose 718
Respect for the law: obey?
Maintenance of just, peaceful and safe society (also crime prevention)
Imposing just sanctions: can be any response, depends on judge – many think
retribution is best choice
Any weight given to objective must follow proportionality (Nasogaluak)
718(a) denunciation
One or more of the following objectives – all of objectives are supposed to be equal
BUT in reality certain ones discussed more often
Denunciation simply the means by which criminal law as system of values is
communicated M(CA)
Focuses on conduct, sentence reflects society’s view of wrongfulness of conduct in
question and give guidance to those to know right and wrong – attempts a moral or
educative effect by supposing to affect attitudes of the public
718(b) deterrence
-
Specific: target offender, demonstrate consequences of neg. conduct
General: targets society, potential offenders – shows consequences of neg. conduct
Limitations
- no evidence prisons reduce recidivism, might increase it (Canadian Centre for
Justice Statistics 1999 meta analysis)
- assumes rational persons weigh pros and cons and choose to commit offence – but
public believes that legal sanctions have a deterrent effect but how much is
unknown
718(c) separate
718(d) rehabilitation
Where necessary: implies restraint
- based on idea that offenders can be treated for anti-social, criminal behaviour
through treatment programs and family support
718(e) reparations
-
introduces significance of restorative justice
requires offender to return victim/society to place before offence (or if neg. before
to bring it to a better place); restitution, victim surcharge
718(f) acknowledge
-
introduces significance of restorative justice
harm
specific offence
718.01 – offences against children
objectives
*denunciation and
718.02 – offences against peace officer or justice system participant
deterrence
718.1 proportionality Fundamental principle: in heading so not as binding BUT courts treat it like
fundamental principle
Constitutional dimension b/c s12 Charter forbids imposition of grossly disproportionate
sentence that would outrage society’s standards of decency (Nasogalauk)
Basic requirement: sentence cannot exceed what is “just and approporiate, given the
moral blameworthiness of offender and gravity of offence” (Nasogalauk)
- seeks to offenders to be held responsible and condemn offence/harm while also
exercising limitation and restraint M(CA)
- premised on general principle of criminal liability – criminal sanction may only be
imposed on actors who possess morally culpable state of mind M(CA)
**speak out against offender but punish no more than necessary**
Gravity of offence
- if not considering specific incident could mean, how parliament sources offences
from life to months in prison
o but these max were based on draft code for UK 1892, CL, Victoria values
- gravity of offence framed by different factors – look to aggravating and mitigating
factors
- only consequences that fit into scope of proved criminal act relevant to sentence
(Petrovec 1984) – acbh, resulted in suicide … could not consider death in sentence
Degree of responsibility of offender
- moral blameworthiness of offender
o causation – was consequence reasonably foreseeable, may reduce culpability
if low forseeability (Shanks) – low risk fight causing heart attack reduced 6
yrs to 2 yrs for manslaughter
- How much of a role in bringing about harm?
o Consider relationship of offender to offence and other participating offenders
o Degree of participation – diminished capacity/impair can mitigate
718.2(a) sentencing
principles
Increase or reduce for relevant aggravating or mitigating factors
Aside: judges do not quantify amount of mitigation/aggravation – no scale to determine
how much reduction/increase factor should have
Aggravating Circumstances
- (i) bias or hate
- (ii) abuse of spouse or common law partner
- (ii.1) abuse of person under 18
- (iii) abuse of authority in relation to victim
- (iii.1) significant impact on the victim
o aimed at protecting seniors who had savings wiped out by fraudsters
- (iv) organized crime
- (v) terrorist
How to be A or M?
-
-
Other Aggravating
any factor that is rationally related to gravity of offence and degree of
responsibility of offender or to one of the sentencing objectives, principles, rules or
options can be considered
political trend to add aggravating factors in legislation b/c ideas about crime and
what makes it more serious
Previous conviction
- escalation or jump principle (presumption that sentence will escalate or jump based
on prior record to instill individual deterrence but don’t need to apply if rehab
moment – intermediate recidivist life changes can contradict need for custody or
escalation of custody – do not apply if rehab is significant sentencing factor b/c
discourages rehab (Robitaille))
- more aggravating if similar in nature
- more aggravating if occur during or soon after previous sentence
Actual or threatened violence or use of a weapon
Cruelty or brutality
- more serious the offence demonstrates greater propensity to harm
Offences while subject to conditions (disrespect for law, deterrence needed)
Multiple victims or multiple incidents (danger, safety risk)
Group or gang activity (organized, planned, criminal activity)
Impeding victim’s access to the justice system (threats, intimidation, obstruct justice)
Substantial economic loss (look to size of loss relative to victim resources)
Planning and organization (more blameworthy b/c calculated not act of passion)
Vulnerability of victim
- age (young or old); disability; statutory vulnerabilities 718.2(a)
Status or role of victim
- police officers (Phillips)
- taxi drivers, convenience stork clerks at night
- abortion service prociders
Deliberate risk taking (choosing risky behaviour)
***some aggravating factors added to specific provisions
Factors not to be
treated as
aggravating
No guilty plea and conduct of vigorous defence b/c charter right (Kozy)
No evidence of remorse b/c don’t demand public contrition (Vu, Nash) – but
aggravating if demonstrates substantial likelihood of future dangerousness
* but lose the benefit
Failure to cooperate with authorities (Winsten)
Other Mitigating
First Time/Youthful Offender
(sometimes these are
things that make you
a good candidate for
rehab and other
times these are
things that show you
have already been
punished)
-
good rehab prospects, conviction is punishment
presumption against custody and significant reducing effect if custody mandated
No Prior Record Advanced
- judge treats like first offender; crown doesn’t assert, out-dated
Prior Good Character
- no need for individual deterrence; good rehab prospects
- broader than just reputation, also achievements, opinions of family
- but inappropriate if “dark corners of ppl’s lives” – ie. sex crimes
Guilty Plea
- b/c save witness trauma of testifying
- BUT in BCPC often end up with GP given delay in system and bargain if Crown
has weak case (risk wrongful conviction?!)
- Spare admin of justice some time and expense deserving of some credit for GP (R v
Faulds in R v Daya)
- Reducing sentence by a third for GP is too much (Daya)
Remorse
- acknowledges responsibility
Evidence of impairment (Drug, Alcohol, Gambling)
- mitigating if offence spontaneous and not planned
- BUT if history of violence, continuing danger and fail to deal with problem =
aggravating
- Gambling: accepted in Horvath, little mitigation in Harding, rejected in
McIvor/Holmes/McTighe
Employment record
- embedded assumption if you are employed less likely to offend
Collateral or indirect consequences
- Deportation
- Injury
o Seriously injured in accident for impaired driving charge
- Employment
o Offence unrelated to job but lose job as a consequence (i.e. lawyer disbarred for
possession of child porn)
- not mitigating if adverse consequence linked to offence (i.e. cant complain fired as
teacher if abusing students)
Post-offence rehabilitation efforts
Unrelated meritorious conduct (shows positive good character)
Acts of reparation or compensation (shows remorse, repair harm)
Provocation and duress (show crime spontaneous, not planned)
Charter Breach
- pre-2010 some courts used s24(1) to give remedy sentencing b/c “anyone whose
-
-
rights or freedoms, as guaranteed by this Charter, have been infringed or denied
may apply to a court of competent jurisdiction to obtain such remedy as the court
considers appropriate and just in the circumstances”
o if delay extreme can SOP but now told in Nasogalauk only treat as mitigating
factor unless exceptional circumstances
undue delay can be an additional strain and burden that can be treated as a
mitigating factor
Delay in prosecution or sentencing – infringe s11(b) “right to be tried within a
reasonable time”
o Treat delay as mitigating factor: Bosley, Spencer
Denial of rights other charter rights - s24(1)
o Carpenter (BCCA 2002): violation of s8(search) and s10(b) (right to counsel)
didn’t result in exclusion of evidence under s24(2) – no mitigation at
sentencing
o Nasogalauk: s24(1) should not be used as remedy to reduce sentences for
Charter breaches but can rely on mitigation HOWEVER there might be
exceptional circumstances where can rely on s24(1) and reduce a sentence
below MMS
o Nasogaluak (2010): excessive police force; police abuse can be seen as
punishment therefore mitigating
Gap in criminal record
- 5 years on verge of gap, 10 years clearly gap
Intermediate recidivist
- would normally apply the gap (middle of criminal career) but this is an intervening
moment
- no need for harsh sentence given specific context
The test case scenario
- takes longer, psychological damage form of punishment, more uncertainty
- long proceedings might not be true test case and so reject mitigation (Hamilton)
Disadvantaged background
- can lessen blameworthiness (Sackanay)
- but if seriousness and need for denunciation increase, mitigating effect of
disadvantage will lessen or disappear (Borde)
Single Parent (accepted to limited degree)
- Bunn: mitigation b/c solecare giver to Mum
- Holub, Hamilton, Spencer: did not change prison to CSO b/c unfit
- Holub: not mitigating even though both parents would be in prison, lucky
grandparents could take care
- Hamilton: not mitigating, even though would leave 6 children dependent
- BUT CSO wont be considered unless it is fit
- Essential and positive role in lives of children can’t diminish seriousness of crime
or detract from need to impose a sentence that denounces and deters (Spencer)
- Restraint principle comes in place to preseve family as much as possible (Spencer)
- Should consider best interests of children but not to detriment of denunciation
(Hamilton)
Adverse Publicity
-
hounded by the press and public humiliation (Ambrose, Kneale)
not mitigating if voluntarily participate (Ewanchuk) and no evidence of negative
impact
Mistaken belief in nature of prohibited substance
- not substantive law defence but should be treated as mitigating b/c goes to
blameworthiness (i.e. thought prescription actually heroin)
- treated as mitigating in Sagoe (ONCA 1998)
- rejected in Madden (ONCA 1996)
Rehabilitative Moment
- Wood J: even if jump or escalation principle might apply, if it is a rehabilitative
moment can take a risk and not go up in sentence
Offender’s Disability
- serious illness or physical/mental disability can make custodial sentence
disproportionately harsh – will consider in type and length of sentence
- considered terminal illness (Andrews)
- if custody appropriate impose unless prison doesn’t have facilities to accommodate
special needs (B(LT) – cerebral palsy)
- very fragile mental health considered (Cody)
- severe FASD diminished responsibility (Harper, lesser FASD - Draper)
Cooperation with Police
- can result in charge/sentence reduction
- huge mitigating factor (H(CN))
718.2(b) parity
Similarity: b/c word is similar (not same) creates space to argue how similar does it
have to be
Bentham: treat people equally under the equality principle – this is not the same as
parity but feels similar
Challenging to apply – very important but little guidance
- dissimilarity when sentencing aboriginal offenders
o substantive equality is not formal equality
- deference to trial judge (does not emphasize parity)
- no big picture, lack statistics b/c no Sentencing Commission
- what counts as a similar case? What is the most relevant?
718.2(c) totality
718.2(d) restraint
718.2(e) restraint
If consecutive, combined sentence should not be unduly long or harsh
Use less restrictive sanction if appropriate
Look at sanctions other than imprisonment – judicial discretion 718.3
Particular attention to aboriginal offenders
- why? over-incarceration in jail for longer time, pre-trial longer, higher rates of
imprisonment (pre-trial and post-trial release based on risk factors and b/c systemic
issues, difficulty in communities – sometimes release is denied)
- Gladue
o First aboriginal sentencing case before SCC, had to interpret 718.2(e)
o decided it was remedial in nature, designed to remedy a problem of
overincarceration of aboriginal people; there is a judicial duty to give its
remedial purpose real force
o Challenge in prison b/c dislocation from culture – prison is harsh already
but even harsher for aboriginal community
o Aside: fed budget = 11 million aboriginal criminal justice system, 2.98
billion on prisons
Where does restraint
principle operate in
sentencing?
Gladue: restraint inserted b/c parliamentary statement that require a remedial approach
to imprisonment
1. 718(c) – separate “where necessary”
2. 718.2(d) – “less restrictive sanctions may be appropriate”
- CSC: punishment blunt tool doesn’t help to deter or rehab
3. 718.2(e) – “all available sanctions other than imprisonment”
Rules of Sentencing
Concurrent, Consecutive and Totality
General Rule
719(1) sentences are concurrent UNLESS otherwise provided for
718.2(c) – totality: if consecutive, combined sentence should not be unduly long or
harsh
718.3(4) – judicial discretion to choose to serve consecutively [(c)(ii) convicted for
more than one offence and imprisonment for both]
Consecutive
Sentence
Runs one after the other
when must it run consecutively
1. robbery with a firearm for the second offence s85(4)
2. criminal organization offence –s467.14, 467.11-467.13
3. terrorist offences s83.26
4. possession of explosive substance with intent to do bodily harm s82.1
718.3(4) – judicial discretion to choose concurrently or consecutively
politics – Bill C-251 passed house by died in the senate – offences for sexual assault
must run consecutively; not currently in code
Concurrent Sentence
How to decide btwn
consecutive and
concurrent
Run at the same time, this is the norm per 719(1)
“one transaction”
- broad/malleable term; if one transaction concurrent if separate transactions
consecutive
- one transaction is for offences closely related in time and in facts
- “the concept of ‘single transaction’ may be held to cover a sequence of offences
involving a repetition of the same behaviour towards the same victim, such as a
series of sexual offences with the same partner, a number of frauds on the same
victim or several perjured statements made in the course of the same trial, provided
the offences are committed within a relatively short space of time”
Case law gives insight:
Consecutive
- Cazzetta (unique case): possession for proceeds of crime, if all from same crime
then concurrent BUT decided consecutive b/c property was from different
offences so separate transaction
- McCarthy: judge forgot to say consecutive and so it was concurrent but CA
separate actions so should be consecutive
o 2 diff ppl, 3 years apart – assaults separated by years
- Al-Maliki: separate b/c even though offences closely connected the number of
separate potential victims and harm intented to be inflicted on each justify
consecutive
o Counseling 4 assaults and 1 robbery: three conversations June 1, 2, 6 2002
Concurrent
- P(ET): single transaction (even though multiple offences over time, what made it
same transaction was same type of assault and same victim)
-
o 4 counts within a 4.5 year period
McDonell: trial judge seemed to say consecutive only if deterrence was at issue
and it wasn’t so concurrent is imposed
if sequence of offences involve repetition of same behaviour towards same
victim, provide relatively short time (P(ET))
continuity and nexus btwn the offences (Cazzetta)
Separate transaction
- “they are not part of a single criminal adventure and absent consideration of
totality should be consecutive” (McCarthy)
My thoughts:
- maybe what is most important at the end of the day isn’t consecutive or concurrent
but the global sentence
- advantage of trial judge making clear what decision is b/c if appeal and one of the
sentences is thrown out it helps to know whether consecutive or concurrent
Totality
Once you have global sentence for all offences then consider whether global sentence
is too long or too harsh – is it in line with totality? 718.2(c)
- what counts as unduly long or harsh varies according to judge
“A cumulative sentence may offend the totality principle if the aggregate sentence is
substantially above the normal level of sentence for the most serious of the individual
offences involved, or if its effectis to impose on the offence “a crushing sentence” not
in keeping with record and prospects” (R v M(CA) quotes Clayton Ruby)
Test for totality M(CA) quoted in Hicks
- look at total sentences and determine if:
o is it “substantially above the normal level of sentence for the most serious
of the individual offences involved” or
o “its effect is to impose on the offender ‘a crushing sentence’ not in keeping
with his record and prospects”
 Hicks: chronic offender, little to indicate fundamental chance
therefore prospects not good and not crushing
- If above the range or crushing then can adjust sentence
R v Abrosimo (2007 BCCA)
- if offender’s overall culpability warrants it a sentence can go over the range
- “when an offender’s overall culpability warrants more severe punishment nothing
precludes the imposition of such a sentence”  only needs to be just sanction
“last look” required to examine gravity of the offence, offender’s degree of guilt or
moral blameworthiness wrt crimes and harm to victim and decide if it is excessive
(Adams)
Methodology for calculating individual sentences to achieve appropriate totality:
- Goodrich Approach > Hatch Approach
o Prefer Goodrich b/c frankness in that each conviction will generate an
appropriate sentence and preserved if an appeal intervenes to eliminate the
other (Manson)
o Hatch leads to confusion, challenges for appellate court (S(AT)
- Goodrich: determine fit sentence for each separate offence, add together and adjust
-
a few/some through the use of concurrent sentences to ensure they are not
excessive in totality (S(AT))
Hatch: determine appropriate total sentence, artificially reduce the duration of
component sentences so that when grouped together add up to appropriate global
sentence
MM Consecutive Sentences
- s85 w/ mandatory minimum consecutive sentences doesn’t oust courts ability to
impose fit sentence (S(BR))
o don’t want to frustrate intention of parliament but goal is to ensure
aggregate sentence is “just and appropriate”
- s259(4): offence to drive while prohibited and can impose driving prohibition
consecutive to any other existing driving prohibitions (259(2.1))
Youthful and/or First Offenders
GENERAL RULE: In sentencing young first offenders, rehabilitation and individual deterrence where
necessary should be stressed and general deterrence should play little if any role (Ijam)
- EXCEPTION – serious crimes of violence, particular sexual assaults, should focus on deterrence even if
first offence (Thurairajah)
First time offender status may pale in comparison with need for denunciation and general deterrence depending
on the gravity and seriousness of the offence (Patterson – privileged, mature member of society, lawyer)
CSO can be punitive to serve denunciation and deterrence and also meet needs of rehab for first time offenders
– “society better served by allowing this yong woman to continue along path towards rehabilitation rather than
disrupting her family, employment and education by to jail, albeit for a short period of time” (Vandenbosch)
Maximum Sentences
What principles.
rules etc does the
court use in deciding
whether to impose a
maximum sentence?
SCC in Cheddesingh
- terms “stark horror” and “worst offence” add nothing to analysis and should avoid
- consider only all relevant factors in the code
- max penalty is imposed only rarely AND is only appropriate when the offence is
of sufficient gravity and the offender displays sufficient blameworthiness
SCC in M(L)
- maximum sentence cannot be reserved fir the abstract case of worst crime
committed in the worst circumstances – focus should be on proportionality
Stark Horror, Worst
Offence/Offender
(SCC avoid
terminology)
Max Sentence when
Crown elects to
proceed by summary
conviction
Cheddesingh
- it was common to say that the max was used for cases of “stark horror”, “worst
offender”
o Gerry thinks expression is ok as long as isn’t too theoretical (always can
imagine a more terrible case)
o SCC doesn’t like the expression of stark horror or worst case offender b/c
they want judge to describe the case in terms of case by case and
individualized seriousness
Method of proceeding has an effect on permissible range of sentence (Sanatkar)
“worst offender/worst offence principle is not applicable to hybrid offences that
proceed summarily” L(RJ)
“if the distinction btwn summary and indictable offences is significant and if the
concept of range is to have meaning, then the prescribed maximum sentence should not
necessarily be handed down in every situation where the circumstances are similar to
ones where the Crown elected to proceed by indictment and the identified range on
indictment is greater than the summary conviction maximum” L(RJ)
- if election b/c seriousness of crime, look at cases of similar severity
- if election b/c procedural reasons (witness testify) then can look at indictable cases
if similar to offence and offender
Ex: s271 two offences sexual assault, identical elements one with max 10 years and
one with max 18 months – it is not an error to consider sentences handed down for
indictable when sentencing that convicted summarily L(RJ) b/c s718.2(b)  parity!
Fixed Term
Sentences
Whether or not life imprisonment is available as a maximum sentence in particular
case, there is no pre-set ceiling on fixed-term sentenced under Criminal Code M(CA) –
b/c TJ gave 25, CA gave 20, SCC returned to TJ 25
No artificial ceiling of fixed term of 20 years for imprisonment, SCC held unlikely will
see much higher than that but no artificial ceiling M(CA)
Credit for Pre-Sentence Custody
General Approach
Old Provision 719(3) – judicial discretion to consider pre-sentence custody (“may”
take it into account, not “shall”)
Laskin in Rezae: court should ordinarily give credit, should not deny credit without
good reason
- are there any cases where should give no credit? Discretion is there but cases say
NO! – don’t confuse issues, pre-trial credit is not about denunciation (Neudorf)
- post-offence conduct irrelevant to pre-trial credit (Neudorf)
- even though it says may, court must consider (Mills)
No strict formula on how to determine how much credit to give
courts need to be clear and careful in articulating the sentence (b/c public perception),
“shall give reasons for any credit granted” (719(3.2))
New provision 719(3) – “shall” max 1:1
- new 719(3.1) – if circumstances justify 1.5; UNLESS reason for detention
515(9.1), 524(4) or 524(8)
Historic Extent of
credit 2:1
-
courts commonly gave 2:1 b/c of rationale laid out in Wust
o no remission during pre-sentence custody
 i.e. subject to detention w/o possibility of statutory release after
serving 2/3 of sentence – see s127 Corrections and Conditional
Release Act
o general absence of programs and amenities in remand facilities
 most remand centres: strict custody, no programs
 some remand (i.e. for youth): have programs
 pre-trial detention is harsher and tougher than post-trial
 ex. Don Jail in Toronto: overcrowded, run down, (Kravchov gave
3:1)
-
When no 1.5 credit?
719(3.1)
Truth in Sentencing
Act, CIF 2010
-
2:1 is not mandated but reasonable; however, if offender is very bad can pay little
attention to pre-trial b/c likely they will serve entire sentence w/o parole (Wust)
2:1 became common place, granted easily w/o thinking about rationale
-
515(9.1) – if clear detention was primarily b/c of previous conviction (no JIR)
524(4) or (8) – if breach of existing pre-trial release order
-
mandates 1:1 credit BUT if circumstances justify can go up to 1.5
when do courts give 1.5? (2 lines of authority)
o 1. If exceptional – in BC: beyond or near universal loss of remission, parole
eligibility loss
 exceptional, Kravchov type case? (BC seems stuck in this idea)
 exceptional (Mayers, Bradbury)
o 2. If circumstances individual to A justify it
 not exceptional b/c feds didn’t give modifying language that said
exceptional, only said if circumstances justify (Carvery, Stonefish,
Summers)
 if circumstances from 2:1 rationale at play then 1.5 seems fair
 Summers: 1.5 credit b/c would likely have had early parole
b/c good behaviour in custody
 Curry: 1.5 credit b/c don jail terrible conditions, no parole
 Carvery: 1.5 credit b/c no access to remission
 Stonefish, lists relevant factors to consider 1.5
 Conditions in remand facilities: lack programming,
lockdowns, solitary, harsh circumstances
 Post-trial delay: caused by court, need to obtain
PSR/Gladue, multiple appearances for sentencing, crown
New law doesn’t violate s7 charter b/c for most offenders 1.5 ratio justified b/c
parole issues and poor jail conditions (Johnson)
(when do courts give
1.5?)
-
Credit for strict bail?
“no hard and fast rules when determining the consideration to be given for pre-trial
bail” (Irvine)
-
-
Credit for pre-trial
and qualifying for
CSO and probation
Context: originally some courts said 1:1 BUT as more cases come forward shifting
towards saying no credit (unless conditions are VERY strict)
Strict bail (esp house arrest) now seen as mitigating circumstance (Downes) but
don’t always need to reduce b/c strict bail esp if there is virtual absence of
significant hardship or deprivation (Irvine)
Bail is not jail (Ijam)
o Bail is the opposite of incarceration, seek to stay out of jail (Lindsay)
o No duty to explicitly refer to pre-trial bail conditions (Ijam)
MMS – no pre-trial credit for strict bail (Panday)
-
Pre-trial is relevant to qualifying for CSO and probation
CSO: must consider total sentence (pre-trial credit counts but doesn’t reduce total
sentence) to determine if CSO available (Fice)
o Ex: 3 year sentence, 1 year pre-trial, cannot order 2 years as CSO b/c total
sentence is 3 years and can only issue CSO if under 2 years (742.1(a) – less
than 2 years)
o Absurd results? End up with harsher option of jail when CSO appropriate
-
Probation: available for up to 3 years on top of max sentence of up to 2 years
(731(1) – up to 2 years) (Mathieu)
o Ex: 3 year sentence, 1 year pre-trial, 2 years left to serve – judge can add
another 3 years probation on top
Pre-trial credit for
life sentence
MMS
-
S746: if sentenced to life the time for them to start getting parole counts the period
of pre-trial custody within that
pre-sentence custody and MMS
- no clear SCC decision
- inadibility to reduce MMS to reflect pre-sentence custody could have unfair result
- some courts suggest there is constitutional exemption that would remedy thie
situation if it arose
Early Release and Parole Ineligibility
Conditional Release
- Release for imprisonment before full term served
- Sentence of imprisonment doesn’t mean have to serve whole sentence in prison,
can serve part in community under supervision (administered under Corrections
and Conditional Release Act)
o Parole
 Eligible after 1/3 sentence
 40-50% released btwn 1/3 and 2/3 sentence
 Judicial discretion to delay parole eligibility (s743.6 – no murder)
 Judge has discretion to delay parole eligibility so that it is
not available until ½ sentence or 10 years 743.6(1); this
provision adds to judicial discretion (Zinck) – crown has
burden to demonstrate need
 How to determine to use? (Zinck – 2 step process)
o First determine appropriate sentence
o Next, consider all factors if delay appropriate
 focus on general, specific deterrence and
denunciation (743.6(2))
 Judicial disc. delay parole eligibility s745.4 – 2nd degree murder
 745(c): eligible at 10 years unless 745.4 judge gives greater
 745.2: jury can recommend to judge, not too much weight
(Mafi)
 Reid: too much focus on denunciation etc, ignore redeeming
features and so decreased parole ineligibility from 15 to 12
 Kianipour: 20 years not an err if consider mitigating and
context – it can be acceptable
 Woods: fresh evidence of painful death in 3 years b/c illness
justify reduction from 15 to 10
o Mandatory Statutory Release
 Available after 2/3 sentence to all inmates unless dangerous
 If dangerous will be referred to Parole Board to determine if person
is too much of a danger to society to release (small ground, less
than 10% of inmates)
o Remission
 This is different, this is when sentence ended early w/ no
supervision in the community
o Conditional Release other than full parole
 Temporary absence pass
 Day parole

-
Provisions and Faint
Hope
2011: act abolished elgibility for day parole after 1/6 and
substitutes 6 months before parole eligbility or after 6
months whatever is longest
Politics: in October, PM alluded to fact govt wants to make “life with no parole”
possibility for worst offenders
o What about exemption/faint hope? This can ensure don’t get parole if not
needed
o Who exactly is worst offender – future dangerousness or single act terrible?
o Majority of citizens likely to like idea of life with no parole
745(a) – not eligible for 25 years 1st degree (subject to faint hope)
745(b) – not eligible for 25 years 1st degree if previous murder conviction (no faint
hope 745.6(2) or war crime 745(b.1)
745(c) – 10-25 years for 2nd degree murder (jury recommend 745.2, judge decide
745.4, faint hope if more than 15 years parole ineligibility 745.6(1))
745(d) – normal eligibility period for life sentence other than murder or high treason
(under s120 Corrections and Conditional Release – this is 7 years)
Faint Hope
- Faint hope clause 745.6 – permits application to jury for reduction of parole
ineligibility for 1st degree murder after at least 15 years have been served (BUT
(745.6) serial and multiple murdered cannot apply and CJ of province can screen
out apps where no reasonable prospect of success)
o 60% succeeded under faint hope application to parole board
o faint hope abolished for:
 murders on or after CIF of new act on dec 2, 2011
 745.6(2) more than one murder (2002)
 745.51 if multiple murders or previous conviction can be
consecutive to 1st murder (ed. 2 first degree murders could result in
no parole eligibility for 50 years) – 2011
- Procedural changes to faint hope in 2011 amendments
o After 15 years only three months to apply for faint hope, if miss this then
have to wait 5 years for another chance (how does this work in prison??)
Sources of Offender Information, Procedure and Evidence
Right of Allocution (s726)
Mandatory right to ask A if they had anything to say, very important when no
lawyers (benefit of clergy) – from CL but now codified in s726
Benefit of clergy
- clergy was under jurisdiction of ecclesiastical courts so other courts didn’t
apply and clergy would avoid capital punishment
- test: read a psalm from bible (“neck verse”) – only clergy could read or
write, if you plead benefit of clergy could only do it one and women
couldn’t plead it b/c couldn’t be clergy
Although A can make a statement they are not under oath, not a witness and
cannot be cross-examined  if Crown thinks they are saying something that is
a fact (i.e. unwarranted mitigating factor) that needs to be proven then need to A
has to prove it for judge to consider
What if judge forgets?
- After 1996: inadvertent mistake is not unlawful and where no evidence A
had anything of relevance to add beyond defence submissions (Senek)
- Before 1996: intentional denial violates s7 charter and so can reduce
sentence (Dennison)
Pre-Sentence Reports (s721)
-
judge can order, prepared by probation department
could be perceived as judgmental – look to “offender’s maturity, character,
behaviour, attitude and willingness to make amends”  what if cultural
context, risks
PSR should not include (Rudyk – no guidance from legislation, only CL)
- facts about the offender or the offender’s role
- unproven offences or previous acts of misconduct
- consequences for victims or victim attitudes to the offence (this is in the
VIS!)
Before 2003 probation wasn’t an option for corporations so couldn’t order PSR
since only punishment was fines, this has shifted under new criminal code
provisions for sentencing corporations BUT s721 doesn’t reflect this so there
would be space for constitutional challenge if this ever arose
Psychiatric/Medical Reports
Offender is entitled to introduce expert medical reports and since hearsay
evidence is admissible can submit report without calling expert - 723(2)
Crown cannot compel under s627.11 (this is for NCRMD, at criminal liability
stage only)  if considered a protected statement cannot be submitted at
sentencing hearing (R v DK – s672.21(2))
Conflicting Authority on whether crown or court can compel
1. Cannot order psych assessment of non-consenting offender through
CCC for sentencing purposes (Gettliffe-Grant)
a. No (Lenart)
2. Can order psych assessment pursuant to ss721(4) and 723(3) in order to
fulfil obligation under s718, 718.1 and 718.2 (Blackwell)
Ont Mental Health Act: provides mechanism for non-consencual assessment for
sentencing purposes, BC and Alberta Mental Health Act do not have
comparable provisions so Lenart (which says provincial statutes are ok) is not
an option in these provinces (Blackwell)
- Gerry thinks MHA is for civil and not criminal purposes so potential
charter challenge available in ON under s7
Under charter, A has right to not to be compelled as a witness in proceedings
against A in relation to offence s11(c)
Victim Impact Statements
(s722)
Since 1980s growing effort to have larger role for victims in justice system
Judge’s must consider VIS, no longer discretionary 722(1) “shall consider”
722(2.1): “or to present the statement in any other manner the court considers
appropriate”  this broadens/enhances role of victim b/c don’t need VIS could
write a letter and have it considered
S722(4): victims includes a list (such as family - McDonough)
VIS should not include (McDonough)
- critcism of offender b/c then about revenge (should not be revenge –
Gabriel)
- offender bashing
- assertions as to facts
- recommendations re: severity of punishment
- statements address to offender (not for offender, its for the court)
- ASIDE: b/c victim’s can’t express feelings etc in VIS these are infrequently
used since likely not much satisfaction for victim – vetted by crown in
advance of sentencing
VIS – given to defence, might be required to testify about its contents
- might be requested by National or Provincial Parole Boards and federal or
provincial correctional authorities. It may be considered when the offender
becomes eligible for release or used in the preparation of reports for judge
prior to sentencing
Politics – Peter McKay and Harper talked about Victim’s Bill of Rights –
perhaps creating a three-party system where victim also has a lawyer
Aside: hearsay evidence
allowed under s723
No obligation to accept crown proposed sentence (Donovan); can depart from
Crown as long as it is not an err and not excessive (Koenders) – judge should
not be harsher than crown without a “valid and compelling reason” (Winn in
Mason)
Role of Judge (s723)
More activism than at trial:
- 723(3): “court may…require production of evidence that would assist the
court in determining appropriate sentence”
- 723(4): “court may…compel appearance of compellable witnesses to assist
court in determining appropriate sentence”
Limits of activism
- Hunter
o Inquiry into social conditions of alleged corruption on reserve went
too far!
- Gladue
o Even if no info on aboriginal circumstance from counsel/no rep –
incumbent on judge to find out info on this
- Hamilton and Mason
o Inquiry into broader societal problems covering race and gender
bias went too far
o CA criticized Hill J
 “instead of using the proceedings to determine a fit sentence
for the accused, he used them to raise, explore and address a
variety of societal problems”
 “judges are not to assume the role of advocate, witness and
judge”  must follow for guise of impartiality
o Academics criticized CA



Burden of Proof (s724)
Tanovich: Hill gave info from relevant sources to the
parties, they could have called different evidence
Tanovich: contrary to social justice to confine issue
Kaiser: cannot pretend that sentencing is decontexualized
from reality; reinforcing judicial passivity does not benefit
society when courts are prevented from grappling with
complex social issues
S724(3)(e) – crown prove BRD all aggravating factors
- Parole ineligibility non-murder (743.6) – crown must demonstrate it is
needed (Zinck)
S724(3)(d) – offender prove BOP all mitigating factors
Facts must have an air of reality (Boulet); if fact is asserted and other side
denies then the other side needs to prove it - 724(3)(b) “party wishing to rely on
a relevant fact…has the burden of proving it”
Only facts implicitly admitted are essential elements of offence set out in
information or indictment
Joint Submissions
Trial judge depart from joint submission only if accepting it would bring admin
of justice into disrepute or it would be contrary to public interest (Druken)
-
rejecting JS is not grounds for appeal when trial judge has given JS serious
consideration and provides reasons for rejecting it (Sinclair)
but often follow JIS – CA reinstated joint submissions wich sentencing
judge rejected (Oake, Oxford – stressed role of guilty plea and quid pro
quo)
Considerations and appropriate process for JS (Sinclair)
1. give JS very serious consideration, even though TJ still has discretion
a. judge can reject it (Donovan)
2. only depart if cogent reasons – such as sentence is unfit, unreasonable,
bring admin of justice into disrepute, against public interest
a. unreasonable b/c deterrence, denunciation – in impaired driving and
breach substance abuse and no remorse (Cromwell)
b. JS not unfit, TJ inferred facts not support by evidence – reinstate JS
(Nguyen)
c. Gerry thinks this means clearly and demonstrably unfit on basis of
offence and offender
3. to figure out if cogent reasons consider all circumstances underlying JS
(incl. plea bargain, evidentiary considerations, systemic pressures)
a. if plea bargain give greater weight b/c concessions for leniency
(Lamirande)
4. if going to depart need to inform counsel so they can make additional
submissions
a. err to not allow counsel to make more submissions (Cromwell)
5. provide clear reasoning for departing, just b/c greater sentence could be
reasonable is not enough
a. clear and cogent reasons!! (lamirande)
Lengthy Adjournments
(s720)
S720: impose sentence as son as practicable after finding of guilt
S720(2): authorizes the Court with the consent of AG and offender to delay
sentencing to attend treatment program (ex. drug or domestic violence courts do
this so release on bail and go to treatment and might be brought in for
checkups)
Judicial Notice
Very rare
Gladue – judicial notice of systemic discrimination and over-imprisonment
Diversion and Absolute and Conditional Discharges
Historical Context
1972 amendments introduced sanctions of absolute and conditional discharges
1996 amendments introduced diversion s717
Legislation on Discharge
s731.1
731.1(3): effect of discharge
- found guilty but won’t register guilty verdict so “not convicted of offence”
731.1(4): bound by probation and what happens if screw up
- if screw up convicted of original offence AND breach of probation
Not available when:
- corporation
- there is a minimum punishment (punishment includes fine so no discharge
for driving offences)
- punishable by 14 years or life
Available if:
- best interests of accused and not contrary to public interest 0 must consider
all broad factors for sentencing (rehab, denunciation, deterrence etc)
- best interests of A
o Fallofield: “this condition presupposes that the A is a person of
good character, without previous conviction, that it is not necessary
to enter a conviction against him to deter from future offences or to
rehabilitate, and entry of conviction will have significant adverse
repercussions”
o Bertuzzi: mitigating factors and A already punished
o not in best interests of accussed if they need to wake up and realize
behaviour inappropriate – discharge may give wrong message
o Melo: “the fact that convicted person may be subject to deportation
is not sufficient to ‘tip the scales’ the other way and lead to granting
of discharge” (referred to in Wisniewski)
- not contrary to public interest
o Roberts (unfit): needs to reflect general deterrence, gravity of
offence, public confidence in justice system undermined if no
conviction
o Collier (unfit): “conditional discharges in circumstances of this case
do not reflect the gravity of the offences, trivialize the crime and
undermine public confidence”
Absolute Discharge
No criminal record – judge found on the facts you were guilty but for whatever
reason even though there is factual guilt it does not warrant receiving a criminal
conviction
Conditional Discharge
Conditions for a period of time and as long as no disuse will receive an absolute
discharge
Diversion (now called
Alternative Measures)
S717
No criminal conviction because never charged and diverted out of system
Often for offences not a significant penalty or relatively minor
Process
- to access diversion A needs to admit elements of offence
- not possible for all cases
o AG guidelines prohibit diversion in some cases: i.e. drinking and
driving, sexual assault
- if Crown has a weak case unlikely to send to diversion, more likely will
dismiss it
- Diversion is normally sent to Probation to decide whether or not this is a fit
case for diversion
What happens in Diversion (it can vary)
- admission of factual guilt
- written letter of apology
- community service hours
Crown has recently started to refer diversion cases to RJ
Sentencing Options
General Summary
Conviction
General Indictable
Conviction
Fines
Historical Context
S787: if not specified liable to max 6 months imprisonment and/or fine of $5000
S743: if not specified, punishment is maximum 5 years imprisonment
1900s fines became more significant for minor offences
fine is a monetary penalty but not a restitution order
Legislation
S734(1) – power of court to impose a fine
- (a) if not a MMS, fine could be in lieu of another sanction
- (b) if a MMS, fine can be on top of that
S734(2) – offenders ability to pay
- prior to 1996: no inquiry into whether offender able to pay (i.e. sentence
$500 or 30 days) so people were going to jail b/c couldn’t pay the fine
- fine option programs allow to do community service to “pay off” fine if cant
afford it (these exist in most provinces but BC and ON do not have fine
option programs)
**if least restrictive option really is a priority, fines would be more common
- Gerry thinks fine good alternative rationally b/c bringing in money rather
than jail BUT he takes issue with inequity
- Scandinavian countries: fines very according to how much money you may
(i.e. day fine – lose one day work so if $60 for you lose $60, if $6000 for you
lose $600 – examined by LRC in 1970s but not adopted)
Wilful default of fines and
jail term calculation
See s734(5)
How to calcuate how much time a willful default time person will spend in jail
(now standard used to be variable)
- imprisonment is the less of:
o (a) calcuation where look at (unpaid fine + cost of transportation to
prison) divided by (minimum wage multiplied by 8)
 In BC: 10.25 general; 9 for liquor servers
o (b) only comes into affect if it is big and exceeds max sentence for an
offence
Victim fine surcharge
Recently updates s737
Gerry is skeptical whether this is actually going to Victim Services or if it just
stays in General revenue
737(5) – up until Oct 2013 court used to be able to waive victim surchage and it
was waived for legal aid clients etc – judge’s used to remind counsel (and waive
victim surcharge?) don’t like to collect $ for govt
October 24, 2013 – Bill C-37 amended s737 Act to “Increasing Offender’s
Accountability for Victims”
- bill abolishes judicial discretion to waive surcharge
- increased fine amounts from 15% of fine to 30%
Restitution
Legislation
S718(c) – restitution seems like it matters in sentencing BUT seldom see this
ordered
**most often victims want an apology and for what happened to them to be
paid/fixed but these are just not being done in the way criminal justice system
operates right now
s740 – priority to restitution
Driving and Weapons Prohibitions
Offences dealing with alcohol
S259(1) Mandatory
- if charged with s253 (impaired driving over .08) OR s254 (refusing to submit
Driving Prohibition
breathalyzer) SHALL, in addition to other punishment prohibited from
driving for following time periods:
o (i) 1st offence – minimum 1 year, max 3 years (plus imprisonment)
o (ii) 2nd offence – minimum 2 years, max 5 years (plus imprisonment)
o (iii) 3rd and subsequent offences – minimum 3 years, no max (could
be up to life), (plus imprisonment)
- BUT
o S259(1.1) and (1.2): exemptions to above time period if install
interlock device after at least 3 month prohibition (1st offence), 6
months (2nd offence), 12 months (subsequent offence) – unless court
says prohibited for driving for longer
o If rich can access interlock but done privately
Street Racing
- Introduced December 2006
- Max and min driving prohibitions (in addition to imprisonment) – see
Gerry’s notes (these are dangerous driving offences etc + street racing)
S259(2) Discretionary
Driving Prohibition
-
-
BC Ignition Interlock
Program
-
S109(1) Mandatory
Firearms/Weapons
Prohibitions
-
-
S110(1) Discretionary
Firearms/Weapons
Prohibitions
-
-
discretionary driving prohibitions have max length but no minimum:
o max of life where offence is punishable by life
o max of 10 years where offence is punishably by more than 5 years
but less than life
o max of 3 years for any other offence
see Gerry’s notes for list
o s249(2)-(4): dangerous driving offences are discretionary
imposed and implemented through Office of the Superintendent of Motor
Vehicles
option program (in relation to s259)
compulsory program for certain drivers
o drivers convicted of first alcohol related CC offence subject to
mandatory 1 year interlock program before license prohibition is
lifted – can’t avoid interlock even if don’t drive for one year, must
have interlock program completed before license returned
o 1 yr program costs approx $1500
o before registered in interlock also have to complete responsible driver
program ($880 + HST)
 3 types of RDP
driver pays to have access to this
in addition to any other punishment, impose weapons/firearms prohibition
for, offences:
o (a) indictable offence punishable by 10 years or more which involved
violence or threat of violence
 Lonegren: sexual touching of young girl – no violence or
threat of violence
o (b) most firearm offences as well as criminal harassment
o (c) trafficking, importing, exporting, producing drugs CDSA
o (d) offences involving weapons where prohibition order already in
affect
s109(2) – duration of prohibition
o first offence: not less than 10 years (after any imprisonment) for
certain weapons
o first offence: not less than life for more serious weapons
s109(3) – prohibition is for life for all subsequent firearms/weapons offences
for offences listed in s110(1)(a) or (b) (these are offences that involve use or
theart of violence or weapons offence where not already mandatory) OR for
any other offence where “it is desirable in the interest of the safety of others”
s110(2) – duration of prohibition
o can be made for max of 10 years (after any release from
-
imprisonment)
s110(3) – if court doesn’t make an order has to state reasons for doing so
S113 – exemption to firearms/weapons prohibition if required for sustenance or employment
Imprisonment
Jail
3 main types
Intermittent
Legislation
Why do we use restraint
for imprisonment?
CSO
S743.1: provides circumstances once a person is sentenced to imprisonment
-
-
Why use imprisonment?
Intermittent Sentences
Historical Context
-
restricting rights (regulated etc)
very expensive to maintain prison
little deterrence effect and likely increases recidivism
limit future prospects to reintegrate
o presumption to avoid imprisonment if possible for first time/youth
offenders
if have addiction etc this is likely not helped in prison
issues of solitary confinement
correctional facilities for women often spread out wrt locale (no remand
centres for women on the island)
Makes public feel safe
Separate offenders
1972 amendments introduced it
Ouimet Report was concerned about young ppl going to jail etc when they have
school etc so this helped sparked need for intermittent option
-
When is it available?
(s732)
-
available when court imposes a sentence of 90 days or less
o note: can serve default payment of fine intermittently
“and availability of appropriate accommodation to ensure compliance with
sentence”
o this means judge cannot use if not appropriate facilities (gerry thinks
if he was a judge he would order it if it was fit and tell the system to
get their act together)
o serve in provincial jails
o provincial jails don’t like intermittent sentence
 lots of paperwork
 inspections in and old
 disrupts the flow
 need temporary accomodation
o sometimes where intermittent sentence imposed, prison gave
temporary absence pass for two days b/c they didn’t want these
inmates too much of a hassle – this undermines justice
o several provincial govts lobbying feds to abolish intermittent
sentences
What does it do?
Usually allows offender to serve on weekends (so can go to school or work);
when not in custody on probation during interim period
S731 – “or”  if court imposes intermittent sentence can also impose fine and
probation (can only have 2 if not intermittent)
Other key aspects
S732(2): A can apply to court to have sentence varied if circumstances change
S732(3): if commit offence while on intermittent sentence then intermittent
served consecutively and tacked on to new sentence
- NOTE: if CSO then serve CSO and intermittent b/c consecutive doesn’t
make sense (SCC in Middleton)
- S732(3) doesn’t apply to CSO
- If concurrent will be CSO while serving and then weekends in jail
Conditional Sentences
Historical Context
Introduced 1996 reforms
- when first passed, govt wants this option for as many offences as possible
- only couldn’t use if MMS or if endanger community
Conservatives have cut away at this so it is harder and harder to get
- they added no CSO if serious personal injury offence (s752), terrorism or
criminal organization prosecuted by indictment where max term is 10 year or
more
- as create more MMS, CSO is not available for these offences
- erosion of CSO by conservatives AND they are planning to introduce more
restrictions
Rationale
Punitive function (btwn jail and probation) – while it has rehabilitative aspects it
is also meant to be punitive
“Parliament has sent a clear message to all Canadian judges that too many people
are being sent to prison. In an attempt to remedy the problem of
overincarceration, Parliament has introduced a new form of sentence, the
conditional sentence” (Proulx)
When can it be imposed?
“sentence of imprisonment of less than two years where Court order the sentence
be served in the community”
See 742.1
no presumption in favour or against CSO for specific offences (other than what
legislation says) (Proulx)
742.1
- (a) not endanger community and consistent with purpose and principles of
sentencing
o if want to grant it talk about rehab v denunciation - fitness
- (b) can’t have CSO if MMS
- (c) 2012: can’t have for indictable offence with max 14 years or life
o this shrinks it b/c could have serious offence committed in not serious
way
- (d) 2007: can’t have for indictables terrorism and criminal organization
offences w/ max sentence of 10 years or more
-
-
What are the conditions of
CSO?
See 742.3
o rarely prosecuted, so doesn’t shrink availability too much
*(e) 2012: can’t have if indictable offence with max term of imprisonment is
10 years AND
o (i) resulted in bodily harm
 s2 CC defines bodily harm as “any injury that is more than
merely transient or trifling in matter”
o (ii) involved the import, export, trafficking or production of drugs
o (iii) involved use of a weapon
 s2 CC defines weapon
 s84 CC defines prohibited weapon
(f) 2012: number of offences that don’t necessarily involve harm bust still
exclusion
o (i) prison breach
o (ii) criminal harassment
o (iii) sexual assault
o (iv) kidnapping
o (v) trafficking in persons – material benefit
o (vi) abduction person under 14
o (vii) motor vehicle theft
o (viii) theft over $5000
o (ix) B&E place other than dwelling house
o (x) unlawfully in dwelling house
o (xi) arson for fraudulent purposes
Compulsory Conditions
- 742.3(1)(a) keep the peace and good behaviour
- (b) appear before court when required
- (c) report to supervisor
- (d) remain within jurisdiction of court
- (e) notify court in advance of change of name or address, employment
Optional Conditions
- 742.3(2)(a) abstain from (i) consumption of alcohol or intoxicating
substance, (ii) consumption of drugs unless medical prescription
- (b) abstain from weapons
- (c) provide support or care of dependants
- (d) perform up to 240 hours community service (not exceeding 18 months)
- (e) attend treatment program
o can’t compel active participation (like in probation when offender
must consent)
o BUT can compel them to go and what they do there is another issue
- (f) comply with other reasonable conditions
o could have condition here that prevent going to place where primarily
serve liquor
Note In 2011 742.3(2)(a)(i) and 742.3(2)(a)(ii) introduced but have not yet CIF
Shouldn’t have too many variances (Kobsar)
Either crown or defence can apply to vary
Can apply to vary optional
conditions under 742.4
-
Application of CSO
When does it get imposed in practice?
- Proulx guideline judgment but left a lot for interpretation
-
What are key rules for
judge to keep in mind re:
its’ use?
No hard and fast rules for when judge has to decide CSO (only some
scenarios when cant use it) – to figure out if applicable consider principles of
sentencing
o Blended sentence
 Possible when A convicted of at least two separate offences
Not available for imprisonment in default payment of fine (Wu)
Pre-trial credit
- amount of credit granted added to actual sentence imposed, if the total is two
years or more can’t impose CSO (Fice)
Safety of Community
- Consider risk of offender re-offending and gravity of damage in event of reoffence (Proulx)
- Need for rehab must give way to need to protect community (MacDonald)
Insufficient stigma/denunciation
- don’t impose if insufficient stigma or denunciation of offence (Mohamad)
Gladue Factors
- relevant but not determinative (Wells)
Blended Sentence & Imprisonment
- blended sentence of prison and CSo provided total (consecutive/concurrent)
does not exceed two years less a day (Ploumis)
- CA: Alfred was illegal sentence b/c 9 months jail and 2 years less a day CSO
Intermittent Sentence and CSO
- S732(3): if commit offence while on intermittent sentence then intermittent
served consecutively and tacked on to new sentence
- NOTE: if CSO then serve CSO and intermittent b/c consecutive doesn’t
make sense (SCC in Middleton)
- S732(3) doesn’t apply to CSO; If concurrent will be CSO while serving and
then weekends in jail
742.1(b) – can’t have CSO if MMS
Can impose probation after CSO 731(1)(b)
Probation
Historical Context
Started in 1880 but rarely used, used more in 1920s and took off in the 1950s –
see p 24 Manson (histocial confidential officer/missionaries in courts to provide
support)
Formal provisions enacted in 1921  encouraged professional probation service
to replace voluntary efforts for probation by religious and charitable groups
1946 – BC established probation service
Rationale
Probation is designed to assist with rehabitliation and keep out of trouble
(Proulx)
In contrast, proulx: CSO is designed for punitive purpose of restricting liberty
Legislation
S731
When does it start and how long does it last?
- 732.2(2)(b): no longer than 3 years
o exception: 732.3(2)(5)(e) can extend by one year if suspended
sentence and probation and then commits another offence
- (1)(a) starts the day it is imposed or if imprisonment starts after release
(probation starts after parole for federal offences b/c parole is part of
supervised sentence; if provincial b/c remission and not parole probation
starts right away)
4 routes to probation order
Conditions of probation
order
1. suspended sentence
a. 731(1)(a)
 offence cannot have MMS
 factors to consider: “age and character, nature of offence and
circumstances surrounding commission of offence”
 can only be probation, no fine
 probation commences once it is imposed
2. fine or less than 2 years imprisonment – can add on probation
a. 731(1)(b)
 can have probation + fine
 can have probation + imprisonment less than 2 years
 2 years is length of sentence after pre-sentence credit
has been deducted (Mathieu)
 cannot have probation + fine + imprisonment
3. conditional discharge: the conditions are listed in a probation order
a. 731(2)
4. intermittent sentence (while you are not in jail you are on probation)
a. 732(1)
732.1(2) – 3 mandatory conditions in all probation orders
- keep the peace and be of good behaviour
o Stone: good behaviour should extend beyond not committing an
offence and require conduct of law-abiding decent citizens
o Should restrict good behaviour to no offence (R(D))
- appear in court when required
- notify court/probation office if change of name, address, employment status
732.1(3) Optional
- (a) report to probation when required
- (b) remain in jurisdiction
- (c) abstain from alcohol or non-prescriptive drugs
o (c.1) 2011: allows for mandatory drug testing but not yet proclaimed
(in Shoker court said (h) couldn’t allow for mandatory drug testing)
o sometimes absolute ban on alcohol or drugs unrealistic for addict
attempting to recover b/c that will just set them up for failure; might
be better to impose with offender’s consent (g) treatment (Coombs)
o don’t prohibit drugs/alcohol unless lnk btwn use and offence (Faja)
- (d) abstain owning, carrying weapon
- (e) care of dependents
-
-
What should judges keep
in mind about use?
(f) up to 240 hours community service over period not exceeding 18 months
o this helps to meet objectives under 718(e) and 718(f)
(g) participate actively in treatment program if offender accepts
o requires consent of offender b/c otherwise violates s7 of Charter
(Rogers, Keiling)
(g.1) non-consensual attendence
(g.2) interlock device w/ consent of offender
(h) reasonable conditions courts see desirable (can be creative!)
o focus on rehab and protect community from future offending (Proulx)
o banishment – see Gerry’s notes
731(1) – in deciding whether to order look at:
- age and character of offender
o no risk of offender re-offending no need for probation (Lam)
- nature of offence
- circumstances surrounding commission of offence
It is about rehabilitation not making it more onerous/denunciation (Proulx)
Pre-trial credit
- amount of credit for pre-trial is not included in determining 2 year sentence
of imprisonment rule for use of probation order (Mathieu)
What happens if breach
probation order?
1. maybe nothing
2. maybe variation (if you do commit breach may want to alter conditions) –
732.2(3)
3. may be charged with offence “breach of probation” (733.1)
a. this is punished indictable up to 2 years and summarily up to 18
months, or fine up to $2000 or both
4. if suspended sentence will revoke probation and impose original
conviction and then give sentence that is appropriate for conviction
732.2(5)(d)
Sentencing Corporations
Legislation
S718.21(a) to (j) factors to consider in sentencing corporation
731.1(3.1)(a) to (g)  additional conditions that can be imposed as part of
probation for corporations
731.1(3.1)(f) – “shaming order”  can force corporation to take out an add in
newspaper that shares: “offence convicted of, sentence imposed by court and
measures organization is taking to reduce likelihood of another offence
Mandatory Minimum Sentences Fact Sheet
Context
Canada is out of step globally (doesn’t have an exclusion clause where judges
have judicial discretion to not apply MMS if not appropriate)
“tough on crime” agenda, political
What is wrong with this?
1. fails to reflect proportionality
2. crown/judges might find ways to get around an offence that is too harsh
a. more discretion to crown (soft v hard)
b. shifts discretion from who judge is to who crown is since crown
might charge with different offence to avoid MMS
3. skews sentences
4. disproportionately affects the most marginalized
5. leading to dramatic increase in jail population (b/c of MMS and reduced
credit for time served, less CSO options)
Who does it affect?
-
Constitutional Challenges
ONCA struck down – s95(2) 3 years mandatory minimum for loaded prohibited
firearm
Pre-Trial Credit
Can go below MMS once pre-trial credit is counted
Relationship to CSO
742.1(b) – can’t have CSO for MMS
Consecutive Sentences and
Totality
MM Consecutive Sentences
- s85 w/ mandatory minimum consecutive sentences doesn’t oust courts
ability to impose fit sentence (S(BR))
- don’t want to frustrate intention of parliament but goal is to ensure
aggregate sentence is “just and appropriate”
Procedural issues
gender, race, class etc
people who are policed the most get the most sentences
sentences with MMS are often targeted towards offences likely to affect
marginalized groups (i.e. drug offences)
S727(1) – requires Crown to give notice to offender prior to plea of its intention
to seek a greater MMS based on proof of previous conviction
S24(1) – if there is a charter breach, SCC in Nasogaluak didn’t completely close
the door for a s24(1) remedy in exceptional cases to allow a sentence that goes
below MMS (although it was not allowed in Nasogalauk and MMS of fine was
imposed)
Fact Pattern – figuring out if a sentence is fit
Approach:
1. go to the Code
a. Look at offence sentence first (any rules about summary v indictable;
fine, suspended sentence etc)
b. Part XXIII, general sentencing provisions
2. What do judge’s typically do (range?)
3. individualize sentence based on sentencing principles
Are there any
S727(1) – requires Crown to give notice to offender prior to plea of its intention to seek
procedural issues re: a greater MMS based on proof of previous conviction (these offences are 255-259)
behaviour of Crown? - if no proper notice crown can give prior criminal record anyway and judge can
take into account when sentencing but not bound by mandatory requirement
- what kind of notice is acceptable? Has to be effected before plea, oral notice is ok
but most use written
Any charter rights
breached by police
If severe exceptional misconduct – can potentially give huge reduction under s24(1)
although hasn’t been granted yet (Nasogalauk)
Otherwise charter breaches treated as mitigating factors (Nasogalauk)
What was the
process to get to
sentencing and does
this have an effect?
Trial: vigorous defence is not aggravating factor (Kozy)
Guilty Plea: once give it and judge goes beyond JS can’t withdraw GP
Joint Submission: do not have to follow
What is the offence – - S348.1 “home invasion, occupied dwelling and violence”
any added
- S255.1 “blood alcohol over 0.16”
aggravating factors
- S264 “criminal harassment, peace bond”
to the offence by
- S380.1 “fraud – over $1 million, effect on economy/markets, large number of
feds
victims, or took advantage of high regard”
- S163.1 (4.3) “child porn w/ intent to make profit”
- 718.21 “corporations and organizations – 10 factors!”
- s10(2) CDSA “use of weapon, violence, frequented under 18, traffick to under 18,
previous conviction, involve person under 18”
Any strict –
legislative rules
preventing/imposing
certain sentences
CSO not allowed when
Probation not allowed when
MMS
Driving Prohibitions Mandatory (& Discretionary)
- s253 (over .08) or s254 (refuse breathalyzer)
- s249.4(1) (dangerous driving while street racing
- s249.4(3) and 249.3 (dangerous driving or criminally negligent driving causing
bodily harm while street racing)
- s249.4(4) and s249.2 (dangerous driving or criminally negligent driving causing
death while street racing)
Weapons Prohibitions Mandatory (& Discretionary)
Proportionality
Gravity of offence
- look to AM factors (guidance on appropriate objectives and option) b/c might
point to one objective (denunciation v rehab) or sentencing option (CSO v prison v
probation)
Degree of Responsibility of Offender
- consider moral blameworthiness, what role in bringing offence
What principles of
sentencing at play?
718 Objectives: (a) denunciation, (b) deterrence, (c) separation, (d) rehabilitation, (e) reparation, (f)
acknowledge harm
718.2 Principles: (a) A&M, (b) parity, (c) totality, (d) least restrictive, (e) other than prison
What is aggravating? Codified Aggravating s718.2(a)
-
(i) bias or hate
(ii) abuse of spouse or common law partner
(ii.1) abuse of person under 18
(iii) abuse of authority in relation to victim
(iii.1) significant impact on the victim
o aimed at protecting seniors who had savings wiped out by fraudsters
(iv) organized crime
(v) terrorist
Judicially Recognized
- Previous conviction
- Actual or threatened violence or use of a weapon
- Cruelty or brutality
- Offences while subject to conditions
- Multiple victims or multiple incidents
- Group or gang activity
- Impeding victim’s access to the justice system
- Substantial economic loss
- Planning and organization
- Vulnerability of victim
- Status or role of victim
- Deliberate risk taking
What is mitigating?
-
-
First Time/Youthful Offender
No Prior Record Advanced
Prior Good Character
Guilty Plea
Remorse
Evidence of impairment (Drug, Alcohol, Gambling)
Employment record
Collateral or indirect consequences (Deportation, Injury, Employment)
Post-offence rehabilitation efforts
Unrelated meritorious conduct
Acts of reparation or compensation
Provocation and duress
Charter Breach
Gap in criminal record
Intermediate recidivist
The test case scenario
Disadvantaged background
Single Parent
Adverse Publicity
Mistaken belief in nature of prohibited substance
Rehabilitative Moment
Offender’s Disability
Cooperation with Police