Dénonciation et dissuasion

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Cette page a été mise à jour ou révisée de manière substantielle pour la dernière fois January 2020. (Rev. # 2618)

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General Principles

Purpose

718 The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

[omis (c), (d), (e) and (f)]
R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6; 2015, c. 13, s. 23.

– CCC (CanLII), (Jus.)

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It is generally considered that as the gravity of the offence increases the weight to the objectives of deterrence and denunciation increase.

Effect Upon Law-abiding vs Chronic Offenders

Denunciation and deterrence are particularly important in sentencing law-abiding offenders as harsh sentences will have a greater effect on those who are otherwise law-abiding when compared to chronic offenders.

Consequence of Emphasis on Denunciation and Deterrence

When an offence requires priority on denunciation and deterrence, the judge must place greater focus on the offence rather than the offender. The purpose is to "better reflect the gravity and wrongfulness of the conduct and the serious harm it causes."

Denunciation and Deterrence of an Intermittent Sentence

The intermittently served jail sentence "strikes a legislative balance" between the objectives of denunciation and deterrence while preserving rehabilitation through the maintenance of employment, family relationships and responsibilities, and community obligations.

Denunciation - 718(a)

Section 718(a) sets out the sentencing objective of "denounc[ing] unlawful conduct". Denunciation refers to the Court's "communication of society's condemnation of the offender's conduct." The "denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law."

The denunciatory sentence must also "positively instill the basic set of communal values shared by all Canadians as expressed by the Criminal Code."

Offences with Planning, Vulnerable Victims, or Media Attention

Denunciation becomes a major consideration in situations where "there is a “high degree of planning and premeditation, and where the offence and its consequences are highly publicized, [so that] like‑minded individuals may well be deterred by severe sentences” [citation omitted] This is particularly so where a victim is a vulnerable person with respect to age, disability, or other similar factors."

Retribution

Retribution is an important consideration in sentencing. It is a principle of sentencing "based on an offender's moral blameworthiness or culpability, and the seriousness of the offence and its circumstances."

Denunciation should not be equated with retribution which is a separate legitimate purpose of sentencing. Nor should retribution be equated with vengeance.

Symbolism and Impossible Sentences

The "symbolism" of denunciation cannot be an objective "in and of itself". Consequently, sentences that exceed the persons "foreseeable life serve no functional purpose" and are "purely symbolic."

Character Evidence

It is generally said that character evidence, including that from uncharged-offences, is usually only connected to specific deterrence and not denunciation.

Incarceration Not Necessarily Required

In any case emphasizing "general or specific deterrence and denunciation", "the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law‑abiding society."

The principles of denunciation and deterrence can sometimes be satisfied without incarceration. One of these circumstances is where the publicity of the case provides for public humiliation.

Conditional Sentence

Where denunciation is a paramount consideration a conditional sentence is not necessarily ruled out.

A conditional sentence under s. 742.1 that includes "onerous" conditions may provide some denunciation but incarceration will generally provide greater denunciation.

Deterrence - 718(b)

Deterrence "refers to the imposition of a sanction for the purpose of discouraging the offender and others from engaging in criminal conduct." When it is targeting the offender in court, it is referred to as "specific deterrence", when it is targeting others, it is "general deterrence."

Section 718(b) sets out the objectives of "deter[ing] the offender and other persons from committing offences" We refer to these as the twin objectives of "general deterrence" and "specific deterrence".

Deterrence in the "widest sense" refers to a "sentence by emphasizing community disapproval of an act and branding it as reprehensible has a moral or educative effect and thereby affects the attitude of the public" with the expectation that a person will not likely commit such an act.

Usually Results in Imprisonment

In any case emphasizing "general or specific deterrence and denunciation", "the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law‑abiding society."

Law's Recognition of Deterrent Effects

It is "an error of principle for a trial court to discount the deterrent effect of any particular kind of punishment provided for in the Criminal Code, such as imprisonment, because he or she believes that imprisonment has not proven effective."

There continues to be controversy outside of the courts about whether deterrence is effective. Some have suggested that the availability of conditional sentences is an concession that general deterrence is "speculative."

Deterrence and Conditional Sentences

Given that incarceration is harsher than a conditional sentence it is considered more effective at providing deterrence.

It has been said that conditional sentences are not necessarily capable of providing general deterrence. This is apparent due to the frequency that CSO are rejected on serious offences.

For a conditional sentence to achieve the goals of "denunciation and general deterrence, the punishment must be meaningful by being visible, sufficiently restrictive, enforceable and capable of attracting stern sanction for failure to comply with the conditions."

Specific Deterrence

Specific deterrence targets the specific offender before the court.

The character and background of the offender, including prior bad conduct, is relevant to analysis for specific deterrence.

Character evidence is admissible to assess the danger to the community while serving the sentence.

Still Must be Proportionate

It is an error of law for a judge to increase the sentence to achieve specific deterrence without considering whether the sentence is still proportionate.

Community Sentences as Deterrence

There is some suggestion that a community-based sentence, including CSO and probation, with stringent terms, can have deterrent effects.

Prior Criminal Record

Judges must avoid punishing an accused again for previous convictions.

However, a record can be used to determine the "normative character of the accused" and may be viewed as aggravating. It is also used to assess how the protection of the public can be best achieved and what are the prospects of rehabilitation.

General Deterrence

General deterrence targets potential criminals by encouraging them not to "engage in criminal activity because of the example provided by the punishment imposed on the offender." The objective of general deterrence as a factor will normally result in the offender being “punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity.”

Restraint When Increasing Sentence

When general deterrence is emphasized, the deterrent effect of incarceration can be somewhat speculative and so should be used with great restraint. A lengthy sentence is not the only way of achieving the objective of general deterrence.

A court cannot impose a "grossly disproportionate" sentence for the purpose of sending "send a message to discourage others from offending."

Offences of Desperation or Addiction

Crimes committed out of desperation or addiction, such as much drug trafficking, are not offences for which general deterrence has much effect.

Offences of Greed

Crimes motivated by profit, which can also be drug trafficking, will be addressable by general deterrence.

Offences Against Vulnerable Populations

Offences against recognized classes of vulnerable victims require the Courts to heighten their emphasis on general deterrence.

Vulnerable classes have included young female victims of distribution of intimate images.

Character Evidence

It is generally said that character evidence, including that from uncharged-offences, is usually only connected to specific deterrence and not general deterrence.

General Deterrence Without Custody

In some cases, the use of a suspended sentence, with the risk of jail on breach of conditions can provide general deterrence.

Publicity

The degree to which the case is covered by media is relevant to general deterrence. Where there is no publicity of the case at all then there can be no general deterrence.