Modèle:SentencingBrief PART IV

PART IV: GENERAL SENTENCING PRINCIPLES

(e)

[X] The exercise of sentencing an offender is one of determining a fit and proper sentence for the particular offender. This process requires a high degree of individualizing and tailoring of the sentence to fit the particular accused. Accordingly, the process must be flexible.

[X] Justice LeBel in R v LM, [2008] 2 SCR 163, 2008 SCC 31 (CanLII) gives some recommendation on the proper approach (para. 17):

[17] Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge’s competence and expertise. The trial judge enjoys considerable discretion because of the individualized nature of the process (s. 718.1 Cr. C.; R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46 (CanLII), at para. 22; R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5 (CanLII), at para. 82). To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code:

- the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment of and reparations for the harm they have done (s. 718 Cr. C.) (see Appendix);

- the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 Cr. C.); and

- the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (s. 718.2 Cr. C.).

A. Purpose and Principles of Sentencing

[X] The objective of a sentencing judge, framed most broadly, is to ensure that the sentence ordered is "just and appropriate". A just and appropriate sentence is one that satisfies the fundamental purposes of a sentence as laid out by the Criminal Code. Section 718 states the fundamental purpose of sentencing is as follows:

Purpose

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

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

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6

[X] There will be heightened importance and emphasis on particular objectives for any particular case. No single objective can ever trump another completely. These objectives must be weighed against each other in light of what the court would consider the optimal way to protect the local community (see R v Nasogaluak, [2010] 1 SCR 206).

B. Rehabilitation

[X] The principle of rehabilitation is relevant in all sentencing and remains one of the main objectives of the process. As Justice Wagner (as he was) stated in R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089, at para 4:

One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.

C. Proportionality

[X] The principle of proportionality is of such importance that it was codified in s. 718.1 as the fundamental principle to the sentencing process. The section states:

Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
R.S., 1985, c. 27 (1st Supp.), s. 156; 1995, c. 22, s. 6.

The importance proportionality plays in the sentencing process is justified on the basis that a just sentence is necessarily one that is proportionate to the gravity of the offence and the responsibility of the offender. In R v Ipeelee, 2012 SCC 13 (CanLII) at para 37 Justice Lebel explained the role proportionality:

[37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 533:

It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

D. Parity

[X] Section 718.2(b) directs that sentencing judges must ensure that the accused's sentence "be similar to sentences imposed on similar offences committed in similar circumstances;". This is the principle of parity and is usually addressed through consideration of the range of past sentences where similar offenders have committed similar offences in similar circumstances. The Court should also be sensitive to the particular needs of the local community (see Nasogaluak, Lacasse).

[X] The purpose behind the principle is to ensure fairness as between similarly situated cases. It does not, however, override the individualized nature of sentencing, nor does it prohibit considerable disparity between accused so long as the sentence ordered is proportionate to the gravity of the offence and moral culpability of the offender. (see R v CAM, [1996] 1 SCR 500) Proportionality should generally prevail over parity (see R v Lacasse, [2015] 3 SCR 1089 at para 92). Accordingly, review of prior sentencing case law can be of assistance and may even provide a shortcut to calibrating the right sentence, but in all cases, the ultimate sentence must be justified as proportionate, first and foremost.

E. Restraint

[X] The principle of restraint is codified in both s. 718.2(d) and (e), stating that:

718.2...

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; 2012, c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16.

[X] The principle ensures that sentences are just and fair in the eyes of the public by imposing upon courts a duty to limit the use of incarceration by ensuring that courts consider the least intrusive sentence that achieves the necessary sentencing objectives and only uses incarceration as an option of last resort.

F. Concurrent vs Consecutive Sentences [assuming multiple offences charged]

where

[X] Section 718.3(4)(b) grants sentencing judges the discretion to determine whether to order the sentences for multiple offences before them be served concurrently or consecutively to each another. It states as follows:

781.3...
Cumulative punishments
(4) The court that sentences an accused shall consider directing

(a) that the term of imprisonment that it imposes be served consecutively to a sentence of imprisonment to which the accused is subject at the time of sentencing; and
(b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, including when

(i) the offences do not arise out of the same event or series of events,

(ii) one of the offences was committed while the accused was on judicial interim release, including pending the determination of an appeal, or

(iii) one of the offences was committed while the accused was fleeing from a peace officer.

[X] It is submitted that ...

G. Totality (assuming multiple offences charged]

[X] The sentencing principle of totality is designed to prevent the ordering of "unduly long or harsh" sentences that result from the combination of consecutive sentences in the course of the sentence calculation. The principle is founded and guided in the principle of proportionality which requires that the global sentence remains proportionate to the gravity of the offence and the degree of responsibility of the offender. (see R v Hutchings, 2012 NLCA 2 (CanLII))

[X] This common law principle of totality was codified into s. 718.2(c) of the Code as a mandatory sentencing consideration:

Obligations of court
718.2 A court that imposes a sentence shall also take into consideration the following principles:...
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;...

[X] On a given case, the sentencing judge should consider factors including:

• the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved;
• the number and gravity of the offences involved;
• the offender’s criminal record;
• the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing;
• such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender’s degree of responsibility.

[X] Should the combined sentence prove to be excessive, the sentencing judge must then determine "the extent to which the combined sentence should be reduced to achieve a proper totality". This can be done by altering the sentence for individual counts to run concurrently rather than consecutively, or simply reduce the length of individual sentences.

[X] In making the necessary changes to the sentence, the sentencing judge must be mindful to identify:

• the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, without considerations of totality;
• the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and
• the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are, for this purpose, to be made concurrent or to be otherwise reduced.

[X] In our case, it is submitted that ...