Sentencing

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology University of Toronto
• Pages: 340-363

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1R. v. Gardiner (1982), 68 C.C.C. (2d) 477 at 514 (S.C.C.) [Gardiner].

The Supreme Court has recognized that “sentencing is, in respect of

most offenders, the only significant decision the criminal justice sys-

tem is called upon to make.”1Sentencing in Canada remains largely a

matter of judicial discretion because Parliament frequently defines

offences broadly to cover behaviour of varying degrees of culpability,

and only sets high and infrequently used maximum penalties to limit

the judge’s sentencing discretion. In contrast, many American jurisdic-

tions rely more on statutory gradations of crimes and minimum sen-

tences attached to each degree of any particular crime. Such attempts

to limit sentencing discretion may transfer discretion from the sentenc-

ing judge to the prosecutor, when he or she accepts a guilty plea to a

particular charge.

Sentencing is a discretionary process not only because judges have

few statutory limits, but also because they can emphasize multiple pur-

poses or justifications for punishment. The basic purposes and princi-

ples of sentencing were first outlined in the Criminal Code in 1996. The

fundamental principle of sentencing, as defined in section 718.1 of the

Code, is that the sentence “must be proportionate to the gravity of the

offence and the degree of responsibility of the offender.” This is an

important first principle, owing to the wide variety of conduct that may

be caught by some crimes. For example, a person who planned and exe-

Sentencing

chapter 9

cuted a robbery should receive a more severe sentence than a person

who reluctantly assisted the robbery in some manner. The fundamental

principle of proportionality also counters the danger that a judge might

punish an offender more than the crime deserves because of concerns

about deterrence and future danger. It directs the judge to look back-

wards at the seriousness of the crime and the offender’s role in it.

Nevertheless, the Criminal Code recognizes other concerns as legit-

imate purposes in sentencing. Section 718 provides:

The fundamental purpose of sentencing is to contribute, along with

crime prevention initiatives, to respect for the law and the mainte-

nance 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 com-

munity; and

(f) to promote a sense of responsibility in offenders, and acknowl-

edgement of the harm done to victims and the community.

This provision allows courts to sentence in order to deter the offender

or others from committing crimes in the future; to remove an offender

from society where necessary to prevent future crimes; and to tailor the

punishment to further the rehabilitation of the offender in the future or

the ability of the offender to provide reparations for the harm done to

victims and the community. Concerns about rehabilitation and repara-

tion may also suggest the use of alternatives to imprisonment, such as

probation, restitution, or fines. Different purposes suggest different

sentences. For example, a sentence of imprisonment might be thought

necessary to deter the accused and others from committing a crime, but

it may well not assist in rehabilitating the offender or providing repa-

ration to the victims of crime. Much will depend on what sentencing

purposes a judge believes is most important in any particular case.

In addition to these multiple purposes, Parliament has also codi-

fied some other sentencing principles. The principle of parity in sec-

tion 718.2(b) of the Criminal Code requires that a sentence “should be

similar to sentences imposed on similar offenders for similar offences

committed in similar circumstances.” This is a broad principle of pari-

ty because it focuses not only on the crime committed, but on the

offender and his or her circumstances. Offenders are often found guilty

Sentencing 341