Sentencing

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology.University of Toronto
• Pages: 472-500

472

CH AP TER 11

SENTENCING

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

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

tem is called upon to make.”1 Sentencing in Canada has traditionally

been a matter of judicial discretion because Parliament frequently de-

f‌ines offences broadly to cover behaviour of var ying degrees of culp-

ability and has general ly set only high and infrequently used maxi mum

penalties to lim it the judge’s sentencing discretion. In contrast, many

American juri sdictions rely more on statutory gradations of crimes and

minimum sentences attached to e ach degree of any particular crime.

Such attempts to limit sentencing discretion may transfer discretion

from the sentencing judge to the prosecutor, when he or she accepts

a guilty plea to a part icular charge. There is a recent trend in Canada

towards the use of more mandator y sentences.

Sentencing is a discret ionary process because a judge can empha-

size multiple purposes or justif‌ications for punishment. The basic pur-

poses and principles of sentencing were f‌i rst 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 t he degree of responsibility of the of-

fender.” This is an importa nt f‌irst principle, owing to the wide variety

of conduct that may be caught by some crimes. For example, a per-

son who planned and executed a robbery should receive a more severe

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

Sentencing 473

sentence than a person who reluctantly a ssisted 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 backwards at t he seriousness of the crime and

the offender’s role in it.

Nevertheless, the Criminal Code recognize s other concerns as legit-

imate purposes i n sentencing. Section 718 provides:

The fundamental pu rpose of sentencing is to cont ribute, along with

crime prevention init iatives, to respect for the l aw and the mainten-

ance of a just, peacefu l and safe society by imposi ng just sanctions

that have one or more of the following object ives:

(a) to denounce un lawful conduct;

(b) to deter t he offender and other persons from committi ng offences;

(c) to sep arate offenders from society, where necessa ry;

(d) to assist in reh abilitating offenders;

(e) to provide reparations for harm done to vict ims or to the com-

munity; a nd

(f) to promote a sense of respons ibility in offenders, and acknow-

ledgement of the harm done to v ictims and the communit y.

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

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

from society where necessar y to prevent future crimes; and to tailor the

punishment to further t he rehabilitation of the offender in the future

or the ability of the offender to provide reparations for the har m done

to victims and the community. Concerns about rehabilitation and rep-

aration may also suggest the use of alternatives to impri sonment, such

as probation, restitution, or f‌ines. Different purposes suggest different

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

necessary to deter t he accused and others from committing a cr ime,

but it may well not assist in rehabilitating the offender or providing

reparation to the victim s of crime. Much will depend on what senten-

cing purposes a judge believes are most important in any particular

case and the Supreme Court has observed that “[n]o one sentencing

objective trumps the others and it falls to the sentencing judge to de-

termine which objective or objectives merit the gre atest weight, given

the particula rs of the case.”2

In addition to these multiple purpose s, Parliament has also codif‌ied

some other sentencing principles. The principle of parity in section

2 R v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at para. 43 [Nasogaluak].