Sentencing

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

472

CHAPTER 11

SENTENCING

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.”1 Sentencing in Canada has traditionally

been a matter of judicial discretion because Parliament frequently de-

f‌ines offences broadly to cover behaviour of varying degrees of culp-

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

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

American juri sdictions rely more on statutory gradations of crimes and

minimum sentences attached to each 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 particular charge. There is a recent trend in Canada

towards the use of more mandatory sentences.

Sentencing is a discretionary process because a judge can empha-

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

poses and principles 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 of-

fender.” This is an important 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 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 backwards at t he 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 mainten-

ance of a just, peaceful and safe society by imposing 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 separate offenders from society, where necessary;

(d) to assist in reh abilitating offenders;

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

munity; a nd

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

ledgement of the harm done to victims and the communit y.

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 necessar y 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 rep-

aration 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

reparation to the victims 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 greatest weight, given

the particulars of the case.”2

In addition to these multiple purposes, 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].