Sentencing

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology. University of Toronto
• Pages: 413-438

413

CHAPTER 11

SENTENCING

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

most offenders, the only signif‌icant decision the criminal justice system

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

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 senten-

cing 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 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 prin-

ciples of sentencing were f‌irst outlined in the Criminal Codein 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

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

CRIMINAL LAW414

executed 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 fundament al purpose of sentencing is to contribute, along with

crime prevention initiative s, to respect for the l aw and the mainten-

ance of a just, pe aceful and s afe society by imposing just sanctions

that have one or more of the following object ives:

(a) to denounce unlawful conduct;

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

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

(d) to assist in rehabilitating offenders;

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

munity; and

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

ledgement of the harm done to victims and the com munity.

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 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 rep-

aration 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 parity

because it focuses not only on the crime committed, but also on the of-

fender and his or her circumstances. Offenders are often found guilty of

two or more offences at one time and section 718.2(c) codif‌ies the total-