Sentencing

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

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CHA PTER 11

SENTENCING

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

most offenders, the only signif‌icant decision the criminal justice system

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

a matter of judicial discretion because Parliament frequently def‌ines

offences broadly to cover behaviour of var ying degrees of culpability

and only set s 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 par ticular crime. Such attempts

to limit sentencing di scretion may tran sfer discretion from the senten-

cing judge to t he prosecutor, when he or she accepts a g uilty plea to a

particular ch arge. 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 just if‌ications for punishment. The basic purposes and prin-

ciples of sentencing were f‌irst outlined in the Criminal Code in 1996.

The fund amental principle of sentencing, as def‌ined in section 718.1

of the Cod e, is t hat the sentence “must be proportionate to the g ravity

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

an important f‌irst principle, ow ing 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].

CRIMIN AL 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 des erves bec ause of concerns

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

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

Nevertheless, the Criminal Code recognizes other concerns as legit-

imate purposes i n sentencing. Section 718 provides:

The fundament al purpose of sentenc ing is to contribute, along with

crime prevent ion 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 unla wful conduct;

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

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

(d) to assist in rehabi litating offenders;

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

munity; and

(f) to promote a sense of responsibi lity in offenders, and ac know-

ledgement of the harm done to v ictims and the com munity.

This provision al lows courts to sentence in order to deter the offender

or others from committing cr imes in the f uture; 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 har m done

to victims a nd the community. Concerns about rehabilitat ion and rep-

aration may also sug gest the use of alternat ives to imprisonment, such

as probation, restitution, or f‌ines. Different purpos es 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 as sist in rehabilitating the offender or providing rep-

aration to the victims of crime. Much w ill depend on what sentencing

purposes a judge believes is most important in any par ticular cas e.

In addition to these multiple pur poses, Parliament has also codi-

f‌ied some other sentencing principles. The pr inciple of parity i n sec-

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

similar to sentences imposed on simila r 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-