Sentencing

• Author: Kent Roach
• Pages: 514-545

514

CH AP TER 11

SENTENCING

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

most offenders, the only signif‌icant deci sion the criminal justice system

is called upon to make.”1 Sentencing in Canada has t raditionally been a

matter of judicial discret ion because Parliament frequently def‌ines of-

fences broadly to cover behaviour of vary ing degrees of culpability and

has generally set only high and infrequently used maxi mum penalties

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

jurisdictions rely more on statutory g radations of crimes and min-

imum sentences attached to each degree of any pa rticular crime. Such

attempts to limit sentencing di scretion may transfer discret ion from

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

plea to a particular ch arge. There is a recent trend in Canada towards

the use of more mandatory sentences, t hough the Supreme Court has

been increasingly w illing to strike down such mandatory sentences on

the basis th at they can be grossly disproportionate in some cases and

thus violate the right again st cruel and unusual punishment under sec-

tion 12 of the Charter.

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

size multiple purposes or justif‌ications for punishment, and appellate

courts have stressed the wide latitude given to sentencing judges not

only with respect s to facts but the emphasis that is placed on specif‌ic

sentencing purposes. The basic purposes and principles of sentencing

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

Sentencing 515

were f‌irst outlined in the Criminal Cod e in 1996. The fundamental prin-

ciple 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 t he offender.” This is an important f‌irst pr in-

ciple, owing to the wide variety of conduct that m ay be caught by some

crimes. For example, a person who planned a nd executed a robbery

should receive a more severe sentence than a person who reluctantly

assisted the robber y in some manner. The fundamental principle of

proportionality also counters t he danger that a judge might punish an

offender more than the crime des erves because of concerns about de-

terrence and future danger. It directs the judge to look backwards at

the seriousness of the cr ime and the offender’s role in it as well as the

offender’s mor al blameworthiness or respons ibility.

Nevertheless, the Criminal Code recognizes 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 mainte-

nance of a just, peacef ul and safe society by impo sing just sanctions

that have one or more of the following object ives:

(a) to denounce unlawfu l conduct and the harm done to victims or to

the community th at is caused by unlawful conduct;

(b) to deter t he offender and other persons from committ ing 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 re sponsibility in offender s, and acknowl-

edgement of the harm done to v ictims a nd the community.

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 ha rm done to

victims and the community. Concerns about rehabilitation and repara-

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

probation, restitution, or f‌ines.

Different purposes suggest different sentences. For example, a sen-

tence of imprisonment might be thought necessa ry to deter the accused

and others from committing a cr ime, but it may well not assist in re-

habilitating the offender or providing reparation to the victims of crime.

Much will depend on what sentencing purposes a judge believes are

CR IMIN AL LAW516

most important in any particular case and the Supreme Court has ob-

served that “[n]o one sentencing objective trumps t he others and it

falls to the sentencing judge to determine which objective or objectives

merit the greatest weight, given the particulars of the ca se.”2

In addition to these multiple purpose s, 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 i mposed on similar offenders for similar offences

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

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

offender and his or her circumsta nces.

Offenders are often found guilty of two or more offences at one time

and section 718.2(c) codif‌ies the totality pri nciple by instructing judges

that where consecutive sentences are imposed, “the combined sentence

should not be unduly long or harsh.” Absent specif‌ic statutory direc-

tion to the contrary,3 Canadian judges have the discretion to allow of-

fenders to serve separate sentences on a concurrent basis, a matter that

has led to controversy in some circles. Section 718.21 sets out specif‌ic

factors that are to be taken i nto consideration in the sentencing of cor-

porations and other organizations.

Sections 718.2(d) and (e) codify the principle of restraint in pun-

ishment by instruct ing judges not to deprive the offender of liberty

“if less restr ictive sanctions may be appropriate in the circumstances”

and to consider “all available sanctions other t han imprisonment that

are reasonable in t he circumstances and consi stent with the harm

done to victims or to the community should be considered for all of-

fenders, with particular attention to the circum stances of aboriginal

offenders.” Canada has one of the highest rates of imprisonment of in-

dustriali zed countries as well as gross overrepresentation of Indigen-

ous people in prison.4 These principles, as well as a broad array of

2 R v Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206 at para 43 [Nasogalu ak].

3 Criminal Code, RSC 1985, c C-46, s 718.3 [Code]. Even when sentences have t o

be served con secutively, the overall sentence should not be exc essive: R v Kha-

waja, [2012] 3 SCR 555 at para 126.

4 The Supreme Court has obs erved that “although the Unite d States has by far

the highest rat e of incarceration among indust rialized democrac ies, at over

600 inmate s per 100,000 population, Canad a’s rate of approximately 130 per

100,000 population pla ces it second or third highest .” R v Gladue (1999), 133

CCC (3d) 385 at 406 (SCC) [Gladue]. It also noted that in 1997, Aboriginal

people constituted 12 p ercent of federal inmates but only 3 p ercent of the total

population and t hat they constituted the major ity of prisoners in provi ncial

institution s in Manitoba and Saskatc hewan. In 2015–16, Indigenous people

including Fir st Nations, Inuit, and Metis people repre sent 28 percent of admiss ions