AuthorKent Roach
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
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

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