Sentencing
| Author | Kent Roach |
| Pages | 535-572 |
535
CH AP TER 11
SENTENCING
The Supreme Court has recognized that “sentencing is, in respect of
most oenders, the only significant decis ion the criminal justice system
is called upon to make.”1 Sentencing in Canada has t raditionally been
a matter of judicial discretion because Parliament frequently defines
oences broadly to cover behaviour of vary ing degrees of culpabil-
ity and has generally set only high and infrequently used maximum
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 they accept a guilty
plea to a particular charge. 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 dow n such mandatory sentences
on the basis that they can be grossly disproportionate in some ca ses
and thus violate the right against cruel and unusual punishment under
section 12 of the Charter.
Sentencing is a discretionary 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 wit h
respect not only to facts but also to the emphasis that is placed on
specific sentencing purposes. The basic purposes and principles of
1 R v Gardiner, [1982] 2 SCR 368 at 414 [Gardiner].
CR IMIN AL LAW536
sentencing were first outlined in the Criminal Code in 1996. The funda-
mental principle of sentencing, as defined in section 718.1 of the Code,
is that the sentence “must be proportionate to t he gravity of the oence
and the degree of responsibility of the oender.” This is an important
first principle, owing to the w ide variety of conduct that may be caught
by some crimes. For example, a person who planned and executed a
robbery should receive a more severe sentence than a person who reluc-
tantly assi sted the robbery in some manner. The fundamental principle
of proportionality also counters t he danger that a judge might punish
an oender more than the crime deserves because of concerns about
deterrence and future danger. It directs the judge to look backward s at
the seriousness of the cr ime and the oender’s role in it as well as at the
oender’s mora l blamewort hiness or responsibility.
The Supreme Court has stated, “the principle of proportionality i s
so fundamental that it has a constitutional dimension under s. 12 of
the Char ter, which forbids the imposition of a sentence that is so grossly
disproportionate as to be incompatible with human dignity.”2 The Court
has struck down a significant number of mandatory minimum penal-
ties as grossly di sproportionate and as a violation of the right again st
cruel or unusual punishment under section 12 of the Charter. These
penalties include the seven-year m andatory minimum for importing
any amount of narcot ics,3 three- and five-year mandatory minimums
for gun oences,4 mandatory fine surcharges of $100 or $200,5 and the
ability of a judge to make multiple murderers ineligible for parole for
twenty-five years for each victim k illed.6 The Court has yet to accept that
a sentence that violates section 12 of the Charter can be justified as a
reasonable limit under section 1 for socia l objectives such as deterrence.
At the same time, the Criminal Cod e recognizes concerns other th an
achieving proportionalit y between a crime and punishment as leg itim-
ate purposes in sentencing. Section 718 provides:
The fundamental pur pose of sentencing is to protect so ciety and to
contribute, along with c rime prevention initiatives, to res pect for the
law and the mai ntenance of a just, peaceful and sa fe society by impos-
ing just sanctions t hat have one or more of the following objectives:
(a) to denounce unlawfu l conduct and the harm done to victims or to
the community th at is caused by unlawful conduct;
6 Bisonnette, above note 2.
Sentencing 537
(b) to deter t he oender and other persons from committin g oences;
(c) to separate oenders from societ y, where necessary;
(d) to ass ist in rehabilitating oenders;
(e) to provide repar ations for harm done to victim s or to the com-
munity; a nd
(f) to promote a sense of respon sibility in oenders, and acknowledge-
ment of the harm done to vict ims or to the community.
This provision allows courts to sentence in order to deter the oender
or others from committing cri mes in the future; to remove an oender
from society where necessar y to prevent future crimes; and to tailor the
punishment to further t he rehabilitation of the oender in the future or
the ability of the oender to provide reparations for the harm 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.
Dierent purposes sug gest dierent sentences. For example, a
sentence of imprisonment might be thought necessa ry to deter the
accused and others from committing a crime, but it may well not assist
in rehabilitating t he oender or providing reparation to the victims of
crime. Much will depend on what sentencing pur poses a judge believes
are most important in any particular case and t he Supreme Court has
observed that “[n]o one sentencing objective trumps the others and it
falls to the sentencing judge to determine which objective or objectives
merit the greatest weight, given the particulars of the case.”7
In addition to these multiple purpose s, Parliament has also codified
some other sentencing principles. The principle of parity in section
718.2(b) of the Criminal Code requires th at a sentence “should be similar
to sentences imposed on simil ar oenders for similar oences commit-
ted in similar ci rcumstances.” This is a broad principle of parity because
it focuses not only on the crime committed, but al so on the oender and
their circ umstances.
Oenders are often found guilty of two or more oences at one time
and section 718.2(c) codifies the totality principle by in structing judges
that where consecutive sentences are impo sed, “the combined sentence
should not be unduly long or harsh.” Absent specific statutory direction
to the contrary,8 Canadian judges h ave the discretion to allow oenders
to serve separate sentences on a concurrent basis, a matter that has led
8 Criminal Code, RSC 1985, c C-46, s 718.3 [Code]. Even when sentence s have
to be served con secutively, the overall sentence should not be e xcessive: R v
Khawaja, [2012] 3 SCR 555 at para 126.
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