Sentencing

• Author: Kent Roach
• Pages: 535-572

535

CHAPTER 11

SENTENCING

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

most oenders, the only signif‌icant decis ion 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

oences broadly to cover behaviour of varying 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, though the Supreme Court has

been increasingly willing to strike down such mandatory sentences

on the basis that they can be grossly disproportionate in some cases

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 with

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].

CRIMIN 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 oence

and the degree of responsibility of the oender.” 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 the danger that a judge might punish

an oender more than the crime deserves because of concerns about

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

the seriousness of the cr ime and the oender’s role in it as well as at the

oender’s moral blameworthiness or responsibility.

The Supreme Court has stated, “the principle of proportionality is

so fundamental that it has a constitutional dimension under s. 12 of

the Charter, 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 disproportionate and as a violation of the right against

cruel or unusual punishment under section 12 of the Charter. These

penalties include the seven-year mandatory minimum for importing

any amount of narcotics,3 three- and f‌ive-year mandatory minimums

for gun oences,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 proportionality between a crime and punishment as legitim-

ate purposes in sentencing. Section 718 provides:

The fundamental purpose of sentencing is to protect society 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;

2 R v Bisonnette, 2022 SCC 23 at par a 52 [Bisonette] [emphasis i n original].

3 R v Smith,[1987] 1 SCR 1045.

4 R v Nur, 2015 SCC 15 [Nur].

5 R v Boudreault,2018 SCC 58 [Boudreault].

6 Bisonnette, above note 2.

Sentencing 537

(b) to deter t he oender and other persons from committin g oences;

(c) to separate oenders from societ y, where necessary;

(d) to ass ist in rehabilitating oenders;

(e) to provide reparations for harm done to victims or to the com-

munity; a nd

(f) to promote a sense of respon sibility in oenders, 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 oender

or others from committing crimes in the future; to remove an oender

from society where necessar y to prevent future crimes; and to tailor the

punishment to further t he rehabilitation of the oender in the future or

the ability of the oender to provide reparations for the harm done to

victims and the community. Concerns about rehabilitation and repara-

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

probation, restitution, or f‌ines.

Dierent purposes suggest dierent 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 oender 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 the 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 similar oenders for similar oences 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 oender and

their circumstances.

Oenders are often found guilty of two or more oences 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 oenders

to serve separate sentences on a concurrent basis, a matter that has led

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

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.