Provide reparations for harm done to victims and the community
Promote a sense of responsibility in offenders, as well as acknowledgement of harm done to victims/community
There’s a temporal gap between the finding of guilt and sentencing. This allows for the introduction of new evidence that may affect the sentencing. Sentencing can be done immediately also, but only when it is a relatively simple matter.
If the crown wants to prove aggravating factors, they must do so beyond a reasonable doubt. Mitigating factors must be proven by the defence on a balance of probabilities. Crown and defence can make different submissions as to the range of sentence. They can also make a joint submission, often after a plea bargain (plead guilty and we will recommend a specific sentence). In the vast majority of cases, the joint submission is accepted.
Evidence may include letters of support, victim impact statements, psychiatric assessments, academic reports, and so on. When making recommendations about a sentence, start with the code and find out the spectrum of sentences you are dealing with.
What is the maximum penalty? For crimes with life sentences for crimes other than murder, maximum is life with no parole for at least 7 years.
What is the minimum penalty? Most provisions have no minimum. Even if there is no minimum specified, there may be other provisions that limit sentencing. At the absolute lowest end there is the possibility of absolute/conditional discharge. There is the possibility of probation or suspended sentence, there is the possibility of a fine, also a conditional sentence provision (house arrest). There are provisions that place limits on these types of sentences. You need to check the parts of the code that create these types of sentences.
Where there are multiple possible penalties, the Charter dictates that the accused is entitled to the lesser.
From this point, you need to narrow the range to what is appropriate for your particular case. So you look to factors that take into account moral blameworthiness and the circumstances of the offender. The key principle is proportionality, s 718.1. This means that 2 people that did exactly the same thing could be sentenced differently. You also look to cases and sentencing.
The sentence may also take into account time in custody waiting for the trial. Credit used to be granted on a 2 for one basis. In Canada we take the approach that we should look to the global sentence that is appropriate. There are some circumstances, however, where sentences run consecutively (usually where something is added to the offence, such as resisting arrest or obstructing justice). Usually, however, the court takes into account all offences and comes up with a global sentence that it feels is appropriate.
Non-custodial sentences
Discharge (s 730)
Probation (s 731)
Fine (s 734) [not typical where someone is injured. Not to the victim, just to general revenue]
Conditional sentence (s 742) [house arrest, only if court is satisfied no danger to public, there is no minimum sentence, no maximum of 14 years or life, and not a terrorism offence, sexual assault, etc.]
Courts can only pick two of the last three.A discharge is not available when max sentence is for life.
SWEENEY is a case of criminal negligence causing death/failing to remain at the scene of an accident. This is a sentence appeal. The court sits with 5 justices. This is unusual, because usually only 3 judges sit. When they sit with 5, the court is basically saying that they may be taking a new direction and overturning previous decisions. They are looking to establish precedent. The reason for that is that there was public concern that impaired driving cases were not attracting high enough sentences. And judges can be trapped by precedent… if all past cases fall in the low end of the spectrum, it can be hard to shift the range of sentences. The 4 judges writing for the majority do not end up doing this, as it turns out they like where the spectrum already was.
R v SWEENEY [1992] BCCA
FACTS
A is stopped by officer. Refuses to open window. A chase ensues, hit another car. Traveling at 135 km/h. blood alcohol is very high. Kills the other driver. After the accident, he runs away on foot. Victim of the offence is not just the direct victim, but also family members. The sister’s victim impact statement is particularly compelling.
The offender had a troubled childhood: physical disfigurement, addiction issues, low self-esteem, recently stopped drinking and this represents an isolated relapse, young man, no criminal record, but driving offences are there.
RULING
Sentence given at trial was 4.5 years for criminal negligence causing death and an additional 6 months for fleeing the scene (consecutive) and 6 month (concurrent) for impaired driving.
On appeal, the majority says that 2 years less a day is the correct sentence. Keeps him in provincial penitentiary. Says that the TJ was wrong to say that 5 years is the starting point for impaired driving offences causing death.
Justice Wood concurs, but writes his own reasons. Says that they should have taken the opportunity to deal with sentencing. He also takes the unpopular position that there is sort of an ambivalent attitude towards drinking and driving (don’t set the blood alcohol level at 0), and we accept some risk as a society. Also, you don’t know exactly where the cut off is because we do not know when we hit that level. Also makes the point that the criminal justice system isn’t the place to solve social problems like chronic alcoholism. Also makes the controversial claim that the moral blameworthiness is the same whether or not you kill someone or not. Also says that we should reject the principle of retribution in sentencing. What follows is that victim impact statements would have little or no weight.
A convicted of manslaughter, challenges constitutionality of mandatory minimum sentences under s 12 of the Charter.
RULING
There is no basis for concluding that the fouryear minimum sentence prescribed by Parliament amounts to cruel and unusual punishment on the facts of this case. In the absence of any s. 12 violation, the trial judge’s proper course in the circumstances was to apply the fouryear minimum sentence.
RATIO
Mandatory minimum sentences are constitutional.
MAXIMUM SENTENCES
R v M(L) [2008] SCC
FACTS
The respondent, L.M., was convicted of sexually assaulting his daughter and of making, distributing and possessing child pornography. The trial judge imposed the maximum sentence on him for the count of sexual assault and a consecutive sentence for the counts of making, distributing and possessing child pornography. She also found him to be a long term offender and ordered him to be supervised in the community for a period of 10 years. L.M. appealed the sentence to the Court of Appeal. The majority of that court allowed the appeal and reduced the global sentence imposed by the trial judge.
RULING
Court reinstates the sentence. The maximum sentence cannot be reserved for the abstract case of the worst crime committed in the worst circumstances. The TJ’s decision will continue to be dictated by the fundamental principle that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (s. 718.1 Cr. C.). Proportionality will be achieved by means of a “complicated calculus” whose elements the trier of fact understands better than anyone.
RATIO
Maximum sentences are not reserved for the worst offender, but are based on the TJ’s proportionality analysis and need only be reasonable.
Appellate courts are not to interfere with the decision of the sentencing judge unless an error in principle is present or the sentence is unfit.
“Specific deterrence”: if you commit the offence, you go to jail. Linked with notion of incapacitation, as the A won’t be able to commit the offence they were sentenced for while in lock up.
“General deterrence”: making public example will curb intention of future offenders.
Based on the evidence, it’s not clear that that our current sentencing regime achieves either of these goals, especially in the context of Aboriginal offenders. Canada has very high rates of incarceration compared to other western countries beyond the United States. The 1997 sentencing reforms were designed to address this issue:
House arrest was instituted as a result.
Explicitly recognized restorative justice.
These reforms were at odds with public perception that judges are soft on crime.
R v GLADUE [1999] SCC
FACTS
The A was convicted of murdering spouse. Evidence she cut him on arm, fled the apartment and stabbed him. The A was highly intoxicated at time of incident and was an alcoholic. Killing was the culmination of physical altercation b/w them. TJ rejects notion A is a battered spouse, as the facts were unsympathetic to A. A charged with murder, pleads guilty of manslaughter, and is sentenced to 3 years in jail. TJ Judge places no reliance on fact A identifies as Aboriginal woman. Focuses on fact she didn’t live in an AB community as support for the decision not to consider her AB heritage as a factor in sentencing.
RULING
SCC finds this is an error in principle, because of the disproportionality of Aboriginal incarceration and offenders, which is even greater for women than men. Why? Systemic factors stemming from colonialism have resulted in depressed socio-economic outcomes which have resulted in higher rates of offending; racism; age of communities [more young people in high risk lifestyles]; over-policing targeted at AB people; evidence that AB people are sentenced differently (less likely to give bail, for example. Sometimes court requests surety, someone to cover the debt if the A defaults, which is not always possible for $ reasons and because a surety cannot have criminal record).
RATIO
Sentencing aboriginal offenders considers the unique systemic or background factors of particular aboriginal offender; sentencing procedures and sanctions appropriate in the circumstances for the offender because of their particular aboriginal heritage or connection.
FALLOUT FROM GLADUE
Outcome = more conditional sentences for Aboriginal offenders. Disproportionality of AP in criminal justice system worsens. The dangerous offender distinction is created, which has as a potential sanction an indeterminate sentence. The long term offender category is also created, which carries a determinate sentence with a potential long term supervising order (LTSO), the breach of which can lead to 10 years in jail. The LTSO regime is at issue in IPELLEE.
R v IPELLEE; R v LADUE [2012] SCC
FACTS
A is on LTSO. One of the conditions is to abstain from drinking. Breaches LTSO by drinking – apprehended while drunk on a pedal bike. Sentenced to additional term based on ABCA authority.
RULING
Rehabilitation is still the primary if not ultimate goal for LT offenders, as clearly incarceration isn’t working. Imprisonment not always required for breach of LTSO. Need to look at seriousness of the breach and alternatives for enabling offender to live in the community. Sentencing judge should be taking judicial notice of systemic background factors in sentencing. Today there is tension in the courts between GLADUE and the reinstution of mandatory minimums.
RATIO
The sentencing judge has a statutory duty, imposed by s 718.2(e), to consider the unique circumstances of Aboriginal offenders.
PARITY AND TOTALITY
R v AKEPEW [2012] SKCA
FACTS
AB offender sentenced to drunken driving, flight from police and death caused during getaway. A is party to the getaway. Has enormous rap sheet, many offences related to drinking and driving. Apprehended as party (riding in the car that was fleeing the police). Issue is how to sentence Akepew knowing he has been unresponsive to incarceration in the past. Sentenced to 4.5 years.
RULING
Court relies on s 718(2)(e), mitigating facts to justify not imposing maximum min sentence. A is aboriginal with long history of alcohol problems. Court notes R v M(L): max sentence is not reserved for the worst offence and worst offender, as this can create mythical standard in sentencing. Outcome: court raises the penalty but does not accept the Crown’s approach or give the max penalty.
RATIO
Parity principle: a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
MITIGATING CIRCUMSTANCES
R v NASOGALUAK [2010] SCC
FACTS
A was punched repeatedly by police for resisting arrest, but the police officers did not report their use of force as they were required to do and nor did they stop using force once A was effectively subdued. A, an Innu and Dene man, suffered a punctured lung and broken ribs. A lost his job because of his injuries.
RULING
The Court upheld the trial judge’s conclusion that the police’s use of excessive force breached s. 7 of the Charter, however it also held that a reduced sentence would be available to an offender where there is misconduct that does not breach the Charter. In these circumstances (and given the absence of aggravating factors), the Court held that the TJ should have sentenced the offender to the minimum sentence. Absent force, the TJ should have sentenced A to a term of between 6 and 18 months’ imprisonment for his offences of fleeing from police and impaired driving. The TJ did not have discretion to sentence A to anything less than the minimum sentence absent a finding that this sentence constituted cruel and unusual punishment in contravention of s. 12 of Charter.
RATIO
Police misconduct may become a mitigating factor at sentencing pursuant to s 718.2(a) where that misconduct is connected to the particular offence and to the particular offender.
R v DRAPER [2010] MBCA
FACTS
A pled guilty to four counts of robbery and one count of theft. The sentencing judge imposed a sentence of six years for the robbery charges and 30 days concurrent on the charge of theft. It was acknowledged by both parties that this sentence should be reduced by eight months as a result of credit for pre-sentence custody. A appeals, arguing that the sentence was unfit, harsh and excessive. In addition, he submits that the sentencing judge did not apply the appropriate sentencing principles since he did not adequately consider the mitigating circumstances of the accused, overemphasized deterrence and denunciation and failed to provide sufficient reasons.
RULING
Court finds that the TJ erred in failing to adequately consider the significant mitigating factors in this case and overemphasized the aggravating factors, as well as overemphasizing deterrence and denunciation, in considering an appropriate sentence for this first offender suffering from FASD. Only a minimal, general reference was made to the mitigating circumstances. The sentence is simply unfit for the A and these offences.
RATIO
A drug addiction is not an excuse, but it is a fact to be taken into account and weighed along with many other factors in sentencing.
