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718.1: “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
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R v Martineau: Lamer, CJC, “the essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender.”
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R v Vaillancourt: “That special mental element gives rise to the moral blameworthiness which justifies the stigma and sentence attached to a murder conviction.”
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R v Ipelle: “The fundamental principle of sentencing (proportionality) is intimately tied to the fundamental purpose of sentencing – the maintenance of a just, peaceful and safe society through the imposition of just sanctions… Proportionality is the sine qua non of a just sanction.”
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S. 12 of the Charter provides that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
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Morrisey: in order to invoke s. 12 of the Charter, the punishment must be grossly disproportionate, not merely disproportionate.
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S. 718.2 of the CC provides that a sentence should be increased or decreased to account for any aggravating or mitigating circumstances relating to the offence; see 718.2 for details
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Aggravating and Mitigating Factors established at common-law:
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A) factors relating to the circumstances of the offence; (e.x. motive, planning, participation)
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B) factors relating to the personal characteristics of the offender; (e.x. age, employment, participation in counseling programs, etc.)
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C) factors relation to the offender’s interaction with the administration of justice (e.g. early guilty plea, conduct at trial, etc.)
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“Step-Up Principle:” sentences for the same offence or similar offences should increase over time (for repeat offenders).
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“Gap Principle:” The "gap principle" directs courts to take into consideration the gaps of time between offences. It gives credit to someone who has made an effort to avoid criminal charges
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718.2: Additional Principles for Individuals
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718.21: Additional Principles for Organizations
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Options When Found Guilty:
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Absolute Discharges: follows a finding of guilt but occurs before conviction; the person is deemed not to have been convicted of the offence;
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Conditional Discharges: follows a finding of guilt but occurs before conviction; the person is deemed not to have been convicted of the offence; first requires that a person complies with terms of the discharge through a period of probation;
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Suspended Sentences: follows a finding of guilt and the entry of the conviction; cannot apply to offences with a minimum sentence; also involves conditions set out in a probation order that must be followed for a period of time;
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Conditional Sentences: follows a finding of guilt and the entry of the conviction; applies to those who have been sentenced to prison for a term of less than two years and are not a threat to the community; the court allows them to serve their sentence in the community subject to the offender’s compliance with the conditions imposed; NOT pursuant to a probation order but to a “conditional sentence order.”
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Imprisonment: less than two years is served in provincial institutions; more than two years are served in federal penitentiaries;
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Fines: $5000 maximum on summary conviction; no maximum on indictable offences; s. 734 sets out the basic provisions respecting fines;
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Restitution to victim: generally victims are not compensated and where they are they are poorly compensated; the victim is not legally a party in criminal proceedings; victims may apply for compensation under the provincial Victims of Crime Act; s. 491.1 provides that property may be returned to a victim; s. 738 provides that restitution may be paid for a) damaging property b) where bodily injury has occurred including loss of income or c) where there is loss of income to spouse or children.
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Victim Fine Surcharge: s. 737 of the Code
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Dangerous Offenders: Indeterminate Detention: a small category of offenders that are neither deterred nor reformed by ordinary punishment; prosecutors may apply for a dangerous offender status which is addressed in a hearing after the person is convicted but before sentencing; the Crown must prove two main matters beyond a reasonable doubt:
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1. There must have been a “serious personal injury offence” with a maximum sentence of ten years or more involving either a) the use or attempted use of violence against another, conduct likely to endanger another’s life and safety; or sexual assault.
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2. The offender must be “dangerous” meaning that there is a i) pattern of violence, ii) a pattern of persistent aggressive behavior, iii) brutal behavior associated with the conviction;
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If the judge finds the offender to be dangerous then he must impose a sentence of indeterminate detention;
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Offender is entitled to a parole review within 7 years from the date taken into custody and every two years thereafter;
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Long-Term Offenders: set out in Part XXIV of the Code; this designation addresses situations where the offender does not satisfy the dangerous offender criteria but still warrants a preventative sanction; if found to be a long-term offender they must be sentenced to an imprisonment of at least two years followed by supervision on conditions for up to ten years; the application can be the primary objective or a default on a failed dangerous offenders application; there are three general prerequisites:
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1. It must be appropriate to impose a sentence of imprisonment of two or more years for the offence that the offender has been convicted of;
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2. There is a substantial risk that the offender will reoffend;
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3. There is a reasonable possibility of eventual control of the risk in the community.
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Specifying the Penalty: the judge (not the jury) decides the facts relevant to sentencing; if there are aggravating circumstances the crown must prove them beyond a reasonable doubt; full-blown sentencing hearings may be found; s. 723 of the Code provides for some basic sentencing hearings
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Basic rules for sentencing:
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Both parties must have the opportunity to make submissions with respect to facts relevant to sentencing;
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The court shall hear any relevant evidence;
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The court may require the production of evidence that will assist in sentencing;
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The court may compel a witness to assist the court in determining an appropriate sentence;
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Heresy evidence is admissible in sentencing proceedings;
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A victim impact statement may be considered (see s. 722) if it is prepared in writing and filed with the court;
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Appellate Review: either the Crown or the accused may appeal a sentence; a COA should only interfere if the sentence is unreasonable.
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The CoA should consider whether:
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A) The judge committed an error of principle (Error of Law);
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B) The judge considered all of the facts properly (Error of Fact); and
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C) The sentence was overly harsh or lenient.
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R v M(L): “an appellate court may not vary a sentence simply because it would have ordered a different one. The court must be ‘convinced it is not fit,’ that is, ‘that sentence is clearly unreasonable.’
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Corrections:
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Under 92(6) the provinces have jurisdiction over prisons housing convicts sentence to imprisonments for periods of less than two years (2 years less a day).
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Under 91(28) parliament has jurisdiction over penitentiaries which house convicts sentences to two years or more of imprisonment.
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Some timing rules:
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FPE: The offender must serve the lesser of one third of his or her sentence or 7 years before being eligible for full parole.
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UTA: An offender is eligible for unescorted temporary absences after serving the greater of 6 months and one half of the FPE period.
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The national parole board decides whether to grant absences or parole to offenders.
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Statutory Release Date: after two thirds of the offender’s sentence, the offender must be released unless a) the offence was a Schedule I or II offence and b) the Board, on the application of the correctional service, orders that the offender not be released or be released on conditions.
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R v Gladue: appeal was concerned with the new s. 718.2(e) rule concerning the sentencing of Aboriginal offenders; a core issue is whether s. 718.2(e) should be understood as being remedial in nature or whether s. 718.2(e), along with the other provisions of s. 718 are simply a codification of existing sentencing principles; the trial judge erred in limiting the application of S. 718.2(e) to those aboriginal offenders living in rural areas or off-reserve; however, in this case, the results of sentencing were in the best interests of both the appellant and society so the appeal is dismissed;
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Section 12 of the Interpretation Act deems the purpose of the enactment to be remedial in nature and requires that provision be given a fair, large and liberal construction and interpretation in order to attain that remedial objective.
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S. 718.2(e)’s specific reference to aboriginal offenders can have no purpose unless it effects a change in the law.
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S. 718.2(e) is a direction to sentences to undertake the process of sentencing to aboriginal offenders differently in order to endeavor to achieve a truly fit and proper sentence; it creates a judicial duty to give its remedial purpose real force.
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Sentencing judges should pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique and different from those non-aboriginal offenders; there is something different which may specifically make imprisonment a less appropriate or less useful sanction;
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The new provisions focus on the restorative goals of repairing the harms suffered by individual victims and the community as a whole, promoting a sense of responsibility and an acknowledgement of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender; this generally involves some form of restitution and reintegration into the community; they do NOT usually correlate with the use of prison as a sanction.
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There is also sentencing jurisprudence that a court must consider the unique circumstances of offenders who are battered spouses or who are mentally disabled.
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The purpose of S. 718.2(e) is to respond to the problem of over-incarceration in Canada and to respond to the disproportionate incarceration of aboriginal peoples.
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S. 718.2(e) provides the necessary flexibility and authority for sentencing judges to resort to the restorative model of justice in sentencing aboriginal offenders and to reduce the imposition of jail sentences where to do so would not sacrifice the traditional goals of sentencing.
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Interesting statistics about this prison system and aboriginal offenders: pg. 171-175
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What are the “circumstances” of aboriginal offenders:
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A) the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and
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B) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.
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Systemic and background factors: low income, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation.
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Appropriate sentencing must take into account that the traditional sentencing ideals of deterrence, separation and denunciation are often far removed from the understanding of sentencing held by these offenders and their community.
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Restorative justice necessarily involves some form of restitution and reintegration into the community. Central to this process is the need for offenders to take responsibility for their actions. By comparison, incarceration obviates the need to accept responsibility.
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Sentencing must take into account the particular circumstances of the offence, the offender, and the community in which the offence took place. It must be individual.
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The more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even when considering their different concepts of sentencing.
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The duty of the judge is to consider all available sanctions other than imprisonment that is reasonable in the circumstances.
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The right of an aboriginal offender to have particular attention paid to his or her circumstances as an aboriginal offender may be waived.
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Where the offender is unrepresented, it is incumbent on the judge to obtain the information regarding the circumstances of the offender as an aboriginal person.
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The class of aboriginal people who come within the purview of S. 718.2(e) must, at least, be all who come within the scope of s. 25 of the Charter and s. 35 of the Constitution Act, 1982. It does not matter whether they live on or off reserves.
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R v Ipeelee: Counsel has a duty to bring the individualized information before the court in every case, unless the offender expressly waives his right to have it considered;
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Three criticisms have been advanced after the Gladue hearing:
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1. Sentencing is not an appropriate means to deal with over-representation;
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2. The Gladue principles provide a race-based discount for aboriginal offenders;
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3. Providing special treatment and lesser sentences for aboriginal offenders is inherently unfair as it creates unjustified distinctions between offenders who are similarly situated, this violating the principle of sentence parity.
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In response to these criticisms, several points are noted:
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Either aboriginal peoples commit a disproportionate number of crimes or they are victims of a discriminatory justice system; - Stenning and Roberts
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If an innovative sentence can serve to actually assist a person in taking responsibility for his or her actions and lead to a reduction in the probability of subsequent re-offending, why should such a sentence be precluded just because other people who commit the same offence go to jail? – Roach
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Convicted persons with steady employment and stability in their lives or at least prospects of the same, are much less likely to be sent to jail for offences that are borderline imprisonment offences. The unemployed, transients, the poorly educated are all better candidates for imprisonment.
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Sentencing judges are in the best position to reevaluate these criteria to ensure that they are not contributing to the ongoing systemic racial discrimination.
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Few mortals could withstand such a childhood and youth without becoming seriously troubled; no one’s history compares.
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Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence.
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R v Morin: when sentencing circles are used, the power and duty to impose a fit sentence remains vested exclusively in the trial judge.
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