Canadian Criminal Sentencing/Purpose and Principles of Sentencing

Introduction
The purpose and principles of sentencing provide a guidance to judges in applying the available sentences for particular offenders. The sentencing regime in the criminal code and case law sets out the goals at play in all sentences. These goals can come in conflict with each other and so must be balanced against each other in every case. The principles of sentencing guide a judge in determining how these goals are balanced and how to achieve the most appropriate disposition.

Sections 718 to 718.2 codify the objectives and principles of sentencing and are intended to “bring greater consistency and clarity” to sentencing.

The system of sentencing is not simply a method of imposing penalties or costs upon an offender to prevent harmful conduct, but rather the system is to impose sentences which "positively instills the basic set of values shared by all Canadians as expressed by the Criminal Code."

The courts must bring the law, including sentencing, into harmony with the prevailing social values and so must reflect changes in these values.

Purpose of Sentencing
The purposes of sentencing are laid out in section 718 of the Criminal Code:

As stated, the fundamental purpose is that there be "respect for the law" and the maintenance of a "just, peaceful and safe society".

There is no single "sentencing objective [that] trumps the other". It is to "the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case."

Denunciation - s.718(a)
Section 718(a) sets out the objective of "denounc[ing] unlawful conduct". The principle of denunciation "mandates that a sentence should communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law."

The principles of denunciation and deterrence can sometimes be satisfied without incarceration. One of these circumstances is where the publicity of the case provides for public humiliation.

Deterrence - 718(b)
Section 718(b) sets out the objectives of "deter[ing] the offender and other persons from committing offences" We refer to these as the twin objectives of "general deterrence" and "specific deterrence".

The objective of general deterrence as a factor will normally result in the offender being “punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity.”

When general deterrence is emphasized, the deterrent effect of incarceration can be somewhat speculative and so should be used with great restraint. A lengthy sentence is not the only way of achieving the objective of general deterrence.

Separation from Society - 718(c)
Where a person with mental illness poses a risk to the public the court may need to resort to separating the offender from society, rather than focus on treatment.

Treatment in the community is generally preferred over incarceration. However, this is less so for serious offences.

Rehabilitation - s.718(d)
Section 718(d) sets out the objective of "assist[ing] in rehabilitating offenders". Rehabilitation can be seen to achieve the objective of protecting the public as it assists in preventing further offences. In certain cases, where there is a realistic possibility of rehabilitation, the courts may opt not to impose a jail sentence where it would otherwise be appropriate.

Effective rehabilitation has been seen by some courts as requiring an acceptance of responsibility, likely by way of a guilty plea, and an understanding of the harm done.

An offender's "positive potential for rehabilitation" should be to the benefit of the accused on sentence.

Fundamental Principle: Proportionality
No matter what the balance between objectives, the sentence must always satisfy the fundamental principle of sentencing under s. 718.1.

Where the sentence is not proportionate it is not just. Thus, it is central to the sentencing process.

The sentence must be no greater than the offenders moral culpability. However, the “severity of sanction for a crime should reflect the...seriousness of the criminal conduct.” And when the sentence is not adequate to address the seriousness of the offence then it is not proportionate.

From this, it is well established that sentencing is a highly discretionary endeavour. Each sentence is to be custom tailored to match the particular offender.

Based on the purposes and principles set out in 718 and 718.2, sentencing is a highly individualized process that takes into account the offence, as well as the offender.

There is no "one size fits all" penalties.

Sentencing is “an inherently individualized process.”

It is also a "profoundly subjective process."

Gravity of an offence can be measured in part by the lasting emotional effects of the offence upon the victim.

When crafting a sentence for multiple offences, proportionality can be achieved either "by imposing concurrent sentences" or "by applying the totality principle to consecutive sentences".

Aggravating and Mitigating Factors

 * See also Canadian Criminal Sentencing/Factors of Sentencing

Section 718.2 is a non-exhaustive list of secondary principles in sentencing.

Other objectives and principles are listed at s. 718.2 of the Criminal Code:

Take note that certain offences have their own additional factors to consider that are found throughout the code. For example, fraud offences under s. 380.1.

Other Principles
Judges are not permitted to apply their own personal belief or views that are contrary to the principles of sentencing.

Totality - s.718.2(c)
See Canadian Criminal Sentencing/Purpose and Principles of Sentencing/Totality Principle

Parity (s.718.2(b))
The parity principle means that a sentence should be "similar to sentences imposed on similar offenders for similar offences committed in similar circumstances".

A judge has a responsibility to "impose sentences in line with precedent, noting always that for each offence and each offender some elements are unique."

To fulfil this requirement sentencing judges must consider the range of sentences of "similar offenders for similar offences committed in similar circumstances".

The principle ensures fairness between similarly situated cases. It does not however override the individualized approach to sentencing.

One of the goals of the provincial courts of appeal is to maintain parity in sentence and minimize the differences in sentencing approaches. However, the judges must also be sensitive to the needs of local community.

Parity to Co-Accused
In a situation of co-accused, the roles of the parties will be considered as well as their personal circumstances.

The principle of parity does not require equal sentences for participants in the same offence. Rather, they must "only [be] understandable sentences when examined together."

Where accomplices who commit the crime at the orders of a principal and agree to testify against he principal can be afforded lesser sentences than the principal.

Restraint - s. 718.2(d),(e)
For first time offenders, the principle of restraint "requires that the sentencing judge consider all sanctions apart from incarceration" and where necessary ensure the term be as "short as possible and tailored to the circumstances of the accused".

The principle also requires the judge to consider rehabilitation in setting the length of the sentence.

"General deterrence cannot be the sole consideration. Appropriate consideration must be given to the rehabilitation of the offender."

Restraint not only means that prison should be a sanction of last resort, but also means that the court should "seek the least intrusive sentence and the least quantum which will achieve the overall purpose of being an appropriate and just sanction."

Where other dispositions have been tried and failed, and jail has not previously been imposed, the imposition of a "short, sharp" sentence can be appropriate, particularly where the offence is related to property and not violence.

Aboriginal Offenders - s. 718.2(e)
See Canadian Criminal Sentencing/Aboriginal Principles and Factors

Step-up Principle
The "step-up" principle is where an offender is convicted of a similar or identical offence to one he's been convicted and sentenced in the past for, it can be concluded that the prior sentence was not sufficiently deterrent and so the sentence for the new offence should be increased to focus on specific deterrence.

Jump Principle
The "jump" principle stated that subsequent sentences passed should not be disproportionate to the prior offence (ie. a "jump" in sentence). A subsequent offence should have an incremental increase proportionate to frequency of the repeated offences. In other words a dramatic increase in sentence due to a recent prior similar record would violate this rule. However, this rule does not apply where the index offence is greatly more serious than the prior offences.

The jump principle is of "less utility" when dealing with an accused "with a lengthy criminal record on multiple convictions".

A jump would be inconsistent with rehabilitation where that is a significant factor in sentence.

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.

"Starting Points" on Sentence
A "starting point" for sentences are set as guides and are factors to consider the appropriate sentence. They are meant to achieve greater uniformity and consistency. They are "most useful in circumstances where there is a large disparity between sentences imposed".

A starting point of sentence will be raised and lowered after considering the aggravating and mitigating factors on sentence.

A starting point cannot be artificially lowered by examination into prior case law that shows lower sentences than the designated "starting point" and deem it to be the "correct" starting point.

A judge would does not mention starting points in sentence where one exists is not committing an error in principle.

Ranges on Sentence
A range of sentence is not all sentences between the minimum and maximum for the offence charged. Rather, it is narrowed by the specific offence and offender. The variations of punishment when weighing aggravating and mitigating factors creates the continuum of the range.

Ranges "are guidelines rather than hard and fast rules". A range of sentence can be deviated as long as it is "in accordance with the principles and objectives of sentencing" and are not necessarily unfit. However, factors such as a “good record” and remorse do not amount to exceptional circumstances to deviate from the accepted range.

Effect of Election on Sentence
A sentence is not scaled based on the election made. Thus, an offence prosecuted summarily should not be scaled to less than the maximum only because it would not have been a maximum sentence by indictment.

Sentences for breach of court orders is a gradual process without a sudden, substantial increase in penalty.

Purpose and Principles of Specific Types of Offences

 * Canadian Criminal Sentencing/Offences/Drug Offences
 * Canadian Criminal Sentencing/Offences/Sexual Offences