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Criminal - Sentencing - CCC s.718. R. v. J.W.
In R. v. J.W. (SCC, 2025) the Supreme Court of Canada partially allowed a criminal sentencing appeal, here from a dismissal of an appeal at the Ontario Court of Appeal (save for a calculation error), and that from a sentence of "9 years’ imprisonment, less an enhanced credit of 1,792 days" in the Superior Court.
Here the court reviews basic CCC 718-718.2 sentencing factors:A. The Sentencing Regime
[38] The purpose, objectives and principles of sentencing are codified in ss. 718 to 718.2 of the Code (R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 110; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 39; Ruby, at §1.14). This Court has interpreted and applied these provisions in appellate review with a view to providing clarity for sentencing judges (R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 32; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 35).
(1) Section 718: The Purpose and Objectives of Sentencing
[39] Section 718 sets out the fundamental purpose of sentencing: “. . . to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society . . .” (see Nasogaluak, at para. 39; Ipeelee, at para. 35; see also R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 122).
[40] This fundamental purpose is to be given effect by “imposing just sanctions” in accordance with the sentencing objectives set out in s. 718(a) to (f): denunciation, general and specific deterrence, separation of offenders (to protect society), rehabilitation, reparation, and the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community (see Nasogaluak, at para. 39; Ipeelee, at para. 35). No one sentencing objective trumps the others. Rather, the sentencing judge is to determine what weight to give to the various objectives; this is to be decided on a case-by-case basis as sentences are to be “individualized” (Nasogaluak, at para. 43; see also Hills, at para. 54).
(2) Proportionality and Secondary Sentencing Principles
[41] Section 718.1 provides that the “fundamental principle” of sentencing is proportionality, i.e., that a sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. This has been recognized as a “central tenet” of sentencing (Ipeelee, at para. 36; see also Hills, at para. 56; Nasogaluak, at para. 41; R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309, at para. 12).
[42] Proportionality is “intimately tied” to the fundamental purpose of sentencing (Ipeelee, at para. 37), and gives “sharper focus” to the “objectives” set out in s. 718 (Nasogaluak, at para. 40). “[W]hatever weight a judge may wish to accord to the objectives listed [in s. 718], the resulting sentence must respect the fundamental principle of proportionality” (Nasogaluak, at para. 40 (emphasis in original); see also Ipeelee, at para. 37).
[43] Proportionality is the “sine qua non of a just sanction” (Ipeelee, at para. 37). As LeBel J. stated in Ipeelee:First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. ...
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Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. [para. 37] A just sanction is one that “reflects both [the foregoing] perspectives on proportionality and does not elevate one at the expense of the other” (para. 37).
[44] In 1995, Parliament set out a non-exhaustive list of principles in ss. 718.2 to 718.21 to assist in giving effect to proportionality (Ruby, at §2.7). These principles include “the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and the instruction to consider ‘all available sanctions other than imprisonment that are reasonable in the circumstances’, with particular attention paid to the circumstances of [A]boriginal offenders” (Nasogaluak, at para. 40). I note that although these are “secondary principles” (see, e.g., Parranto, at para. 10), a judge is required to have regard to the unique systemic or background factors that affect Indigenous offenders. This Court has been clear that s. 718(2)(e) mandates a “different method of analysis in determining a fit sentence” (Ipeelee, at para. 59). Failure to consider Gladue factors is an error in principle that would justify appellate intervention (R. v. Hilbach, 2023 SCC 3, at para. 42).
[45] Secondary principles complement, and are consonant with, the fundamental principle of proportionality. For example, in Friesen, this Court explained:Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistent application of proportionality will lead to parity. Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality . . . . [para. 32] [46] In sum, the fundamental purpose of sentencing is set out in s. 718. The objectives of sentencing, also set out in s. 718, are supportive of that purpose. Proportionality, as the fundamental principle of sentencing, serves to give effect to the purpose and objectives of sentencing. The secondary principles set out in ss. 718.2 to 718.12 assist in giving effect to proportionality. . R. v. R.G.
In R. v. R.G. (Ont CA, 2024) the Ontario Court of Appeal considered CCC 718.2 statutory sentencing factors:[5] To start, we reject the appellant’s submission that the sentencing judge erred by finding that these assaults occurred in the context of an intimate partner relationship, an aggravating factor on sentence pursuant to s. 718.2(a)(ii) of the Criminal Code. The facts acknowledged by the appellant on his plea made it clear that this was a “dating relationship”; this was not their first, or even second, date, and this was not a one-night stand. Section 718.2(a)(ii) is not confined to long-term relationships, or to those who cohabit. The Criminal Code defines “intimate partner” as a “current or former spouse, common-law partner and dating partner”.
[6] We agree with the Crown that to accept the appellant’s arguments would be to enter into an amorphous and value-laden debate over whether the relationship was “serious enough” to trigger this section. The fact is that the appellant and the complainant had a pre-existing relationship, and this relationship is what allowed the appellant to arrange to meet the complainant in her home, where he betrayed her trust by sexually assaulting her. A breach of trust of this nature is what s. 718.2(a)(ii) is intended to address. As this court held in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 76, “a pre-existing relationship between the accused and complainant places them in a position of trust that can only be seen as an aggravating feature on sentencing”; see also R. v. N.D., 2024 ONCA 777, at para. 42. . R. v. Saini
In R. v. Saini (Ont CA, 2023) the Court of Appeal considered the statutory factors for criminal sentencing in CCC s.718:[25] The sentencing judge referred to the principles relevant to sentencing set out in s. 718 of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge considered the mitigating factors such as the fact that the appellant was a 76-year-old first-time offender at the time of trial, with strong family support, no prior driving record who suffered from chronic renal disease and sleep apnea. He noted that the correctional authorities are able to address those medical issues.
[26] He also noted that the law requires that sentences not exceed the lifetime of an individual.
[27] However, the trial judge also appreciated the importance of denunciation and deterrence as four people died, including two children, and nine others suffered life-changing injuries. He found that the appellant did not take responsibility for his actions and appeared to have “no sincere appreciation of how his driving continues to pose a very serious harm to others.” As such, although neither party raised specific deterrence as an issue on sentence, the trial judge was entitled to and did consider the need for specific deterrence.
[28] The sentence was well within the range for similar offences committed in similar circumstances: see, e.g., R. v. Regier, 2011 ONCA 557, 282 O.A.C. 392; R. v. Bhangal, 2016 ONCA 857.
[29] In short, the sentencing judge considered the factors set out in s. 718 of the Criminal Code, the aggravating and mitigating factors in this case, and imposed a sentence that was not demonstrably unfit. Significant deference is owed on sentencing: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 25-26; R. v. R.A., 2021 ONCA 126, 154 O.R. (3d) 552, at paras. 30-32.
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