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Criminal - Sentencing - Concurrent-Consecutive

. R. v. Bertrand Marchand

In R. v. Bertrand Marchand (SCC, 2023) the Supreme Court of Canada strikes down the mandatory minimum sentencing 'child luring' provisions of CCC 172.1(2)(a-b) under Charter s.12 ['cruel and unusual treatment or punishment'].

In these quotes the court considers when a consecutive sentence, or alternatively a concurrent sentence - is indicated, here in the child luring context:
[91] The sentencing judge first determined the just and appropriate sentence for each offence individually. Next, she considered whether the sentences ought to be consecutive or concurrent. Only after doing this did she consider the principle of totality in s. 718.2(a), which ensures that “the cumulative sentence rendered does not exceed the overall culpability of the offender” (R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 42; see also R. v. Hutchings, 2012 NLCA 2, 316 Nfld. & P.E.I.R. 211, at para. 84, and Desjardins v. R., 2015 QCCA 1774, at paras. 37-42 (CanLII), which have endorsed a similar approach).

[92] I agree with the sentencing judge’s approach in this case and believe it has benefits over the alternative manner of simply setting a global amount for multiple offences. This sequential approach ensures a separate consideration of the fit and appropriate punishment of each offence. Given the separate objectives and distinct criteria for the luring offence, it was appropriate to examine each offence individually [translation] “in order to understand properly the weight this offence contributes to the offender’s moral blameworthiness” (Rayo, at para. 55).

[93] Articulating individual sentences for each offence provides needed clarity and is of great assistance when one of the challenged punishments are varied on appeal or declared to be unconstitutional. Setting an individual sentence for each offence provides transparency and allows a judge to weigh the seriousness of each offence. Clearly identifying individual sentences may also prove to be of great assistance in any subsequent sentencing proceedings should an offender re-offend — for example, by providing sentencing judges with a starting point when applying the “jump principle” to repeat convictions for the same offences (R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), at para. 39).

[94] The sentencing judge determined that Mr. Bertrand Marchand’s sentences for sexual interference and luring should be served concurrently because the offences were closely connected. While deference is owed to a judge’s decision on whether to impose a consecutive or concurrent sentence (R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, at para. 46), respectfully, the sentencing judge erred by imposing a concurrent sentence in this case. To properly account for the distinct legal interests that the luring offence protects, the sentences should have been consecutive.

[95] Parliament has removed judicial discretion and has dictated that sentences must run consecutively for certain offences, like child pornography where the offender also commits another sexual offence against that child, or where there are sexual offences other than child pornography committed by the same offender against several children (Criminal Code, s. 718.3(7)). Generally speaking, “offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are to receive consecutive sentences” (Friesen, at para. 155; see also Criminal Code, s. 718.3(4)(b)(i)). Determining whether sentences should be consecutive or concurrent is a fact-specific inquiry to be undertaken in the context of each case (C. C. Ruby, Sentencing (10th ed. 2020), at §14.13).

[96] Luring is legislatively linked to listed secondary offences: an offender must communicate for the purpose of facilitating the commission of one such offence. While there will be cases where luring stands alone, it often accompanies the actual commission of a listed secondary offence. But the luring that preceded or produced the offence is in no way subsumed or supplanted within the secondary offence. This is because the offence of luring protects a distinct social interest and causes distinct harms compared to the secondary offences (Rayo, at paras. 130 and 134).

[97] Offences constituting “invasions of different legally protected interests” can be sentenced consecutively, even if they form part of the same criminal transaction (Rayo, at para. 136, quoting R. v. Gummer (1983), 1983 CanLII 5286 (ON CA), 38 C.R. (3d) 46 (Ont. C.A), at p. 49; R. v. Gillis, 2009 ONCA 312, 248 O.A.C. 1, at para. 9; R. v. Morton, 2021 ABCA 29, at paras. 32‑33 (CanLII)). Parliament intentionally targeted conduct that precedes the commission of the enumerated sexual offences and seeks to protect children from the possibility of sexual exploitation facilitated by the internet (Rayo, at paras. 138-39; Reynard, at paras. 19-20; Alicandro, at para. 36; Legare, at para. 25). As set out above, luring can cause distinct harms as a result of psychological manipulation. As such, in most cases luring will attract a consecutive sentence (Rayo, at paras. 133-43; R. v. McLean, 2016 SKCA 93, 484 Sask. R. 137, at paras. 50-53; Miller, at paras. 22‑23). As noted in Rayo, the distinct offence of luring may seem to go unpunished, at least in part, where the luring sentence runs concurrently to the sentences for the related offences (para. 152).

[98] This is not to say that luring must always be sentenced consecutively. Unless so mandated by s. 718.3(7), sentencing judges retain discretion on this point. However, in exercising their discretion, judges must remain cognizant of the fact that the offence of luring constitutes an invasion of a different legally protected interest. The judge is obliged to explain why the sentence is to be served concurrently with the penalties imposed for other infractions. The reason for imposing a concurrent sentence must be provided. I also note that judges must be mindful not to double count: where a judge orders that a sentence for luring be served consecutively to any sentence for a secondary offence, the secondary offence cannot act as an aggravating factor in determining the luring sentence.

(3) Totality

[99] The effect of the totality principle is to require a judge to ensure that the series of sentences are, in aggregate, “just and appropriate” (see M. (C.A.), at para. 42; Criminal Code, s. 718.2(c)). This involves taking “one last look at the combined sentence” to assess whether it is “unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender” (Hutchings, at paras. 42 and 84; Laguerre v. R., 2021 QCCA 1537, at para. 43 (CanLII); M. (C.A.), at para. 42). If the principle of totality is offended, the sentences can be adjusted by making some concurrent, or if this does not achieve a just and appropriate sentence, by reducing the length of one or more sentences (Desjardins, at para. 34).


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Last modified: 05-11-23
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