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Criminal - Sentencing - Principles
MORE CASES
Part 2
. R. v. Basque
In R. v. Basque (SCC, 2023) the Supreme Court of Canada considered the crediting of a pre-trial suspension release undertaking against a driving suspension sentence. In these quotes the court considers the relationship between the common law and the statute law, here in particular to criminal sentencing:C. Analytical Framework: Coexistence of the Common Law and Legislation in Matters of Sentencing
[39] Both parties agree that sentencing judges have a discretion to grant credit for a pre‑sentence driving prohibition period. However, contrary to the appellant, the Crown argues that Parliament limited or displaced this common law discretion when it enacted the mandatory minimum set out in s. 259(1)(a) Cr. C. This appeal therefore raises the question of whether, as the appellant maintains, the common law rule can coexist in harmony with the mandatory minimum laid down by the Criminal Code.
[40] This question requires the Court to consider the sometimes complex interactions that characterize the relationship between the common law and legislation. While legislation may prevail over the common law, the latter remains applicable insofar as it has not been displaced expressly or by necessary implication, a principle often justified by the importance of “stability in the law” (R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 21, per Cromwell J.). In Lizotte, Gascon J., writing for a unanimous Court, reiterated the general principle that applies to legislative departures from common law rules: “This Court has held that it must be presumed that a legislature does not intend to change existing common law rules in the absence of a clear provision to that effect . . .” (para. 56). Professor Ruth Sullivan has written that this presumption “permits courts to insist on precise and explicit direction from the legislature before accepting any change. The common law is thus shielded from unclear or inadvertent legislative encroachment” (The Construction of Statutes (7th ed. 2022), at § 17.01.Pt1[2]; see also P.‑A. Côté and M. Devinat, Interprétation des lois (5th ed. 2021), at Nos. 180‑92).
[41] Canadian criminal law is made up of both statute law and common law principles (M. Vauclair and T. Desjardins, in collaboration with P. Lachance, Traité général de preuve et de procédure pénales 2022 (29th ed. 2022), at Nos. 1.17‑1.24, citing, among others, D.L.W., at paras. 3, 15 and 57‑59). The enactment of a criminal code in this country in 1892 did not have the effect of systematically displacing the common law as a source of law (D. H. Brown, The Genesis of the Canadian Criminal Code of 1892 (1989), at p. 126; G. H. Crouse, “A Critique of Canadian Criminal Legislation: Part One” (1934), 12 Can. Bar Rev. 545, at p. 565: “One fundamental principle of the Canadian Codification is that the common law is not superseded.”). Today, the Criminal Code provides that, as a general rule, the common law is no longer a source of offences in Canada (s. 9(a)). It states, however, that common law defences continue in force except insofar as they are altered by statute (s. 8(3); R. v. Tim, 2022 SCC 12, at para. 27; see also J. Fortin and L. Viau, Traité de droit pénal général (1982), at p. 18). As Vauclair and Desjardins explain, reference may be made to the common law to interpret a criminal provision codifying a common law offence (No. 3.20, citing R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714).
[42] This coexistence of statute and common law is a feature of the law of sentencing (see Canadian Sentencing Commission, Sentencing Structure in Canada: Historical Perspectives (1988), at p. 35). While Part XXIII of the Criminal Code codifies “the fundamental . . . principles of sentencing” (R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 1), courts can also take account of “other principles and factors arising from the common law” (D. Rose, Quigley’s Criminal Procedure in Canada (loose‑leaf), at § 23:6). Legislation also prevails over the common law in this area if Parliament displaces it expressly or by necessary implication (see, e.g., R. v. Skolnick, 1982 CanLII 54 (SCC), [1982] 2 S.C.R. 47, at p. 58).
[43] In Lacasse, this Court reiterated that courts must take account of a pre‑sentence driving prohibition period in exercising their discretion to give credit (paras. 111‑14, per Wagner J.; see also paras. 176‑78, per Gascon J., dissenting, but not on this point). It is true that Lacasse did not concern a mandatory minimum and that, under s. 259(2)(a.1) Cr. C., the sentence had begun at the end of the offender’s incarceration. However, the judgment can guide us in this case, with the necessary modifications.
[44] The granting of such credit is anchored in the common law; it is one example, in the context of a driving prohibition, of what Arbour J. called the “well‑established practice of sentencing judges [giving] credit for time served” (Wust, at para. 31). In the words of Paciocco J., as he then was, this rule is part of the “central principles of sentencing not statutorily expressed but still vibrant as ‘general principles of sentencing’” (R. v. Pham, 2013 ONCJ 635, 296 C.R.R. (2d) 178, at para. 18). As Wagner J. later noted in Lacasse, this principle has not been codified. Although s. 719(3) Cr. C. does codify the principle that credit can be granted in the case of pre‑sentence custody, that provision has no statutory equivalent relating to pre‑sentence driving prohibitions. The respondent takes the position here that the principle to which the Court referred in Lacasse was displaced by Parliament’s enactment of the mandatory minimum, a consideration that did not arise on the facts of that case.
[45] The interaction between legislation and the common law in matters of sentencing and punishment is therefore at the heart of this appeal. The two‑step framework used to analyze this interaction is well settled. The first step is “analysing, identifying and setting out the applicable common law”; and then, at the second step, “the statute law’s effect on the common law must be specified” (2747‑3174 Québec Inc. v. Quebec (Régie des permis d’alcool), 1996 CanLII 153 (SCC), [1996] 3 S.C.R. 919, at para. 97, per L’Heureux‑Dubé J., citing Zaidan Group Ltd. v. London (City), 1991 CanLII 53 (SCC), [1991] 3 S.C.R. 593, and Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99; see also Urban Mechanical Contracting Ltd. v. Zurich Insurance Co., 2022 ONCA 589, 163 O.R. (3d) 652, at para. 45). ... . R. v. Basque
In R. v. Basque (SCC, 2023) the Supreme Court of Canada considered the crediting of a pre-trial suspension release undertaking against a driving suspension sentence. In these quotes the court sets out the distinction between the concepts of punishment and sentence:(a) Distinction Between the Concepts of Punishment and Sentence
[54] The question before the Court in Wust was whether an offender could be credited for pre‑sentence custody if doing so meant that the sentence imposed would be shorter in length than the mandatory minimum provided for in the former s. 344(a) (now s. 344(1)(a)). Writing for a unanimous Court, Arbour J. answered that question in the affirmative. She noted at the outset that s. 719(3) had been enacted for the specific purpose of authorizing such credit in the context of a mandatory minimum. In addition, and importantly, she stated that no conflict resulted from the concurrent application of ss. 719(3) and 344(a). She explained that this absence of conflict flowed from the conceptual distinction between a punishment and a sentence.
[55] This distinction was considered from the perspective of the English‑language terms “punishment” and “sentence” in McDonald by Rosenberg J.A., who relied on the work of the Canadian Sentencing Commission. The Commission clarified that the term “punishment” refers to “the imposition of severe deprivation on a person guilty of wrongdoing” (Sentencing Reform: A Canadian Approach (1987), at p. 109). It then stated that the word “sentence” — which comes from the Latin sententia, meaning “opinion or the expression of an opinion” — refers to a judicial statement ordering the imposition of a sanction and determining what it should be (p. 111).
[56] It can therefore be said that the concept of punishment is fundamentally different from that of sentence, since the former reflects the global punishment imposed on an offender whereas the latter concerns only the portion of the punishment that the offender must serve after judgment is rendered. Nothing in the jurisprudence precludes this distinction from being applied in this case. I note that in R. v. Mathieu, 2008 SCC 21, [2008] 1 S.C.R. 723, a case concerning parole eligibility following time spent in pre‑sentence custody, the Court held that only the period after sentencing is to be considered in determining such eligibility, although it acknowledged that it had dealt with the question differently in Wust (para. 7). For the purposes of a conditional sentence, on the other hand, what must be considered is the global punishment imposed on the offender, including the pre‑sentence period (R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742). Similarly, where courts have had to determine the effect of a period of pre‑sentence custody in cases involving a statutory maximum term of imprisonment, some provincial appellate courts have found, like this Court in Wust and Fice, that the relevant consideration is the global punishment, not the sentence imposed (R. v. Walker, 2017 ONCA 39, 345 C.C.C. (3d) 497, at paras. 20‑26; R. v. Severight, 2014 ABCA 25, 566 A.R. 344, at para. 32; R. v. LeBlanc, 2005 NBCA 6, 279 N.B.R. (2d) 121, at para. 63).
[57] The distinction between “peine” in the sense of punishment and “peine” in the sense of a sentence is recognized in the French lexicon of Canadian law, taking into account the polysemy of the term “peine” (Canadian Sentencing Commission (1987), at pp. 108 and 111). Indeed, depending on the context, this term may refer either to the global punishment imposed on an offender or to the sentence handed down to an offender (see the Quebec Court of Appeal’s Lexique en droit pénal (online)). This prompted the Commission to observe the fundamental difference between “peine”, in the sense of punishment, and sentence. The Juridictionnaire, a Canadian jurilinguistic study published by the Centre de traduction et de terminologie juridiques of the Université de Moncton, also draws this distinction, noting that [translation] “[t]he peine [in the sense of “punishment”] is the sanction incurred, whereas the sentence is the judicial decision imposing a punishment” (J. Picotte, Juridictionnaire: Recueil des difficultés et des ressources du français juridique, October 15, 2018 (online), at p. 2035, para. 24 (emphasis in original)). In other words, whereas a sentence commences when it is handed down by a court, punishment encompasses [translation] “[a]ny sanction imposed by a judicial authority in the application of a criminal statute” (H. Dumont, Pénologie: Le droit canadien relatif aux peines et aux sentences (1993), at p. 47).
[58] The double meaning of the French term “peine” is illustrated in several places in the Criminal Code. For example, s. 718.3(2), which limits judicial discretion where a mandatory minimum punishment exists, uses the term “peine” as the equivalent of the English “punishment”. In contrast, s. 719(1), which states that “[a] sentence commences when it is imposed”, also uses the term “peine” in French, but this time as the parallel to the English term “sentence”. The identification of the exact English equivalent of the term “peine” (be it “punishment” or “sentence”) depends on the context; this doublet may therefore give rise to interpretative difficulties in Canadian criminal law, where the rules for interpreting the bilingual legislative lexicon give each language version of an enactment an equal role in stating the law. Of course, this is not to say that the English word “sentence” is exclusively used to refer to the judicial decision imposing a punishment. By way of example, the phrase “fit sentence” (often stated in French as “peine juste”) typically refers to the idea of an appropriate global punishment (see, e.g., R. v. Hills, 2023 SCC 2, at para. 45).
[59] In light of this reality, and beyond the terminology used, particular attention should be paid to the purpose and context of the relevant provisions (Wust, at para. 36). It is true that, as a general rule, Parliament can be expected to exercise [translation] “discipline” in legislative expression by not giving the same word different meanings in the same statute (G. Cornu, Linguistique juridique (3rd ed. 2005), at p. 105). In this vein, Professors Côté and Devinat refer to the [translation] “principle of uniformity of expression” with which Parliament strives to comply and which, in statutory interpretation, justifies a presumption that “a word has the same meaning throughout” a statute (Nos. 1142‑43). They recognize, however, that this presumption [translation] “must give way when circumstances demonstrate that such was not the intention pursued by Parliament” (No. 1146, quoting Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254, at para. 61). In my view, this is such a case. The word “peine” is used in different ways in the Criminal Code, sometimes to refer to a sentence, that is, a judicial decision, and sometimes to refer to a punishment. I note that most cases not involving pre‑sentence prohibition orders or custody do not hinge on the conceptual distinction between “sentence” and “punishment”. . R. v. Owusu-Sarpong
In R. v. Owusu-Sarpong (Ont CA, 2023) the Court of Appeal considered principles that apply to consecutive and concurrent sentences:[25] It is not an error to impose an overall sentence followed by adding up the total for each individual conviction: R. v. Milani, 2021 ONCA 567, 157 O.R. (3d) 314, at paras. 35-37; and R. v. Ahmed, 2017 ONCA 76, 136 O.R. (3d) 403, at para. 85.
[26] In R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 157, the Supreme Court explained that two methods have been used by courts across Canada to apply the totality principle when imposing consecutive sentences.
[27] Some jurisdictions require consideration of individual sentences first to ensure that the total sentence does not exceed the offender’s overall culpability: see, e.g., R. v. Adams, 2010 NSCA 42, 255 C.C.C. (3d) 150, at paras. 23-28; R. v. Punko, 2010 BCCA 365, 258 C.C.C. (3d) 144, at para. 93; and R. v. J.V., 2014 QCCA 1828, at para. 28.
[28] Others begin with an articulation of the overall fit sentence and then impose individual sentences adding up to the total: see, e.g., R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752, at paras. 78-80; R. v. S.C., 2019 ONCA 199, 145 O.R. (3d) 711, at para. 20; Ahmed, at para. 85; and R. v. Jewell (1995), 1995 CanLII 1897 (ON CA), 100 C.C.C. (3d) 270, at p. 279 (Ont. C.A.). The justification for doing so was explained by Finlayson J.A. in Jewell, at p. 279 (C.C.C.):Having determined the appropriate total sentence, the trial judge should impose sentences with respect to each offence which result in that total sentence and which appropriately reflect the gravamen of the overall criminal conduct. In performing this function, the trial judge will have to consider not only the appropriate sentence for each offence, but whether in light of totality concerns, a particular sentence should be consecutive or concurrent to the other sentences imposed. [29] In Friesen the Supreme Court recognized that neither method constitutes an error in principle. If done properly, both can be appropriate ways to ensure that the total sentence is not overly long and harsh, and not disproportionate to the gravity of the offence and the conduct of the offender. Similarly, in Milani, at para. 36, this court held that “both can be appropriate ways to ensure that the total sentence is not overly long and harsh, and not disproportionate to the gravity of the offence and the conduct of the offender.”
[30] The sentencing judge correctly applied the established sentencing practice in Ontario, which is to determine a global sentence and then apportion individual sentences by counts afterwards: Milani, at para. 37. She also explicitly considered the principle of totality and reduced the global sentence accordingly. The appellant does not challenge the sentencing judge’s application of totality, nor does he allege that the resulting sentence is unfit.
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[36] First, the sentencing judge held that a firearm or imitation firearm was used in the commission of the home invasion, thereby establishing a nexus between the two categories of offences. Her approach is consistent with other decisions from this court, which provide that “offending conduct should not be viewed in a compartmentalized fashion that minimizes the interrelation of the crimes and the corresponding heightened gravity of the offences and moral blameworthiness of the offender”: Stuckless, at para. 80 (per Huscroft J.A.), citing R. v. F. (D.G.), 2010 ONCA 27, 98 O.R. (3d) 241, at paras. 26-27.
[37] Second, it is clear from her reasons, that the sentencing judge intended to make Count 11 consecutive to Count 10 and impose a 16-year sentence.
[38] In her reasons for sentence, the sentencing judge noted that, “[t]he offence of breaching the court order is a distinct offence from that of possessing the firearm”, citing R. v. Ferrigon, 2007 CanLII 16828 (ON SC), [2007] O.J. No. 1883 (S.C.), which held a sentence for breaching a firearms prohibition order should be served consecutively to a sentence for unlawful firearm possession. Ferrigon is but one of many cases, affirmed by this court, that hold the breach of a firearms prohibition order is generally consecutive to possession of a firearm: see, e.g., R. v. Claros, 2019 ONCA 626, at para. 51.
[39] Third, although the appellant is correct that where a sentencing judge fails to indicate if a sentence is concurrent or consecutive it will be deemed to be concurrent, in this case it was clear that the sentencing judge intended to impose a 10-year sentence for Count 3 (the home invasion), followed by a 5-year sentence for Count 10, followed by a 1-year sentence for Count 11, for a total 16-year sentence: R. v. S.P.M., 2005 NLCA 36, 198 C.C.C. (3d) 383, at para. 11; R. v. Hasiu, 2018 ONCA 24, 358 C.C.C. (3d) 503, at para. 59.
[40] Moreover, as the respondent points out, if the appellant was not entirely certain, he could have invited the sentencing judge to correct an arithmetic error. “The functus officio doctrine does not prevent the correction of errors where no reconsideration of a judicial decision is required and where the court’s intention is manifest”, as in the case of a “mathematical error” in calculating consecutive sentences: R. v. Krouglov, 2017 ONCA 197, 346 C.C.C. (3d) 148, at paras. 35, 42–46, 62. The Crown invited the appellant’s counsel to seek such clarification in this case but the appellant declined to do so. . R. v. B.M.
In R. v. B.M. (Ont CA, 2023) the Court of Appeal considers denunciation and deterrence as criminal sentencing principles, here in relation to sexual interference:(1) The sentencing judge erred in principle in failing to prioritize denunciation and deterrence
[13] The sentencing judge erred by failing to give primary consideration to the sentencing principles of denunciation and deterrence. This offended both s. 718.01 of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”) and R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424.
[14] Section 718.01 of the Code requires that courts give “primary consideration to the objectives of denunciation and deterrence” when imposing sentence for cases involving the abuse of a person under the age of 18 years. In Friesen, at para. 105, the Supreme Court held that “Parliament’s choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause”, given that “sexual assault of a child is a crime that is abhorrent to Canadian society and society’s condemnation of those who commit such offences must be communicated in the clearest of terms.”
[15] The court emphasized in Friesen that the expression “primary consideration” in s. 718.01 prescribes a relative ordering of sentencing objectives that is absent from the general list of six objectives in s. 718(a) through (f) of the Code: at para. 102. At para. 104, the court went on:Section 718.01 thus qualifies this Court’s previous direction that it is for the sentencing judge to determine which sentencing objective or objectives are to be prioritized. Where Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge’s discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority. However, while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality. [Emphasis added.] [16] The sentencing judge erred by failing to adhere to this clear sentencing principle. The reasons for sentence reveal an erroneous reordering of sentencing principles in a way that clearly conflicts with s. 718.01 of the Code and the Supreme Court’s admonition that it does not fall to judges to reorder what Parliament has already ordered.
[17] Nothing in the trial judge’s reasons adverts, explicitly or implicitly, to the priority that Parliament has attached to denunciation and deterrence for sentencing the appellant. The reasons for sentence do not make any reference to denunciation or deterrence, except in the context of a quotation from the R. v. Fabbro, 2021 ONCA 494 decision. Yet the analysis in Fabbro, a case involving a firearms offences, is not relevant to this case in that it does not involve the statutory primacy of denunciation and deterrence in offences involving the sexual abuse of children.
[18] While trial judges are not required to recite well-known sentencing principles by rote in every case, the substance of the sentencing judge’s reasons here do not demonstrate any consideration of the need to denounce the sexual abuse of persons under 18 or to deter the offender and others from committing such offences, let alone the statutory and now common law primacy of that need.
[19] While the sentencing judge’s reasons correctly noted the impact of these crimes on the victims, and the fact that Friesen highlighted the need for higher sentences in cases of sexual assault of children, at no point do the reasons reflect an understanding of the primary statutory and common law sentencing principles to be engaged with when sentencing child predators: denunciation and deterrence.
[20] Instead, the reasons for sentence demonstrate a primary concern with the rehabilitation of the respondent, as well as an expressed concern over possible immigration consequences. For instance, in his concluding remarks, the trial judge noted that a psychiatrist report indicated that the respondent needed counselling for his schizoaffective disorder and that it would “be likely that he would not get the counselling treatment and medication he requires, and … his mental health would deteriorate”, meaning his “rehabilitation would be compromised.” Accordingly, the sentencing judge determined:I am satisfied that the interest of society, in recognizing the harm done on [the respondent] and protecting the public are best served by a two-year conditional sentence that would incorporate regular mental health treatment, as recommended by Dr. Komer. If he fails to follow through with the conditional sentence terms and the terms of the order, he may be breached and put into custody. I am further satisfied on the information that I’ve received, that [the respondent] is likely to be deported if he receives a significant jail sentence. There is information in the file that the Canadian Boarder [sic] Services are aware of this case. I agree with [defence counsel] that a deportation to Africa of [the respondent] would be very dangerous for him, given his sexual orientation and his mental health and is not necessary for the protection of the Canadian public. [21] The reasons make clear that the sentencing judge resolved the primary sentencing objective as the protection of the public by rehabilitation. While it was undoubtedly open to the sentencing judge to take the respondent’s mental health and the possibility of rehabilitation into account, it was not open to him to completely ignore the need for a sentence that gives effect to the objectives of denunciation and deterrence.
[22] Neither the sentencing judge’s reasons, nor the sentence ultimately imposed, gave effect to the sentencing objective of deterrence or of denunciation which are required to fulfill the “communicative and educative role of law”: Friesen, at para. 105. The conditional sentence imposed did not convey that “sexual assault of a child is a crime that is abhorrent to Canadian society and society’s condemnation of those who commit such offences must be communicated in the clearest of terms”: Friesen, at para. 105, quoting from L’Heureux-Dubé J. in R. v. L.F.W., 2000 SCC 6 (CanLII), [2000] 1 S.C.R. 132. . R. v. Wong
In R. v. Wong (Ont CA, 2023) the Court of Appeal considers expert evidence issues in the context of criminal sentencing:[58] The strict rules of evidence that apply to a trial do not govern sentencing proceedings. At the sentencing stage, the objective is to ensure that the judge has access to the “fullest possible information concerning the background of the [offender]”: R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368, at p. 414. In the context of a dangerous offender application, the importance of ensuring that the sentencing judge has the fullest possible information about the offender is heightened: R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229, at p. 290; and R. v. Williams, 2018 ONCA 437, at para. 48. . R. v. Sousa
In R. v. Sousa (Ont CA, 2023) the Court of Appeal reviews sentencing principles, and their application by the trial judge:The Governing Principles
[20] This appeal engages the sentencing principles of parity and proportionality and the perennial issue of the role of sentencing ranges. As a general proposition, like cases should be treated alike in terms of sentencing. This is known as the principle of parity. It is stated most simply in s. 718.2(b) of the Criminal Code, which provides that: “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” See also R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 53-58 and 67, and R. v. Friesen, 2020 SCC 9, [2020] 1 SCR 424, at paras. 31-33.
[21] Variation in sentences exists in part because cases are never exactly the same. But there is a limit and an appellate court may interfere with a sentence in accordance with s. 687(1) of the Criminal Code, which provides:687 (1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive,
(a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or
(b) dismiss the appeal. [22] The Supreme Court has glossed the statutory test in Lacasse, at para. 11, and has framed the test: “[E]xcept where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit” (emphasis added). This framing encourages appellate deference to sentencing judges and gives them “wide latitude” because they have “the advantage of having heard and seen the witnesses.” Sentencing judges are therefore “in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code”: at para. 11.
[23] The threshold of “demonstrably unfit” is meant to be “very high”, as the court noted in Lacasse, at para. 52, and synonymous with “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a “substantial and marked departure”: R. v. Rezaie (1996), 1996 CanLII 1241 (ON CA), 31 O.R. (3d) 713 (C.A.), at p. 720, per Laskin J.A.
[24] The Supreme Court addressed the role of sentencing ranges in Lacasse, at para. 11: “The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention.” The court went on, at para. 58, to downplay the role of appellate enforcement of sentencing ranges:There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. [25] Nonetheless, Fairburn A.C.J.O. observed in A.J.K., at para. 77, that sentencing ranges work as “a quantitative sentencing tool designed to assist busy trial judges with where to start”.
[26] As to the formation of sentencing ranges, there is no doubt, as Fairburn A.C.J.O. noted in A.J.K., at para. 71, that “it is not unusual for sentences to increase and decrease as societal and judicial knowledge and attitudes about certain offences change”, citing R. v. Parranto, 2021 SCC 46, 436 D.L.R. (4th) 389, at para. 22. Indeed sentences in sexual assault cases have been increasing. In R. v. A.J.K., for example, this court set aside a lower sentencing range for intimate partner sexual violence known as the “Smith range” of 21 months to four years, and reset the range for all sexual assaults at three to five years.
[27] Fairburn A.C.J.O. stated, at para. 77:Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary. While Bradley and the cases following it suggest that the range is three to five years, this is of course just a range... [28] Fairburn A.C.J.O. added, at para. 77, that the reset range did not prevent departures from the range: “Accordingly, there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate.”
[29] Sentencing ranges can also function as a tool to identify outliers that might warrant more careful appellate attention. In R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R 163, the court noted, at para. 36, that “an appellate court is justified in intervening only if the sentence imposed by the trial judge ‘is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes’ (M. (C.A.), at para. 92).” This statement was not displaced by Lacasse.
[30] Finally, when the sentencing judge cites precedents in support of a sentence, the cogency of that support depends on whether the precedent is apt − that is − sufficiently like the case the sentencing judge has at hand.
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[38] I am mindful of the Supreme Court’s frequent admonitions to appellate courts to be duly deferential to the determinations of sentencing judges.
[39] The appellant is quite right that the sentence of ten years is twice the top of the applicable sentencing range of three to five years. It merits closer scrutiny. The law is very clear that a sentencing judge can go beyond the range. Is the sentence demonstrably unfit, having regard to the sentencing principles set out in s. 718 of the Criminal Code and in the caselaw?
[40] The sentencing judge rooted his sentence in “the principles of sentencing, mainly, proportionality and denunciation.” He pointed to the vulnerability of the complainant, her extreme degradation in the assaults, and the devastating impact of the assaults on her. He considered the many aggravating and few mitigating circumstances on which he got lengthy submissions.
[41] The sentencing judge mentioned Myers briefly, noting only that it was “[t]he one that seemed closest to me.” In Myers, the trial judge imposed close to the maximum term, a nine-year sentence that this court upheld.
[42] The common features between this case and Myers are the vulnerability of the victims, their extreme degradation in the violent assaults, and the devastating impact of the assaults on them, all features that the sentencing judge pointed out.
[43] The appellant points to distinguishing features between this case and Myers. The Myers assault was more physically violent in some respects (“overtones of bodily harm”) and dangerously exposed the victim to hypothermia. Myers was not a first offender and had several convictions for assaults on women.
[44] However, as the respondent notes, Myers conceded committal and pleaded guilty, sparing the complainant from testifying. In Myers, at para. 31, the sentencing judge noted that he would have imposed the maximum ten-year sentence had Myers not pleaded guilty. There were also other factors that mitigated Myers’ moral blameworthiness, particularly his alcohol addiction and difficult upbringing. Myers wrote a letter of apology to the victim and the sentencing judge found him to be repentant. Even accounting for these mitigating factors, the judge still imposed a nine-year sentence, just one year below the maximum.
[45] I reach the following conclusions: First, I agree with the sentencing judge that Myers is the closest comparator. The sentencing judge in Myers gave a nine-year sentence, not ten. But Myers involved a more savage attack and more physical risk. Importantly, Myers was not a first offender but a repeat sexual offender. The mitigating circumstances in Myers are not present here, but they did not seem to have accounted for much in that case.
[46] Second, the authorities offered by the appellant are not especially compelling. The facts were somewhat similar in A.J.K., in which a five-year sentence was imposed. The court there was asked to reduce the five-year sentence, which was at the top of the range, but declined, deferring to the trial judge. The older cases involving assaults by multiple accused are not comparable.
[47] Third, I respect and accept the sentencing judge’s conviction that the appellant’s vile acts could not be adequately addressed even at the top of the sentencing range and required a higher sentence. The appellant effectively concedes this point by proposing six years, which is outside the three- to five-year range.
[48] Fourth, the principle of restraint in sentencing a first offender requires some reflection in the sentence. The sentencing judge noted that the appellant has no criminal record, but it is not clear that this played any role in his thinking. He did take the prospect of rehabilitation into account as noted earlier. The appellant is a first offender but is not youthful. I agree with the respondent that violence can justify sentencing a first offender beyond the range. That said, I do not find Anderson to be a helpful authority beyond that simple point because the violence in that case was extreme.
[49] Gathering these threads together, I conclude that the sentence of ten years is demonstrably unfit and would substitute the sentence of eight years as adjusted by the sentencing judge’s credits.
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