Simon's Megalomaniacal Legal Resources

Criminal - Sentencing - Principles (2)

. R. v. E.N.

In R. v. E.N. (Ont CA, 2024) the Ontario Court of Appeal considered principles of criminal sentencing:

[14] With respect to the trial judge’s weighing of the relevant mitigating and aggravating factors, on appellate review, we are mindful of the Supreme Court’s instructions in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 26, citing R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35: “The weighing or balancing of factors can form an error in principle ‘[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably’”. The Court goes on to say that even if the trial judge commits such an error in principle, “an appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence”.

....

[19] While the sentence imposed by the trial judge is lower than the 3 to 5-year range articulated in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721 and other cases, it is not demonstrably unfit. As the Supreme Court cautioned in Lacasse, sentencing ranges are tools for busy trial judges, not straightjackets. The trial judge gave adequate reasons for a “slight downward departure” from the 3 to 5-year range. His sentence is owed significant deference on appellate review. We see no basis to intervene.

. R. v. E.H.

In R. v. E.H. (Ont CA, 2023) the Court of Appeal considered general sentencing principles:

[26] Sentencing is a highly discretionary and fact-driven process. “[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”: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11.

[27] As Laskin J.A. explained in R. v. Rezaie (1996), 1996 CanLII 1241 (ON CA), 31 O.R. (3d) 713 (C.A.), at p. 719:

Error in principle is a familiar basis for reviewing the exercise of judicial discretion. It connotes, at least, failing to take into account a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to relevant factors, overemphasizing relevant factors and, more generally, it includes an error of law. [Citations omitted.]

. R. v. Morris

In R. v. Morris (Ont CA, 2023) the Court of Appeal briefly reviews elements of a judge's consideration on criminal sentencing:

[31] In fashioning the appropriate sentence, the sentencing judge reviewed the principles of sentencing set out in s. 718 of the Criminal Code: ensuring proportionality between the gravity of the offence and the degree of responsibility of the offender, accounting for aggravating and mitigating factors, and considering parity. She also referred to the purposes of sentencing of specific and general deterrence, rehabilitation, denunciation and the need to separate the offender from society, with the focus on denunciation and deterrence for firearms offences. In this case, specific deterrence was pertinent because the appellant was a recidivist offender.

. 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 this quote the court states basic law respecting criminal sentencing:

[27] A fit and proportionate sentence must be crafted based on the particular facts of the case and in light of existing legislation and case law (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43). Pursuant to s. 718.1 of the Criminal Code, it is a fundamental principle that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender (see also R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089). Section 718.2 enumerates a number of other sentencing principles, including the consideration of aggravating and mitigating circumstances and parity in sentencing.

. R. v. Smith

In R. v. Smith (Ont CA, 2023) the Court of Appeal considered a 'dangerous offender' on the meaning of the statutory phrasing "pattern of persistent aggressive behaviour" [CCC s.753(1)(a)(ii)]. Here the court notes that hearsay may be admissible in a sentencing hearing:

[83] ... As with any sentencing hearing, hearsay evidence is admissible in a dangerous offender proceeding provided it is “credible and trustworthy”: Williams (ONCA), at paras. 48-49; R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368, at p. 414.

. R. v. D.N.

In R. v. D.N. (Ont CA, 2023) the Court of Appeal allowed a Charter s.11(d) ["presumption of innocence"] challenge regarding several CCC sexual offence [ss.171.1(3) ("Making sexually explicit material available to child") and 172.2(3) ("Agreement or arrangement — sexual offence against child")] evidentiary presumptions.

In this quote the court comments on some useful sentencing principles:

[123] However, while a sentence begins on the day it is imposed, in R. v. Walker, 2017 ONCA 39, at paras. 14 to 28, this court explained that a sentence will nonetheless be illegal if the sentence imposed plus pre-sentence custody exceeds the maximum allowable sentence under the Criminal Code.

. R. v. D.N.

In R. v. D.N. (Ont CA, 2023) the Court of Appeal allowed a Charter s.11(d) ["presumption of innocence"] challenge regarding several CCC sexual offence [ss.171.1(3) ("Making sexually explicit material available to child") and 172.2(3) ("Agreement or arrangement — sexual offence against child")] evidentiary presumptions.

In this quote, the court comments on resolution of substantive variation between the judge's endorsement and reasons for decision, here on the issue of sentencing:

[118] Counsel acknowledge that where there is a discrepancy of this type in the quantum of the sentence imposed between a trial judge’s reasons and the endorsement on the indictment, the trial judge’s intention should govern and can be assessed through reference to all of the reasons, the indictment and the warrant of committal. See R. v. Krouglov, 2017 ONCA 197, at paras. 35-40, and R. v. Malicia (2006), 2006 CanLII 31804 (ON CA), 216 O.A.C. 252, 82 O.R. (3d) 772, at paras. 26-31.