|
Criminal - Sentencing - Public Protection. R. v. Gilmore
In R. v. Gilmore (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal sentence appeal, here which "illustrates the tension between the principle of proportionality and the objective of public protection".
Here the court considers the "Purpose, Objectives and Principles" of criminal sentencing, including proportionality and public protection:(2) The Purpose, Objectives and Principles of Sentencing
[32] Part XXIII – Sentencing of the Criminal Code addresses both substantive and procedural aspects of sentencing. The purpose and objectives of sentencing are set out in s. 718 of the Criminal Code:Purpose
718 The fundamental purpose of sentencing is 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 by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [Emphasis added.] [33] These objectives are largely utilitarian in nature, and in service of the stated fundamental purpose of sentencing: Julian V. Roberts and Andrew Von Hirsch, “Legislation the Purpose and Principles of Sentencing”, in Julian Roberts and David P. Cole, Making Sense of Sentencing (Toronto: University of Toronto Press, 1999), at pp. 52-53. A number of these objectives were in play in this case, particularly denunciation (s. 718(a)), deterrence (s. 718(b)), separating offenders from society, where necessary (s. 718(c)), and rehabilitation (s. 718(1)(d)).
[34] Parliament has identified the “fundamental principle” of sentencing in s. 718.1: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” The proportionality principle is rooted in retributive or desert-based theories of punishment that define a just sanction as one that is deserved by an offender, based solely on the seriousness of the offence and an offender’s moral blameworthiness: see Benjamin L. Berger, “Proportionality and the Experience of Punishment”, in David Cole & Julian Roberts, eds., Sentencing in Canada: Essays in Law, Policy, and Practice (Toronto: Irwin Law, 2020), at p. 369. In Canada, proportionality operates as a restraint or limitation on punishment: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37.
[35] Proportionality is not a self-applying concept; nor does it operate in a vacuum: Friesen, at paras. 33, 39; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 11; and J.W., at para. 46. Rather, section 718.2 identifies “other sentencing principles” or “secondary principles” (Parranto, at para. 10) that sentencing judges “shall” consider “in giving effect to proportionality”: J.W., at para. 44. The section provides for the principle of individualization, that a sentence “should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.” Moreover, s. 718.2(b) identifies the parity principle, which explains that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”
[36] The fundamental principle of proportionality in s. 718.1, and the secondary principles of sentencing in s. 718.2, operate within the broader framework of sentencing in Part XXIII. In this regard, the Supreme Court of Canada has highlighted the opening words of s. 718: “The fundamental purpose of sentencing is 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 by imposing just sanctions…” (emphasis added): see, e.g., Friesen, at para. 122; J.W., at paras. 39-40. In R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, Karakatsanis J. wrote, at para. 33: “It is clear from the plain language of s. 718 that public protection is part of the very essence of the purpose and principles governing the sentencing process” (emphasis added). Proportionality acts as a brake to ensure that, in the pursuit of public protection measures, including deterrence and denunciation, sentences are not unduly excessive; but it does not remove public protection from the equation, nor does it nullify the objectives of sentencing in s. 718.
[37] The public protection purpose of sentencing is most clearly evident in Part XXIV – Dangerous and Long-Term Offenders of the Criminal Code: L.M., at para. 42. As LeBel J. explained in Ipeelee, at para. 48:Reading the Criminal Code and the [Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”)] and the applicable jurisprudence together, we can therefore identify two specific objectives of long-term supervision as a form of conditional release: (1) protecting the public from the risk of reoffence, and (2) rehabilitating the offender and reintegrating him or her into the community. The latter objective may properly be described as the ultimate purpose of an LTSO, as indicated by s. 100 of the CCRA, though it is inextricably entwined with the former.
|
