|
Criminal - Sentencing - 'Sentencing Ranges'. R. v. Burke-Whittaker
In R. v. Burke-Whittaker (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown sentencing appeal, here from a guilty plea to "one count of possession of a loaded or prohibited or restricted firearm contrary to s. 95(1) of the Criminal Code".
Here the court considers the role of a sentencing range:(1) The standard of review
[29] The Crown is entitled to appeal a sentence with leave of the court: Criminal Code, s. 676(1).
[30] This court owes significant deference to a sentencing judge’s decision. The court will only intervene where (1) the sentence imposed is demonstrably unfit, or (2) where the sentencing judge committed an error in principle, failed to consider a relevant factor or erroneously considered an aggravating or mitigating factor, and it appears from the decision that such an error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 44, 51; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 26-28.
[31] On appeal, the court is not to interfere with a sentencing decision because the appellate court would have imposed a different sentence or weighed relevant factors differently: R. v. W.V., 2023 ONCA 655, 169 O.R. (3d) 68, at para. 26.
[32] In determining whether a sentence is demonstrably unfit, the inquiry is focused on the principle of proportionality set out in s. 718.1 of the Criminal Code. As stated in Lacasse, at para. 53:This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, which provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2(a) and (b) of the Criminal Code. [33] In Lacasse, at para. 51, the Supreme Court also emphasized that sentencing judges have discretion to identify an appropriate sentencing range and that the identification of an inappropriate sentencing range on its own is not an error in principle. The court also observed that “sentencing ranges are primarily guidelines, and not hard and fast rules”, and therefore “a deviation from a sentencing range is not synonymous with an error of law or an error in principle”: Lacasse, at para. 60, citing R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.R. 206, at para. 44 and R. v. M. (T. E. ), 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, at para. 32. However, if the sentence imposed “departs significantly and for no reason from the contemplated sentences”, this may be an indication that a sentence is demonstrably unfit: Lacasse, at para. 67.
[34] In R. v. Parranto, 2021 SCC 46, 436 D.L.R. (4th) 389, at para. 40, the Supreme Court further explained the role a sentencing range may play in determining the fitness of a sentence. In this context, the court explained that “exceptional” circumstances are not required to justify a sentence that falls outside a sentencing range:Since starting points and ranges reflect the gravity of the offence, however, the sentencing judge’s reasons and the record must allow the reviewing court to understand why the sentence is proportionate despite a significant departure from the range or starting point. This applies regardless of whether the reasons refer to the starting point or not. At the very least, the appellate court must be able to discern from the reasons and the record why the sentence is fit in the circumstances of the offence and the offender. We emphasize, however, that it is inappropriate for appellate courts to “artificially constrain sentencing judges’ ability to impose a proportionate sentence” by requiring “exceptional circumstances” when departing from a range. Departing from a range or starting point is appropriate where required to achieve proportionality. [Citations omitted; emphasis added.] . R. v. Johnston
In R. v. Johnston (Ont CA, 2023) the Court of Appeal considered 'sentencing ranges':[8] In following this route, the sentencing judge made an error in principle. As a result, this court is entitled to intervene and, consequently, we must undertake our own sentencing analysis: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 27. As part of that analysis, we recognize that the sentencing judge gave detailed reasons for concluding that a three-year sentence was fit. We would not interfere with her conclusion, even though that sentence falls outside the established range of sentence for trafficking in drugs at the kilogram level. On that point, we note that sentencing ranges are primarily guidelines. They are not hard and fast rules. A judge can order a sentence outside an applicable range if it accords with the principles and objectives of sentencing: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 58. The reasons given by the sentencing judge for a three-year sentence are consistent with the principles and objectives of sentencing.
|
