|
Criminal - Sentencing - 'Totality Principle'. R. v. S.W.
In R. v. S.W. (Ont CA, 2026) the Ontario Court of Appeal considered the criminal sentencing principle of totality [CCC 718.2], here where the total of consecutive sentences would exceed 50 years:[138] The totality principle is codified in s. 718.2(c) of the Code. The provision states that “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. The totality principle ensures that the cumulative sentence of all offences “does not exceed the overall culpability of the offender” and that “the focus is on the offender's actions, role in the offences and overall culpability, irrespective of the number of offences charged.”: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 42; R. v. Ahmad, 2017 ONCA 76, 136 O.R. (3d) 403, at para. 93.
[139] Without taking into account totality, imposing most of the sentences consecutively would result in a cumulative sentence exceeding 50 years. In my view, the appropriate global sentence should not exceed 25 years. Consequently, the only sentences that I have imposed consecutively are those that must be consecutive under s. 718.3(7) of the Code. . R. v. M.V.
In R. v. M.V. (Ont CA, 2023) the Court of Appeal considered (and allowed) a sentencing appeal regarding sexual interference, and separate child luring and related, guilty pleas.
Here, the court considers the 'principle of totality' as a sentencing principle:The Principle of Totality and the Sentences Imposed
[100] There is one further consideration. The appellant was being sentenced by the trial judge consecutively of four offences. The principle of totality “requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure 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. This principle must be observed in appropriate cases to preserve the principle of proportionality and to reflect the fact that where sentences are combined, the functional value in imposing the sentences can generally be achieved without multiplying fit sentences: R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, at paras. 15-25. Simply put, an offender is not typically going to need to fully serve each component for the principles and goals of sentencing to be satisfied. ... . R. v. Simeunovich
In R. v. Simeunovich (Ont CA, 2023) the Court of Appeal considered the 'totality principle' in criminal sentencing:[27] The totality principle is a particular expression of the general principle of proportionality: Clayton C. Ruby, Sentencing, 10th ed. (Toronto: LexisNexis, 2020), at §2.75. The principle of totality requires a court that sentences an offender to consecutive sentences to ensure that the total sentence does not exceed the offender’s overall culpability: Friesen, at para. 157.
[28] The sentencing judge’s reasons disclose that he considered the application of the totality principle in the context of the appellant’s prior and existing sentences, taking into account the time left for the appellant to serve on his 2018 sentence: see Reasons, Transcript, at pp. 9-11. I take from the passage the sentencing judge quoted from this court’s decision in R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, that he was alive to the tension inherent in considering the effect of the application of the totality principle where an offender faces time to serve on an earlier sentence. The sentencing judge cited the earlier decision of R. v. Gorham (1987), 22 O.A.C. 237 where this court had stated that “the principle of totality must have a substantially reduced effect upon a sentence where part of the total term is based upon a remanet.” At the same time, the sentencing judge quoted from para. 24 of this court’s later decision in Johnson that viewed such “reduced effect” as taking into account considerations regarding the need to protect the integrity of the sentencing process while recognizing that there will be situations where, globally speaking, a combined sentence would be too harsh and excessive.
[29] At para. 25 of Johnson, this court described the task facing a sentencing judge in such circumstances:[A]t the end of the day, the subsequent sentencing judge will determine how much weight to give to the existing remaining sentence by assessing whether the length of the proposed sentence plus the existing sentence will result in a “just and appropriate” disposition that reflects as aptly as possible the relevant principles and goals of sentencing in the circumstances. [30] While I might have applied the totality principle to arrive at a different sentence than that reached by the sentencing judge, I do not see the sentencing judge’s analysis as tainted by legal error that would justify appellate interference. Nor do I regard the sentence imposed as demonstrably unfit in the circumstances. It was one open to the sentencing judge to impose given the appellant’s lengthy record, the gravity of his offences, his wilful disregard for and intentional breach of numerous driving prohibitions, and his incorrigibility.
|
