What is the fundamental principle of sentencing?
The Criminal Code states that the fundamental principle, or guiding rule, or sentencing is that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” This is known as the principle of proportionality.
In determining the gravity of the offence, the courts will first consider the potential penalty that can be imposed for someone found guilty of that offence. The court will then consider any specific features of the case that increase or decrease the harm or risk of harm to the community.
In determining the degree of responsibility of the offender, the court will consider the person’s blameworthiness in respect of the essential elements of the offence. The court will also consider any specific aspects of the person’s behaviour and background that increases or decreases that person’s blameworthiness for committing the offence.
What are some other principles of sentencing?
Aggravating and Mitigating Factors
The Criminal Code requires that a sentence should be either increased or decreased by any aggravating or mitigating factors. Put simply, aggravating factors are factors that make the commission of the offence worse, whereas mitigating factors reduce the blameworthiness of the offence. Examples of aggravating factors are the consequences of the offence, the vulnerability of the victim, whether the person abused a position of trust in committing the offence, and a crime that has been planned, rather than being impulsively committed. Examples of mitigating factors are a lack of a criminal record, evidence of a person’s good character, evidence that the person is truly remorseful, and an early guilty plea. It should be noted that a person has a constitutional right to a trial, so not entering an early guilty plea cannot be used against a person during sentencing.
A sentence imposed for an offence should be similar to similar offences committed by similar offenders in similar circumstances. This is called the principle of parity. However, the principle of proportionality requires the court to consider all of the circumstances in each particular case, so the application of the principle of parity may have varying degrees of significance.
There may be times when a person is sentenced for multiple offences. A person may have to serve these sentences either concurrently or consecutively. Serving concurrent sentences means the person is serving the different sentences at the same time, while serving consecutive sentences means the person is serving the sentences one after the other, or back-to-back. For example, a person who receives 5 years in jail for one offence and 10 years in jail for a second offence can serve them either concurrently or consecutively. If concurrent, the person will serve a total of ten years in jail. If consecutive, the person will serve a total of fifteen years in jail
The principle of totality applies to situations where a person is serving sentences consecutively. When a court imposes consecutive sentences, the principle of totality requires the court to ensure that the total combined sentence is just and appropriate. A sentence will generally go against the principle of totality if the combined sentence is significantly higher than the normal sentence that would be received for the most serious of the offences committed.
The principle of restraint is particularly relevant to cases where imprisonment can be used as a punishment. In response to over-incarceration, the Criminal Code requires a court to consider other punishments that will serve to restore the person to the community. The principle of restraint requires prison to be used only if no other punishment or combination of punishments is appropriate to the offence and the offender.
Applicable Legislation – Criminal Code, ss. 718.1 and 718.2
1. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
2. A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,
(v) evidence that the offence was a terrorism offence, or
(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be
appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
What is the fundamental purpose of sentencing?
The Criminal Code of Canada states that the fundamental purpose or goal 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.” Though this is the official fundamental purpose, it is accomplished by imposing punishments that reflect other purposes of sentencing.
What are some other purposes of sentencing?
Retribution is meant to be an objective, reasoned, and measured punishment that is meant to reflect the moral blameworthiness of the person who has committed the offence. Retribution is different from vengeance, as vengeance is motivated by emotion, and retribution requires a court to show some form of restraint.
A sentence should serve as a statement that the community disapproves of the offending behaviour. Not only should the sentence attach negative consequences to the behaviour, it should also serve to instill communal values shared by Canadians.
There are two types of deterrence: specific and general. Specific deterrence is the goal of discouraging the particular offender before the court from committing further offences. General deterrence serves to discourage other potential offenders from committing offences. Whether the court wants to achieve specific deterrence more than general deterrence or vice versa will usually depend on the type of offence the person committed.
The law recognizes that there are times when a person who has committed a criminal offence has to be removed from the community so as to prevent him or her from committing further crimes. This principle is not used as frequently as the other principles, as it is reserved for dangerous offenders or offenders who cannot be deterred from committing further offences or who cannot be reformed. Therefore, it is (and should be) used as a last resort for only certain persons.
Rehabilitation is one of the most important principles of sentencing. The law has recognized that when a person has been successfully rehabilitated, the danger that that person otherwise poses to society has been permanently removed. Rehabilitation also spares the community the expense of repeatedly imprisoning a person. Before a court will look to rehabilitation, though, the court must be satisfied that there is some chance of it being successfully implemented. The court must have a reasonable basis for believing that the person’s motivation to change is genuine.
This is a relatively new principle of sentencing. Restoration seeks to fix the problematic consequences of crime in a way that addresses the needs of all of the people involved in the offence. This includes the offender, the victim(s) of the offence and the greater community. A restorative justice approach to sentencing will be assessed on a case-by-case basis, as true restoration can only be accomplished by addressing the needs of the particular offender and the particular victim.
Applicable Legislation – Criminal Code, 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 that have one or more of the following objectives:
(a) To denounce unlawful conduct and the harm done to victims or to the community thatis 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.
Take the next step
If you or someone you know has been charged with a criminal offence, your best approach to the situation is to consult with effective legal counsel. Lakin Afolabi is a criminal defence lawyer in London, Ontario, who has successfully obtained just and fair sentence for individuals charged with a wide variety of offences.
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