A Review of the Principles and Purposes of Sentencing in Sections 718-718.21 of the Criminal Code

E. Problematic Aspects with the Current Statement of Purposes and Principles

1. The Fatal Flaw: No Permanent Sentencing Commission

A statement of purposes and principles can accomplish very little by itself. It is an important starting point and a first level of guidance in imposing a fit sentence. But more specific guidance for each type of offence is also needed. Making amendments to the current statement of purposes and principles will accomplish very little unless other changes are incorporated into our sentencing scheme. As already noted, the sentencing package enacted in 1996 only provided part of the solution to the major problems in Canada’s sentencing regime. The 1996 package did provide several useful changes, such as (1) the statement of purposes and principles, (2) an important new sentencing remedy – the conditional sentence – to help reduce the problem of overuse of imprisonment, and (3) improvements in the application and administration of fines which significantly reduce the use of imprisonment as a default punishment when fines are not paid. But the most important proposal for solving many of our other sentencing problems was the creation of a permanent sentencing commission which would (1) collect and disseminate important information on sentencing to all interested parties, (2) develop presumptive or advisory sentencing guidelines for all major offences, and (3) conduct research and make recommendations on the most problematic areas of sentencing.

Without a sentencing commission, some of our most challenging sentencing issues remain unanswered. Some of those important issues have already been listed on page 4 and 5 above, such as overuse of imprisonment, significant unwarranted disparity in sentencing, overuse of mandatory minimum sentences of imprisonment and no systematic data on sentencing, no research studies on sentencing and no comprehensive approach to the development of sentencing guidelines that exist in other countries.

Unwarranted disparity in sentencing continues to exist. How widespread and how substantial is the disparity? Nobody knows for sure because there is no sentencing commission or other body to study that issue. There is no reason to believe that sentencing disparity has significantly decreased since 1996. Neither the pre-1996 nor the current sentencing purposes and principles in ss. 718-718.2 are detailed enough to help eliminate unwarranted disparity. This can be dramatically illustrated by looking at just two cases that wound their way to the Supreme Court of Canada:

(1) In R. v. McDonnell, [1997] 1 SCR 948, the accused was convicted of two sexual assaults seven years apart. The trial judge imposed a sentence of 12 months imprisonment for the first assault, and 6 months concurrent for the second assault, for a total of one year imprisonment. On appeal, two judges varied that sentence to five years (4 years for the first assault and one year consecutive for the second assault); the third judge thought the one year sentence imposed by the trial judge was fit and should not be varied. At the Supreme Court, four judges held that one year was unfit and that 5 years was the fit sentence, while five judges held that the one year sentence was fit and should not be varied. Thus, in total, six judges thought that 5 years was a fit sentence and seven judges thought that 1 year was a fit sentence even though they were all applying the same sentencing principles to the same case. Clearly those principles permit a wide disparity in the sentence each judge chooses to apply.

(2) A similar result can be observed in R. v. M.L. (2008) 231 CCC (3d) 310 (SCC). In respect to two serious sexual offences on the offender’s young daughter, the trial judge imposed a sentence of 10 years on the first offence and a consecutive sentence of 5 years for the second offence, for a total of 15 years. On appeal, two judges held that 15 years was unfit and varied the sentence to 9 years (6 years for the first offence and 3 years consecutive for the second offence). At the Supreme Court of Canada, eight judges held 15 years was fit, but one judge held that it was not and would have imposed 9 years. How can three appellate judges decide that 9 years is fit, while nine other appellate judges decide that 15 years is fit in circumstances where they are all applying the same sentencing principles to the same case? Obviously the current statement of purposes and principles is not detailed enough to prevent that dramatic disparity depending on what judge is applying those principles.

In my view, the development of presumptive or advisory sentencing guidelines by a permanent sentencing commission is a critical step in achieving consistency and fairness in sentencing. Courts of appeal cannot undertake this role in a full and complete fashion. It is simply too big a task and requires information and data that is not necessarily available to courts of appeal. It needs to be done by a permanent sentencing commission. Roberts and BebbingtonFootnote 29 are correct in suggesting that the absence of a sentencing guidelines scheme in Canada puts us out of sync with a large number of other countries. The first task of a permanent sentencing commission should be to study the various models of sentencing guidelines used elsewhere and to recommend, for Parliament’s approval, a scheme that makes the most sense for Canada.

Why did the 1996 sentencing amendments not establish a permanent sentencing commission? There really isn’t a good reason! A permanent sentencing commission was recommended by the Canadian Sentencing Commission (1987), by the Daubney Report (1988) and by the government’s Green Paper (1990). But when Bill C-90 was introduced by the Conservative government in 1992 as its response to the sentencing reforms recommended by these three bodies, it did not include the establishment of a sentencing commission. Why is that?

There is a political explanation for that omission. In February 1992, in the name of reducing Canada’s large deficit, the Conservative government announced the sudden abolition of six agencies, including the Law Reform Commission of Canada and the Economic Council of Canada. As a government restraint policy, the elimination of these six agencies did very little to reduce the size or cost of government which at the time consisted of “over 400 separate organizations and advisory bodies… [including] 80 departmental agencies, 56 Crown corporations and more than 200 boards, tribunals, councils and other advisory bodies.Footnote 30 Indeed, many insiders believed that the abolition of these commissions was a political move, not a fiscal one. Those insiders suggested that the Conservative government wanted to get rid of the Economic Council because the government was unhappy with various reports from the Council, and in particular a report from the Council that suggested separation of Quebec from Canada might not have the dire economic consequences that the Conservative government maintained it would have.Footnote 31 In order to provide camouflage for the politically motivated abolition of the Economic Council, the government abolished five other commissions at the same time to make it less obvious that they were gunning for the Economic Council. So having just abolished six commissions in the name of fiscal restraint, it is not surprising that the Conservative government a few months later did not want to be seen establishing a new permanent sentencing commission. Indeed, in the 1992 Budget Papers a new sentencing commission was referred to as a “deferred” organization.Footnote 32

However, when the Liberal government defeated the Conservatives in the fall of 1993 and introduced their own sentencing bill in May1994 (Bill C-41), there was no longer any reason not to include the establishment of a sentencing commission. But for some reason, the Liberal government blindly followed the Conservative government’s approach on that issue, even though a sentencing commission had been so strongly supported by the Canadian Sentencing Commission, the Daubney Report, and the Green Paper. Sadly, the debate surrounding Bill C-41 in the House of Commons contained nary a word about a sentencing commission, and it was only touched on in passing in the Committee debates.

Without a permanent sentencing commission, amendments to our current Statement of Purposes and Principles will have virtually no impact on improving sentencing practices in Canada.

Recommendation: I recommend that Canada establish a permanent sentencing commission after examining other sentencing commissions for best practices. There are many good models of sentencing commissions which Canada can study as a basis for creation of its own sentencing commission; for example, the commissions in the UK,Footnote 33 New South WalesFootnote 34 and Victoria in AustraliaFootnote 35 provide interesting models. They are each different and they each have their own strengths. In my view it is essential that Canada create a permanent sentencing commission using the best ideas from the other sentencing commissions.

I further recommend that the Department of Justice establish a small working group to study (1) the nature, composition, appointment procedures and reporting mechanism, (2) the form and structure (i.e. the number of commissioners and the nature of their experience, etc.) and (3) the functions of the commission (i.e. sentencing data collection, reports on problematic sentencing issues, and production of guidelines of either an advisory or presumptive nature). I suggest the Working Group could be composed of three judges, two lawyers (one Crown and one defence), two academic specialists (one from law and one from criminology), and one very senior Department of Justice official, with the Working Group being supported by a small group of research assistants. The Working Group’s Report and Recommendations on a permanent Sentencing Commission should be submitted within one year of the Group’s appointment.

2. Competing Sentencing Objectives

Some commentators consider s.718 to be a “confusing” mix of utilitarian and dessert-based (i.e. retributivist) purposes and objectives. But when s.718 is read in context with ss.718.1 and 718.2. much of the so-called confusion disappears. The overriding sentencing requirement in s. 718 is to impose “just sanctions” and s. 718.1 states that a just sanction must be “proportionate” to the gravity of the offence [judged principally by the nature and degree of harm caused or threatened] and the degree of responsibility of the offender. In combination, these two sections establish a just desserts model.Footnote 36 The principles of parity, totality and restraint in s.718.2 help to further define what a “just” and “proportionate” sentence should look like.

It is true that s.718 sets out various competing utilitarian objectives such as denunciation, deterrence, separation, rehabilitation, reparation and accountability (i.e. acknowledgment and responsibility by offenders of the harm done). But a proper contextual reading of s.718 and 718.1 makes it clear that these utilitarian objectives are only be pursued within the confines of what otherwise constitutes a just and proportionate sanction. Roberts and von Hirsch have suggested a way to make the just-desserts nature of the current statement more clear.Footnote 37 They would simply delete the six competing utilitarian objectives listed in s.718. However, I don’t believe it is wise or necessary to eliminate the six objectives. When read in their proper context, the utilitarian objectives can and should be pursued, but only in so far as they operate within the confines of a “just sentence”. The attempt to prioritize objectives in ss. 718.01, 718.02 and 718.03 is too ad hoc, arbitrary and incomplete to be retained and thus I have recommended that those three sections be deleted, as noted in Part D 3(b) at page 7 above.

Recommendation: It is not necessary to eliminate or alter the six competing objectives in s. 718. What is required is some direction on situations or types of cases in which one objective should be emphasized more than another. That direction needs to be grounded in the nature of the offence, the degree of harm caused and the moral culpability or blameworthiness of the offender. Those factors are informed by the nature and degree of aggravating and mitigating circumstances. This sort of detailed direction or guidance is the type of function that a sentencing commission can fulfill.

3. Aggravating and Mitigating Factors

As already noted in Part D 3(e), the list of aggravating and mitigating factors in s. 718.2(a)(i) is woefully incomplete; it is also arbitrary in respect to the aggravating factors that are currently listed. My recommendation in Part D 3(e) is to develop a full list of potential aggravating and mitigating factors and also to conduct research and commentary on the nature and degree of relevance of some of the trickier aggravating and mitigating factors. This work would be best done by a sentencing commission or by a similar body.  

4. Section 718.2(a)(i): Motivated by Bias, Prejudice or Hate

If the above recommendation to prepare a reasonably full list of aggravating and mitigating factors is not followed, then at least an amendment should be made to s. 718.2(a)(i) which treats crimes motivated by bias, prejudice or hate toward designated groups as an aggravating factor. Commentators have identified multiple problems in the use of s.718.2(a)(i) including concern over evidentiary issuesFootnote 38 and lack of legislative and judicial guidance on how much impact hate motivation should have on the quantum of a sentence. This has led to inconsistent tests.Footnote 39 In cases where s.718.2(a)(i) is successfully used as an aggravating factor, the Crown must prove beyond a reasonable doubtFootnote 40 that the offender was “motivated to act” on the basis of bias, prejudice or hate in respect to one of the prohibited grounds. Some commentators have observed that it is extraordinarily difficult to delve into the mind of the offender to determine whether the criminal act was the product of a particular hate, bias or prejudice.Footnote 41

This criticism is overstated. An offender’s motivation will sometimes be unmistakably clear based on the offender’s words and actions. Other times, the court will have to infer the offender’s motivation based on less obvious words and actions. But drawing inferences as to motivation is very similar to drawing inferences as to an accused’s intent which is necessary in all subjective mens rea offences, and this is a matter which judges are very familiar with. Yes, sometimes the available evidence of “motivated by hate” will be insufficient to prove this aggravating factor beyond a reasonable doubt, but those are exactly the cases where our system should not increase the severity of a sentence on an alleged, but unproven aggravating factor.

A more significant concern identified by some commentatorsFootnote 42 is the degree or extent to which the offender’s crime must be “motivated” by bias, prejudice or hate. The wording of s. 718.2(a)(i) currently requires evidence that the offence “was motivated by” bias, prejudice or hate. The provision is silent on the degree of motivation. Does the crime have to be motivated by hate solely, substantially, significantly, or just a little. Lawrence and Verdun-Jones suggest that to date the judges have used three different adjectives, which represent three different tests, in deciding whether a crime is motivated by hate under s. 718.2(a)(i): (1) offences motivated predominantly or primarily by bias, prejudice of hate;Footnote 43 (2) offences in which bias, prejudice or hate was a significant contributing factor; Footnote 44 or (3) offences only partly motivated by bias, prejudice or hate.Footnote 45

Since bias, prejudice and hate violate our fundamental values of human dignity and equality, it is my view that a crime which is motivated by bias, prejudice or hate to some degree that is significant (i.e. more than trivial) should count as an aggravating factor.Footnote 46 Although perhaps more contentious, bias, prejudice or hate should also be considered an aggravating factor when an offender is reckless, willfully blind or penally negligent in respect to the hate-causing effect of their offence. The quantum of that aggravation should increase as the degree of motivation increases and as the extent of the hate-related harm increases.Footnote 47

While some commentators have suggested that the word “hate” should be defined in the provision, Footnote 48 I think it is sufficiently understood by the public and the courts and therefore it is unnecessary to include a definition of hate.

Recommendation: I recommend that s. 718.2 (e)(i) be amended as follows. The amendments are noted in bold type below.

Evidence that the offence was motivated in a significant (i.e. more than trivial) way by bias, prejudice or hate, or the offender was reckless or penally negligent in respect to the harm that would probably be caused by his or her prejudice, bias 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.

5. Section 718.2(e) – Restraint in Imprisonment with Particular Attention to Aboriginal Offenders

There has been extensive commentary discussing the application and use of s.718.2(e).Footnote 49 One of the strongest criticisms of the section is that it has been ineffective; the overrepresentation of Aboriginal people in the prison system has not improved, and has indeed worsened since the introduction of s.718.2(e).Footnote 50 In R v Ipeelee, the Court notes that both the jurisprudence and academic commentary indicate “the failure can be attributed to some extent to a fundamental misunderstanding and misapplication of both s. 718.2(e) and this Court’s decision in Gladue.Footnote 51 In Ipeelee the Supreme Court of Canada noted that the historical and social context of Aboriginal offenders can significantly diminish the moral culpability of Aboriginal offenders.Footnote 52 Moreover, the Supreme Court encourages judges to take judicial notice of background and systemic factors impacting Aboriginal people:Footnote 53

To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.

Many commentators have lauded the decision in Ipeelee and argue it invites judges to seriously consider social, economic and political factors in sentencing, including the responsibility of the state in the perpetration of crimes.Footnote 54 However, other commentators argue the decision in Ipeelee treats indigenous offenders in a way that enforces problematic power differentials. These commentators instead call for more profound changes to fulfill the promises of s.718.2(e).Footnote 55

Recommendation: At this time I do not recommend any changes to s.718.2(e). The Supreme Court of Canada in Ipeelee has provided a thorough analysis of the section, including offering guidance on what the lower courts should be taking into account when sentencing an Aboriginal offender pursuant to s.718.2(e). Instead of legislative change to this provision, what is needed is a shift in the way the courts deal with this provision. For example, sentencing judges need to put more emphasis on the significant role social context plays in lowering the degree of responsibility of the offender. More importantly, sentencing judges need realistic options other than imprisonment for Aboriginal offenders. These realistic options require (1) the abolition of the restrictions placed on the availability of conditional sentences in the past 10 years, and (2) more community-based Aboriginal treatment and healing programs. If the prosecutor and the judge were to use aboriginal restorative justice processes more often rather than the normal sentencing process, they could better identify some viable options available in the offender’s community.

My one hesitation in recommending no changes to the current wording of s. 718.2(e) is that the addition of the words in 2015 “and consistent with the harm done to victims or to the community” could potentially be seen by some judges as a message from Parliament to favour a victim’s desire for “more jail time” over the systemic need to lower the rate of imprisonment of Aboriginal offenders. Such an interpretation would not be a correct interpretation in my view; it ignores the statistical reality that Aboriginal offenders are already being punished more severely than non-Aboriginals. Section 718.2(e) is a Parliamentary direction to use restraint in respect to imprisonment as a sanction; it indicates that non-imprisonment should be imposed whenever it is “reasonable in the circumstances”. That legislative direction includes a consideration of a range of factors including harm to the victim and community. Thus, the addition of those words should not result in a reduction in the use of sanctions other than imprisonment. However, if the words added in 2015 do have that effect, then I would recommend their removal.

6. Social Disadvantage

Several commentators argue that social context and social disadvantage should be considered mitigating factors in sentencing because they impact on an offender’s degree of responsibility.Footnote 56 These commentators applaud the courts’ use of social context evidence in GladueFootnote 57, IpeeleeFootnote 58, BordeFootnote 59, and HamiltonFootnote 60, but argue that the limits courts have placed on the use of such evidence has reduced the potential for social context evidence to effectively mitigate sentences. Indeed, after Gladue, even for Aboriginal offenders, courts have often limited the use of social context evidence where the offence is “violent and serious.” Ozkin argues this is not the correct interpretation of Gladue, and the Supreme Court of Canada in R v Wells, stated that Gladuedid not foreclose the possibility that, in appropriate circumstances, a sentencing judge may accord the greatest weight to the concept of restorative justice, notwithstanding that an aboriginal offender has committed a serious crime.Footnote 61 This point was also emphasized in Ipeelee, where the Court made it clear that s.718.2(e) applies to all crimes, including “serious” crimes.Footnote 62 Furthermore, commentators argue that courts have unreasonably limited the use of social context evidence where there has been a failure to link such evidence (especially systemic factors) to the commission of a crime.Footnote 63

Section 718.2(e) has been cited as authority for considering social disadvantage for Aboriginal and non-Aboriginal offenders.Footnote 64 Hannah-Suarez states this is precisely what the courts did in Borde and Hamilton.Footnote 65 Commentators argue that the remedial nature of s. 718.2(e) and interpretive principles support the use of acknowledging social context and social disadvantage for Aboriginal and non-Aboriginal offenders.Footnote 66 In Ipeelee, the Supreme Court of Canada stated:

…Furthermore, there is nothing in the Gladue decision which would indicate that background and systemic factors should not also be taken into account for other, non-Aboriginal offenders. Quite the opposite. Cory and Iacobucci JJ specifically state, at para. 69, in Gladue, that “background and systemic factors will also be of importance for a judge in sentencing a non-aboriginal offender”.Footnote 67

Support for consideration of socio-economic circumstances is not confined to s.718.2(e).Footnote 68 Section 718.1 requires a sentence to be proportionate to the “blameworthiness of the offender”. The offender’s blameworthiness is clearly affected by the offender’s degree of social disadvantage. Nonetheless there is legitimate disagreement whether the wording of section 718.2 should be amended to include specific reference to social disadvantage as a relevant sentencing factor for all offenders.Footnote 69 In my view, failure to expressly add “social disadvantage” as a mitigating factor will lead to inconsistency in its use as a mitigating factor.Footnote 70

Recommendation: I recommend that social disadvantage be included as a separate mitigating principle. It could be added as a new paragraph numbered s.718.2(f), or it could be added as a mitigating factor in s.718.2(a). Finally it could be added as a separate subsection to s.718.1, acting as a further explanation of “the degree of responsibility of the offender”. In my view it would be best to add it as a new provision numbered s. 718.2(f) along the following lines:

“(g) in determining ‘the degree of responsibility of the offender’ and in applying restraint in the use of imprisonment, the court shall consider the nature and extent of the offender’s social disadvantage and how that disadvantage may have had an effect on the commission of the offence”.