Sentencing in Canada

Introduction

Sentencing is the judicial process by which a court imposes a sanction on an offender following a conviction. In Canada, sentencing is governed by Part XXIII of the Criminal Code (sections 716–761), which sets out the purposes, principles, and objectives of sentencing, and the range of sentences available. The Canadian Charter of Rights and Freedoms imposes constitutional limits on sentencing through section 7 (fundamental justice), section 9 (arbitrary detention), section 12 (cruel and unusual punishment), and section 15 (equality).

Purposes of Sentencing

Section 718 of the Criminal Code identifies the purposes of sentencing:

1. Denunciation: Expressing society’s condemnation of the unlawful conduct
2. Deterrence: Specific (deterring the individual offender) and general (deterring others from similar conduct)
3. Incapacitation: Separating offenders from society where necessary
4. Rehabilitation: Supporting the offender’s reform and reintegration
5. Reparation: Providing reparation for harm done to victims or the community
6. Responsibility: Promoting a sense of responsibility in offenders and acknowledging the harm caused

No single purpose is paramount; the court must balance these purposes in accordance with the circumstances of the case and the offender. The weight given to each purpose varies with the nature of the offence and the characteristics of the offender.

Principles of Sentencing

Fundamental Principle — Proportionality

Section 718.1 establishes proportionality as the fundamental principle: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is the “cardinal principle” of sentencing (R v. Ipeelee, [2012] 1 SCR 433). The sentence must not exceed what is just and appropriate in the circumstances, nor be less than necessary to reflect the gravity of the offence.

Other Principles

Section 718.2 sets out additional principles:

Parity: Similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances. This principle promotes consistency and fairness, though it does not require identical sentences where circumstances differ.

Totality: Where an offender is sentenced for multiple offences, the combined sentence should not be unduly long or harsh. The court must ensure that the aggregate sentence is proportionate to the overall culpability.

Restraint: A sentence of imprisonment should be imposed only where necessary. The court must consider all reasonable alternatives to incarceration, particularly for first-time and non-violent offenders (R v. Gladue, [1999] 1 SCR 688).

Aggravating and Mitigating Factors: The court must consider relevant aggravating and mitigating factors. Aggravating factors include:

• Evidence of bias, prejudice, or hate (section 718.2(a)(i))
• Abuse of a spouse or intimate partner (section 718.2(a)(ii))
• Abuse of a position of trust or authority (section 718.2(a)(iii))
• Impact on victims (section 718.2(a)(iii.1))
• Association with organized crime (section 718.2(a)(iv))
• Offence committed for benefit of organized crime (section 718.2(a)(v))

Mitigating factors include:

• Guilty plea (reduced sentence for acceptance of responsibility)
• No prior criminal record
• Remorse and rehabilitation efforts
• Youth and immaturity
• Mental health issues affecting culpability

Gladue Principles

Section 718.2(e) of the Criminal Code requires courts to consider all reasonable alternatives to imprisonment for Indigenous offenders, with particular attention to the circumstances of Indigenous peoples.

In R v. Gladue, the Supreme Court established that sentencing judges must consider:

• The unique systemic and background factors that may have contributed to the offender’s involvement in the criminal justice system (including the impacts of colonialism, residential schools, the child welfare system, and systemic discrimination)
• The types of sentencing procedures and sanctions that may be appropriate in the circumstances, including restorative justice approaches and community-based sanctions

R v. Ipeelee confirmed that Gladue applies to all Indigenous offenders, including those convicted of serious offences. The failure to apply Gladue principles is an error of law. Courts must obtain a Gladue report where appropriate to provide the necessary information.

Types of Sentences

Imprisonment

Custodial sentences range from one day to life imprisonment:

• Summary conviction: Maximum of 2 years less a day (provincial jail)
• Indictable offences: Maximum ranges from 2 years to life, depending on the offence
• Life imprisonment: Mandatory for first-degree murder (parole ineligibility of 25 years, reduced to 15 years under the faint hope clause for some offenders)

Conditional Sentence of Imprisonment

A conditional sentence allows the offender to serve a sentence of imprisonment in the community under supervision, with conditions (house arrest, curfew, treatment). Available for sentences of less than 2 years where the court is satisfied that:

• Serving the sentence in the community would not endanger public safety
• The sentence is consistent with the purposes and principles of sentencing

Conditional sentences are not available for serious personal injury offences, terrorism offences, or offences with a maximum sentence of 14 years to life (section 742.1).

Discharge

An absolute discharge or conditional discharge may be granted where it is in the best interests of the accused and not contrary to the public interest. A discharge is not a conviction; after one year (absolute) or three years (conditional), the record is expunged.

Probation

Probation orders impose conditions on the offender’s conduct (reporting, counselling, no-contact). Probation may be imposed in addition to or instead of imprisonment.

Fines

A fine may be imposed as a standalone sanction or in addition to other sentences. The court must consider the offender’s ability to pay.

Restitution

Restitution requires the offender to compensate the victim for monetary losses. The court must consider restitution and provide reasons if it declines to order it.

Dangerous Offender Designation

For the most serious violent and sexual offenders, the Crown may apply for a dangerous offender designation, leading to an indeterminate sentence. The test requires proof that the offender constitutes a threat to the life, safety, or physical or mental well-being of others.

Joint Submissions

Where the Crown and defence make a joint submission on sentence, the court should not depart from it unless the proposed sentence would bring the administration of justice into disrepute or be otherwise contrary to the public interest (R v. Anthony-Cook, [2016] 2 SCR 204). This public interest test respects the efficiency benefits of plea agreements while preserving judicial discretion.

Mandatory Minimum Sentences

Mandatory minimum sentences (MMSs) require a minimum term of imprisonment for certain offences. MMSs have been subject to extensive Charter challenges under section 12 (cruel and unusual punishment).

The test for whether an MMS violates section 12, established in R v. Smith, [1987] 1 SCR 1045, and refined in R v. Nur, [2015] 1 SCR 773, and R v. Lloyd, [2016] 1 SCR 130, is whether the sentence is grossly disproportionate to the offence. The analysis considers:

• The reasonable hypothetical offender and circumstances (not merely the actual offence)
• The purpose and effect of the MMS
• The severity of the mandatory penalty
• Whether the MMS would catch conduct that is not sufficiently blameworthy

In R v. Bissonnette, 2022 SCC 23, the Court struck down the mandatory imposition of consecutive parole ineligibility periods for multiple murders as violating section 12, holding that the sentence was grossly disproportionate because it negated any prospect of rehabilitation and hope for release.

Appeals

Either the offender or the Crown may appeal a sentence. The standard of review on sentence appeals is deference: the appellate court should not interfere unless the sentence is demonstrably unfit or reflects an error in principle.

Conclusion

Canadian sentencing law reflects a careful balance between the competing objectives of punishment, rehabilitation, and public protection. The fundamental principle of proportionality ensures that sentences are tailored to the gravity of the offence and the offender’s responsibility, while the Gladue framework recognizes the unique circumstances of Indigenous peoples in the criminal justice system. The continuing constitutional scrutiny of mandatory minimum sentences reflects the Charter’s protection against disproportionate punishment.