Sentencing to the Starting Point: The Alberta Debate (As Originally Edited By and Posted On www.ablawg.ca)

After R v Shropshire,[1995] 4 SCR 22, the future of starting points in sentencing seemed questionable but after R v M (CA)[1996] 1 SCR 500, the future of the concept seemed downright bleak. Yet, decades later in R v Lacasse,[2015] 3 SCR 1089, the Supreme Court still wrestled with the applicability of starting points in sentencing. Now, the province which embraced the concept is debating the efficacy of using this sentencing approach. Although the majority of the Alberta Court of Appeal has never wavered on the applicability of sentencing starting points, the meaning of such a tool has changed. In R v Ford2019 ABCA 87,the most recent pronouncement on the issue, the Court seems prepared to shed the past and move beyond this point of contention. 

 The Ford decision is brief and needs context. This requires a review of the principles surrounding starting points including a look back to the source of the principle. This review, however, and here is the spoiler alert, will not just engage a linear analysis of the law. It is not enough that we understand the divergent issues arising from applying starting points in sentencing to arrive at the final sentence determination in an individual case. We must also situate that starting point in the grander scheme of legal principle by asking the reason for using such a point in the first place. This exploration of the “why” requires us to understand what the attraction to a starting point in anything is anyway and whether, for this reason, we simply cannot shed the basic need to start from somewhere. For this part of the discussion, I will not start with the expected but with the unexpected.

A “starting point,” according to the online Cambridge Dictionary, is “a place or position where something begins.” This is a linear concept, reminiscent of elementary mathematical vectoring, where motion is conceived as implying a direction from A to B. We move through space and time from one point to another. A starting point anchors us in that space and carves out a place, a pinpoint, at which we can orientate ourselves. Without such concreteness of place and time, we would experience vertigo. We would be horribly out of place. A recent book by the theoretical physicist, Carlo Rovelli, explains this human need to belong to somewhere both literally and physically. In “The Order of Time,” Rovelli describes our entire world view as a human construct. “Entire” includes our conception of time. In fact, Rovelli persuasively argues, time is entirely a human construction which has little scientific basis. We created time to help us explain the world better and to better control it. Time, in other words, is humanity’s starting point. Time helps us understand events. If we can’t start with ‘In the beginning’ or the ‘Big Bang’ then we can’t completely appreciate the import and impact of those events. 

This brings us to Rovelli’s further contention that points in time are imbued with perspective. Perspective requires a particular point of view connected to the time event. According to Rovelli, “point of view is an ingredient in every description of the observable world we make” (at 153). This requires us to look at the world from within because that’s where we are located – within the world. Just as we cannot use a map to take us from point A to B without knowing where we are in relation to those points, we feel a need to make sense of the world through the eyes of the insider.

You may now ask how this travel through the space-time continuum relates to starting points in sentencing. It has everything to do with them. This seemingly side bar peregrination lends context to the debate on the space occupied by starting points in our sentencing nomenclature. Without considering the human desire to start from somewhere, we will not have the entire perspective before us. Without injecting the human perspective into an event, we are losing meaningful engagement with it and within it. 

To gain this meaning, we need to take a deep look at the source. Although Alberta did not create the concept of starting points in sentencing, it did perfect it in the 1984 decision, R v Sandercock,1985 ABCA 218. There, in the context of sentencing for a major sexual assault offence, Justice Roger Kerans, speaking for the panel which included the then Chief Justice James Laycraft, affirmed the Court’s “commitment to the ‘starting-point approach’ to sentencing” (at para 2). When I say, ‘the Court,’ I mean the entire Court. Justice Kerans, in paragraph 2, makes this unusual position clear. He states confidently that “All members of the Court were consulted ... and we are authorized to say that the conclusions in these Reasons were approved by a majority of all of the judges of the Court, as well as this panel, and are to be considered as a guideline.” With this sweeping statement, starting-points in sentencing in Alberta were swept in. 

Yet, the Court of Appeal was no stranger to that concept even then. The starting-point approach was first articulated as a guiding principle in the R v Johnas decision, 1982 ABCA 331. In Johnas, the Court considered the appropriateness of a starting-point for robbery in light of the sentencing of several offenders for factually similar circumstances but with differing personal backgrounds. Some of the offenders had criminal records, while others were youthful offenders (at para 2). All of the cases involved the late-night robbery of small retail venues, such as convenience stores and gas bars (at para 3). Although violence was threatened, no victims were harmed (at para 4). At the time, these types of robberies were of great community concern. In terms of general sentencing principles, due to the gravity of the robberies, the principles of deterrence and denunciation were of paramount concern rather than rehabilitation. On this basis, the Court found that “we must recorda term of three years imprisonment as a starting point in the seeking of an appropriate sentence” (at para 19). The word “record” is underlined for emphasis. Remember that word.

 In any event, the Court does recognize the individuality that is sentencing. The general principles in determining a fit sentence required the Court to “speak of generalities” but through the perspective of the individual and the circumstances of the offence to arrive at a fit sentence (at para 16). It is important to note the duality of this sentiment and the juxtaposition of terms. The specific becomes the general as the individual is sentenced to a term of imprisonment which fits the type. Yet, the Court does this as an imperative – “we must” – and “records” or keeps the information by storing it in the precedential archive for future use. The individual may still be present, at the point of the imposition of sentence but is the individual really present at that pre-recorded starting point? 

The Alberta Court of Appeal was not breaking new ground in Johnas but was, through clear court-driven consensus, normalizing starting-points and, in so doing, embedding the approach into well-established sentencing principles. Other provincial appellate courts were using a similar approach, but labelling is everything. In the Nova Scotia Court of Appeal, for example, the Court referenced a “minimum” term of imprisonment for the Johnas-type of robbery (see R v Hingley (1977), 19 NSR (2d) 541 at 544). This was not consistent with the Alberta branding of starting-points (Johnas at para 22). It was too literal and restrictive, permitting discretionary decreases from that term only in “exceptional mitigating circumstances” (see R v Owen (1982) 50 NSR (2d) 696). This seems to suggest that the Johnas Court still recognized that sentencing was an exercise in discretion. 

Yet, the Court does not use the word “discretion” in the decision but does use the phrase “judicial reasoning” (at para 31). Judicial reasoning is a process, or a form of analysis, employed by a judge in arriving at a decision. It involves how the sentence is determined not the mechanisms used. Starting points are therefore about the consistent application of sentencing principles based on a “norm for the type of offence involved” (para 31). This norm is developed “by comparisons to other cases, by experience, by the seriousness of the offence and by its prevalence” (para 31). It is only after the norm is determined that the Court then looks at the aggravating and mitigating factors involved in the specific case (para 31). Sentences, in other words, are objectively determined but through the unique perspective of the offender and the specific circumstances of the case. No two sentences will ever be precisely the same. In support of this position, the Court quoted Lord Justice Lane said in R vBibi, (1980) 71 Cr App R 360, who stated that:

We are not aiming at uniformity of sentence; that would be impossible. We are aiming at uniformity of approach. (at 361)

Nevertheless, the distinction between uniformity of sentence and uniformity of approach is subtle. For instance, in the UK, Lord Justice Lane’s jurisdiction, uniformity seems to be the key word for both approach and sentence. A sentencing council, comprised of legal and non-legal members, create sentencing guidelines mandated for use in determining sentence in court (https://www.sentencingcouncil.org.uk). This council strives for “greater consistency in sentencing, whilst maintaining the independence of the judiciary.” These guidelines go further than a matter of judicial reasoning by setting a sentencing point based not only on legal principle and case authority but also on public consultation. This approach widens the field of perspective.

Having pursued the starting point to its starting point, we can fast forward to the Supreme Court’s most recent treatment of the approach in the Lacasse decision. Thisdecision sets the standard for sentencing across Canada by not setting a standard. In that decision, the majority of the Court reiterated sentencing principles found in the common law and as reflected in s 718 of the Criminal Code but at the same time confirmed the essence of sentencing as a discretionary process. The sentencing judge, as the eyes and ears of the Rule of Law, is in the best position to fashion a fit and appropriate sentence. In this way, sentencing is a true partnership between the principles, which guide the judge, and the judge’s own sense of justice as see through the factual, legal and societal lens. 

This human touch to sentencing is therefore, according to Lacasse, connected to the standard of appellate review. Deference to the sentencing judge serves to contain appellate review to demonstrably unfit sentences resulting from an error in principle and law. The principle of deference, in this way, illuminates the process of sentencing by recognizing responsibility lays on that judge to craft a just and fair sentence. It is a deep responsibility indeed. A responsibility that despite the comments in Lacasse has resulted in division in the Alberta Court of Appeal on the parameters in which that deference must be wielded. Yet, the recent decisions rendered by the Alberta Court on the issue suggests the softening of the starting point from a hard start to a soft reference point. Such approach, is more consistent with the Supreme Court’s views of the issue.

There have, of course, been critics of the more flexible approach to starting points. One matter of contention in the Alberta Court of Appeal started before Lacasse but continued in earnest even after the release of the decision. In a series of dissenting opinions (R v Murphy2014 ABCA 409 (Wakeling JA is not in dissent but renders a concurring judgment) Rv KSH2015 ABCA 370R v Rossi2016 ABCA 43R v Vignon2016 ABCA 75R v Yellowknee2017 ABCA 60), and R v SLW2018 ABCA 235, Justice Thomas Wakeling believes appellate courts “must provide an analytical framework for the assistance of sentencing courts” (KSHat para 60,Rossiat para 56, Vignon at para 45 and Yellowknee at para 52). In each decision, Wakeling JA creates sentencing protocols for sentencing judges, akin to the computer coding language of “if, then.” These “subsets” or “bands of offences” (see e.g. SLW at paras 97­–98) reflect categories of sentences in which gravity of the offence is the variable measurement. If an offence falls within a band, then the sentence to be imposed is easily ascertained and articulated.

Although Wakeling JA perceived this framework as providing articulable sentencing structure within a discretionary decision, other appellate courts disagreed. As later commented on by the Manitoba Court of Appeal in R v PES2018 MBCA 124, Justice Wakeling’s effort created “rigid analytical categories,” which “unnecessarily limit the discretion of the sentencing judge.” The Manitoba Court emphatically rejected this unifying approach (at para 77). The Alberta Court of Appeal too rejected this model in R v Gauvreau2017 ABCA 74and  R v RGB2017 ABCA 359. In RGB, the Court made it “absolutely clear, it is not the law in Alberta that a sentencing judge must apply the three-subset model in imposing sentence for these types of offences” as mandated by Justice Wakeling. The Court went further by categorically rejecting the Wakeling Model and “sentencing grids in general” (at para 18). In the Court’s view, the approach “fetters the proportionality analysis” (at para 18). 

Notably, Justice Wakeling continued to recommend “an analytical sentencing framework” even after the rejection of it. In the 2018 SLW decision, Justice Wakeling makes the case for his approach by referencing other jurisdictions such as the UK, which favours such a framework. As mentioned, the UK experience involves community input through a sentencing council, which does provide detailed and refined sentencing guidelines for certain offences, albeit not all. In Justice Wakeling’s last effort on the issue, he pointedly remarks in SLW at paragraph 100 that “because Parliament has not established a sentencing commission with a mandate to prepare sentencing guidelines, it falls to appeal courts to do so.” Wakeling JA’s comments did not attract any further attention from the courts. 

In R v Suter,2018 SCC 34, a decision of the Supreme Court of Canada rendered on June 29, 2018, the same day as the SLW decision, the Supreme Court considers a sentencing appeal from the Alberta Court of Appeal. Notably, Justice Clement Gascon, albeit in dissent, imagines an “analytical sentencing framework” already available in the Criminal Code sentencing provisions. At paragraph 153, Justice Gascon describes the statutory scheme as “carefully drafted” and as provisions which were “enacted as ‘a step towards more standardized sentencing, ensuring uniformity of approach’ (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at 1.59).” Justice Michael Moldaver for the majority in Suter, reiterates sentencing ranges “as merely guidelines” (at para 24). He too confirms the paramountcy of the statutory framework in the Code by suggesting that “as long as the sentence meets the sentencing principles and objectives codified in ss 718 to 718.2 of the Criminal Code, and is proportionate to the gravity of the offence and the level of moral blameworthiness of the offender, it will be a fit sentence.”It seems the Supreme Court views the statutory authority as sufficient sentencing guidance. 

Another, earlier riff, on an analytical framework for sentencing can be found in R v Hamilton,2004 CanLII 5549 (ONCA). There, Justice David Doherty envisions sentencing as “a very human process” (at para 87). In his view, “most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint-by-numbers landscape is to the real thing” (at para 87). In discussing the appropriate range of sentencing for cocaine importation, Justice Doherty, after running through the various sentencing objectives, principles and sentencing precedents touches upon the meaning of a sentencing “range” for an offence. At paragraph 111, he explains how a range for a specific offence “does not determine the sentence to be imposed on a particular offender as the range is “in large measure a reflection of the ‘objective seriousness’ of the crime.” In other words, the range of sentence is a short hand for a constellation of objective criteria arising from a factual matrix including, in the example of cocaine importation, the amount of the drug imported and the commercial aspect of the incident. That range is then tailored to the specific instance by consideration of aggravating and mitigating factors resulting in a sentence which may be at any point throughout the appropriate range. Perhaps, even, Justice Doherty explains, the sentence imposed could be “well below” that range should the circumstances of the offence and the offender require it. Sentencing is thus humanized through the filling in of the objective criteria with real, tangible circumstances. 

Applying this sentiment, starting points may provide the objective point needed to focus or pin down the point of reference for a sentencing judge. But this point cannot be further objectified through a rigid container approach. Rather, the sentencing judge breathes life into the reference point through the just application of principles and objectives, which are responsive to and reflective of the narrative before them. In appellate review, this should mean deference to the sentencing judge who considered and understands the complexities of the case before them. It should not mean a recalibration of a sentence back to the starting point without a clear error as described in Lacasse. Using a renaissance art analogy, starting points should be the fresco cartoon, which roughly sketches and maps out the image, not the finished fresco imbued with colour and movement. That final piece is wholly created through the discretion of the sentencing judge.

Although the Wakeling experiment ended after SLW  in 2018, this foray into a more structured approach to sentencing was not so off the mark of the original starting point concept. Wakeling JA’s use of “subsets” or “different categories of offence classified by their degrees of seriousness or blameworthiness” (Yellowkneeat para 70), is essentially the same as the Court’s penchant for categorization through characterization of offences to assist in determining a starting point sentence. For instance, in R v Pazder,2016 ABCA 209,the court in an attempt to create a uniform approach to sentencing and uniformity of sentence, delineated distinctions between first level and second level offenders for commercial drug trafficking sentencing (at paras 13–14). The difference between the three-year starting point for level one, a more minor form of trafficking, and the four and a half year starting point for level two, involving the wholesale dealing of drugs, was found in the moral culpability or personal responsibility of the offender (at paras 15–17). The degree of responsibility could increase or decrease the sentence from the starting point (at para 18). Similarly, the LaBergecategories of culpability (1995 ABCA 196at paras 8–12) have resulted in highly regimented sentencing guidelines for manslaughter as sentencing submissions involve fitting the case into the desired sentencing category. Categories as a signature of blameworthiness was further approved in the five-panel decision in R v Arcand2010 ABCA 363, the pre-Lacassedecision upholding the Court’s approach to starting points and then again later in R v Hajar2016 ABCA 222, rendered after Lacasse

The Hajar decision reaffirmed the starting point mentality in the context of the starting point for a major sexual interference against a child. A five-panel court was assembled, producing a majority decision of three justices, a concurring judgment from one justice and a sole dissent. Even so, according to R v DSC2018 ABCA 335 at paragraph 40, “Hajar is binding on all trial judges in the province. Until it is overruled by the Supreme Court of Canada, or reconsidered by another five panel of this Court, it is binding on all appellate judges.” This statement directly responded to an earlier 2017 decision, R v Gashkanyi2017 ABCA 194,in which the majority essentially disagreed with Hajar. The majority in that case included Justice Ronald Berger, known for his dissenting positions. To be even more clear on the Court’s disapproval of Gashkanyi, in R v Reddekopp2018 ABCA 399, the Court unanimously reiterated that Gashkanyi “did not change” the three-year starting point for major sexual interferences cases (at para 5). The Court went further by clarifying that a starting point is “not a mandatory minimum sentence” (at para 10) but is only a point of reference. Interestingly, Justice Wakeling is a member of the Reddekopp panel, which decision was rendered nearly six months after Justice Wakleing’s last foray into an appellate-driven sentencing framework.

Yet Reddekoppwas but one of fifteen Court of Appeal decisions from 2018 discussing starting points in sentencing. For the most part, these 2018 decisions continue using the starting point as the focal point of the analysis. An exception is the decision in R v Gandour2018 ABCA 238. The Court, in allowing a Crown appeal against sentence, at paragraph 55, found the sentencing judge misconceived the scope of the starting point for a home invasion offence. According to the Court, the judge viewed the starting point as a “cap, not notional places to start the analysis.” This perspective suggests the starting point is a place to anchor the sentencing analysis and not mechanically binding number. 

However, a few months later in R v Godfrey2018 ABCA 369, the majority decision spends much of its time discussing the precedential effect of starting points. The majority admits that as per Lacasse and Suter“it is not per se an error in principle for a judge to sentence outside a sentencing guideline” (at para 4). However, in their view, starting points are “part of the law of the province” and are not “established in the abstract” (at para 5). In short, starting points are there to be recognized and considered as part of the sentencing process. Indeed, according to R v Arcand2010 ABCA 363, there is a three-step process in applying the starting point – akin to an analytical test (Godfrey at para 5 and 8). The Godfrey majority describes starting point sentences as “an assimilation and amalgam of all of the relevant sentencing considerations. They are not just ‘one more source of guidance’ among ‘competing imperatives’. They promote parity in sentencing, and consistency in weighing the gravity of the offence and the responsibility of the offender” (at para 6). In doing so, the majority in Godfrey cautions “local judges” to follow the starting point analysis and as they “are not entitled to invent their own standards in criminal sentencing isolated from national or provincial/territorial standards” (at para 7). Justice Brian O’Ferrall in dissent does not take exception with the concept of starting points as persuasive authority but contextualizes the starting point analysis as one of many “guides” to sentencing (at para 26). As Justice Gascon did in Suter, Justice O’Ferrall looks to statutory authority and codified sentencing principles as providing guidance as well (at paras 27–28). Appellate courts do also provide guidance but only to the extent that they review and analyze “hundreds of sentencing decisions” to arrive at the starting point (at para 29). In this way, starting point sentences are a grass roots venture, informed by the organic process of individual cases reviewed in reference to other cases. As Justice O’Ferrall aptly puts it “guidance is a two-way street” (at para 29). The concept of binding authority gives way to a communal perspective.

Starting points as binding authority or one of many guides to sentencing is another aspect of the concern with starting points as effective minimum sentences. Although in R v Arcand2010 ABCA 363(at para 131), the Court of Appeal emphatically found that “starting points do not amount to minimum sentences,” there was a notion earlier in the Supreme Court of Canada that “there is a risk that these starting points will evolve into de facto minimum sentences” (see Lamer CJC’s remark in R v Proulx, 2000 SCC 5 (CanLII) at para 88). With the advent of an increasing number of minimum sentences in the Code, the Alberta Court has continually reiterated the distinctiveness of starting points. The most recent decision commenting on this, R v Ford2019 ABCA 87, is both a decision on starting points and on the constitutionality of minimum sentences for sexual interference. In that decision both concepts are overlaid upon each other resulting in, as discussed further below, in a softer approach to starting points. 

This softer view seems to come “top up” as per Justice O’Ferrall’s comments in Godfrey through the application of starting points in the lower courts. The Honourable Judge J. Maher explores the meaning of starting points in R v BCP2019 ABPC 2. In this decision, Judge Maher compares starting points with sentencing ranges and discusses the preference, as a sentencing judge, for the starting point approach (at paras 11–14). In his view, starting points are more flexible and less confining than a sentencing range which involves “floors” and “ceilings” creating a rigid field of sentences absent exceptional circumstances (at para 12). Conversely, a starting point has no end or beginning and therefore releases the sentencing judge from the blinders created by a rigid range. Although this reasoning is attractive, it seems at odds with Justice Doherty in Hamilton and with the Supreme Court in Lacasse. Ranges may in fact provide more options as guidelines not requirements. Additionally, “exceptional” circumstances provide a generalized label that only garners meaning from the facts of each individual case. Still, as recognized in R v Alcantara2017 ABCA 56at paragraph 45, the starting point also provides “guidance” but does not “fix a mandatory number.” 

As later restated in Ford, in the Court’s view, there is a clear dividing line between mandatory minimums and starting points (at para 32). In Ford, the sentencing judge imposed 6 months imprisonment for sexual interference of a child, far below the Hajar starting point of 3 years. Although, Ford is notable for striking down the mandatory minimum of 12 months required for the offence under s 151, the Court, through the decision of Justice Martin, suggests Judge Maher’s view of starting points may in fact be correct. While still approving of Hajar, the Ford court upholds the 6-month sentence imposed on the basis that the accused suffered from mental challenges and was therefore less morally culpable. The starting point may be present in Ford but as a background reference, a reference point from which the sentencing could be viewed through the factual perspectives. This blurring of the starting point into a contextual guideline is evident in other 2019 Court of Appeal decisions such as in R v Paulson ,2019 ABCA 147and R v Costello2019 ABCA 104

Starting points are needed but they must not be applied in the vacuum devoid of individuality. In deep space and time without a reference point we are lost. So too in sentencing as defined in Reddekopp, a starting point is “as the term suggests, it is that point at which the applicable principles and objectives of sentencing are applied to the relevant circumstances of the case to arrive at a fit sentence” (at para 10). Points of light can guide us, but we must do so with the perspective of the within. Justice Martin reminds us in R v Boudreault2018 SCC 58 ,that “sentencing is first and foremost an individualized exercise, which balances the various goals of sentencing” (at para 58). The Ford decision suggests the Alberta Court of Appeal may finally be in sync with the “highly individualized” and “delicate balancing” of sentencing (see para 4 of R v Suter). Starting points or not, sentencing Courts must approach this exercise with the individual at the centre of that point – not alone – but in the contextual mix of legal principle and circumstances of the case to arrive at a fit, just, fair and proportionate sentence. This is the perspective which must lie at the core of the point from which sentencing is imposed.

 

A Fine Balance: Sentencing Suter in the Supreme Court of Canada (Cross posted from ABlawg @ https://ablawg.ca/2018/07/19/a-fine-balance-sentencing-suter-in-the-supreme-court-of-canada/)

Sentencing, Chief Justice Lamer tells us in R v M (CA), 1996 CanLII 230,[1996] 1 SCR 500, atparagraph 91, is “a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.” This sentiment neatly encapsulates all that is sentencing: an ephemeral yet earthy task in which the sentencing judge envelopes themself in a venture engaging both heart and mind. It is a “delicate” process, not heavy-handed, which requires a deft understanding of the human condition within the clarity of legal rules and principles. It is an art, not a science, meaning it is not a base computation or a tallying up of factors given pre-determined weight. Art also suggests artistic freedom and the discretionary nature we nurture in the sentencing process. But it is a determination statutorily mandated with well-defined rules and principles. There is wriggle room but just as we must stay within our lanes while driving, the sentencing judge must not over-correct or act erratically in imposing sentence. There are parameters. Some are, as indicated, statutory, as the “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (s. 718.1of the Criminal Code). Other parameters arise from the profound sense of community that envelopes us when a fellow member breaks our laws – the laws that reflect our fundamental values. We feel the impact of rule-breakers, but we also feel their angst. We all know, to some degree, we too could be similarly situated, both as victim or offender. It is at this tipping point where the sentencing judge’s task becomes even more delicate as it searches for the fair and just balancing of all which is required to impose a fit and appropriate sentence tailored to the circumstances of the offence and the background of the offender. It is this delicate or fine balancing which is at the core of the myriad of issues arising in the newest Supreme Court sentencing decision in R v Suter2018 SCC 34

True to Justice Moldaver’s view, writing on behalf of the majority in Suter, that sentencing is a “highly individualized process” (para 4), the facts in Suterare highly unusual and particularly tragic. Mr. Suter entered a plea of guilty to a charge of failing or refusing to comply with a demand to provide a breath sample pursuant to s. 254(5) of the Criminal Code. A young child was killed when the vehicle Mr. Suter was operating crashed into a restaurant’s outdoor patio where the child and his family were enjoying a family meal. As a death occurred, the maximum punishment for the refusal to provide a breath sample was increased to life imprisonment under s. 255(3.2). However, the sentencing judge accepted Mr. Suter was not impaired by alcohol at the time of the incident. Indeed, the events leading to the incident involved a highly charged emotional event in which Mr. Suter and his spouse were arguing in the vehicle. Moreover, Mr. Suter’s refusal to provide a breath sample occurred after he received, incorrectly, legal advice to refuse. The fatality was widely publicized and Mr. Suter was a victim of a disturbing and brutal form of vigilante justice (paras 1-3). 

With this unique and troubling fact situation, the sentencing judge crafted a sentence seemingly far below the norm for the offence by imposing a term of four months incarceration with a 30-month driving prohibition. The Crown appealed the sentence to the Alberta Court of Appeal resulting in a substantial increase to the sentence to 26 months incarceration. Leave to appeal to the Supreme Court was granted. Unusually, the majority of the Supreme Court found both the sentencing judge and the court of appeal were in error (paras 5-6), resulting in the Supreme Court re-sentencing Suter (para 5). In the majority’s view, a term of 15 to 18 months incarceration was appropriate (para 103). However, as re-incarceration would cause undue hardship, it was “in the interests of justice” to impose a sentence of time served, amounting to 10 and a half months incarceration (para 103). The sole dissent of Mr. Justice Gascon found the sentencing judge imposed a fit and appropriate sentence and committed no error in law (para 109). He too allowed the appeal in part but restored the original sentence. Both the majority and the dissent upheld the sentencing judge’s imposition of a 30-month driving prohibition (paras 24, 104 & 202). 

With these facts firmly in mind, the issues arising in the case are as unique as the facts and the ultimate outcome. The issues do not arise from the facts but flow from them. There is a difference. In appellate advocacy, the appellate lawyer combs through the reasons, issue spotting and identifying arguable points based on knowledge of the types of appellate issues, which regularly arise in an appeal. For instance, are there grounds for an unreasonable verdict? Did the trial judge reverse the burden of proof in convicting the offender? These are just a couple examples of the specific appellate issues arising from a case. This is not to say that there may not be identifiable non-appellate type issues, such as errors involving substantive elements of an offence, but again those too would be easily spotted and seen to be arising from the facts. In a parallel manner, the appellate decisions based on these grounds swing from one issue to the next. Uniquely, in Suter, the issues flow and are not uniquely identifiable. There is no issue spotting as the legal issues move steadily and continuously resulting in the sensation that the Supreme Court’s treatment of this appeal flow. 

On this basis, setting out the myriad swirling of issues flowing from this decision is no easy task. Identification is also encumbered by the presence of a vocal dissent. In any event, on a meta-view of the decision, the first bundle of issues directly flow from the sentencing of Mr. Suter. One such point of discussion is on the use of vigilante justice, also characterized as a collateral consequence, as a mitigating factor in the sentencing balancing exercise. In Suter, the sentencing judge relied upon the incident in mitigation of sentence while the Court of Appeal found the judge erred in doing so. Both the majority and dissent in Suter agree that vigilante justice, as a non-state collateral consequence, was a mitigating factor to be balanced with all other considerations in arriving at a fit sentence. Justice Moldaver, however, restricted the use of such a collateral consequence to prevent “legitimizing” such illegal behaviour by accepting it as part of a legitimate legal process (para 58). Justice Gascon found the sentencing judge properly balanced the incident in arriving at a fit and appropriate sentence (paras 105, 109, 113-114 & 150).

The issue of the effect of Suter’s quasi-mistake of law can also be identified in this first sequence. I use the descriptor ‘quasi,’ meaning in this context, “apparently but not really” not for pejorative reasons but to emphasize what is at the root of the different world views between the majority and the dissent on this point of law. Neither Justice Moldaver nor Justice Gascon clearly and cogently describe what mistake of law truly is in legal terms. To be sure they discuss around the concept and drop hints, some large hints, of what their working definitions are but the reader is never entirely certain from where each position is starting. Without knowing the legal principles around this legal construct, it is the justification for the ultimate conclusion that becomes the legal construction of mistake of law. This serves to reinforce the feeling that this decision flows in a non-traditional legal judgment manner. Instead of starting with what mistake of law is in legal terms, involving academic scholarship (Glanville Williams comes to mind) and case law (mistake of law versus mistake of fact, colour of right and officially induced error have a large body of case law discussing the substantive issues) including a statutory analysis (s. 19, albeit there is a sparse discussion of this in the dissent), the Court presumes the principles and relies on the justification or their interpretation of whatever legal status they have given the term. Justice Gascon does come closer by challenging Justice Moldaver for this lack of a principled approach (para 125) but does nothing concrete to reverse the time machine and go back to the essentials of what mistake of law is in light of legal principles (paras 125 to 128). Instead, Justice Gascon fashions a template of his own in paragraph 128, in which he creates a sliding scale of blameworthiness based on a range of knowledge that could be attributed to Suter. Thus, the case authority discussion is derailed by the Court not focussing on the issues and instead allowing their decision to be pulled by the current of reasoning, justification, and the issue-spotting of errors found in one another’s reasons. 

Context is one reason why neither the majority nor the dissent gives clear direction on the mistake of law. This mistake of law, based in Suter’s reliance on bad legal advice to not provide a breath sample, is only notionally acting as a defence in order to provide mitigation of sentence. It is not acting as a defence per se. The slurring of the legal meaning of mistake of law is understandable considering the focus is not on the mistake, as operating as a defence impacting guilt or innocence, but as a mitigating factor on sentence to be balanced with all of the other sentencing considerations. Unfortunately, by not approaching the issue in a principled fashion, by allowing the reasoning to be the de facto substitute for those principles, we are never clear as to when and how mistake of law can be used on sentencing generally. The Supreme Court, as the final arbiter of all that is law in Canada, has not given us rules to live by or even rules to apply. 

The analysis of the mistake of law issue is an important one as it provides the dominant mitigating factor on sentence. Without a clear indication of the basis of this mitigation, the balancing is tainted, and the sentence imposed is rendered unfit. Using incomplete defences, which would not amount to a full defence to the charge, in mitigation of sentence is appropriate. This was not disputed in Suter (para 64 of majority judgment and para 125 of dissent and see dissent of Justice Gonthier in R v Pontes1995 CanLII 61 (SCC), [1995] 3 S.C.R. 44 at paras 75 and 87 and the Court in R v Stone,1999 CanLII 688, [1999] 2 SCR 290). The twist in Suteris the general unavailability of mistake of law as a defence unless it falls, as discussed below, within an exception such as mistake of mixed law and fact, colour of right and officially induced error. Again, without knowing the premise of the mistake, in law, we are unsure if the mistake is being used at sentencing as a defence that could not be proven at trial or as a defence unavailable at trial.

There is glancing discussion by Justice Gascon on s.19 of the Code which sets out the admonition that ignorance of the law is no excuse (para 127). There is, however, no discussion of when a mistake of law can be a defence such as when it is a matter of mixed fact and law (see R v Manuel2008 BCCA 143 at paras 16 and 17), a colour of right (see Justice Moldaver’s decision in R v Simpson2015 SCC 40, [2015] 2 SCR 827), or officially induced error such as in Lévis (City) v. Tétreault2006 SCC 12 , [2006] 1 SCR 420. Not referencing the Lévis decision is a surprise as it is that decision in which the Supreme Court outlines the very strict requirements for the defence of officially induced error, a defence traditionally only applicable in regulatory matters. A reliance on another person for knowledge of the law seems to fit squarely within the Suter form of mistake of law. Yet, there is no discussion in Suter of this point. We do not know under what form of mistake of law the Court is considering. Is it officially induced error as Justice Gascon seems to be suggesting or is it an honest but mistaken belief in law? Is the issue a mixed law and fact, permitting a defence? Or is it a question of scope and interpretation of the law, which is a feature of mistake of law? Does it even matter if the defence is available in law or not or what it may consist of if we are in the sentencing hearing stage where the procedural and evidential standards are relaxed? These and many questions are simply left out of this decision to be filled in by speculation.  Again, there are hints to their approach as the issue of the lawyer’s incorrect advice and the reliance on it is a point of discussion and disagreement. 

To be sure, duty counsel or Brydges lawyer (referring to R v Brydges1990 CanLII 123,[1990] 1 SCR 190, in which the Supreme Court found the state must provide an accused access to a lawyer upon arrest to comply with s.10(b) right to counsel under the Charter) does not, according to case law, fulfil the Lévisrequirement that the official who gives the legal advice be a government official authorized to speak on the issue. In R v Pea, 2008 CanLII 89824(ON CA) and R v Beierl2010 ONCA 697duty counsel was not considered an official for purposes of the defence. This point, seemingly at issue in an officially induced error scenario, was not discussed in Suter just as the defence itself was not directly raised.

Also, not fully discussed is the Pontesdecision, referenced earlier in this post, in which Justice Gonthier, for the dissent, enters into a principled discussion of the operation of s. 19 of the Codeand thoroughly discusses instances where a mistake of law may be a defence to a strict liability offence (paras 71 to 80). Although Pontesis decided in the context of regulatory offences, Justice Gonthier considers an earlier Supreme Court decision in R v Docherty, 1989 CanLII 45 (SCC), [1989] 2 S.C.R. 941, on the required elements of the then Criminal Code offence of wilfully failing or refusing to comply with a probation order. In his analysis in paragraph 75 of Pontes, Justice Gonthier relies on Docherty for the contention that ignorance of the law may provide an excuse where knowledge of the law is part of the mens reaof the offence. The evidence of an accused’s lack of knowledge of the legality of the breach would negate a “wilful” failure or refusal to comply. There is no discussion in Suter on the mens rea required for the offence for which Suter entered a plea and subsequently this aspect was not raised.

There is another telling dimension to the mistake of law approach. Throughout the dissent, Justice Gascon calls the offence “administrative” (paras 107, 172, 181, 183, and 201) signalling his belief the offence is more akin to a regulatory matter. This characterization renders the mistake of law defence even more applicable based on its broader usage in the prosecution of regulatory matters where knowledge of a large body of regulation is difficult. Yet, the Suter offence is in the criminal code and is not regulatory. To characterize this offence as administrative in nature deflects the issue away from the reason behind the offence not just as an incentive to assist police in the investigation of impaired driving crimes but to provide a disincentive to refuse to do so in order to escape criminal or civil liability. Courts have characterized this offence in a similar way (see R v Seip,2017 BCCA 54 at para 36).

This result-oriented perspective occurs to such an extent in Suter that we are not even sure to what standard of proof the mistake of law must be proven for the mistake to be considered in sentencing. This missing piece acts to magnify the differences between the majority and dissent. Justice Moldaver enters into a discussion of Suter’s sincere and honest belief in the mistake (paras 62-70) akin to a mistaken but honest belief assessment needed for the defence of mistake of fact. Conversely, Justice Gonthier focuses on the bad legal advice, without which, Suter would not be in court, making Suter’s “moral blameworthiness ... infinitesimal” (para 174). No one meaningfully articulates the commonalties, other than mistake can be considered on sentence. It is as if the Court is working backward from the sentence to the mistake itself. This backward glance is the source of friction between the two decisions and is most readily apparent in their perception of the importance of the legal advice on the mistake.

This framing of the so-called mistake of law scenario leads into the very different perspective on the bad legal advice given to Mr. Suter. Justice Moldaver pins the mistake of law on Suter in terms of his belief of what the law required. In the majority’s construction of legal rights and responsibilities, it is the individual and their personal choices that control the effect of the law. Justice Moldaver takes a hard-line in finding a paucity of evidence on the true substance of the legal advice given and counters that absence of evidence with the presence of the police officer, who fulfills his Charter duty by cautioning Suter to provide a sample or face the consequences of a criminal charge. To take this position in the context of a sentencing hearing, where evidential and procedural rules are relaxed (see R v Lévesque2000 SCC 47, [2000] 2 SCR 487) shows a clear desire to minimize the impact of the mistake, in whatever form it is in.  

Justice Gascon pins the mistake on the duty counsel lawyer and then frames Suter’s duties within a Charter framework. The dissent leans on the Charter as an explanation for why Suter was acting under a mistake of law relying on Charter protections not as stand-alone arguments where rights are breached but to provide the basis for inferences as to why people choose to do what they do. Thus, Suter’s failure to blow, despite the police officer’s dire warning that a failure will result in a criminal charge, is waved away by Justice Gascon as a reasonable response of an accused to information from an agent of the state – the very agent who is attempting to build evidence against him. This emphasis on the state as the bad actor so to speak builds a much different narrative than the majority. It also fails to acknowledge some case authorities that have tackled the issue of officially induced error where the police caution to provide a sample is confusing (see R v Humble2010 ONSC 2995). Again, we are on uncertain ground by not knowing what the mistake of law is predicated on and who the “authorized” officials are in the scenario. The Suter decision is directionless on this and yet the appeal provided a perfect opportunity to provide clarity on these issues, despite the uniqueness of the fact situation. 

Nestled within these correlated issues and directly arising from the sentencing hearing, flows the discussion on the application of the 2015 Supreme Court decision on sentencing principles, R v Lacasse2015 SCC 64, [2015] 3 SCR 1089. Where Suter is set in a unique factual circumstance, Lacasse involves the all too often scenario of impaired driving causing death. There is, sadly, nothing unique about the facts there. Indeed, the Lacassedecision is broadly based and serves to clarify general sentencing principles and the role of the appellate courts in considering a sentence appeal. Suter, while applying Lacasse, resurrects some of those self-same issues. Notably, Justice Gascon dissented with the then Chief Justice McLachlin, giving Sutera déjà vu flavour. Some might even say based on Justice Gascon’s dissent, that far from applying Lacasse, the Court in Suteris doing just what Lacasse attempted to avoid – the “tinkering” of the quantum of sentences at the appellate level. In Suter, as in Lacasse, moral culpability, proportionality and gravity of the offence drive the foundational underpinnings of the decision.

The next issue, flowing from the first two, involves the larger discussion on the role of the Supreme Court in sentencing appeals – not just appellate courts – but as the court of final appeal. This is not just a purely jurisdictional discussion as found in R v Gardiner1982 CanLII 30 (SCC),[1982] 2 SCR 368, and as distilled by Chief Justice Lamer in paragraph 33 of the M(CA)decision. This is a complex interplay between the roles of trial courts versus appellate courts in determining fitness of sentence that flows beyond jurisdiction. Appellate intervention is hierarchical yet infused with deference. Deference to the trial judge is a continual appellate theme, as it symbolizes the core of our common law justice system. This is a system where judicial parameters are laid down in principle but not rigidly adhered to. There is, as mentioned at the start of this post, wriggle room for the judges to apply their own common sense and discretion, based naturally in law so as not to be unreasonable or erratic. It flows from judicial independence and from a desire to inject into the process a good dose of humanity in the form of equity. 

Deference to the trial judge in Suter becomes not just an issue arising from the appeal but becomes a tool used by the dissent of Justice Gascon (paras 161 – 178). For Justice Gascon, the majority becomes a court of first instance as they exercise their own discretion, wielded through their own judicial lens by sentencing the accused ab initio. All of this, to Justice Gascon’s chagrin, to ‘tinker’ with the sentencing judge’s perfectly principled original sentence. Justice Gascon goes so far as to ‘call out’ Justice Moldaver for obfuscating the real reason for the increased sentence imposed by the majority as a pandering to the public/government’s tough on crime agenda, particularly in the area of impaired driving (para 159). This deference is hard won as Justice Gascon himself admits that he would have “personally ... weighed the gravity of the offence more heavily than the sentencing judge” (para 170). His challenge to the majority is a clear indication that the court is divided philosophically, politically and legally. Deference in Suter becomes not just trial judge deference but deference to the Rule of Law, to the independence of the courts and to each other.

Indeed, Justice Moldaver commences his reasons by applying an earlier Supreme Court case, R v Mian2014 SCC 54, [2014] 2 SCR 689, on the scope of appellate review (see my earlier blog posting on the issue on my ideablawg website). Mian raises the spectre of a reasonable apprehension of bias at the appellate level when the appellate court raises issues not identified by appellate counsel. In Mian, it is not so much the raising of the new issue which is problematic but raising the issue without giving counsel the ability to respond. In Justice Moldaver’s view this opportunity was given in Suter

But flowing from the Mian concern is the additional problem or error of the court of appeal in sentencing Suter for offences of which he was not charged (paras 35 to 44). The procedural concept of an appellate court raising new issues on its own motion becomes an error in law as the court of appeal created a “novel and confusing” form of impairment “by distraction” akin to a careless driving or dangerous driving delict (para 38). According to Justice Moldaver, by doing so, the court of appeal was “circumventing the sentencing judge’s finding that this accident was simply the result of “non-impaired driving error” (para 38). Again, deference to the trial judge re-appears, as finding of facts is the province of the trial judge, who lived and breathed the evidence, not the appellate court, who merely reads it. This is particularly important in sentencing as a sentencing judge can sentence an accused on uncharged offences arising from the facts, but those aggravating features must be proven beyond a reasonable doubt (see R v Angelillo,2006 SCC 55, [2006] 2 SCR 728). There is a further concern with this position as it reflects on Justice Gascon’s concern with the majority’s decision to re-sentence Suter. Sentencing as an art is a collage of facts and principle where the emotional content of the accused’s background and the gravity of the offence colour the decision-making. Who better to do this than the original sentencing judge.

Indeed, who better? Briefly looking at previous sentence appeals decided at the Supreme Court level, the re-sentencing of Suter is unique. The Court may remit the matter back to the trial judge for imposition of sentence where the Court enters a conviction overturning an acquittal (see for example R v Bradshaw, [1976] 1 SCR 162,1975 CanLII 19 (SCC)Rv Audet, [1996] 2 SCR 171, 1996 CanLII 198 (SCC),and R v Ewanchuk, [1999] 1 SCR 330, 1999 CanLII 711(SCC)). The Court may also remit the matter to the lower appellate court for re-consideration pursuant to that court’s power under s. 687 of the Criminal Code to vary the sentence imposed (see for example Lowry et al v R, [1974] SCR 195, 1972 CanLII 171 (SCC)and R v Loyer et al, [1978] 2 SCR 631, 1978 CanLII 194 (SCC)where the Supreme Court ordered the matter back to the court of appeal to pass a new sentence upon hearing of sentencing submissions by counsel at page 204). Rarely does the Supreme Court re-sentence an Appellant but never before has the Court found both the trial judge and the court of appeal to be in error in the fitness of sentence imposed (according to my Canlii database search). The Supreme Court has no direct statutory authority to impose sentence as in the case of a provincial court of appeal. 

Although re-sentencing in toto has not happened previously, the Supreme Court has adjusted a sentence. For instance, in R v Morrisey[2000] 2 SCR 90, the Court varied the sentence to properly account for pretrial custody. Also, the Court has adjusted a sentenceto bring it into conformity with a joint submission on sentence such as in R v Anthony-Cook,2016 SCC 43, [2016] 2 S.C.R. 204. Prior to Suter, the closest the Court came to imposing a sentence is in R v Middleton,2009 SCC 21, [2009] 1 SCR 674, where Justice Cromwell, dissenting in part, found the sentence to be illegal but refrained from deciding what sentence he would impose considering the outcome of the appeal per the majority’s decision (see paras 112 -113).

Justice Gascon, to put it mildly, did not approve of this re-sentencing. As mentioned earlier, he found the new sentence imposed by the majority to be effectively a non-sentence as it amounted to time served. Consistent with this view, Justice Gascon labelled the majority’s decision as a “stay” of the sentence (para 158). The Supreme Court has stayed the passing of sentence in previous appeals but not in conjunction with re-sentencing, such as in Suter, where the Court actually applies sentencing principles and balances the required considerations to arrive at an actual sentence quantum. In R v LFW2000 SCC 6, [2000] 1 SCR132 for example, the Court found the conditional sentence was inappropriate and a term of incarceration was required. The then Chief Justice Lamer stayed the passing of that imprisonment as the offender had completed the conditional sentence and it would be “very difficult” for the sentencing judge to re-sentence (para 32). In another decision, the Court restored but stayed a conditional sentence order where the offender had already served the period of incarceration ordered by the court of appeal (see R v RNS2000 SCC 7,[2000] 1 SCR 149). Suteralso differs from R v Fice, [2005] 1 SCR 742, 2005 SCC 32 (CanLII), where the Supreme Court found the court of appeal erred in upholding an illegal conditional sentence order but stayed what would otherwise be a penitentiary sentence. The Court in Ficedid not enter into a sentencing assessment and the stay appeared to be with consent of all parties (para 46).

It should also be noted that the concept of imposing time served on a sentence appeal even if a longer sentence was appropriate is not unusual. Provincial appellate courts of appeal regularly take into account whether it would be in the interests of justice to re-incarcerate the Appellant when a sentence appeal is allowed (see R v Reddick1977 ALTASCAD 199 (CanLII)at para 4; R v Mann1995 CanLII 321 (ON CA)and R v Maxwell-Smith2013 YKCA 12(CanLII) at para 21). What is unusual is the fact that it is the Supreme Court doing it. Justice Moldaver, who sat as a trial judge and as a court of appeal justice, is very familiar with sentence appeals and the pragmatic outcomes needed. We see in Sutera clear division along the lines of practical realism on one hand and principled rule-based approaches. 

The last set of issues flow from the previous ones as we read between the lines of this judgment. Such a close reading reveals both this Court’s approach to criminal law and the sense of discordant approaches within the Court itself. Examples of this can be seen in the majority and dissent positioning around mistake of law and deference. It is also viscerally read in the tone and approach of Justice Gascon’s dissent with a specific part dedicated to pulling apart the majority’s position to the point of parsing in all of its minutiae the majority’s reasoning (paras 156 – 159). This dissection reminds me of the Supreme Court’s own caution not to cherry-pick or parse a trial judge’s reasons but to view the whole of the reasons in determining whether an error was occasioned and if there is an error, the significance of it (I discuss this more thoroughly in a soon to be published paper in the Manitoba Law Journal entitled The W(D) Revolution). Justice Gascon’s dissent shows this is easier said than done.  

This extensive point by point response to the majority and even the majority’s anticipatory responses to the dissent belie a tension hitherto not seen to such a degree in the Supreme Court. Even in the heady days of the Nineteen- Nineties when the court was fractured, there was a sense the Court was still attempting to talk to us, the legal community, albeit disparately, about the legal principles. Suter feels different. In Suter the judges are airing their laundry so to speak and speaking as they probably do behind closed doors where they engage in no doubt vigorous debate about the issues. Is this the transparency Chief Justice Wagner is encouraging from the Court? Or, as parts of this judgment feel, is this exclusionary as the legal community becomes the child in the room who can sense the tension from the parental tone of voice but cannot understand the meaning of the words? In some ways we are not privy to the deeper discordance that may lay behind this judgment – perhaps the differences between principal and pragmatism, which seems to permeate this judgment.

This leads us finally to a discussion of not what lies between the lines but how those lines are written and the judgment as a unique literary device that may challenge our idea of how the law is not only decided but also represented in Canadian case law. I mentioned this earlier, but the judgment reads as a discourse in which the majority and dissent write for themselves and between themselves. This may suggest an American approach where the SCOTUS render opinions, not judgments, and as such tend to be opinionated in their approach by consistently responding to one another either directly in the opinions or through footnotes. Whether Suter signals a change in writing style and approach will be a matter of record as this newly minted Wagner court renders decisions on decisive issues. 

This decision is important. It discusses novel issues in a novel way. It exhibits an approach from the Supreme Court which we have not seen before. It impacts an area of criminal law in much need of legal discussion considering much of what a trial judge does in criminal law focuses on the criminal sanction. But the Suter decisionis wanting as it leaves us wanting more. Sentencing is a delicate art and requires a fine balance between oft opposing principles. So too, a Supreme Court judgment requires that self-same balance to help us navigate our clients through the legal maze. Although Suter fails to achieve this balance, it does leave a legacy of the further work which needs to be done by the legal community 

The Creation of Community “Space” in Sentencing in R v Saretzky

The Saretzky case will live in infamy as a disturbing crime that defies description and understanding. In this post, I do not intend to engage in a classic case analysis of the sentencing proceeding, which has been the primary subject of media attention and legal commentary. Certainly, the legal issues raised in this case are of concern as we struggle to make sense of a crime so devoid of humanity yet committed by a person who will now spend seventy-five years in custody, essentially to the end of his days. Is it a crushing sentence which fails to recognize the possibility, no matter how faint, of rehabilitation? Or is mere speculation about rehabilitation an inappropriate, unsafe, and frankly impossible standard to apply? Leaving aside the application of recognized principles of retribution and denunciation, are we comfortable with the reality of this decision, the warehousing of an individual who is a legitimate and continuing threat to society? Should the law be a “beacon of hope” or does “hope” go beyond legal expectations? Although we like to believe that hard cases make bad law, in fact, hard cases force us to look squarely at the worst scenario almost as a litmus indicator to test the strength and flexibility of applicable legal principles. In looking at Saretzky and Justice W. A. Tilleman’s reasons for sentencing, we can properly ask whether our sentencing principles and codified laws are up to the heavy task of assessing the worst case and the worst offender, the twin legal principles supporting the imposition of the maximum sentence.

The answer to all of this may require us to do some navel gazing and philosophizing that takes us outside traditional sentencing principles. It may also require us to explore whether there is a legitimate role in sentencing for the community. When I use the term “community,” I am not referring to bald public opinion as reflected on social media – that, as Justice Wagner cautioned in R v St-Cloud, 2015 SCC 27 (CanLII) at paras 80-84, is far from the considered and reasoned pronouncements of the law. No, community is not who has the most likes on Twitter and speaks the loudest on Facebook. Community or better yet the “community’s sense of justice” can be found in Justice Tilleman’s reasons in the Saretzky sentencing. Community bonds, communal mourning and healing all have a “space” in the Saretzky decision. It is my contention that the community’s place in the bounded space of the courtroom is connected to the judge’s now enhanced and expanded duty to protect the integrity of the administration of justice and to maintain trust and confidence in the criminal justice system. With this shift to community however, we must be ever mindful of our principles of fundamental justice which protect the individual offender as part of that community. We must rely on the delicate balance of sentencing to calibrate the scales of justice to ensure fair and just sentences.

In the first sentence, Justice Tilleman speaks through the offender to the community – not the community writ large but the community of Crowsnest Pass, a small district in southwestern Alberta with a population of a little over 5,500 people consisting of a string of even smaller communities, such as Frank, Blairmore, and Coleman, all hugging Highway 3 as it winds through the pass and into the British Columbia Rockies. It is a small community with big history. It is a community with memory of disaster. It was here in 1903 where the tip of Turtle Mountain tumbled into the town of Frank thereby defining a community through devastation and loss. It is here that Canadian opera found a voice in the tragic story of Filumena, a young woman convicted of the murder of an RCMP officer during the prohibition era. This and many other stories create the community, the community which Justice Tilleman addresses nineteen times throughout the sentencing reasons. These are the people of Crowsnest Pass whom Justice Tilleman, before asking Derek Saretzky to stand for the imposition of sentence, encourages to heal and move forward. He encourages them to “rebuild” and recreate another iteration of themselves as community, an image not defined by inexplicable tragedy (para 58).

Community also speaks to the offender in this decision. The jury of peers, charged with the difficult and awesome task of determining guilt or innocence, are representative of the shared community of the offender and the victims. It is through the jury process that community members, utilizing the legally embossed analytical tools given to them by the trial judge, engage in community decision making. In the words of Justice Addy in R v Lane and Ross, [1970] 1 OR 681, 1969 CanLII 545 (ON SC) (p 279), juries are the “bulwark of our democratic system and a guarantee of our basic freedoms under the law.” They are also part of the sentencing discourse through their parole ineligibility recommendations, and, in the Saretzky case, they unanimously urged the imposition of consecutive terms totalling 75 years of parole ineligibility (para 24).

Community also defines the victims. Justice Tilleman humanizes the deceased (para 48) through the lens of community as he circumscribes their community space and place by describing “Hanne Meketech—a community elder and dear friend,” and “Terry Blanchette—a young man and father,” and lastly “Hailey Dunbar-Blanchette, an innocent child.” Thus, Justice Tilleman monumentally memorializes their lives in relation to what these victims of violence meant to their community.

The approach taken in this sentencing, the bringing in of community to a forum traditionally partitioned off from community, evokes the Indigenous model for restorative justice as envisioned in R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC) at para 74 and as skillfully employed by Justice Nakatsuru throughout R v Armitage, 2015 ONCJ 64 (CanLII). This model requires more investigation as we learn from and embrace Indigenous culture, thought, and sense of community. It also brings to mind specialized international courts, such as the traditional Rwandan gacaca courts, which empower community as a step to repairing past harms.

These approaches, superficially, differ greatly from the English common law tradition and often sit uneasily within our sentencing principles geared toward the criminal sanction. But on closer examination, all sentencing approaches cause us to investigate the space, place, and boundaries of the judicial function in the larger sense. Hard cases such as Saretzky require us to reconcile the role of the trial judge, who is at once the arbiter of the facts and purveyor of the law whilst also the guardian and representative of the community’s fundamental values. Difficult cases challenge us to consider how we today in our truly Canadian context should read the roles and responsibilities of judgeship. Conversations over hard cases help us create and define our legal system. In this instance, we are required to pause and consider whether Justice Tilleman was fulfilling a legally recognized juridical role when he permitted community to speak in this decision or whether on a strict reading of our legal principles he overcompensated for community when he elevated the crime beyond the worst offence and worst offender nomenclature to describe it as a crime against community (paras 32, 45). It is this hard case that causes us to consider holistically the post-conviction regime set down for us in the Criminal Code including the long-term offender and dangerous offender regimes, which offer an alternate determination of long term risk and dangerousness of an offender like Saretzky who is deemed “a lethal harm to his community” (para 43).

The delicate balance of sentencing requires a steady hand; a community needs to heal, needs to feel in some way part of the application and presence of justice for matters happening in their living space. Principles of sentencing recognize this role of community. Yet, balance requires linkage and proportionality, and the sentencing court must fulfill the objectives of sentencing in such a manner that this offender is sanctioned for his actions and for his level of moral culpability or blameworthiness. Certainly, Justice Tilleman was aware of this when he emphasized the “deliberate and intentional conduct” of Saretzky in committing the offences (para 34-35). To fulfill these principles then, the court must, through the “judicial lens”, know the offender, the offence and the community.

Sentencing is, in my view along with bail, the most important part of the criminal justice system. Release until proven guilty and meaningful, principled and compassionate sanctioning are the bookends of the Criminal Code. Without either, our system will fall. Recently, the spot light has rightly been on the frailties of the justice system with bail as an indicator, like the canary in a coal mine, of the level of crisis facing us. Sentencing principles (R v Lacasse, 2015 SCC 64 (CanLII)) and plea negotiations (R v Anthony-Cook, 2016 SCC 43 (CanLII)) have received jurisprudential scrutiny but without any real integration into the now widespread discussion of what’s wrong with our justice system and how to fix it. Certainly, the Saretzky decision is not a prime example of “what’s wrong” but it reveals to us where the points of legal inquiry intersect and interface with public confidence and trust in the system. Judges, throughout the trial, make decisions based on the rule of law, and jurors too must confine their decision-making to the parameters of legal principle, which involve the application of common sense and reasonable inferences. However, community, in the fullest sense of the term, is, as Jane Jacobs envisioned it in Death and Life of Great American Cities, the legal equivalent of “eyes on the street”, that idiomatic second pair of eyes, which takes the form of the alter ego of the blindfolded goddess embodied as the community conscience or “community sense of justice”. In what form this communal sense or community space unfolds within the halls of justice is a matter for further reflection and consideration. Justice Tilleman in the Saretzky decision challenges us to do just that.

The Delicate Balance of Sentencing: The Application of the Totality Principle in Regulatory Offences

Chief Justice Lamer succinctly described the sentencing process and the sentencing judge’s role in that process in R v M(CA), [1996] 1 SCR 500 (CanLII):

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly. (at para 91)

In the recent split decision of the Alberta Court of Appeal in Alberta (Health Services) v Bhanji, the court considered the “delicate” balance needed in determining a fit global sentence in quasi-criminal or regulatory offences where the only sanction available is a monetary one. Specifically, in Bhanji, the penalty provision in section 73 of the Public Health Act, RSA 2000, c P-37 was at issue. However, in an arena where public safety is paramount and sanctioning limited, this “delicate” balance is difficult to maintain. Indeed, the response tends to be a pure mathematical exercise, an apportioning of blame through numbers.  The Bhanji decision is an excellent reminder that regulatory behavior does matter and that sentencing is not mere number crunching, nor is it simply “the cost of doing business” (at para 17). Rather, regulatory sanctioning must be an even-handed reflection of society’s disapprobation for public welfare misconduct. In an era where the health and welfare of the “community” is becoming increasingly more important to societal well-being and sustainability, regulatory responses must keep pace with this priority.

The facts of Bhanji describe an all too familiar scenario. The motel at issue in the case was owned by a married couple through a closely held numbered corporation. The motel was part of a family inheritance and the couple, who did not live in the area, employed a manager for the property. The facility was inspected by public health officials and on June 6, 2011 the corporation was ordered to repair the facility, which was in a derelict condition, posing public health and safety hazards. Renovation work was started but some long-term residents remained on site despite the poor condition. The remedial repair efforts continued for a lengthy period, causing the health officials to issue an Order for closure of the motel on June 8, 2012. Finally, on October 4, 2012, the corporation, the couple, and their seventy-two-year-old uncle, who was helping with the renovations, were charged with 144 offences under the Public Health Act covering the period from June 27, 2011 to September 6, 2013. During some of the time covered in the Information, although the facility was not in compliance with the Act, there were no real risks to the public as there were no residents (at para 17).

The offences were narrowly framed, pertaining to several specific violations in each motel unit. Many of the offences overlapped by relating to similar violations for closely connected items of disrepair. For instance, two charges for the same unit engaged the same issue of bathroom disrepair and involved the same problem, a lack of proper waterproofing of the shower/bath area: one offence was a failure to maintain the wooden shower frame and the other offence alleged inadequate caulking. Every individual motel unit which suffered the same deficiency was the subject of a separate charge. In the majority’s view, this type of “doubling up” of charges resulted in “over charging” for the number of offences arising out of the same transaction and the number of closely related parties charged (at para 76).

The sentencing principles engaged in the regulatory sentencing process would be familiar to any criminal lawyer making sentencing submissions in the criminal courts. Section 3 of the Provincial Offences Procedure Act, RSA 2000, c P-34 incorporates applicable Criminal Code provisions, to the extent the provisions are not inconsistent with the Act or regulations, effectively importing the “Purpose and Principles of Sentencing” as found in sections 718 to 718.2. Of note, and not referenced in Bhanji is a further sentencing section, 718.21, added to the Code in 2003, on factors to consider in sentencing an “organization.” The term “organization” is defined under section 2 of the Code and includes a “body corporate” or any business association such as a company or partnership. I will return to these sentencing factors later in this post. The section that is discussed in Bhanji is the fundamental sentencing principle as codified under section 718.1, that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

This key concept of proportionality is central to the Bhanji decision as it directly engages the further sentencing concept of “totality.” The concept of totality, arising both from common law and statute, requires that the global or total sentence imposed on an accused, or in the regulatory sense, the defendant, must not be, in the words of section 718.2(c) of the Criminal Code “unduly long or harsh.” This sentencing concern was at issue in Bhanji as multiple parties were charged with multiple offences resulting in a total fine of some magnitude. The four defendants entered a plea of guilty to count one in the Information, which was an offence of failing to comply with the remedial work orders for 801 days pursuant to section 73(2) of the Act. Under that provision, an offender is liable to a fine of not more than $100 for each day of non-compliance, resulting in a potential maximum fine for each of the defendants of $80,100. Considering the close relationship of the defendants, the Bhanji family would be liable for a maximum fine of $320,400 on that count. The defendant corporation entered pleas of guilty to 40 of the further 143 charges with each charge having a maximum fine of $2000, amounting to a total maximum fine of $80,000 for the 40 offences. These further counts related to specific deficiencies identified in the original inspection. There was, therefore, an overlapping of the actus reus or prohibited acts, as delineated in these original violations, with count one, which was the failure to comply with the subsequent order to remediate those deficiencies. The total potential fine for all counts and for all defendants was $400,400.

At the sentencing hearing, the prosecutor urged the trial judge to impose a global monetary penalty that was not simply “a cost of doing business” and reflected the sentencing principle of deterrence (at para 9). The prosecutor grouped the 41 offences into three categories: general maintenance issues, items relating to public health, and more serious violations involving risks to the safety or lives of the guests and tenants. On count one, where the maximum global fine would be $320,400, the prosecutor submitted the “starting point” would be half the amount or $160,200 divided evenly between the four defendants, $40,050 per defendant (at para 10). For the remainder of the corporate convictions, the prosecutor suggested the maximum fine for the seven offences in the most serious category and the balance of the offences should attract a fine of $1000 each, again 50% of the maximum, for a total fine of $47,000. In real terms this would be a global fine of $207,200.

The defendants’ counsel, who acted for all four parties, submitted that the penalty should consider the defendants’ actions to remediate and should recognize that for a part of the period of non-compliance, the facility was without tenants. Counsel also identified the potential for “over-charging” through multiple counts against multiple closely related parties. Additionally, the motel, due to its poor state, was not profitable. In other words, the fines would not be merely a “cost of doing business” but would be a very real penalty to the defendants. Counsel submitted the fine on count one should be $2500 for Mr. and Mrs. Bhanji and $1000 for the uncle. For the corporation, the global fine should be $52,250 with a “global discount” for totality, bringing it down to $22,250. The final amount for all defendants would be $28,250, close to 14% of the fine suggested by the prosecutor.

The sentencing judge acknowledged that the sentencing principles engaged in the case involved deterrence, proportionality and totality. On count one, involving non-compliance with remedial work orders, the court imposed $20,000 fines on Mr. and Mrs. Bhanji separately and a $3000 fine on the uncle. The corporation was fined $50,000 plus the maximum fine of $2000 for seven of the most serious breaches and $1000 for each of the remaining 33 charges for a total of $97,000. The global fine for all counts on all defendants equaled $140,000 (at paras 18-19).

On appeal the Summary Conviction Appeal Judge found that the global fine, based on precedent, was not proportionate to the gravity of the offence and the culpability of the various offenders and that therefore the sentencing judge had imposed an unfit sentence (at para 21). Further, the sentencing judge failed to appreciate the mitigating factors that the defendants were not in flagrant or deliberate violation of the work orders and that the motel was empty for much of the non-compliance period. Additionally, although the sentencing judge referred to the correct sentencing principles, there was no indication of how the judge applied the concept of totality to the global fine. Ultimately, the sentence as it stood was unduly harsh and excessive.

The Summary Conviction Appeal Judge allowed the appeal, reduced the sentence on count one to $5000 each to Mr. and Mrs. Bhanji and $25,000 to the corporation, the entity primarily responsible for the offences. For the 40 corporate offences, the sentence was reduced to $25,000. The total fine on all defendants was $63,000. The appeal judge did not adjust the global amount further as the sentence, globally, was fit and appropriate in the circumstances.

Leave to appeal this sentence to the Court of Appeal was permitted on a narrow basis, which the majority called “unfortunate” (at para 31), as it was based on a specific question of law. The question on appeal asked the court to consider the approaches to the application of totality in two previous Alberta Summary Conviction Appeal decisions, R v Goebel, 2003 ABQB 422 (CanLII) and R v 50737 Alberta Ltd, 2009 ABQB 476 (CanLII) to determine if they “overlap, compete with, or duplicate each other, so that full application of both may improperly overcompensate or double deduct for totality” (at para 29). The majority decided that to adequately answer this question, the court needed to consider the broad implications of applying totality in regulatory sentencing where a fine was imposed.

In Goebel, Justice Slatter, who was then on the Court of Queen’s Bench and was a member of the majority in Bhanji, overturned the sentence as the sentencing judge inappropriately imposed a global sentence based on the “condition of the building” as opposed to imposing a fit sentence on each count and then adjusting for totality. In effect, the sentencing judge erred as he imposed a sentence without regard to the nature and severity of the breach. The court found that the approach of the sentencing judge to sentence globally was “not an appropriate way of initially setting a sentence in the case of multiple convictions on multiple counts” (Goebel at para 86). The appropriate approach, according to Justice Slatter, was to impose an appropriate sentence for each count and then to review the global sentence to ensure it was not unduly harsh or excessive. As the sentencing judge “never turned his mind to the appropriate sentence for each count” and gave no “express reasons” for the decision, the matter was remitted to the sentencing court to do so (Goebel at para 89). It should be noted that the offender in Goebel was an individual charged with several Public Health Act violations, some of which were failures to comply with work orders (Goebel at paras 83-84). This case did not engage concerns with sentencing closely-related multi-parties with overlapping multi-charges.

The sentencing approach and the type of defendant in R v 50737 Alberta Ltd. were much different than in Goebel and more akin to the scenario in Bhanji. There, Justice Burrows was reviewing the sentence of three closely-related defendants, a husband and wife and a closely held corporation, for 54 violations of the Public Health Act. The sentencing judge applied the approach recommended by Justice Slatter in Goebel but, according to Justice Burrows, imposed demonstrably unfit sentences in relation to some of the counts by failing to consider multiple charges arising from the same breach in multiple housing units, namely guardrails not to code and deteriorating concrete. It was therefore an error to impose the same fine for each count of the same violation even before consideration of totality of the sentence. In Justice Burrows’ view, “the moral blameworthiness of a violation in respect of 15 balconies is not 15 times the moral blameworthiness of a violation in respect of one balcony when all violations occur at the same time” (50737 at para 33). Instead, the sentencing judge, in considering the totality principle, should have considered a graduated fine for the multiple charges based on the same prohibited act and arising from multiple units (50737 at paras 35-38).

In effect, Justice Burrows considered these type of offences as engaging the criminal law concept of ordering sentences of imprisonment on multiple charges to be served at the same time or concurrently. By employing this power, the sentencing court, in a criminal case, ensures the global sentence adheres to the principle of totality. The imposition of concurrent terms is particularly appropriate where multiple charges arise from the same subject matter or the same series of events. In the regulatory field, where often a monetary penalty is the only sanctioning option, as in the Public Health Act, fines cannot be imposed concurrently but can be imposed pursuant to the spirit of that concept by utilizing graduated fines for similar offences. In R v Great White Holdings Ltd., 2005 ABCA 188 (CanLII), Justice Côté commented on this anomaly and emphasized the duty on the court to review the sentence for its global cogency, especially when arising out of the same set of facts (paras 26, 29). Not only can fines not be imposed concurrently, but they must also be paid as a global amount. Totality is therefore a controlling feature of sentencing fine-only offences where there are multiple counts.

Additionally, the Public Health Act contemplates fine-only penalties within a very specific range. In criminal sanctioning, the options for sentencing an individual offender are varied, providing for a range of sentencing options and for the imposition of a combination of those options. For instance, under section 734(1) of the Criminal Code, a court can order a fine in addition to another sentencing option such as probation or imprisonment. Under section 735, an organization, when convicted of a summary conviction offence, is subject to a maximum fine of one hundred thousand dollars, in lieu of imprisonment. As an aside, traditionally, there were few sentencing options for a corporation convicted of a criminal offence other than monetary sanctions, however the Code amendments which came into force in 2004 provided for the imposition of probation orders on offender organizations. The conditions of these orders can have a profound impact on the corporate culture of an organization by requiring the establishment of “policies, standards and procedures” to reduce the likelihood of further offences (see section 732.1(3.1)(b) of the Criminal Code). For more discussion of these changes in the Code, read A Plain Language Guide to Bill C-45 – Amendments to the Criminal Code Affecting the Criminal Liability of Organizations.

Although criminal law principles are applicable, the court recognized that there are very real differences between regulatory and criminal offences, which must modify the general sentencing approach to proportionality and totality (at para 32). Regulatory offences are not constitutionally required to be full mens rea offences. The presumptive mens rea for regulatory offences, per R v Sault Ste Marie, [1978] 2 SCR 1299 (CanLII), is strict liability, a form of civil negligence. This parliamentary presumptive intention can be rebutted by Parliament in favour of absolute liability, requiring a “no fault” element. However, in accordance with section 7 of the Charter and our principles of fundamental justice, an absolute liability offence is only viable where there is no potential loss of liberty. In other words, where the penalty is fine-only. The fact, therefore, that the public health sanctioning system is purely monetary may suggest that these offences require no proof of a blameworthy state of mind or even no inference of such a fault requirement from the proof of the prohibited act. The concept of proportionality then, that the sanction be consistent with the gravity of the offence and the blameworthiness of the offender, may not have the same gravitas as in the case of an offence where an element of fault is required. However should the offender facing an absolute liability offence have an intention to commit the offence or, in other words, be found blameworthy, that would certainly be a factor aggravating the sentence.

In R v Maghera, 2016 ABQB 50 (CanLII), Justice Jeffrey commented on this aspect of sentencing for absolute liability regulatory offences. The defendant in that case entered pleas of guilty to offences under the Alberta Fair Trading Act, RSA 2000, c F-2, which did attract penalties of incarceration. Nevertheless, Justice Jeffrey noted that “typically the degree of moral blameworthiness will be less than in criminal offences, as will be also the gravity of the offence” (Maghera at para 12). On that basis, there is a different approach to regulatory sentencing which does not require proof of a blameworthy state of mind. The primary sentencing objective in those cases is the “balancing” of “competing considerations in favor of rehabilitation of the offender and protection of the public” (Maghera at para 13). This shift, from individual interests to public interests or from denunciation to the protection of the public from harm, is in a sense the hallmark of a regulatory offence as opposed to a criminal one. It is the consequences of the behavior being sanctioned as opposed to the culpability of the offender being punished. However, the more serious the regulatory offence, as evidenced by the fault requirement, which in turn is proportionate to the possible punishment, the closer that regulatory behaviour comes to criminal law. In the end, much regulatory behaviour, as in the Public Health Act, is concerned with the potential or risk of harm as opposed to actual harm. Sentencing for risk or the potentialities of the conduct is inherent in much regulatory sanctioning (Maghera at para 14).  

The majority in Bhanji found no inconsistency between the Goebel and 50737 decisions. In their view, each case applied the same principles but in differing fact situations. In sentencing, a judge could use either or both approaches depending on the case providing the judge did not “double count” or use totality as a double deduction of the appropriate sentence (at para 78). The majority goes further to give an excellent survey of the sentencing principles to be employed in the case (at para 79). This paragraph gives clear direction for sentencing in this area where totality is engaged.

To elucidate the principle of totality and the approaches used, the majority referred to some previous Alberta Court of Appeal decisions in criminal cases but did not refer to their most recent decision, R v Meer, 2016 ABCA 368 (CanLII). Coincidentally, Justice Watson, the other member of the Bhanji majority, was a member of this panel. Although it was a criminal case, the appellant in Meer argued that the appropriate approach in a case of multiple charges, some of which are related factually, is to group those offences into like categories and then apply the totality principle on each group or category of offences. Then, the sentencing judge, as a “last look,” should review the total global sentence imposed to ensure the global sentence is appropriate. This requirement for an “intermediate totality adjustment” was soundly rejected by the Court of Appeal (Meer at paras 17-19). However, the court did find the sentencing judge erred by not applying the statutory totality requirement under section 718.2(c) of the Code as required in the earlier Alberta Court of Appeal decision of R v May, 2012 ABCA 213 (CanLII), (at paras 13-14), a decision which is referenced in Bhanji.

In the May decision, and as echoed in Bhanji, totality engages the principles of proportionality and of restraint (see R v Proulx, [2000] 1 SCR 61 (CanLII), at para 90, Lamer CJ), both of which must be balanced, indeed “delicately” balanced, in arriving at a just and appropriate sentence. Restraint, returning to Chief Justice Lamer in M(CA), is an underlying tenet of our sanctioning system which tempers the potentially heavy hand of retributive justice by fashioning a fair and human sentence which “invigorates” (see May at para 14) public confidence in the justice system and thereby is consistent with the community’s sense of justice. The comments in Proulx are specifically directed to incarceration as the “last” resort as recognized under section 718.2(d). The sentencing judge, although not required to apply intermediate totality, was required to apply totality globally. In M(CA) Chief Justice Lamer explains the purpose of totality is “to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender” (at para 42). In this paragraph, Lamer CJ approves of the description of totality as requiring “a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is ‘just and appropriate’.”.

However, the Bhanji majority does refer to the case of R v Elliot, 2012 ABCA 214 (CanLII), on the totality issue. Elliot is not referenced in the Meer case but is a decision rendered on behalf of the court by Justice O’Ferrall, the dissenter in Bhanji, as a Memorandum from the Bench. Of interest, Justice Watson, a member of the majority in Bhanji, was also on the Elliot panel. In Elliot, Justice O’Ferrall, for the court, outlines the totality approach to multiple counts, again, as consistent with the earlier case of Goebel and the later decision of Meer (at para 7). Individual sentences must be fit and appropriate, then the court considers which sentences should be concurrent or consecutive based on similarities in the fact situation, and then a final review of the global sentence to ensure compliance with section 718.2(c). If the global sentence is unduly long or harsh, then the judge should reduce the individual sentence, even though in isolation the sentence is fit, or direct that some consecutive sentences be served concurrently. I would add to this discussion that the court in determining concurrent sentences must also be mindful of the direction under section 718.3(4)) to consider imposing consecutive terms under certain circumstances, including where the offences do not arise out of the same series of events or where the accused was on judicial release at the time an offence was committed or where the offences were committed while fleeing from police. The clear tension between the approach to totality and this statutory requirement suggests that sentencing judges must clearly and explicitly articulate how they are crafting a sentence where totality is an issue.

In the end, the majority, after a thorough discussion of the relevant sentencing principles engaged in the case and after due consideration of the aggravating and mitigating circumstances, found the Summary Conviction Appeal Court Judge did not error in overturning the sentencing judge’s disposition and reducing the global fines (at paras 21, 24). Nor did they find, as urged by the appellant, that the appellate judge “double counted” or improperly applied totality concepts in imposing the individual sentences and in the final “last look” (at para 76). As discussed above, the majority was not satisfied that in the unique circumstances of regulatory sentencing, where there is no option to impose concurrent sentences, and where there is a suggestion the offences “overlap” both factually and by relationship of offenders, the original sentence was globally appropriate. The sentencing judge did not merely fail to adequately compensate for totality, the judge also failed to adequately consider the mitigating features of the offence as well as the multi-party/multi-offences conundrum (at para 76). The Summary Conviction Appeal Judge therefore properly reconsidered the matter by considering all relevant sentencing principles.

The dissent of Justice O’Ferrall offers a different perspective, finding there was no error in principle made by the sentencing judge and that effectively the Summary Conviction Appeal Judge substituted his own opinion on a sentence in which there was no clear error. The dissent does not share the multi-party totality concerns that the majority found to be engaged. Indeed, Justice O’Ferrall questions whether the principles of totality as conceived in criminal law even have a place in the regulatory context when monetary fines are the norm (at paras 85, 94, 108, 109). Neither the approach in Goebel nor in 50737 Alberta Ltd., in Justice O’Ferrall’s opinion, was therefore applicable. There was no “discretion” to forgive any of the 801 days of non-compliance and the sentence should reflect that. In finding the original penalty fit, Justice O’Ferrall viewed the aggravating and mitigating features of the case in a much different light than the Summary Conviction Appeal Judge and the majority decision. His position emphasizes the regulatory nature of the sentencing and the overarching objective of regulation to, in the words of Justice Blair of the Ontario Court of Appeal decision in R v Cotton Felts Ltd, (1982), 2 CCC (3d) 287, “enforce regulatory standards by deterrence.” The complexities of sentencing are further reinforced by the special nature of organizations and those peculiar factors that must be considered in sentencing such an offender as evidenced by the Criminal Code sentencing factors in section 718.21. However, it should be noted that some of those factors are more applicable to a large corporation, one less closely held than the case at bar.

The Bhanji decision, despite its specific application, does remind us of the difficulties in crafting an appropriate sentence in any area of criminal or quasi-criminal law. The disjunction between the majority and dissent decisions exemplifies the inherent obstacles found in the “delicate art” of sentencing and helps explain the panoply of decisions, at all level of courts, on the proper approach to those principles. This “delicate” balance of sentencing becomes more fragile and at risk when a confluence of common law and statutory sentencing principles is engaged. In Bhanji, there are issues of proportionality, totality, consecutive terms, multi-parties, multitude of counts, corporations, and closely related offenders superimposed on the strictures of regulatory liability and regulatory sanctioning. In the end, the sentencing judge’s “last look” must, colloquially, “do the right thing.” But how? How does a court reflect society’s desire to protect with the law’s commitment to principle? Do we simply graft onto the regulatory process the punitive sanctioning principles from criminal law and from those principles craft regulatory principles consistent with the uniqueness of the regulatory arena as a quasi-criminal process? Is that even simply done? These are in fact the difficult issues at the heart of the Bhanji case.

Although the court in Bhanji is rightly concerned with this delicate balance, when reading through this case and the other cases engaged in this issue, one realizes that perhaps, as suggested by Justice O’Ferrall’s dissent, this “last look” loses meaning when applied to the regulatory field. To be sure, the courts have it right in terms of principle but the ultimate question may engage whether those principles themselves are appropriate considering the heightened importance of regulation and the deepening moral values we attach to proper regulatory conduct. There is a tension there between what we once thought regulatory behaviour to be - consequence-based conduct which is not inherently wrong - as opposed to what we feel now - conduct which has the great potential to be inherently wrong. In a sense, it is our initial approach to these cases which deserves a second look, including a move away from straight monetary penalties to more “creative” sentencing as found in other regulatory statutes and even as envisioned under section 732.1(3.1) of the Criminal Code, dealing with possible probationary terms on organizations. To end with Lamer CJ’s metaphor in M(CA), the “delicate art” of sentencing needs artists who are fully equipped for their task. 

R v LSM and the “Sanctity” of the Joint Submission: A Case Commentary for ABlawg (http://ablawg.ca)

In R v LSM, 2016 ABQB 112, Associate Chief Justice Rooke of the Court of Queen’s Bench of Alberta, sitting as a summary conviction appeal court, considers the “sanctity” of the joint submission and the circumstances in which the subsequent sentence will be varied on appeal. In his view “an appeal of a joint submission should rarely succeed” (at para 20). He supports this position by outlining three very narrow exceptions to this rule. After a thorough analysis of the principles, Associate Chief Justice Rooke reluctantly allows the appeal in part. He does so by finding only one ground of appeal, the ground presented on consent, falls within an exception. The decision, on its face, appears to be a straightforward application of the principles at hand. Yet, on further contemplation, this decision may not be about the “sanctity” of a joint submission but rather about ensuring that, in the end, justice is done.

Associate Chief Justice Rooke immediately frames the issue in sweeping terms in the opening paragraph of the decision: “This case concerns the sanctity of the ‘joint submission’ on a guilty plea and sentence in the administration of justice.” On a review of case law, the descriptor “sanctity” seems overdrawn. Although, joint submissions enjoy a “high level of deference” and must be given “serious consideration” by the sentencing judge (See R v GWC, 2000 ABCA 333, Berger, JA at para 20), they are not inviolable. A sentencing judge is not bound by the proposed sentence. Indeed, as explained by Mr. Justice Berger in GWC (at para 19), it is incumbent on the sentencing judge to undertake “a careful and diligent inquiry of counsel as to the circumstances underlying a joint sentencing submission” before exercising the discretion to accept it.  This is done to ensure the proposed sentence, in accordance with sentencing principles, is a fit one. Accordingly, sentencing judges should only reject a joint submission where the sentence proposed is unfit or unreasonable (See R v Gibson, 2015 ABCA 41 at paras 9 to 10).  Indeed, departing from a joint submission, which is fit, should not be done “even if he or she would impose a harsher sentence which would also be fit and reasonable” (See R v Bullock, 2013 ABCA 44, Berger, JA for the majority at para 18).

Some appellate jurisdictions have taken the position that a joint submission may also be rejected if the sentence is contrary to the public interest and would bring the administration of justice into disrepute. Currently, the efficacy of this additional more stringent ground for departing from a joint submission will be argued on March 31, 2016 before the Supreme Court of Canada in the Anthony-Cook case on appeal from the British Columbia Court of Appeal (R v Anthony-Cook, 2015 BCCA 22). In Alberta, this ground has not been consistently adopted. In the GWC decision, Mr. Justice Berger does refer to this position in paragraph 18 without endorsing it as a viable ground beyond fitness or unreasonableness. In the dissenting decision of Shular, (2014 ABCA 241) Madame Justice Hunt at paragraph 106 does rely on this ground as providing an additional basis for rejecting a joint submission. However, leave to appeal to the Supreme Court of Canada was dismissed in this case (Robert Shular v Her Majesty the Queen, 2014 CanLII 76800 (SCC).

Additionally, the joint submission itself is not considered a binding undertaking between the defence and prosecution. In the 2011 Nixon case ([2011] 2 SCR 566), the Supreme Court of Canada agreed with the Alberta Court of Appeal’s decision that the repudiation of a plea agreement, on the basis it was contrary to the public interest, was not an abuse of process but a proper exercise of prosecutorial discretion. In that instance, the plea negotiation included a joint submission on sentence.  

Even though the original joint submission cannot be considered sacrosanct, is the sentence imposed on the basis of a joint submission essentially “appeal proof?” Associate Chief Justice Rooke finds it is, except in three very narrow circumstances. In his view, where a joint submission is proffered by competent counsel and accepted by a sentencing judge, the offender should not be permitted to “resile” later on appeal (para 2). Further, according to Associate Chief Justice Rooke, the the appeal court should “support” joint submissions by upholding them on appeal (para 21). As he explains, in paragraphs 21 and 25, a joint submission is an efficient and effective way to deal with criminal matters in the “busy docket courts.” It would therefore be counter intuitive to the realities of the practice of criminal law and the quest for finality to provide a further forum for change. The appellate arena is not, as described by Associate Chief Justice Rooke in paragraph 25, an opportunity to express “buyer’s remorse.” This last comment has some truth to it as there must be articulable grounds for appeal in accordance with sentencing principles and s. 687 of the Criminal Code. However, Associate Chief Justice Rooke further contends that a sentence resulting from a joint submission does not exist “until we allege there is an error in the sentencing judge accepting our representations or some other way.” This premise comes very close to suggesting an erroneous position: that even an error in principle should not be a ground for appellate intervention. As argued in this commentary, that is exactly when appellate intervention is not only permitted but also desired.

In any event, Associate Chief Justice Rooke cites three “very narrow” circumstances in which an offender can “resile” from a sentence imposed by way of joint submission (para 2). The first exception is where the sentence imposed is illegal as it is statutorily unavailable (para 3). The second instance is where the sentence, “for some unusual reason,” is demonstrably unfit (para 4). Third, which according to Associate Chief Justice Rooke is the situation in LSM, is where there is a “change in circumstances” after sentence is imposed (para 5).

The first exception, illegality of sentence, makes sense. Certainly, there is an obligation on the appellate court to correct an illegal sentence. Even in cases where an appeal has not been filed within the designated appeal period, the court has allowed extensions to file an appeal where an illegal sentence was imposed (see for example R v MJR, 2007 NSCA 35). In R v Hunter (2004 ABCA 230), the Alberta Court of Appeal vacated the illegal conditional sentence of 18 months imposed for a summary conviction offence, where the maximum sentence was six months incarceration, in favour of time served.

The second exception permits an appeal where, for “unusual” reasons, the sentence imposed is demonstrably unfit. As an example of this, Associate Chief Justice Rooke refers to in paragraph 4 the unusual situation in which competence of counsel is raised on appeal. Granted, competency of counsel as it relates to the efficacy of a joint submission is a valid ground and, due to the presumption of competency, may be viewed as rarely raised. Leaving that situation aside, there may be other situations, not as rare, where a sentence resulting from a joint submission is demonstrably unfit or unreasonable. Associate Chief Justice Rooke in paragraph 21 depicts the heightened circumstances in which a joint submission might occur as a “busy docket court” where counsel “deemed to be competent and knowledgeable in the law” proffer a joint submission thereby “impliedly certifying” the sentence is fit and requesting the sentencing judge to “endorse” it.  Indeed, as mentioned earlier, it is precisely in those heightened circumstances of “busy docket courts” where matters are dealt with summarily, which may provide the perfect environment for an unfit sentence. It is in those scenarios where an accused may too readily accede to a joint submission or where “competent and knowledgeable counsel” may accept a position that upon further reflection may require appellate scrutiny. In the end, it is the ultimate fitness of the sentence imposed by whatever means, which is at issue on appeal. As Mr. Justice Wagner explains in paragraph 3 of the Lacasse decision ([2015] 3 SCR 1089), it is the very credibility of the criminal justice system at risk when an unfit sentence, be it “too harsh or too lenient,” is imposed. An unfit sentence does not become fit merely because everyone agrees to it just as an illegal sentence, imposed on consent, does not then become legal. There are numerous appellate decisions upholding departures from joint submissions to further this contention. Surely, the same reasoning should hold in the converse situation of an offender appealing a sentence he or his counsel agreed to previously, particularly considering it is the offender’s liberty interest which is at risk.

It is the third exception, permitting a variation where there is a change in circumstance after imposition of the sentence, which seems an incongruous ground considering Associate Chief Justice Rooke’s position. Indeed, a change of circumstance (not even a material change of circumstance is required) is a generous ground for intervention. In paragraph 27 of the decision, Associate Chief Justice Rooke attempts to support this ground for intervention by reference to the 2012 decision of the Alberta Court of Appeal in R v Gangl (2012 ABCA 121). There, the majority of the court found the sentencing judge made no errors in imposing sentence yet reduced the sentence. In the majority’s view, the appellant’s circumstances were exceptional and the accused who had “serious health problems” was impacted by the “consequences” of the conviction. As a result, the majority converted the conviction to a conditional discharge. The dissenting justice disagreed as there was no “reviewable error.”

Although Associate Chief Justice Rooke characterizes the Gangl decision as authority for an exception to the general rule, this finding is questionable for two reasons. First, this was a case, according to the majority, for a conditional discharge. A discharge under s. 730 of the Criminal Code, is a sanction in which a finding of guilt is made but no conviction is entered. A discharge, per s. 730, is granted where it is “in the best interests of the accused and not contrary to the public interest.” A consideration in imposing a discharge is whether a conviction would have “serious repercussions” (See R v Sanchez-Pino, 1973 CanLII 794 (ON CA)) for the accused, such as employment difficulties or, as suggested by the court in Gangl, “a number of consequences flow from this conviction” (para 2). Admittedly, the court’s analysis in Gangl is brief and does not discuss the six factors to consider in granting a discharge as required by the MacFarlane decision (1976 ALTASCAD 6 (CanLII)), but, on the face of the record, one could argue that in Gangl there was a “reviewable” error.

Second, this exception for a change in circumstances post-sentence is not a ground for appellate intervention according to the newly released decision of the Supreme Court of Canada in Lacasse and as quoted by Associate Chief Justice Rooke in paragraph 24. Associate Chief Justice Rooke makes further reference to the Ontario Court of Appeal case in Wood (1988, 131 C.C.C. (3d) 250). This is a 1988 case decided before the Supreme Court of Canada decision in Lacasse in which, as previously discussed, emphasizes the importance of deference to the sentencing judge. Further, Justice Lacourciere at paragraph 9, in rendering the Wood decision, states that “certainly the accused is given greater latitude than the Crown on an appeal of this kind in that he is generally not bound to the same extent by the submissions of his counsel as to sentence.” Wood was referred to approvingly in both the GWC decision at paragraph 19 and in the LRT decision (2010 ABCA 224 at para 11). As succinctly put by Justice Lacourciere in Wood (para 9), “the ultimate responsibility to determine the fitness of sentence is on the Court of Appeal.”

Associate Chief Justice Rooke, applying his rule, ultimately finds only one ground of appeal as a matter properly coming under the third exception. Earlier, in outlining this exception in paragraph 5, he offered s. 161 as an example of when such a change in circumstances may occur. This section provides for a variance of conditions in a prohibition order imposed on an offender convicted of any number of sexual offences involving children. As he notes and as contained in the wording of s. 161(3), an application to vary the sentence is heard before the sentencing judge or “where the court is for any reason unable to act, another court of equivalent jurisdiction.” In other words, the proper forum for the change is not on appeal but on application to the originating court.  Yet, Associate Chief Justice Rooke despite the matter of jurisdiction, varies sentence on this ground, not because of s. 161 but because the change in circumstance is a new joint submission proffered on appeal by two competent counsel. One can infer, as equally competent as sentencing counsel. Here, Associate Chief Justice Rooke finds himself between the proverbial “rock and a hard place”: on one hand, he outlined the difficulties of appealing a joint submission, the rarity of success, the limited circumstances it should be done, the sound policy reasons for not permitting such an appeal. On the other, he accedes to the new joint submission, not based on any principles of sentencing, but rather on a procedural availability not even within his purview on a strict reading of the section.

Perhaps, in the end, this pragmatic and experienced trial judge, sitting as a summary conviction appeal court, recognized that principles and rules do not always produce a just outcome. Perhaps, he agrees with the majority of the Alberta Court of Appeal in Gangl that the appellate court “is the last stop on the road to mercy” (see Gangl, Watson JA at para 21). Or perhaps, as initially suggested by Associate Chief Justice Rooke, the LSM decision may indeed be all about the “sanctity” of the joint submission, in whichever forum it is offered and in whatever circumstances it arises.

 

The Ideablawg Criminal Law Trend for 2013-2014: On Sentencing and On Podcasting

I start my criminal lectures at MRU with a current events “sweep” of criminal cases to ground the principles and the legal “speak,” learned throughout the course, with what is really going on out there in the real world of crime. This connects concept to context, which is so important in law, in order to teach the student to apply principles to a real life fact situation. This acquired aptitude requires the student to be comfortable outside of the academic rigour of law books, a much-needed skill in the lawyering world, which promotes creativity as the context forces the student to visualize alternate solutions for the legal problem.

As I teach in Alberta, I tend to look locally when I scout out the criminal law news of the week. This past week was so full of connections that we spent a good half hour discussing three of these current cases. Interestingly, the cases themselves were connected as they all referred to the sentence imposed in each particular case.

Of course, sentencing is the last act in a criminal case where there is a conviction. Most of the “legal business” of criminal law is concerned with pre-sentence matters such as the elements of a criminal offence and the application of criminal procedure, particularly in the Charter era. Sentencing is not even taught in the mandatory first year criminal law courses and some law schools do not even offer a sentencing law course. And yet, it is the sentence, the punishment to be imposed, which garners the most public attention and hence catches the most media attention as well.

The reason for this preference is varied. My theory on the popularity of sentencing cases in the media is that sentencing tends to be easily understandable to the average citizen. Everyone appreciates the significance of time in jail. No one needs the Criminal Code to explain that. Furthermore, sentencing is the only piece of the case in which the human aspect is so “front and centre,” no longer taking a backseat to the incident itself.

The victim, at a sentencing hearing, has the right to “speak” through the “victim impact statement” and is not merely a piece of evidence required by the prosecution to fulfill the legal requirements. Instead, the victim becomes a true stakeholder in the outcome as the Judge listens to the victim, not as a witness to the events, but as a participant, whose life was irretrievably changed.

The role of the convicted accused is also transformed from the defensive position wherein a legal “wall” is built around the accused to protect but also to minimize intrusion. It is only at the sentencing hearing that the accused steps out of a caricature of an accused and becomes filled in with the life stories all too familiar in the criminal courts of childhood troubles, conditions of abuse, and social failures. No wonder, it is the sentencing arena to which the public can so readily relate and which brings home, literally, the real life angst of the criminal law. 

On that note, it was unsurprising that the class started our current events journey with the Baumgartner case from Edmonton in which twenty-two year old Travis Baumgartner became the first Canadian to be sentenced for consecutive parole ineligibility terms for multiple murders under amendments to the Criminal Code from 2011. Section 745.51 of the Criminal Code permits such a sentence may be imposed by the trial Judge. Note the permissive “may” as the trial Judge is not mandated to impose such a sentence. Indeed, the section also includes the factors to consider in making the decision such as the character of the accused, the nature of the offence, and the circumstances of the incident. If the sentencing arises from a jury trial, the Judge must also consider the jury’s recommendation on whether or not the parole ineligibility should be consecutive under s. 745.21.

Baumgartner, a security guard shot four of his colleagues as they took ATM monies from the busy University of Alberta student HUB Mall.  Three of the guards died and the fourth survived. Baumgartner, as part of a plea negotiation, entered a plea of guilty to one count of first degree murder under s.231(2), two counts of second degree murder, and one count of attempt murder. As indicated by Associate Chief Justice Rooke in his reasons "these assassinations and executions were carried out by a cold-blooded killer, all with the simple motive of robbery." In sentencing Baumgartner to the agreed upon total sentence of life imprisonment with no chance for parole for forty years, Justice Rooke found the offence was “some of the most horrendous crimes that anyone can imagine.” However, it was not a case for the maximum parole ineligibility of seventy-five years, as Baumgartner was not the worst offender, being a young man with no prior criminal record and in recognition of the guilty plea, which showed remorse for his actions.

These amendments to the Criminal Code, part of the tough on crime agenda of Harper’s government, did attract much controversy. Critics voiced concerns over the political motivation of the change, suggesting it was merely a “political stunt” done to assuage the public fear of crime without any hard evidence such a change would in fact change crime statistics. In a word, the changes appeared to be more about “retribution bordering on vengeance” as characterized by D’Arcy Depoe of the Criminal Trial Lawyers’ Association and less about the sentencing principles of rehabilitation and deterrence.

On the other hand, sentencing is a punishment and does have an aspect of retribution for retributions sake. Certainly, the public outrage over concurrent sentences for multiple murders is understandable on a gut-level whereby a murder of one is equated with the murder of many. The controversy over this and the other numerous sentencing changes to the Criminal Code, such as the mandatory minimum sentences, is far from over, hence my suggestion that the hot button criminal law issue for 2013-2014 will focus on sentencing and these new amendments.

The other case we considered in class, another robbery case, was closer to the academic home as we discussed the 18 month jail sentence imposed on the ex MRU President Meghan Melnyk. Unlike Baumgartner, there was no joint agreement on sentence. As an aside, it must be pointed out that a sentencing Judge is not bound by a joint submission on sentence. In any event, considering the maximum sentence for robbery is life imprisonment, the sentence, in the eyes of the class seemed light. However, considering the position of counsel on sentence: defence asked for a conditional sentence or in the alternative ninety days, while the Crown asked for four years imprisonment being the typical “starting point” for such offences, the 18 month sentence appears to be within the range.  The eyebrow raising part of the matter was Melnyk’s concept of community work. Prior to sentencing she appeared at local High Schools discussing her situation and her gambling problem. Judge Brown, in sentencing Melnyk observed that she was paid for each appearance. This will definitely not be case when Melnyk fulfills the other part of her sentence when she is released from prison - 240 hours of community service.

The final case discussed was a sentence appeal argued before the Court of Appeal for Alberta. The Crown appealed the sentence imposed on ex-Stampeder running back, Joffery Reynolds, who was convicted by former Assistant Chief Judge Stevenson (of the provincial court and is now supernumery or a relief judge) of assaulting (actual convictions were for assault causing bodily harm under s. 267, assault under s. 266, and being unlawfully in a dwelling house under s.349) his ex-girlfriend for which he received a ninety-day sentence to be served intermittedly on weekends and two years probation as well as an apology letter and a five thousand dollar donation. The Crown’s position on sentence at trial and at appeal was for a two to three year sentence, an odd range considering a two year sentence is served in a provincial reformatory and a three year sentence is served in the much harsher federal system.

At trial, the defence recommended a non-custodial, particularly as Reynold’s celebrity status caused a media flurry and a diminishment of his public status. The Crown on appeal pointed to the sentencing Judge’s failure to consider the domestic nature of the offence. In discussion, the class clearly agreed with the Crown on that note, believing their relationship to be something more than just “buddies” as submitted by the defence.

This decision will be interesting as it may tackle the difficulty in sentencing the celebrity and it may also clarify the meaning of “domestic assault.” As an aside, the provincial government recently brought forward legislation to end intermittent sentences, which were used to allviate the burden of imprisonment where an offender had gainful employment. This may not be an issue raised on appeal but I believe this will cause a clash in the courts when the jail refuses to fufill a Judge's order to do so. Keep posted on this issue as well.

The other cases I had but were not discussed I will repeat here but I will not elaborate on today. Another sentencing case – the Paxton dangerous offender application is ongoing before Justice Martin. The Court of Appeal also heard an appeal against the conviction of the young offender in the Cavanagh murder case, which involved a “Mr. Big investigation.” Finally, a little off the crime path but still in the public welfare arena is the concern over work-related deaths in Alberta and the need to tighten regulatory laws in the area. The province recently went to the administrative efficiency of ticketing offenders, both employees and employers, in real-time for real-time breaches. However, the call is for more prosecutions, better outcomes, and a more serious consideration of criminal code charges for work-related incidents.

These cases, in my view, also signal some Canadian criminal law trends as the use of dangerous offender applications increase, as the courts struggle with unique investigation techniques in a Charter world, and as the public demands more and better action in the regulatory field. Keep an eye on my future blogs as we trend through the year.

On a final note is a new upcoming addition to this blog as I enter the world of podcasting. I intend to offer a short podcast on sections of the Criminal Code.

 

 

 

 

 

 

 

There is No Road To Redemption?

Yesterday, I made a connection between fictionalized (or as in the example yesterday musicalized) revenge, redemption, and retribution and our real-life sentencing principles. These concepts of punishment are particularly relevant as the Canadian Criminal Code has gone through many changes in sentencing. We will, of course, be seeing even more changes when the Federal government passes, what we call the "omnibus crime bill" or  Bill C-10. I have discussed certain aspects of this Bill in a previous blog that can be found here.

To shed light on the issue, I referred to the UK's effort to reform sentencing in the consultation paper and in the Government's Response, which was tabled in June of 2011, with recommendations on sentencing reform. I ended the blog rather ominously, asking if redemption was, in fact, dead.

Why? The UK Government response is telling: most of the recommendations flow from the Government's first recommendation or promise to make punishment "demanding, robust, and credible." Indeed, the UK will accomplish this goal by transforming "prisons into places of hard work." Suddenly, we are transported to Dickensian England with penal work houses or even to the American dirty thirties with the ubiquitous chain gangs. 

But the road to no redemption does not end there. Another goal is to make offenders pay back to the victim. This is not a concept of restorative justice. No, this is retribution, as those same prisoners who will be put to "hard work" will have those earnings partially estreated in favour of victim services programs. This is much different than the victim surcharge program we have in our Criminal Code under s.737 or the restitution orders available under s.738.

There are more examples of how this reformation has gone retro; taking us back to the old theories of Herbert Packer's crime and control model and the notion of the "stick is better than the carrot" at deterring crime. Will this "reform" work? Only time will tell. In a country like the UK, where riots turn particularly nasty (although who are we to judge in light of Vancouver's riots), there is immense public pressure to "get tough on crime."

In the end, however, whichever road is taken will not provide the real answer to how a society can minimize crime without compromising the principles of fundamental justice. In the end, only time will tell.

The UK tabled, on June 22,2011, new sentencing legislation to reflect the proposed reforms. According, to a UK blog found here, the reforms are not as "ambitious" as first proposed.