Sentencing: Update and Recent Trends. CLE Criminal Law Conference Halifax, NS November 20,1998 David J. Bright, Q.C.

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1 Sentencing: Update and Recent Trends CLE Criminal Law Conference Halifax, NS November 20,1998 David J. Bright, Q.C. Introduction Know all men that we, with the aid of upright counselors have laid down these ordinances; whoever shall commit murder aboard ship shall be tied to the corpse and thrown into the sea; if a murder be committed on land, the murderer shall be tied to the corpse and buried alive; if any man be convicted of drawing a knife for the purpose of stabbing another or shall have stabbed another so that blood shall flow, he shall lose a hand; if a man strike another with his hand, he shall be ducked three times in the sea; if any man defame, vilify, or swear at his fellow, he shall pay him as many ounces of silver as times that he has reviled him. If a robber be convicted of theft, boiling pitch shall be poured over his head, and a shower of feathers shaken over to mark him, and he shall be cast ashore on the first land at which the fleet shall touch. And all the crews were sworn to observe these constitutions, and to obey the commands of the justiciaries. The above quote is from the instructions issued by Richard I concerning naval discipline on the ships taking his forces to the Crusade in the Holy Lands. It is fair to suggest that we have made some considerable progress in sentencing. An update on sentencing and a review of recent trends cannot be fully appreciated unless one is familiar with the basics of sentencing utilized by our courts. It is most unfortunate that we do not have the benefit of sentences pronounced in the Provincial Court of Nova Scotia. There the majority of cases involving the criminal law reach their final conclusions. Unless the case is extraordinary, it is not reported and the oral remarks of counsel and the court are lost forever. SentencinJ: Principles Part XXIII of the Criminal Code gives considerable assistance with respect to sentencing including definitions, alternative measures, punishment, etc.

2 The purpose and principles of sentencing have now been set forward in the Criminal Code a/canada under s. 718 and These sections read as follows: 718. Purpose - The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: Page 2 ( a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community Other sentencing principles - A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (i) (ii) (iii) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, color religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, or evidence that the offender, in committing the offence, abused the offender's spouse or child, evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, or Sentencing: Update and Recent Trends David J. Bright, Q. C.

3 Page 3 (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization. shall be deemed to be aggravating circumstances; (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; ( c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; ( d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and ( e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. As can readily be seen, the majority of these principles are recognized at common law and are familiar to the courts and practitioners. In Nova Scotia, the foundation case utilized in sentencing is that of R. v. Grady (1973), 5 N.S.R. (2d) 264 where at p.266 the late Chief Justice McKinnon stated as follows: In his Factum the Appellant has cited the case of R. v. Morrissette (1971), 1 C.C.C. (2d) 307 where Culliton, C.J.S. sets forth the factors which should be considered in imposing sentence. These are: (1) Punishment; (2) Deterrence; (3) Protection of the public; and (4) The reformation and rehabilitation of the offender. If Chief Justice Culliton listed these factors in order of priority, which I seriously doubt, then this court has for some years approached the matter of Sentencing: Update and Recent Trends David J. Bright, Q. C.

4 Page 4 sentencing with a somewhat different viewpoint. It has been the practice of this court to give priority and consideration to protection of the public, and then to consider whether this primary objective could best be attained by: ( a) Deterrence, or (b) Reformation and rehabilitation of the offender, or ( c) Both deterrence and rehabilitation. Although this case is dated, the concept of protection of the public remains the foremost principle utilized by courts in the sentencing process. Perhaps the most critical stage of the criminal justice system is the imposition of a sentence. It is therefore imperative that the principles and objectives of sentencing be clearly understood by the judge, counsel and the public as a whole including victims. After a finding of guilty, there is no longer an issue between Her Majesty The Queen and the accused. The position of Crown counsel is not to seek the maximum sentence available under the Code. Conversely, it is not the responsibility and duty of Defence counsel to seek the lowest possible sentence. Rather, it is the responsibility of both counsel as officers of the court to ensure that all of the information with respect to the accused and surrounding circumstances of the offence is brought to the attention of the sentencing judge to ensure that a just, lawful and reasonable sentence is passed. Relevant Factors The court must consider all relevant factors, both for and against the accused at the time of sentencing. It is paramount that this be brought before the court. The Supreme Court of Canada in R. v. McGrath, [1962] S.C.R. 739 stated: After conviction, accurate information should be given as to the general character and other material circumstances of the prisoner even though such information is not available in the form of evidence proper, and such information when given can rightly be taken into consideration by the judge in determining the quantum of punishment, unless it is challenged Sentencing: Update and Recent Trends David J. Bright, Q. C.

5 Page 5 and contradicted by or on behalf ofthe prisoner, in which case the judge should either direct proper proof to be given or should ignore the information. There should be precision and accuracy in any such information... As To The Accused (a) Age - courts have held, generally speaking, that a young first offender should not be sent to jail R. v. Beacon; R. v. Modney (1977) 31 C.C.C. (2d) 56 Alta. C.A. If, however, the crime committed is a crime of violence, the courts have held that the principle of general and specific deterrence must have priority for the protection of the public and thus an accused could be sentenced to a period of incarceration even though he is young. R. v. Fait (1982), 68 C.C.C. (2d) 367 (Alta. C.A.). See also R. v. Hingley (1977), 19 N.S.R. (2d) 541 (N.S.C.A.). (b) Attitude since offence committed or remorse - the presence of a sincere reform by the accused following the offence is indeed a factor to consider by a court in deciding the appropriate sentence. The Nova Scotia Court of Appeal in R. v. Campbell (1977), 18 N.S.R. (2d) 547 (N.S.C.A.) said that remorse should carry more weight on the positive side than on the negative. Thus if a person shows genuine remorse, it indicates rehabilitation. The converse is not necessarily true. Thus sincere remorse is a positive factor to be utilized by the court whilst lack of remorse is a neutral factor and should not, generally speaking, be a matter of comment by the court. This is particularly so should the person continue to maintain their innocence even though there has been a finding of guilty. R. v. Boran (1998), 169 N.S.R. (2d) 94 (N.S.S.C.). ( c) Background - obviously the background of the accused is most relevant to sentencing. Sentencing: Update and Recent Trends David J. Bright, Q. C.

6 Page 6 Thus the court will look at the background of the accused in the community. It is important, therefore, to give serious consideration to the bringing forward of character evidence by those in the community who know the accused or documentation which will expose the character of the accused to the sentencing judge. This good character and background of the accused, however, will be of very limited value if dealing with types of crime where the accused may have used his good character for criminal purposes. Immediately the sexual exploitation or assault of young people by a care-giver or relative is of significant importance. The courts in Nova Scotia and elsewhere have found that indeed such character evidence is not for use in mitigation, but rather may be held against an accused person who was entrusted with children partially on the basis of his reputation. As well, if the offence of which the accused is convicted is one of a series of offences, then the use of background character evidence will be of limited assistance. (d) (e) First offence - generally the courts have held that an accused will not be given a term of imprisonment for the commission of his first offence and that other dispositions should be explored. R. v. Stein (1974), 15 C.C.C. (2d) 376 (Ont. C.A.). However, the nature of the offence is also of equal importance and offences generally involving violence, breach of trust or abuse against children will result in incarceration for purposes of protection of the public. R. v. Devision (1974), 10 N.S.R. (2d) 482 (N.S.C.A.). Guilty plea - courts have held that a guilty plea may be considered as a mitigating circumstance in sentencing. This is so because it is an indication that the accused shows remorse for the offence that he has committed. Conversely, as a plea of guilty may be considered as a mitigating factor in sentencing by the court, a plea of not guilty and the forcing of a trial will not be used as an aggravating factor. R. v. Doren (1982), 66 C.C.C. (2d) 448 (Ont. C.A.). Sentencing: Update and Recent Trends David J Bright, Q. C.

7 Page 7 However, if an accused is inescapably caught in a situation, a plea of guilty has little effect and should, as a general rule, not be considered. R. v. Spiller (1969),6 C.R.N.S. 360 (B.C.C.A.). (f) (g) (h) Young offender record - courts may properly consider the accused's young offender record as part of his background. R. v. Beacon; R. v. Modney (supra). Physical or mental disorders - the court may consider whether in fact the accused is suffering from some physical or mental disorder and may take that into consideration with respect to the length of the sentence. However, the disorder complained of must relate to the commission of the offence for which the accused is being sentenced. If it bears no relation to the offence committed, then it is not relevant to the sentencing procedures. R. v. Boudreau (1978),25 N.S.R. (2d) 63. Previous criminal record - sentencing courts have considered the previous record of the accused as part of his background. However, the nature of the previous convictions and, as well, the staleness of the record are also factors that a court will take into consideration. As well, care should be taken to ensure that the accused not be punished twice for the same offence. If, however, the accused has been previously treated in a lenient manner and has not "learned his lesson" then clearly a harsher and more severe sentence is generally warranted. As well, it is clear that the sentencing judge may hear details of prior convictions for the purposes of sentencing. (i) Previous discharge - it is appropriate that the sentencing judge consider as to whether or not the accused has been given a discharge on a previous occasion as part of the background of the accused. R. v. Tan (1975), 22 C.C.C. (2d) 184 (B.C.C.A). Sentencing: Update and Recent Trends David J Bright, Q. C.

8 Page 8 U) Status on previous offence at the time the offence was committed - clearly if the accused is on interim release pending trial or on probation for a previous conviction, then a court is warranted in assessing a more severe penalty. (k) Time spent in custody awaiting trial- under s. 719(3) a court may take into account any time spent in custody by the person as a result of the offence. It is also important to review the concept of commencement of sentence as set forward in s Although there is no fixed formula for the credit to be given for time spent during pre-trial custody, R. v. Tallman (1989), 48 C.C.C. (3d) 81 (Alta. C.A.) often courts have used a formula without calling it such with respect to time spent in custody by generally doubling the time. The rationale for this, of course, is that a person does not earn any remission with respect to time in custody pending sentence. R. v. Anderson (1998), 168 N.S.R. (2d) 393 (N.S.S.C.). This cannot be utilized, however, where there is a minimum sentence fixed by parliament. R. v. Alain (sub nom R. v. Alain) (1998), 119 C.C.C. (3d) 177 (Que. C.A.). As To The Offence Committed (a) Consequences - the actual consequences. It is appropriate to consider, on occasion, the consequences of the offence committed. This situation often arises in driving offences where an innocent party has been killed or significantly injured. Although it should not be given undue weight, it is still an important factor. R. v. Boylen (1972), 21 C.R.N.S. 221 (N.S.Co.Ct.) per McLellan, C.C.J. Sentencing: Update and Recent Trends David J Bright, Q. C.

9 Page 9 Weare all well aware of the denunciation by the courts with respect to drinking and driving and the consequences flowing therefrom for innocent parties upon the road. As well, a court may take into consideration under certain circumstances the potential consequences of the offence. Again this can relate to drinking and driving or the trafficking in a prohibited substance. (b) (c) The degree of premeditation - the degree of premeditation exhibited in the commission of an offence is very relevant towards sentencing. A crime which is premeditated will, generally speaking, carry a much higher penalty than one which occurs on the spur of the moment. Gravity of the offence - it is appropriate for the court to consider the gravity of an offence. Indeed, the Nova Scotia Court of Appeal in R. v. Foster et al. (1988), 161 N.S.R. (2d) 371 commented with dramatic effect upon the gravity of an offence. As, however, the late Chief Justice McKinnon stated in R. v. Baillie (1973), 5 N.S.R. (2d) 428 at p.430: It would be a grave mistake, it appears to me, to follow rigid rules for determining the type and length of sentence in order to secure a measure of uniformity, for almost invariably, different circumstances are present in the case of each offender. There is not only the offence committed, but the method and manner of committing; the presence or absence of remorse, the age and circumstances of the offender and many other related factors. For these reasons, it may appear at times that lesser sentences are given for more serious offences and vice versa; but the court must consider each individual case on its own merits, even if the different factors involved are not apparent to Sentencing: Update and Recent Trends David J. Bright, Q. C.

10 Page 10 those who know only of the offence charged and the penalty imposed. Other Factors The Court Will Consider (a) Consistency of sentencing - s speaks of the other sentencing principles including 718.2(b) which dictates a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. See R. v. Baldhead, [1966] 4 C.C.C. 183 (Sask.C.A.) (b) Effect of parole, statutory remission, etc. on the length of the sentence - the Nova Scotia Court of Appeal found it was proper for a court to give such consideration to these matters. R. v. Longeuay (1977), 18 N.S.R. (2d) 574 (N.S.C.A.). (c) (d) Sentence of a co-accused - the courts will generally attempt to treat people who are co-accused in the same way by giving the same sentence. Although clearly it must take into consideration the participation of each accused in the crime, there is a balancing process. Totality of sentence - the concept of totality is one well known to Nova Scotia Courts. Usually a judge sentencing for multiple offences will decide what individual sentences are appropriate for each of the offence committed. Then the judge will decide if the sentences are to be concurrent or consecutive. Then the judge will look at the total length of the sentence and make a decision as to whether the total length of sentence is suitable. Section 718.2( c) dictates that the total of all sentences imposed should not be unduly harsh or long. Sentencing: Update and Recent Trends David J Bright, Q. C.

11 Page 11 Type Of Offence Committed (a) (b) Breach of trust - a breach of trust is an aggravating factor in the sentencing process and has been codified in s (a)(iii) of the Criminal Code. Generally speaking, a crime involving a breach of trust means the offender will be sent to jail regardless of his personal circumstances or indeed that it is a first offence. Sexual abuse of children - our courts in Nova Scotia have committed themselves to the principle that offences involving the sexual abuse of children should be treated very severely. Although conditional sentences are available and have been utilized, it is the exception rather than the rule. This could well be deemed to be a violation or abuse of a position of trust or authority in relation to the victim as set forward in 718.2(a)(iii) or 718.2(a)(ii). (c) (d) (e) (t) Use of violence - courts have held that offences involving violence are extraordinarily serious and that as a general rule, the principles of general and specific deterrence must override and other features or mitigating factors relating to the accused. Multiplicity of offences - it goes without saying that should a person commit a multiplicity of offences, they will, as a general rule, have a more severe sentence. Surrounding circumstances - courts will consider all of the surrounding circumstances when the offence was committed including circumstances which may have existed for some time. A.G. Que. v. Rubio (1984),39 C.R. (3d) 67 (Que.S.C.). Prevalence of similar offences in the community - the Nova Sc;otiac:ourt of Appeal has said that judges do not live in a vacuum and that it is appropriate to consider the prevalence of similar offences in the community and the consequent need for deterrence. R. v. Marshall (1978) 23 N.S.R. (2d) 234 (N.S.C.A.). Sentencing: Update and Recent Trends David J. Bright, Q. C.

12 Page 12 (g) Crime motivated by bias, prejudice or hate - this again is codified in s (a)(i) and is considered to be an aggravating factor in the sentencing process. Preparation for sentencing should commence during the initial interview with the accused prior to Trial. Your client is deserving of your professional opinion as to his chances of being found not guilty and of the consequences should a finding of guilty anse. Courts seek the assistance of counsel in arriving at just sentences. Innovation is the present key word and counsel should be prepared and flexible to assist the court in coming to a just conclusion. Sentencing is difficult for all. Proper sentencing will address the above factors. You must ensure they are brought to the attention of the court. Sentencing: Update and Recent Trends David J Bright, Q. C.