CONTENTS VOLUME 1. PRINCIPLES OF SENTENCING by R. Paul Nadin-Davis PROLEGOMENON TO THE PRINCIPLES OF SENTENCING

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1 VOLUME 1 Preface... iii User s Guide... UG-1 Full Judgment and Photocopy Service Order Form... unnumbered Comparative Classification Table [Volumes 1980 to 1993]... CC-1 Comparative Classification Table [Volumes 1994 to 2000]...CC-11 Comparative Classification Table [Volumes 2001 to 2008]...CC-21 Comparative Classification Table [Volumes 2009 to 2013]...CC-31 Comparative Classification Table for the Controlled Drugs and Substances Act [Volumes 2000 to 2007]...CC-43 Comparative Classification Table for the Controlled Drugs and Substances Act [Volumes 2008 to 2013]...CC-45 Criminal Code Table of Concordance... C-1 Controlled Drugs and Substances Act Concordance Table... C-25 Table of Abbreviations... TA-1 PRINCIPLES OF SENTENCING by R. Paul Nadin-Davis CHAPTER I: PROLEGOMENON TO THE PRINCIPLES OF SENTENCING 1. The First Decision Consistency and the Range The Tariff Sentence The Individualized Disposition (a) Young Offencers (b) Mentally Disordered Persons (c) Intermediate Recidivists Consistency Between Offenders Involved in Same Incident (a) General Rules (b) Exceptions (i) Different Mitigating or Aggravating Circumstances (ii) Different Extent of Involvement or Role in Offence (iii) Different Charges (iv) Influence on One Offender Over Another (c) Disparity As a Ground of Appeal Philosophical Aims and the Practice of Sentencing (a) Retribution (b) Deterrence (c) Denunciation (d) Incapacitation (e) Rehabilitation CONTS-1 (Sentencing) ( Rel. 3)

2 CHAPTER II: CHAPTER III: THE NATURE AND USE OF THE TARIFF 1 Introduction The Tariff in Practice (a) Determining the Range (b) The Second Step: Placing This Case Within the Range Inflated Tariff Sentences (a) The Exemplary Sentence (b) The Dangerous Offender (c) The Social Nuisance (d) Persistent Offenders (e) Offenders Likely to Benefit from Treatment in Prison FACTORS AFFECTING (OR NOT AFFECTING) SENTENCE 1 Introduction Factors Relating to the Offender or His History (a) Age (i) Youth (ii) Old Age (b) Criminal Record (i) Absence of Previous Criminal Behaviour (ii) Prior Offences: Special Categories A Offences committed as a juvenile B Offences in respect of which a discharge was granted C Offences in respect of which a pardon has been granted D Offences in respect of which the accused took part in a diversion programme E Offences subject to pending appeal F Offences in respect of which the accused was on bail at the time of the present offence G Offences in respect of which the accused was on H parole at the time of the present offence Offences for which the accused had not been convicted at the time of the present offence (iii) Prior Offences: Factors Affecting Weight Accorded Thereto A Types of previous convictions B The gap principle (iv) Offences Committed After the Offence Before the Court (v) Previous Sentences (c) Mental Illness (i) As a Mitigating Factor (ii) Dangerousness (iii) Modification of Sentence to Permit Treatment (iv) Dispositions in Cases Involving Specific Illnesses A Depression B Psychosis CONTS-2

3 C Drug dependency D Personality disorder (psychopathy, sociopathy) E Retardation F Schizophrenia G Senile dementia and other age-related degeneration H Paedophilia (d) Physical Health (i) In General (ii) Alcoholism (e) Position of Trust (i) Employers (ii) Financial Managers (iii) Lawyers and Judges (iv) Other Court Officers (v) Police Personnel (vi) Medical Practitioners (vii) Parents and Others in Loco Parentis (viii) Others (f) Nationality (g) Station in Life Factors Relating to Circumstances Immediately Prior to Commission of the Offence (a) Intoxication by Alcohol or Drugs (b) Personal or Financial Difficulties (c) Necessity Aspects of the Offence Committed (a) Acting in Concert With, or Involving, Others (b) Motive (c) Planning, Method of Execution of Offence (d) Prevalence of Offence (e) Magnitude, Impact and Profitability Factors Relating to the Victim (a) Character (b) Consequence to, or Effect on, Victim (c) Submissions by the Victim or the Victim s Family (d) Role of the Victim in the Offence (e) Provocation (f) Status (g) Member of Vulnerable Class Factors Relating to the Period Between Offence and Sentence, Pending Appeal, and the Accused s Behaviour Therein (a) Passage of Time (b) Change of Social or Legislative Policy, or Law (c) Time Spent in Custody (d) Acts of Accused (i) Cooperation with Police (ii) Compensation or Restitution Voluntarily Made CONTS-3 (Sentencing) ( Rel. 3)

4 (iii) Further Offending (iv) Good Behaviour (v) Refusal of Treatment (e) Attitude of Accused (i) Remorse (ii) Reformation Factors Relating to the Trial, Criminal Process, or Applicable Law (a) Conduct of Defence (b) Police or Prosecutorial Improprieties, Entrapment (c) Guilty Plea (d) Jury Recommendation (e) Mistake or Ignorance of Law (f) Remission and Parole (g) Test Case (h) Possibility of Future Changes in the Law Factors Relating to Other Effects of the Crime, Conviction or Sentence (a) Other Liabilities or Penalties Incurred (i) Civil Liability and Administrative Penalties (ii) Forfeiture of Parole (iii) Forfeiture of Property (iv) Penalties in Respect of Same Incident, But Other Crimes Committed (v) Foreign Criminal Liability for Same Incident (b) Loss of Reputation (c) Deportation (d) Loss of Employment or Professional Licence (e) Imprisonment Exceptionally Difficult or Dangerous for Accused (f) Effect on Accused s Family (g) Public Reaction (h) Injury to Accused Other Offences Not the Subject of Convictions (a) Taking into Account (b) Offence More Serious Than That Charged, Which Accused May Have Committed (c) Offences Planned But Not Executed (d) Offences Not Proven Table of Cases Principles of Sentencing CHAPTER IV: OFFENCES AGAINST THE CRIMINAL CODE Offences Against Public Order 6 Taking Part in Riot Terrorism Offences 10J Hoax Regarding Terrorist Activity... 10J-1 CONTS-4

5 Firearms and Other Offensive Weapons 11 Using Firearm During Commission of Offence, Etc Using Firearm or Ammunition in a Careless Manner, Etc Possession of Weapon or Imitation for Purpose Dangerous to Public Peace Carrying Concealed Weapon Being Occupant of Motor Vehicle Containing Restricted Weapon AA Possession of Prohibited or Restricted Firearm with Ammunition...18AA-1 20 Possession of Firearm While Prohibited Offences Against the Administration of Law and Justice 28 Obstructing Public Officer or Peace Officer A Fabricating Evidence...31A-1 32 Attempting to Obstruct Justice Public Mischief A Breach of Recognizance...37A-1 Sexual Offences, Public Morals and Disorderly Conduct SEXUAL OFFENCES... SO-1 41A Sexual Interference...41A-1 41B Invitation to Sexual Touching... 41B-1 41C Sexual Exploitation... 41C-1 42 Incest B Bestiality... 44B-1 44C Voyeurism... 44C-1 46A Child Pornography...46A-1 47AA Corrupting Children...47AA-1 47B Luring a Child... 47B-1 48 Indecent Acts Disorderly Houses, Gaming and Betting 64 Prostitution Offences Under s Offences Against the Person and Reputation 65 Failing to Provide Necessities of Life Causing Death by Criminal Negligence Causing Bodily Harm by Criminal Negligence Murder Manslaughter Attempted Murder Discharging Firearm with Intent Overcoming Resistance to Commission of Offence Dangerous Operation of Motor Vehicles, Vessels and Aircraft A Dangerous Operation Causing Bodily Harm...80A-1 80B Dangerous Operation Causing Death... 80B-1 80C Flight From Peace Officer... 80C-1 81 Failing to Stop at Scene of Accident CONTS-5 (Sentencing) ( Rel. 3)

6 81A Failing to Stop at Scene of Fatal Accident...81A-1 81B Failing to Stop at Scene of Accident Causing Bodily Harm... 81B-1 82A Impaired Driving Causing Bodily Harm...82A-1 82B Impaired Driving Causing Death... 82B-1 83 Driving with Over 80 mg. of Alcohol in Blood A Driving Over 80 Causing Bodily Harm...83A-1 83B Driving Over 80 Causing Death... 83B-1 84 Failing or Refusing to Comply with Demand A Driving While Disqualified...84A-1 84B Criminal Harassment... 84B-1 85 Uttering Threats: Death or Bodily Harm A Uttering Threats: Property or Animals...85A-1 86 Assault Assault with a Weapon Assault Causing Bodily Harm Aggravated Assault Sexual Assault Sexual Assault with a Weapon Sexual Assault Causing Bodily Harm Aggravated Sexual Assault Kidnapping Forcible Confinement C Abduction in Contravention of Custody Order C-1 VOLUME 2 Offences Against Rights of Property 104 Theft: Over $5, Theft: Not Exceeding $5, Theft of Electricity, Gas, Telecommunications Theft, Forgery, etc., of Credit Card Robbery: Assault with Intent to Steal Armed Robbery Robbery: Attempt Extortion: Attempt Breaking and Entering Dwelling House with Intent Breaking and Entering Dwelling House and Committing Indictable Offence Breaking and Entering Place Other than Dwelling House and Committing Indictable Offence Being Unlawfully in a Dwelling House Possession of Property Obtained by Crime Over $5, Possession of Property Obtained by Crime Not Exceeding $5, CONTS-6

7 139 Forgery Use, Trafficking or Possession of Forged Document Fraudulent Transactions Relating to Contracts and Trade 143 Fraud: Over $5, Fraud: Not Exceeding $5, Wilful and Forbidden Acts in Respect of Certain Property 154 Mischief in Relation to Property Arson Disregard for Human Life Arson Own Property AA Causing Unnecessary Suffering to Animals AA-1 Offences Relating to Currency 166A Laundering Proceeds of Crime A-1 Conspiracies 166B.1 Commission of Offence for Criminal Organization B.1-1 Probation Offences 168 Breach of Probation Order A Breach of Long-term Supervision Order A-1 168B Breach of Recognizance Under s B-1 CHAPTER V: CHAPTER V.1: YOUNG OFFENDERS ACT NOTE... Y-1 YOUTH CRIMINAL JUSTICE ACT... YCJ-1 YOUTH SENTENCES UNDER THE YOUTH CRIMINAL JUSTICE ACT...YCJA-1 Offences Against Public Order YJ6A Forcible Entry... YJ6A-1 Firearms and Other Offensive Weapons YJ11 Using Firearm During Commission of Offence, Etc.... YJ11-1 YJ14 Possession of Weapon or Imitation for Purpose Dangerous to Public Peace... YJ14-1 Sexual Offences, Public Morals and Disorderly Conduct YJ41A Sexual Interference... YJ41A-1 Offences Against the Person and Reputation YJ68 Causing Bodily Harm by Criminal Negligence... YJ68-1 YJ86 Assault... YJ86-1 YJ89 Aggravated Assault... YJ89-1 Offences Against Rights of Property YJ116 Robbery: Assault with Intent to Steal... YJ116-1 YJ123 Breaking and Entering Dwelling-House and Committing Indictable Offence... YJ123-1 YJ130 Disguise with Intent... YJ130-1 CONTS-7 (Sentencing) ( Rel. 3)

8 Offences Under the Youth Criminal Justice Act 170 Failing to Comply with Sentence or Disposition CHAPTER VI: CHAPTER VII: CHAPTER VIII: CHAPTER IX: OFFENCES INVOLVING DRUGS Offences Under the Controlled Drugs and Substances Act Possession of Controlled Substance C6 Cannabis (Marihuana) Under 30G... C6-1 Trafficking in Controlled Substance C12 Opium Poppy and Its Derivatives... C12-1 C13 Coca and Its Derivatives... C13-1 C14 Other Schedule I Substances... C14-1 C15 Cannabis and its Derivatives Over 3 Kg.... C15-1 C20 Trafficking in Controlled Substance: Conspiracy... C20-1 Possession of Controlled Substance for Purpose of Trafficking C21 Opium Poppy and Its Derivatives... C21-1 C22 Coca and Its Derivatives... C22-1 C24 Cannabis Sativa and Its Derivatives Over 3 Kg.... C24-1 C26 Cannabis (Marihuana) Under 3 Kg... C26-1 C28 Schedule IV Substances... C28-1 Importing or Exporting Controlled Substance C30 Importing or Exporting Schedule I or II Substance... C30-1 Production of Controlled Substance C38 Production of Cannabis Marihuana... C38-1 OFFENCES AGAINST THE ENVIRONMENT TAXATION OFFENCES Offences Under the Income Tax Act 219 Tax Evasion, False Returns, Etc TRADE OFFENCES... TO-1 Offences Under the Excise Act 232B Unlawful Possession or Sale of Manufactured Tobacco B-1 CHAPTER X: MISCELLANEOUS FEDERAL STATUTES A Note Regarding Case Citations... RCC-1 Table of Cases Digested...TC-1 Index...I-1 Index to Judges...IJ-1 CONTS-8