I noticed another disturbing criminal law decision from the Alberta Court of Appeal this week. This time, it’s about starting point sentencing.

By way of brief introduction, starting point sentencing has become very popular in recent years – particularly with the Alberta Court of Appeal (see, for example, R. v. Arcand, 2010 ABCA 363 (CanLII), R v Hajar, 2016 ABCA 222 (CanLII), and R v Godfrey, 2018 ABCA 369 (CanLII)). While it has come under intense criticism from some  – see, for example, the “lone wolf” brutal criticism of the approach – and the Court itself, including the Chief Justice of Alberta, no less – by our Court of Appeal’s now-retired Justice Berger in R. v. Gashikanyi, 2017 ABCA 194 (CanLII). Also, Clayton Ruby’s harsh critique of the approach in his seminal text Sentencing: 9th edition – see §23.15 through §23.20 (available with QuickLaw subscription here), where he begins with “Notwithstanding the rather strong language in Proulx, the Alberta Court of Appeal refuses to view starting points as mere guidance.”

Prior to Justice Berger’s scathing words in Gashikanyi, his decisions in R v Legerton, 2015 ABCA 79 (CanLII), and R. v. Kain, 2004 ABCA 127 (CanLII) were similar. For a reasoned discussion of the issue of starting point sentencing, see Prof. Lisa Silver’s blog post: Sentencing to the Starting Point: The Alberta Debate.

R v Godfrey, 2018 ABCA 369 (CanLII – mentioned previously) is an excellent example of the problem of starting point sentencing in Alberta. In it, the Alberta Court of Appeal overturns an excellent decision by Prov. Ct. Judge Brown, where she sentenced drug offenders to a 90-day sentence. The Court of Appeal held that she did not pay enough attention to the 3-year starting point, and was not justified in deviating from it to such a large extent. Instead, it imposed a 21-month and 18-month sentence on the separate offenders. Unfortunately, the decision did not get appealed further. Note Justice O’Ferrall’s very strong dissent with the majority in the decision (para. 23 onwards).

R. v Chase, 2019 NSCA 36 (CanLII) is an excellent example of a case with very similar facts that went in a very different direction – outside of Alberta. The Nova Scotia Court of Appeal heard almost identical circumstances as the Alberta Court of Appeal did in Godfrey, but instead unanimously upheld the trial judge’s sentencing decision.

This takes us to the recent Alberta Court of Appeal decision – R v Sumner, 2019 ABCA 399 (CanLII). A drug offender was sentenced to 12 months of prison at the trial level. On a Crown sentence appeal, the Court of Appeal unanimously decided (in a brief 15-paragraph memorandum, mind you) that the sentence was unfit for not complying enough with the same 3-year starting point, and instead imposed a 30-month sentence. I have emailed defence counsel on this case to find out if he’s appealing the decision to the Supreme Court of Canada (the deadline for filing would likely be mid-November), but I have not yet heard back from him.

This disturbing trend – particular to Alberta’s Court of Appeal – belies a draconian approach to sentencing that tolerates little deviation from starting points. Although mandatory minimum sentences (imposed by Parliament) are routinely struck down by trial courts as unconstitutional, starting point sentences imposed by an appeal court are binding on all lower courts – subject to reversal by the Supreme Court of Canada only. It’s about time this issue was brought before the Supreme Court of Canada to decide this contentious issue for once.

Of course, the Supreme Court of Canada had already decided the issue in Proulx, among other cases. Perhaps it’s time to “re-decide” the issue – particularly when rogue Courts of Appeal refuse to follow its direction. I’ll end by quoting Chief Justice Lamer in Proulx (emphasis added):

(b)  A Need for Starting Points?

86                An individualized sentencing regime will of necessity entail a certain degree of disparity in sentencing.  I recognize that it is important for appellate courts to minimize, to the greatest extent possible, “the disparity of sentences imposed by sentencing judges for similar offenders and similar offences committed throughout Canada”: M. (C.A.), supra, at para. 92.  Towards this end, this Court held in R. v. McDonnell, [1997] 1 S.C.R. 948, that “starting point sentences” may be set out as guides to lower courts in order to achieve greater uniformity and consistency.  I am also acutely aware of the need to provide guidance to lower courts regarding the use of the conditional sentence, as it is a new sanction which has created a considerable amount of controversy and confusion in its short life.

87                That said, I do not find it necessary to resort to starting points in respect of specific offences to provide guidance as to the proper use of conditional sentences.   In my view, the risks posed by starting points, in the form of offence-specific presumptions in favour of incarceration, outweigh their benefits.  Starting points are most useful in circumstances where there is the potential for a large disparity between sentences imposed for a particular crime because the range of sentence set out in the Code is particularly broad.  In the case of conditional sentences, however, the statutory prerequisites of s. 742.1  considerably narrow the range of cases in which a conditional sentence may be imposed.  A conditional sentence may only be imposed on non-dangerous offenders who would otherwise have received a jail sentence of less than two years.  Accordingly, the potential disparity of sentence between those offenders who were candidates for a conditional sentence and received a jail term, and those who received a conditional sentence, is relatively small.

88                The minimal benefits of uniformity in these circumstances are exceeded by the costs of the associated loss of individualization in sentencing.  By creating offence-specific starting points, there is a risk that these starting points will evolve into de facto minimum sentences of imprisonment.  This would thwart Parliament’s intention of not excluding particular categories of offence from the conditional sentencing regime.  It could also result in the imposition of disproportionate sentences in some cases.