Tag Archives: sentencing

Some Clarity on Starting Point Sentences: The SCC in R. v. Friesen, 2020 SCC 9 (CanLII)

This will be a fairly long post (approximately 8 pages). I’ll begin with the background to the Supreme Court of Canada’s latest pronouncement on starting point sentences in Friesen, using Alberta cases such as Hajar, Arcand, Gashikanyi, Godfrey and Parranto, as well as the SCC case of Lacasse. I’ll then discuss the effects of the case – and why (and how) the starting point and sentencing debate will continue to rage.

While R. v. Arcand, 2010 ABCA 363 (CanLII) is cited over 500 times over the past decade in reported decisions alone – it’s even mentioned 5 years ago in Lacasse dissent (para. 130 – parallel citation as R. v. J.L.M.A.2010 ABCA 363) – one would have hoped the SCC wouldn’t have needed a decade to overrule it (explicitly – it was overruled somewhat less explicitly in Lacasse). Note the strong “concurring” opinion by 2 of the Justices in Arcand (Hunt and O’Brien JJ.) – basically dissenting – pointing out inconsistencies between the binding decision of Proulx and the majority’s view (see e.g. para. 361), etc.

Note that R v Hajar, 2016 ABCA 222 (CanLII) is cited favourably in Friesen in the context of harm done to victims of sexual abuse (for examples, paras. 64 and 78).

The Friesen case mostly serves to increase sentences in the context of sexual assaults, and also seeks to clarify a lot of potential issues relating to child sexual assault (e.g. “de facto” consent, categories of sexual assault, ensuring that assaults against children are sentenced more severely than those against adult, aggravating and mitigating factors etc.). Note that it overrules the lower court (MBCA)’s decision (R v Friesen, 2018 MBCA 69 (CanLII)) to reduce the sentence imposed by the judge. The way I see it – the case is a “win” for defence and sentencing judges in that it strongly denounces the approach of the ABCA in Arcand and establishes that the judge has all of the power to make the sentencing decision. At the same time, it both increases sentences and clarifies the law regarding sexual assaults against children, again, giving considerable power to the sentencing judge and more explicitly wresting it away from the appellate courts.

Arcand suggests that mere departure from a starting point can demonstrate an error in principle (italics in original, at para. 106):

This being so, deviations from the starting point in service of proportionality are an inseparable aspect of the starting point approach. Therefore, mere departure from the starting point does not, by itself, demonstrate error in principle. But a significant degree of departure may do so. A word of caution is in order. Facts relied on to deviate from the starting point should be relevant to sentence and reasonably justify deviation. It is not enough that there be differences from other cases. There always will be. And in dozens of irrelevant ways. The difference said to justify the deviation from the starting point should be a relevant difference. This is consistent with the parity principle which requires similarity of outcome for cases that are relevantly similar.

Also in Arcand (para 273, emphasis added):

Presumably because of the improper characterization of the unlawful act here, the sentencing judge effectively ignored binding authority, Sandercock, and the starting point it set for a major sexual assault, that is three years. In light of the sentence imposed and the absence of any rational justification for it, this too constitutes reviewable error. The corollary of a court of appeal’s authority to set properly defined starting points is that sentencing judges will give due consideration to those starting points and the process that starting point sentencing entails.

R. v. Lacasse, 2015 SCC 64 (CanLII) would appear to overrule Arcand on this point (paras. 60-61, emphasis added):

In other words, sentencing ranges are primarily guidelines, and not hard and fast rules: Nasogaluak, at para. 44. As a result, a deviation from a sentencing range is not synonymous with an error of law or an error in principle. Sopinka J. stated this clearly in McDonnell, although he was referring in that case to categories of assault:

… in my view it can never be an error in principle in itself to fail to place a particular offence within a judicially created category of assault for the purposes of sentencing… . If the categories are defined narrowly, and deviations from the categorization are generally reversed, the discretion that should be left in the hands of the trial and sentencing judges is shifted considerably to the appellate courts. [para. 32]

Any other conclusion would have the effect of authorizing appellate courts to create categories of offences with no real justification and accordingly intervene without deference to substitute a sentence on appeal. But the power to create categories of offences lies with Parliament, not the courts: McDonnell, at para. 33.

Note that starting points are synonymous with sentencing ranges, for the purpose of this analysis; see para. 57 of Lacasse (emphasis added):

Tariffs differ from sentencing ranges in that tariff-based sentencing is theoretically the opposite of sentence individualization, which the ranges allow: Thomas, at p. 8. On the other hand, the principle underlying the two approaches is the same: ensuring that offenders who have committed similar crimes in similar circumstances are given similar sentences. The same is true of the starting-point approach, which is used mainly in Alberta but sometimes also in other Canadian provinces: R. v. McDonnell, [1997] 1 S.C.R. 948, at para. 69. Ultimately, whatever mechanism or terminology is used, the principle on which it is based remains the same. Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case […]

Hajar acknowledges Lacasse’s ratio that failure to follow a starting point is not an error in principle per se – albeit only mentioned in technical dissent, and by Slatter J. (paras. 260, 272) – not the majority.

I’ll cut to the chase here with the new decision of R. v. Friesen, 2020 SCC 9 (CanLII), before getting back to the contextual background. The following quote is most relevant regarding Arcand, where the latter is more explicitly overruled (emphasis added):

37 This Court has repeatedly held that sentencing ranges and starting points are guidelines, not hard and fast rules (R. v. McDonnell1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, at para. 33R. v. Wells2000 SCC 10, [2000] 1 S.C.R. 207, at para. 45R. v. Nasogaluak2010 SCC 6, [2010] 1 S.C.R. 206, at para. 44Lacasse, at para. 60). Appellate courts cannot treat the departure from or failure to refer to a range of sentence or starting point as an error in principle. Nor can they intervene simply because the sentence is different from the sentence that would have been reached had the range of sentence or starting point been applied (McDonnell, at para. 42). Ranges of sentence and starting points cannot be binding in either theory or practice, and appellate courts cannot interpret or apply the standard of review to enforce them, contrary to R. v. Arcand2010 ABCA 363, 40 Alta. L.R. (5th) 199, at paras. 116-18 and 273. As this Court held in Lacasse, to do so would be to usurp the role of Parliament in creating categories of offences (paras. 60-61; see also McDonnell, at paras. 33-34). […]

41 Many practitioners, judges, and academics have consistently expressed these concerns (see, e.g., A. Manson, “McDonnell and the Methodology of Sentencing” (1997), 6 C.R. (5th) 277; J. Rudin, “Eyes Wide Shut: The Alberta Court of Appeal’s Decision in R. v. Arcand and Aboriginal Offenders” (2011), 48 Alta. L. Rev 987; L. Silver, Sentencing to the Starting Point: The Alberta Debate, May 23, 2019 (online) [link]). We realize that the Alberta Court of Appeal has repeatedly defended the utility of the starting point methodology in the face of these concerns (see Arcand, at paras. 130-46R. v. Parranto2019 ABCA 457, 98 Alta. L.R. (6th) 114, at paras. 28-38; see also P. Moreau, “In Defence of Starting Point Sentencing” (2016), 63 Crim. L.Q. 345). However, this Court has not yet addressed these concerns. We make no comment on the merits of these concerns. Nor should anything in these reasons be taken to suggest that starting points are no longer a permissible form of appellate guidance. While we have determined that this case does not provide an appropriate opportunity to assess the merits of these concerns, they raise an issue of importance that should be resolved in an appropriate case.

R v Godfrey, 2018 ABCA 369 (CanLII) is problematic on multiple levels (I’ve addressed it previously here). It likely both misquotes the sentencing judge and misapplies the law, per Lacasse which had already overruled Arcand (Godfrey, at para. 8)

[…] It was an error of principle calling for appellate intervention for the sentencing judge to conclude that she was not bound by the appellate case law in Alberta. The point was summed up in Arcand […]

The damage is partially mitigated in para. 17: “The trial judge noted the starting point in passing, but abandoned it as a meaningful foundation for her analysis, and never explained why the resulting sentences were compatible with it”. As pointed out in O’Ferrall J.’s dissent:

[25] With respect, I cannot agree. The sentencing judge considered herself bound by the starting point. She did so explicitly, acknowledging the starting point and that she was “of course bound by the directions of the Alberta Court of Appeal”: R v Godfrey2018 ABPC 45 at para 31. […]

[38] The sentencing judge acknowledged the three-year starting point, but all parties were of the view that a sentence less than the starting point was appropriate. The question was, how much less? To answer that question, the sentencing judge sought the guidance of a whole range of authorities. But in the final analysis, as helpful as such guidance might have been, she had to decide what constituted a fit sentence for these offences and these offenders and she did so in a transparent and reasonable way.

Why Godfrey was not appealed to the Supreme Court is difficult to understand – absent the fact that the majority’s decision disincentivized the defendant to appeal, as it did not directly affect the appellant – only everyone else in Alberta who came after (note the majority’s decision in para. 22 to vary the sentence to time served in that particular case, and see Berger J.’s criticism on this point below from Gashikanyi).

R v Felix, 2019 ABCA 458 (CanLII) and R v Parranto, 2019 ABCA 457 (CanLII) (essentially “sister” decisions – one of which I discuss here) are careful to state correctlyunlike Godfrey – that failure to adhere to a starting point is not an error in principle per se (e.g. Parranto – para. 72), yet it establishes a new starting point for wholesale fentanyl trafficking of 9 years. Although the sentencing judge made reference to a sentencing range, it was simply found to be inappropriate, and Ontario caselaw (paras. 69-70) – surprisingly – was used to decide a 9-year starting point was appropriate. It would be great if someone planned on appealing either case [Feb. 2022 edit: the Supreme Court decided these cases in 2021, a divided court upholding the sentence and finding that starting points are entirely not binding on a sentencing judge – as long as the sentence is not “demonstrably unfit”, while refusing to abolish them – R. v. Parranto, 2021 SCC 46]. Likely, the ratio (or outcome) of Parranto [at the Court of Appeal] is – in retrospect, at least – inconsistent with Supreme Court jurisprudence in Friesen and probably Lacasse – assuming of course, that the original sentence was not “demonstrably unfit” which is a rather difficult determination for anyone to make – yet its decision to set a starting point – likely is not wrong – yet [Feb. 2022 edit: unfortunately, nothing has changed substantively, other than ABCA less likely to overturn sentences only because of lack of compliance with a starting point. I’m quoted by CBC here]. The Supreme Court will need to decide the issue squarely once and for all, now that it’s again decided that failure to follow a starting point/range is not an error in principle per se; per Berger J.’s criticisms of the starting point approach in R v Legerton, 2015 ABCA 79 (CanLII – see e.g. para. 12) and Gashikanyi, etc. and the interveners’ concerns in Friesen: are starting points problematic in that they arguably fetter the discretion of a sentencing judge far more than a sentencing range does? Also – practically speaking, when is a judge’s sentencing decision simply inappropriate and requiring appellate intervention? This is also a crucial problem, and one that is clearly evident in the Hajar/Gashikanyi debate (I’ll get into Gashikanyi shortly: note there is much discussion there, as in Arcand and Hajar about “re-consideration cases” and significant debate about what constitutes an appropriate sentence). I suspect that that debate will rage on – although it will now be termed more in the language of “demonstrably unfit” rather than “error in principle”. Bottom line when it comes to sentencing: people (and courts) want numbers. Lacasse is helpful in providing guidance about what constitutes “demonstrably unfit” in terms of a sentence – I’ll get to this below. I’m hopeful that Lacasse will be sufficient, but I suspect that more clarity will be required – particularly when courts (and individual judges) disagree over the appropriate quantum of sentence for a particular type of offence or offenders.

Lacasse clarifies “demonstrable unfitness”, including:

52 It is possible for a sentence to be demonstrably unfit even if the judge has made no error in imposing it. As Laskin J.A. mentioned, writing for the Ontario Court of Appeal, the courts have used a variety of expressions to describe a sentence that is “demonstrably unfit”: “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a “substantial and marked departure” (R. v. Rezaie (1996), 1996 CanLII 1241 (ON CA), 31 O.R. (3d) 713 (C.A.), at p. 720).All these expressions reflect the very high threshold that applies to appellate courts when determining whether they should intervene after reviewing the fitness of a sentence.

53 This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, which provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2(a) and (b) of the Criminal Code.

54 The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the fundamental principle of proportionality. This Court explained this as follows in M. (C.A.):

It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . . Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [para. 92]

See Berger J.’s prescient comments – criticizing Arcand, and writing for the majority – in R. v. Lee, 2012 ABCA 17 (CanLII) (emphasis in original):

53 The danger is that a judgment arising from a particular “doctrinal disposition” may be perceived as a response to the agenda of those who would, by way of example, “get tough on crime”. Such a pronouncement purporting to vindicate certain promises of the law but excluding others, may be seen as an echo of political or public sentiment. It is an inescapable truth that to call upon the judiciary to adopt the selective approach of the majority of an appellate sentencing panel, failing which “Parliament will act”, erodes the independence of the Court and threatens public confidence in the administration of justice.

54 In remarks to the Council of the Canadian Bar Association (the “CBA”) at the Canadian Legal Conference in Halifax on August 13, 2011, Chief Justice McLachlin spoke about public confidence in the judiciary. She referenced the response of the CBA to a speech given by a Minister of the Crown suggesting that some judges were insufficiently solicitous to government policy. She thanked the CBA for reminding the Minister in question “of the importance of public confidence in an independent and impartial judiciary that bases its decisions on the law and not on government policy.” That admonition, it seems to me, also applies to judges who may run the risk of being perceived as overly-solicitous to government policy.

Berger J. in R. v. Gashikanyi, 2017 ABCA 194 (CanLII) notes in paras. 16-36 an excellent critique of starting points. I’ll quote extensively, emphasis in original:

19 It is in this latter regard that the majority reasons in Hajar fail to provide meaningful guidance to sentencing judges in Alberta. The abandonment of sentencing ranges and substitution by this Court of starting points without first determining the “acceptable range of sentence” before fixing the starting point, operates in practical terms as a constraint on the discretion afforded to sentencing judges to impose individualized sentences. After all, sentencing ranges are, as the Supreme Court of Canada has made clear, “historical portraits” for the use of sentencing judges whose discretion should not be interfered with absent demonstrable unfitness:

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case.

              R. v. Lacasse2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 57

20 The majority in Hajar not only failed to conduct a detailed, comprehensive review of the minimum and maximum sentences for sexual interference imposed in the past by both trial and appellate judges, but also summarily resiled from the established sentencing range with the admonition that “…the Reasons [of the sentencing judge] overlook the fact that sentencing precedents from this Court are of limited precedential value.” (at para. 150)

21 Both the majority in Hajar and the Crown in the case at bar relied upon the majority decision in Arcand which, it will be remembered, suggested that starting point sentencing is “effectively neutered” or rendered “meaningless in practice” unless elevated to a rule of law (at paras. 99 and 110 of the Arcand majority judgment).

22 As I made clear in R. v. Lee2012 ABCA 17 at para. 61:

[61]     The failure of the majority opinion in Arcand to recognize that starting points are guidelines and are not to be elevated to the status of legal imperatives is, with respect, a serious error, as is its suggestion that deviation from a starting point constitutes reversible error. The result is that the majority in Arcand relegates to insignificance the rich trove of trial and appellate pronouncements that deviate from starting points but inform the range of sentence that may properly be imposed for various crimes. (emphasis added)

23 In the result, as did the majority in Arcand, the collection of trial and appellate pronouncements that deviate from the starting point was again relegated to insignificance by the majority in Hajar.

24 The Hajar majority reasons, while citing Lacasse for other purposes, seems not to have appreciated Lacasse’s focus on the increased force of appellate deference and Lacasse’s reminder that reliance on the proposition “that an appellate court is to defer to a sentencing decision absent an error in principle, failure to consider a relevant factor, [or] an overemphasis of the appropriate factors” needed to be clarified and qualified (Lacasse at para. 47) With that in mind, Justice Wagner reminded both trial and appellate courts that departure from sentencing ranges or starting points are not only permitted but to be expected.  He cautioned against “trivialization” of the term “error in principle”, emphasizing that an appellate court may not intervene simply because it would have weighed the relevant factors differently. (Lacasse at para. 49)

25 The majority reasons in Hajar also run afoul of Lacasse by failing to appreciate that the choice of a sentencing range [or a starting point] or of a category within a range falls within the trial judge’s discretion and cannot in itself constitute a reversible error. (Lacasse at para. 51)

26 The majority judgment in Lacasse took pains to emphasize (and the majority in Hajar failed to recognize) that the principle of parity of sentences is secondary to the principle of proportionality and must not be given priority over the principle of deference to the trial judge’s exercise of discretion. The majority failed to appreciate Lacasse’s lesson that “individualization and parity of sentences must be reconciled for a sentence to be proportionate” (Lacasse at para. 53) and that individualization takes priority over parity.

27 The foregoing clarifications and qualifications seem to have eluded the Hajar majority. That is not surprising given its view that the role of an appellate court is to stamp out “caprice” and to “act as a buffer against outliers of sentencing outcomes.” (Hajar at paras. 47[46], 50)


35 Notwithstanding this Court’s disclaimers to the contrary, sentencing judges in Alberta know that departure from a starting point facilitates appellate intervention in this jurisdiction and constrains their discretion. Simply put, they know it is much easier to upset a sentence of, say, 15 months’ imprisonment when the starting point is 3 years than it is when the range is 12 months to 3 years. The departure from the low end of the range may be seen on appellate review as acceptable while the departure from the starting point is more readily adjudged to be reversible error.

At para. 36 of Gashikanyi, Berger J. discusses the practical immunity to appeal of Hajar, Arcand and Rahime (I’ll add the more recent Godfrey decision to the mix); emphasis added at para. 36:

I would add only that in a number of leading judgments of this Court including HajarArcand and R. v. Rahime2001 ABCA 203 (all five person panel appeals), the ultimate disposition of the Court was viewed favourably by both Crown and defence – the Crown, because the Court endorsed the legal argument advanced by the Crown in fixing the starting point for future cases; the defence, because in each case, although the sentence below was adjudged inadequate, the accused was not re-incarcerated. Neither side would have any interest whatsoever in appealing the matter to the Supreme Court of Canada. In each case the Crown had its precedent and the accused had his freedom; in each case the Court’s judgment was thereby rendered immune from further review by the Supreme Court.

Note the ABCA’s majority approach in important, 5-panel cases like Hajar and Arcand, the makeup of which, as Berger J. observes at paras. 68-75 of Gashikanyi, suggests something other than a random assignment of justices. I note that all 3 of the cases Berger J. cites (Hajar, Arcand, and Rahime) all include a 5-person panel for the ABCA, all include Fraser CJ, and none of them include Berger J. Further, both Hajar and Arcand include Fraser CJ and Watson J. – both of whom are necessary for the 3-person majority opinions (not that the “dissenters” were particularly opposed in Hajar). Berger J. is quite likely making a rather obvious point – although it’s one that’s denied perhaps too vociferously by commentators and other ABCA jurists in Gashikanyi. Clearly, it’s not random assignment or expertise preventing Berger J. from sitting on – say – Arcand. Whether or not that’s appropriate or ethical is perhaps “above my pay grade” – but let’s not pretend that his point isn’t obvious. Note also Watson J.’s presence in both R v Godfrey, 2018 ABCA 369 (CanLII) and R v Sumner, 2019 ABCA 399 (CanLII) – recent ABCA decisions I have criticized.

These points makes the comments of Fraser CJ in Arcand especially ironic (para. 8, emphasis added):

The third truth. Judges are not the only ones who know truths one and two, and thus judge shopping is alive and well in Canada – and fighting hard to stay that way. All lead inescapably to the fourth truth. Without reasonable uniformity of approach to sentencing amongst trial and appellate judges in Canada, many of the sentencing objectives and principles prescribed in the Code are not attainable. This makes the search for just sanctions at best a lottery, and at worst a myth. Pretending otherwise obscures the need for Canadian courts to do what Parliament has asked: minimize unjustified disparity in sentencing while maintaining flexibility.

Up, up and away: the Alberta Court of Appeal sets 9 year starting point for wholesale fentanyl trafficking: R v Felix, 2019 ABCA 458 (CanLII)


In yet another disturbing sentencing decision (R v Felix, 2019 ABCA 458 (CanLII), the Alberta Court of Appeal overturns (in a unanimous 5-member decision authored by Antonio J.A.) a 7-year sentence for wholesale fentanyl trafficking, and imposes instead a 10-year sentence. Luckily for the respondent, the Crown only sought a 10-year sentence – otherwise the Court likely would have imposed a 13-year sentence (see para. 79).

My problems with the decision are not dissimilar from those expressed in my recent post. I should also note that it is both sad and ironic that a 1-year mandatory minimum sentence for possession for the purpose of trafficking was found to be unconstitutional by the Supreme Court – yet a “3-year starting point” for, say, cocaine trafficking in a commercial context “beyond a minimal scale” (how the heck is that defined anyway?) enforced by our Alberta Court of Appeal and therefore binding on all Alberta sentencing courts, and which – in practice – leads to a 2-year minimum (on average, I’d say) sentence for trafficking – somehow that is acceptable?

I’ll add that the following paragraphs from this decision struck me as particularly problematic:

[40]           Fentanyl trafficking has created a crisis in Alberta, as in the rest of the country. It falls to the courts to protect the public by imposing sentences that will alter the cost-benefit math performed by high level fentanyl traffickers. […]

[66]           As for all drug trafficking, particularly where there is any degree of sophistication, primacy must be given to denunciation and deterrence. Participation in a trafficking network is a calculated decision, premised on the ability to reap gains that outweigh any costs. This is precisely the type of crime for which deterrence may be most effective.

This despite debate whether harsh sentencing actually operates as a deterrent. It would be nice if our Court of Appeal would rely on evidence to support its belief in the deterrent effect of its decisions, rather than just assume it. See, for example, Clayton Ruby et al. in Sentencing: 9th edition  (available with QuickLaw subscription here):

§1.27 Notwithstanding the lack of evidence to support the proposition that individual conduct is affected by sentencing, general deterrence remains at the heart of adult sentencing practice.4 It is a reversible error to suggest that there must be evidence that a particular sentence would accomplish deterrence. Nor, in light of the language of section 718(b) of the Criminal Code, is it open to a sentencing judge to conclude that general deterrence is irrelevant or ineffective.5 In fact, for some offences, such as producing counterfeit money and trafficking or importing narcotics, courts have held that general deterrence ought to be the primary goal of sentencing.6 General deterrence as a principle of sentencing always acts to increase the penalty; it never mitigates sentence.7 The concept, despite criticism, survives.

It is sometimes argued that deterrence — and sentencing offenders to jail — does not do any good because it does not help the individual offender and further that, despite jailing offenders, we still have crime in our society . … [B]y including general deterrence as one of the sentencing objectives in the Code, Parliament has ended any dispute about its validity.8 [Quoting R. v. Arcand, 2010 ABCA 363 (CanLII), at para. 277.]

True, crime survives, but there is no evidence that imprisonment beyond immediate and expensive incapacitation has any beneficial effect commensurate with its cost.9

§1.28 What evidence there is suggests that it is the certainty of conviction rather than the severity of sentence that constitutes the deterrent factor in criminal law. This assertion was questioned by Schultz J.A. of the Manitoba Court of Appeal in Iwaniw; Overton.10 Schultz J.A. made the following comment in an attempt to justify the standard proposition that harsher sentences effectively reduce the crime rate. However, it raises an interesting problem about the validity of deterrence generally:

… those contemplating potential crimes are not concerned with the question of conviction to anything like the same extent [as the severity of punishment]; for what criminal ever plans a crime thinking he will be caught?11

§1.29 Our courts continue to depend on theories of general deterrence in practice. The Alberta Court of Appeal is not prepared to tolerate what they refer to as “the sentencing judge’s subjective doubts about [the] general efficacy” of general deterrence.12 […]

§1.32 Similarly, in Gladue, Cory and Iacobucci JJ. held that although imprisonment is intended to serve the goals of separation, deterrence, denunciation and rehabilitation, “there is widespread consensus that imprisonment has not been successful in achieving some of these goals”.18 In view of its extremely negative collateral effects — “educating less experienced, less hardened offenders to be more difficult and professional criminals”19 — imprisonment “should be used with great restraint where the justification is general deterrence”.20 General deterrence, as a justification for imprisonment where a conditional sentence is available, should be “reserved for those offences that are likely to be affected by general deterrent effect”,21 for example, large‑scale well-planned fraud by persons in positions of trust.

Although Felix quotes and purports to follow R. v. Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, a quick reading of Lacasse suggests that Felix does not follow binding Supreme Court of Canada authority on sentencing. Perhaps an Alberta Court of Appeal sentencing decision will finally make it all the way to the Supreme Court of Canada (more recently than R. v. McDonnell, 1997 CanLII 389 (SCC), which interestingly was a 5-4 decision overturning an Alberta Court of Appeal decision which CJ Fraser wrote, and for which Berger J.A. wrote the dissenting opinion April 12/20 correction: unanimous ABCA decision of which Fraser, Cairns and Bielby were on the panel: indexed as R. v. McDonnell, [1995] A.J. No. 505 (QuickLaw))? I’ll remain optimistic.

Another Disturbing Criminal Law Decision from the Alberta Court of Appeal – R v Sumner, 2019 ABCA 399 (CanLII) – Starting Point Sentencing

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.