Rule[1] 1: Is each offence deserving of its own period of imprisonment in accordance with the principle of proportionality?
- In the seminal decision of Paul v. R[2], the Supreme Court of Canada held that if there are multiple offences and each offence is deserving of its own period of imprisonment, each offence should be sentenced in proportion to its gravity through the imposition of consecutive sentences[3]. The rationale for consecutive sentences is that “The punishment must be proportioned to the specific offence contained in the record, upon which the judgment is then to be pronounced; and must be neither longer nor shorter, wider nor narrower, than that specific offence deserves. The balance is to be held with a steady even hand; and the crime and the punishment are to counterpoise each other; and a judgment given, or to be given against the same person for a distinct offence, is not to be thrown into either scale, to add an atom to either[4].” In recent cases, this rule has been expressed as the accused not getting a “free ride” for any offence regardless of how the sentence is implemented[5]. This rule makes the most sense. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other[6]. Recently, in the context of the law on concurrent versus consecutive sentences, the Manitoba Court of Appeal, the Prince Edward Island Court of Appeal, and the Alberta Provincial Court have recognized that regardless of how the sentences are framed, the sentence must reflect proportionality (the gravity of the offence and the moral blameworthiness of the offender)[7]. The approach of imposing consecutive sentences is, however, also favourable to the accused because if concurrent sentences are imposed for multiple offences a judge may impose a higher sentence than would have been imposed for each of the offences individually. As the Supreme Court noted:
Indeed, if a judge, when imposing sentences of imprisonment for many offences, is of the view that a person should in the interest of society be incarcerated for a given period of time, he will, within the limits permitted by the law, arrange the sentences to achieve what he considers that just and fair result. This he will do through consecutive sentencing, if permitted by the law. If consecutive sentencing is not available for what he justifiably might consider shortcomings of the law for technical reasons, he will achieve the imposition of that no less just and desirable period of incarceration through other means, all equally legal. Considering the high level at which sentences are set out in the Code, all he then need do is to impose for the latter conviction a sentence the length of which will correspond to the time he thinks the accused should serve for his offences. Not being able to fulfil what he rightly considers to be his duty through the imposition of consecutive sentences, for reasons he considers purely technical (and justifiably so, in my view), he will do so in that way. At the same time, however, the judge will be imposing for the latter offence, in order to achieve the desirable and just aggregate result, a sentence the severity of which is, even in his own view, much more than that required for that offence when considering that offence in isolation. This is undesirable, as each offence should at the outset be punished individually and in proportion to its seriousness. If each offence is deserving of its own period of imprisonment, the proper method for achieving this when sentencing the accused is not by sentencing one of the offences out of proportion to its gravity, but through the imposition of consecutive sentences.
Undesirable as a method, there is also danger in proceeding by higher concurrent sentences, for, if the conviction for the first offence is subsequently quashed on appeal, the accused will still, in effect, serve a sentence for that offence by serving the longer latter concurrent sentence. These two reasons might, to some, seem far-fetched. But it was precisely for these concerns and upon those rationales that Their Lordships in the House of Lords in R. v. Wilkes (1770), 4 Burr. 2527, 19 State Tr. 1075, 98 E.R. 327, rested and developed the very power for judges to impose imprisonment to be served consecutively. Construing the section in favour of the accused does not of necessity support restricting the discretion given judges to resort to consecutive sentencing; it is not paradoxical to say that accused persons in general might well be more favourably treated by giving the words of the section a meaning that favours the exercise of the power[8].
Rule 2: Are the offences part of the same event?
- While this is often not a simple issue to decide, the basic or general rule is that if the offences are sufficiently interrelated to form part of one single, continuous criminal transaction, a concurrent sentence is called for. However, if the offences are separate and distinct, then a consecutive sentence is to be imposed[9]. The problem with this test, as discussed below, is that it is the same test as Kienapple: if the factual and legal nexus between the offences are the same then one of the charges should be stayed rather than imposing a concurrent sentence. There is no need for this rule given the test in Paul v. R[10] on when to impose consecutive sentences.
Is this test different from the test in Kienapple that requires both a factual and legal nexus between the offences or is factual nexus alone sufficient?
- The test is the same as in Kienapple requiring both a factual and legal nexus for concurrent sentences[11]. The facts of R v. Prince[12] are illustrative of how the same factual nexus between two offences may not be sufficient to prevent multiple convictions and consecutive sentences if there are multiple victims of the same act. The Court indicated:
This appeal raises once again the scope of the principle enunciated in Kienapple v. The Queen, [1975] 1 S.C.R. 729. A single act of the respondent, Sandra prince, caused injury to one person and is alleged to have caused the death of another. Prince has been convicted of causing bodily harm in respect of the injured victim. The question is whether she may also be tried for manslaughter in respect of the deceased victim.
Facts
On January 1, 1981, Sandra Prince, by means of a single blow to the abdomen stabbed Bernice Daniels. At the time Daniels was six months pregnant. On January 2, 1981, Prince was charged with the attempted murder of Daniels. On January 6, 1981, Daniels gave birth to a child who lived for 19 minutes and then died. The cause of death is alleged to be traceable to the stabbing. The autopsy report indicated that the knife penetrated the amniotic sac, causing contamination of the amniotic fluid which in turn caused the child’s premature birth. Because the fetus was not sufficiently developed, the child died[13].
- On the facts of Prince, supra, the Supreme Court held that there was a factual nexus:
I have no hesitation in concluding that the requirement of a sufficient factual nexus is satisfied in the present appeal. A single act of the accused grounds both charges. It is true that the stabbing produced two separate consequences, the injury to Bernice Daniels and the death of the child. But such matters as the consequences of an act, the circumstances in which it was committed, or the status of the victim are most appropriately considered in the analysis of the legal nexus requirement. For it is only when consequences, circumstances, or status are incorporated into elements of an offence that they are relevant[14].
- However, the Court held that the legal nexus was not satisfied because the victims were different and suggested that the accused needed to “answer” or suffer the penalty for multiple offences even though they arose out of the same transaction:
Also of particular relevance to the present appeal is a passage at pp. 744-45 in which Justice Laskin referred to his conclusion in Kienapple in the following terms:
The rationale of my conclusion that the charges must be treated as alternative if there is a verdict of guilty of rape on the first count, that there should not be multiple convictions for the same delict against the same girl, has a long history in the common law.
(Emphasis added.)
It would appear from this passage that, at least in so far as crimes of personal violence are concerned, the rule against multiple convictions is inapplicable when the convictions relate to different victims. Indeed, I believe it was never within the contemplation of the majority in Kienapple that the rule enunciated therein would Preclude two convictions for offences respectively containing as elements the injury or death of two different persons.
Society, through the criminal law, requires Prince to answer for both the injury to Bernice Daniels and the death of the child, just as it would [page507] require a person who threw a bomb into a crowded space to answer for the multiple injuries and deaths that might result, and just as it compels a criminally negligent driver to answer for each person injured or killed as a result of his or her driving: see R. v. Birmingham and Taylor (1976), 34 C.C.C. (2d) 386 (Ont. C.A.) [Emphasis Added].
I have undertaken the analysis of the present case as though the respondent were seeking to bar a conviction on the lesser offence of causing bodily harm to Bernice Daniels. In fact, she seeks to bar a conviction on the more serious charge of manslaughter, having already been convicted of causing bodily harm. The Crown elected to proceed by way of successive trials rather than seek joinder. Although I do not suggest that the Crown did so in an effort to avoid the rule against multiple convictions, it is perhaps worth emphasizing that the Kienapple principle cannot be avoided by the simple expedient of proceeding in this fashion. Had I reached a different conclusion on the principal issue in this appeal, it would accordingly have been necessary to consider whether a trial on the more serious charge would have been entirely precluded, or whether, by analogy to cases such as Loyer and Terlecki, the trial should have been undertaken on the understanding that a stay would be entered on the lesser offence in the event of a conviction on the more serious offence. However, since I have concluded that Kienapple has no application to the offences charged, I need not address that issue.[15]
- In R. v. Meszaros,[16] the Ontario Court of Appeal held that in undertaking the Kienapple legal analysis the question is whether there are sufficient additional and distinguishing elements between the offences to preclude the operation of the Kienapple rule[17]. Three factors would defeat the sufficient legal nexus requirement:
- where the offences are designed to protect different societal interests.
- where the offences allege personal violence against different victims; and
- where the offences proscribe different consequences[18].
- Justice Doherty, in a case involving a sentence appeal, speaking for a unanimous Ontario Court of Appeal, did not vary consecutive sentences for two death threats against two different victims arising from the same factual transaction[19]. In other words, it appears from case law that for concurrent sentences to apply there must be both a factual and legal nexus between the offences.
The problem with requiring both a factual and legal connection between the offences for a concurrent sentence
8. Indicating that sentences must be concurrent when there is both a factual and legal nexus between the offences is not consistent with the Kienapple principle- if there is both a factual and legal nexus between the offences, then the sentences should not be concurrent or consecutive- Kineapple would apply and the duplicate offence would be stayed so there would only be sentence on one offence.
9 How do we explain this anomaly in the law? Respectfully, this anomaly appears to be a result of the simple rule in Paul v. R[20] not being applied which requires that if there are multiple offences and each offence is deserving of its own period of imprisonment, each offence should be sentenced in proportion to its gravity through the imposition of consecutive sentences[21]. There is no need for a more complicated rule to determine when concurrent or consecutive sentences needs to be imposed. Proportionality is the sine qua non of a just sanction[22].
10 Recently, in the context of the law on concurrent versus consecutive sentences, the Manitoba Court of Appeal, the Prince Edward Island Court of Appeal, and the Alberta Provincial Court have recognized that regardless of how the sentences are framed, the sentence must reflect proportionality (the gravity of the offence and the moral blameworthiness of the offender)[23].
Rule 3:
11. Rule 3 explained by the Manitoba Court of Appeal incorporates both the principles in Paul v. R, and the single transaction rule into a flexible but principled approach. According to this rule, the first step a sentencing judge must take when required to sentence on multiple offences is to determine whether any or all of the sentences are to be served concurrently or consecutively. This question and the decision does not relate to the overall length of sentence. Rather, they pertain to the nature and circumstances of the criminal activity under consideration and the connectedness of two or more offences to each other[24]. There are three important factors which must be at the forefront of consideration by a sentencing judge when determining and imposing sentence in respect of multiple offences:
(1) Whether the sentence imposed will be a consecutive sentence, a concurrent sentence or a combination of both. Included within this is the need to ensure that whatever the sentence, there will be no free ride given in respect of any offence.
(2) The sentencing principles of proportionality and totality. Within this, one must consider the more recent phenomenon of what is described as “spree” offences fuelled by addiction.
(3) Transparency, which must be included in factors (1) and (2) and the sentencing process as a whole[25].
12. Whether imposing a concurrent sentence, a consecutive sentence or a combination of both, the principle of proportionality must be considered. In respect of a concurrent sentence, proportionality, along with all of the other sentencing objectives and principles set out in s. 718 to s. 718.2 of the Code, except for the principle of totality, must be taken into account at the outset of the consideration of the duration or term of the concurrent sentence. In a particular sense, the proportionality principle necessitates an examination of the gravity of the offence(s), the harm done as a result and the accused’s degree of guilt or moral blameworthiness with respect to the offence(s) committed for the purpose of ensuring that the sentence imposed is in line with the accused’s moral culpability and not greater than that. In so doing, as Lamer C.J.C. stated in M. (C.A.), the assessment of an accused’s moral culpability in any particular case requires that due regard be given to “the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct” (at para. 80)[.26]
13. The very same analytical process is followed by the sentencing judge in a consecutive sentence scenario, that is, the principle of proportionality, along with all of the other principles of sentencing, but for totality, are considered at the outset in determining what a fit and proper term of sentence is for each of the offences being sentenced[27]
14. It is only then, as the final step of the sentencing exercise where consecutive sentences are involved (and not at all regarding concurrent sentences), that the totality principle comes into play. Application of the totality principle does not require reapplication of the sentencing principles (including proportionality) undertaken at the outset of the analytical process to determine term or duration of the sentence[28]
15. Rather, the totality principle requires that a “last look” be taken to ensure that the total or cumulative sentence is a fit sentence in that it does not exceed the overall culpability of the offender. Again, due regard is to be given to the “intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct” (see M. (C.A.), at para. 80)[29].
16. In addition, the intended total or cumulative sentence may offend the totality principle if it is substantially above the maximum sentence available for that type of crime or if its effect is a “crushing sentence,” that is, a sentence not in keeping with the offender’s record and future prospects[30].
17. It is essential to remember that a sentence must be imposed for each offence. Failure to do so may amount to reversible error. In so doing, it may be that in order to comply with the proportionality principle in the case of a concurrent sentence or with the totality principle in the case of a consecutive sentence, a sentence which would ordinarily be ascribed to an individual offence will have to be adjusted[31].
18. The need for transparency is essential to the sentencing process. It makes clear to the accused being sentenced, to the victim(s) of the crimes and to the community that the accused has been sentenced for the entirety of his criminal misconduct and has thereby been held to account and has received a sentence that is proportionate, i.e., fit and proper taking into account the seriousness of the offence(s), the harm done as a result and the moral blameworthiness of the accused for that conduct, together with his rehabilitative prospects for the future. Transparency is also essential to permit legitimate appellate review, if required[32].
19. It is a legitimate sentencing requirement when imposing a concurrent sentence to impose a more severe penalty given multiple offences and their number than one might give for the same offence individually or as compared with a couple or a few offences[33].
20. Likewise with respect to the principle of totality (which applies only with respect to consecutive sentences), if upon taking the last look the sentencing judge is of the view that there should be a reduction of the total sentence in order to comply with the principle of totality, that should be done in a transparent fashion[.34]
21. In fact, in addition to transparently reducing the length of an individual sentence which would otherwise be fit so as to take into account the totality principle, another way of invoking the totality principle is, after taking the last look, to transparently impose a concurrent sentence rather than what would otherwise properly have been consecutive sentences for the offences in question.[35]
22. Lastly, of course, when the sentence is finally imposed, which, of course, would be post any adjustment, the actual penalty pertaining to each individual offence must be ascribed[36].
[1] The Ontario Court of Appeal has held that insofar as the issue of whether a consecutive versus concurrent sentence ought to have been imposed and the totality of the sentence is concerned, this is an exercise of the judge’s discretion that warrants a high degree of deference absent an error in principle. [R v. Osman [2016] O.J. No. 358 (Ont.CA) at paragraph 8]
[2] 1982 CarswellQue 8 (SCC)
[3] Ibid at paragraph 26
[4] Ibid at paragraph 33 & 36
[5] R v Wozny [2010] M.J. No. 384 (Manitoba Court of Appeal) at paragraph 44; R. v. Gallup [2015] A.J. No. 558 (Alberta Provincial Court) at paragraph 19
[6] R. v Ipeelee, [2012] S.C.J. No. 13 at para. 37, 2012 SCC 13 (S.C.C.)
[7] R. v. Nunn [2014] P.E.I.J. No. 52 (Prince Edward Island Appeal Court) at paragraph 24; R. v. Gallup [2015] A.J. No. 558 (Alberta Provincial Court) at paragraph 19; R v Wozny [2010] M.J. No. 384 (Manitoba Court of Appeal) at paragraph 56
[8] Paul v. R. 1982 CarswellQue 8 (SCC) at paragraph 26- 27
[9] R v. Wozny [2010] M.J. No. 384 (Manitoba Court of Appeal) at paragraph 46
[10] 1982 CarswellQue 8 (SCC)
[11] See discussion under “The problem with requiring both a factual and legal connection between the offences for a concurrent sentence” as to why this test is not appropriate
[12] [1986] S.C.J. No. 63 (SCC)
[13] R v. Prince [1986] S.C.J. No. 63 (SCC) at paragraph 1 & 2
[14] R v. Prince [1986] S.C.J. No. 63 (SCC) at paragraph 41
[15] R v. Prince [1986] S.C.J. No. 63 (SCC) at paragraph 47-49. Subsequently, Ms. Prince had a trial on the manslaughter count and the conviction was upheld on appeal- see R v. Prince [1988] M.J. No. 454 (Manitoba Court of Appeal). However, the Manitoba Court of Appeal did not grant leave because of “the very special circumstances of this case.” What was the sentence for manslaughter? I obtained from Manitoba Court of Appeal archives the sentencing decision of 11th December 1987 now reported at [1987] M.J. No. 730. A consecutive jail sentence of 45 days in jail was imposed because of the extreme length of the proceedings and other mitigating factors in that case.
[16] [2013] O.J. No. 5113 (Ont.CA).
[17] Ibid at paragraph 38
[18] Ibid at paragraph 41
[19] R v. R.K [2005] O.J. No. 2434 (Ont.CA) at paragraphs 1, 2, 8, 39, 42 and 81
[20] CarswellQue 8 (SCC)
[21] Ibid at paragraph 26
[22] R. v. Ipeelee, [2012] S.C.J. No. 13 at paragraph 37
[23] R. v. Nunn [2014] P.E.I.J. No. 52 (Prince Edward Island Appeal Court) at paragraph 24; R. v. Gallup [2015] A.J. No. 558 (Alberta Provincial Court) at paragraph 19; R v Wozny [2010] M.J. No. 384 (Manitoba Court of Appeal) at paragraph 56
[24] R v Wozny [2010] M.J. No. 384 (Manitoba Court of Appeal) at paragraph 45
[25] R v Wozny [2010] M.J. No. 384 (Manitoba Court of Appeal) at paragraph 44
[26] R v Wozny [2010] M.J. No. 384 (Manitoba Court of Appeal) at paragraph 56
[27] Ibid at paragraph 57
[28] Ibid at paragraph 58
[29] Ibid at paragraph 59
[30] Ibid at paragraph 60
[31] Ibid at paragraph 63
[32] Ibid at paragraph 67
[33] Ibid at paragraph 70
[34] Ibid at paragraph 71
[35] Ibid at paragraph 72
[36] Ibid at paragraph 73
Summary Appeal Law and Trial Advocacy 