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Summary.Sentencing.2015 Notes

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SENTENCING SUMMARY APRIL 2015 The sentencing regime in Canada derives from the British penal system. It's a post WWII creation in which mitigation grew as a consideration for judges. The surveillance model enmeshed within the prison model has evolved immensely since the 19th century, but it is pervasive in everyday life. During the 19th century, sentencing was harsh in England. Formerly, canon law provided the opportunity for the defence of clergy to avoid death. Judges found ways of giving people the benefit of clergy if they read or memorized passages from the Bible, etc. At the end of the 19th century, philosophers like Bentham began to tackle this problem. He sought to answer questions about why we punish people. From his works derive principles of deterrence and rehabilitation. This went hand in hand with prison reforms which evolved concurrently with utilitarianism. Utilitarianism deals with people not making good moral choices. Punishment should be correspondent with rehabilitation and could yield indefinite incarceration until rehabilitation is effected. This is countered by social science evidence which says that deterring and rehabilitating doesn't work and fiscal arguments. The justification for modern sentencing principles evolves here that are codified in section 718 today. The post WWII studies looked to effects of sentencing and giving way for retributivism in the 1960s, which countered the rehabilitation/deterrence camps. With retributivism:

• the goal is not to rehabilitate

• do not treat an individual as a free, moral agent

• rehabilitation model is paternalistic

• the goal shouldn't be to change people but punish them proportionally

• the principle is deeply rooted in moral principles

• wrongdoers morally deserve punishment for wrongful acts - the idea is that the criminal deserves it

• latin root - re + tribuo (pay back) - debt owed to society The justification for modern sentencing principles like proportionality and rehabilitation are codified in section 718 of CC. While incompatible with one another, they still underlie sentencing principles in Canada. Studies show that the likelihood of detection affects the calculus of the offender. Higher discount rates are associated with offenders' thoughts (this explains why the length of sentencing doesn't have a deterring affect). Whereas we might feel that 2 yrs in prison is worse than 1, for the regular offender it's not so perilous, which is the discount rate. Issues with proportionality include: 1) subjective views of crimes carrying a particular weight (seriousness changes with time); (2) ordinal ranking (why does one crime warrant 20 years in jail vs another?); (3) reasons for committing crime are highly relative; (4) economic costs of incarceration.

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SENTENCING SUMMARY APRIL 2015 Scholars/Thinkers Jeremy Bentham (Punishment and Deterrence)

Kathleen Daly (Limits of Restorative Justice)

An Noob and CM Webster (Offender's Thought Processes) Von Hirsch and Ashworth (Jus Desert)
*develops 1970s

" " (Rehabilitation)

Main Premises Proposes 6 rules dealing with proportionality. Punishment is unjustified where it is 1) groundless, 2) inefficacious, 3) unprofitable, 4) too expensive 5) needless. Particular prevention and general prevention are overarching principles. Justice can't be achieved - it's important to reach for. RJ deals with participation of victims, assists victims in recovery, face-toface meeting with victim and offender, informal, fact-finding, etc. There is not much evidence on restorativeness (e.g. remorse, apology to victim). Youth feel compelled to apologize. Communication failures can ensue. Perceived likelihood of getting caught is a factor. The intuitive connection between crime and punishment should yield harsh treatment. Rules out consideration for social factors/rehabilitation. The punishment must be proportionate but there should be little room for judicial discretion. Rehabilitation refers to the means by which the goal of reducing the offender's tendency to commit the crime are affected. It's social intervention (based on the offender's needs and assessments) with a view to benefit society. The assumption is that psychological or social problems play a role.

PART I: GUILTY PLEAS, BARGAINS AND JOINT SUBMISSIONS "Any agreement by the accused to plead guilty in return for the promise of some benefit" - Allan Manson, Sentencing and Penal Policy in Canada

The most common result in a trial is a guilty plea. The plea is the quid pro quo between the state and the accused through the bargain and subsequently the joint submissions JS = meeting post verdict when the Crown and defence meet to decide sentencing submissions PB = Since a JS has been arrived at via plea bargaining process, the judge must assess the factors that were considered throughout the bargain If it's a JS outside of a PB, it's simply an agreement. If it's a PB, the Crown might consider more than the relevant sentence such as: o (1) the victim's role o (2) strength of the Crown's case (e.g. witnesses to subpoena, circumstantial evidence) o (3) court backlog; 11(b) and resources POLICY: PB saves judicial and legal resources. Crown acting in public interest if it agrees to a plea.

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SENTENCING SUMMARY APRIL 2015

Case law demonstrates that judges are reluctant to interfere with a plea bargain (Martin Report). Judges need not accept joint submissions, but they are rarely interfered with. The legal standard for interfering with a JS in a PB may vary across jurisdictions: 1) Ontario (Cerasuolo 2001 ONCA; Haufe): TJ should not reject JS after PB unless it is contrary to public interest and sentence would bring admin of justice into disrepute. 2) BC/AB/MB (Bezdan 2001 BCCA; Chartrand 1998) - sentence proposed was unfit 3) QC: Douglas - sentence unreasonable PROCEDURAL ASSESSMENT OF JS in a PB: 1) Court must know essence of plea bargain (Sinclair) 2) Factual basis on which it was made (e.g. evidentiary gap in crown's case) a. BUT, parties don't disclose negotiating positions, substance of discussion between counsel 3) SJ has duty to inquire into facts in order to ensure she has full picture of them 4) Where judge is considering departing from bargain, counsel must have a chance to make additional submissions (Sinclair) 5) SJ must provide clear and cogent reasons for departing from JS in PB. This facilitates appeal (Sinclair)
[A] CASE LAW R v Douglas 2002 QCCA (Armed robbery and illegal confinement) F: Joint submissions on sentence re: guilty pleas. Parties recommended 4 years on each count for armed robbery and illegal confinement. TJ thought 4 yrs to be unreasonable and imposed 5. On conspiracy plea, TJ imposed 1 yr consecutive or equivalent of 6 yrs concurrent (Crown proposed concurrent 1 yr sentence) D: JS upheld; 4 yrs R: TJs must only reject joint submissions in a PB if unreasonable, contrary to public interest (R v Cerasuolo), unfit or would bring admin of justice into disrepute. Sentence must fall within appropriate range and be warranted by facts. Reasons: 4 yr sentence unreasonable because aggravating factor was incorrectly assigned to accused for revolver, but there was insufficient evidence BRD that it belonged to him (aggravating factor must be established BRD). TJ also misstated one accused's plea to robbery, referring to lesser offence of conspiracy. Ontario standard doesn't depart from reasonableness standard in other jurisdictions. COMMENTS:

• key aspect of the case here was the standard of review and how it varied in different jurisdictions

• While BC/MB/QC standard is that TJ can interfere with JS in PB where it is "unfit", the QCCA says the standard is the same in Ontario.

• 4 year rec was not unfit - the appellant was 19 and a longer sentence wouldn't have

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SENTENCING SUMMARY APRIL 2015

sufficed cites Martin Report re: high standard for interference. TJ should be alive to considerations at stake during PB court must know basis upon which PB occurred

R v Sinclair, 2004 MBCA 48 (Factors for repudiating JS in PB) F: Accused pleads guilty to assault case bodily harm. Couldn't explain what prompted an unprovoked attack on stranger. TJ rejects JS re: release due to 10-12 months (PTC - double time assumed). TJ gave him 3 months in custody (total 15) w/no probation. D: TJ decision upheld. R: Crown must place justification on record for a JS in a PB because the judge requires a factual basis on which to base decision. Factors for judges to consider if interfering with JS in a PB: 1) sentence should be given very serious consideration 2) departure only where there are clear reasons for doing so (e.g. unfit, unreasonable, contrary to admin of justice) 3) account for all circumstances underlying JS (cogent reasons like weight, systemic pressures, evidentiary considerations) 4) should inform counsel if there is consideration to depart JS 5) TJ must provide clear and cogent reasons for departure Reasons: JS is not binding on discretion of judge, but deviation from JS should be done with clear and cogent reasons. The clearer the quid pro quo in foregoing a trial, the more weight should be afforded to a JS (e.g. reduction of charges, varying evidence, flaws or weaknesses in Crown's case - like a continuum of JS and PB). Here, judge considered cogent factors like guilty plea, record, and unprovoked attack demonstrating lack of care. COMMENTS

• statements with police should be cross-referenced

• agreed statement of facts read in

• judge must notify counsel if intending to depart from JS (R v C(GW) ONCA: Where TJ demonstrated thorough appreciation of relevant facts, their significance and proper sentencing principles, appellate intervention on reviewable error unlikely warranted. Fundamental fairness dictates that opportunity to be afforded to make further submissions if SJ departing from JS. Audi alteram partem should be followed)

R v Tkachuk, 2001 ABCA 243 (Crown obligation + settlement privilege) F: T charged with crim neg cause bodily harm and 5 other charges (sentenced to 80 days for latter offences + 22 days pre-disposition custody). T attempted to commit suicide while his wife was in vehicle. JS 2 yrs for crim neg without authorities or explanations. TJ rejected and imposed 3 yrs with a 10 yr driving prohibition. T had a criminal record - many property related offences.

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SENTENCING SUMMARY APRIL 2015

D: TJ decision upheld at 3 yrs; appeal dismissed R: Where a JS is outside of the sentencing range and is not justified by sufficient reasons, including aggravating and mitigating factors, TJ can reject them. Nevertheless, discussions in a PB need not be revealed to judge since negotiations are covered by settlement privilege. Reasons: Given intent to kill, range attracted is 7-10 yrs akin to attempt murder. Lack of intoxication is aggravating - highlights intent. Depression not mitigating. Appellant's guilty plea didn't eliminate victim's need to testify - she indicated she would have done so. Record for impaired driving disqualifies him from lenient sentence. Victim's injuries were life threatening and therefore aggravating. Crown offered to settle without being fully briefed on file. TJ erred by not informing counsel re: rejection in advance for them to make further submissions. COMMENTS

• case points to obligations on the crown

• note that the court begins by sentencing the offender

• additional reasons must be provided if the plea is abnormally high or low

• settlement privilege attaches to discussions with a view to outcome - this encourages frank discussions R v Haufe, 2007 ONCA 515 (Robbery + TJ not enough reasons) F: Guilty plea for robbery - 18 mo. custody imposed (plus 48 days PTD + 2 yrs probation). Robbery resulted in home-owner being beaten and taken to hospital - fingerprint linked to accused some 10 yrs later. JS for 6 mo. custody rejected. TJ warned of consideration for higher sentence. D: Appeal allowed; 6 mo. sentence imposed R: TJ must provide reasons setting out why the JS is rejected and why it is contrary to the public interest. Reasons: TJ's reasons inadequate - said noting about JS before him. Factors considered by TJ like guilty plea, offence occurring in 1995, good conduct like employment, overcoming addiction and non commission of crimes in 2 yrs before 1995 sentence for robbery called for explanation for 18 mo. R v Lake, [1997] OJ No 5447 ONCA (Resl'n discussions privileged) F: Lake and RC co-accused in stabbing during robbery. Lake falls under YCJA but tried as adult. RC tried separately in youth court. RC called as witness in Crown's case, but his testimony was adverse. Crown also sought for ruling that RCs instructions to counsel be disclosed during JS resolution discussions.

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SENTENCING SUMMARY APRIL 2015 R: Counsel should be able to resolve cases with crown without fear that contents of what is exchanged can be used to detriment of client. Resolution discussions are privileged where the public interest outweighs all other considerations. Reasons: Privilege is not absolute and must give way to public interest and the search for truth. Two types of privilege: 1) blanket common law re: solicitor client communications being prima facie inadmissible unless tendered under exclusionary rule; 2) public interest in preserving plea negotiations. Crown is seeking disclosure here in furtherance of prosecution of Lake - this is distinct from Bernardo's request for plea negotiation disclosure to make full answer and defence. Here, RC is an accused; Homolka had already pled. There the negotiations were just disclosed pursuant to Stinchcombe, not with a view to becoming evidence. NOTE: RC'S willingness to plead here led to crown inferring that Lake committed the stabbing during the robbery. This case also evinces settlement privilege (second type of common law privilege) R v Nixon, 2011 SCC 34 (how to hold Crown to PB) F: N charged with dangerous driving cause death, driving cause bodily harm and parallel charges for impaired driving. Plea for careless driving under Traffic Safety Act with $1800 fine in return for removing CC charges. ADM repudiates plea believing it would bring admin of justice into disrepute. She then pleads. TJ deemed reneged plea unjustified on grounds that crown's decision to enter PB was reasonably defensible and an abuse of process in breach of s. 7. COA says repudiation of plea falls under prosecutorial discretion and not reviewable unless subject to abuse of process - 'reasonably defensible' standard erroneous. I: Does the repudiation of a plea fall within prosecutorial discretion and what is the test to review prosecutorial discretion?
D: appeal dismissed; TJ applied wrong abuse of process test. No basis for finding s. 7 rights were breached. Ratio: Resiling from a PB falls under prosecutorial discretion. Where Crown resiles from a PB it can only be subject to review for abuse of process. This exists where it results in trial unfairness or it undermines integrity of judicial process (e.g. bad faith or flagrant impropriety) Situations permitting crown to repudiate plea are rare. Must look to circumstances surrounding repudiation to determine abuse of process. Burden is on applicant to show abuse of process, but prejudice not prerequisite. Crown has burden to inform court as to why plea was repudiated. To determine whether an act falls within prosecutorial discretion ask whether it is a decision as to whether a prosecution should be brought, continued or ceased and if so, what it should be for. Reasons: Abuse of process under section 7 has two categories 1) prosecutorial conduct affecting fairness of trial and 2) contravening fundamental notions of justice. Crown's explanation re: allegation should be weighed heavily in favour of applicant in successful claim. No evidence to support abuse of process here. TJ looked at PB considerations, which informed repudiation.

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SENTENCING SUMMARY APRIL 2015 There was nothing improper with decision to resile. Reasonable defensibility is not the standard to apply (too low)- rather TJ should look to abuse of process and bad faith. Core elements of prosecutorial discretion: non-exhaustive elements include a) discretion whether to bring prosecution (and to terminate it and decide why it's advanced); b) discretion to enter stay of proceedings in either a private or public prosecution, c) discretion to accept guilty plea d) discretion to withdraw from criminal proceedings e) discretion to take control of private prosecution. Decisions that don't go to nature and extent of prosecution (e.g. tactics and conduct) don't fall under prosecutorial discretion. NOTE: The remedy for a successful abuse of process application is stay of proceedings. Must establish abuse of process or improper motive or bad faith on a BOP to acquire a stay proving that o prejudice will be manifested, perpetuated or aggravated through conduct of trial or by its outcome o must be shown that no other remedy is reasonably capable of removing that prejudice
**The remedy is rare because the threshold is so high

PART II: GENERAL PRINCIPLES OF SENTENCING In R v Willaert (1953), the ONCA highlights that sentencing is an art involving judicial discretion and directly relates to the needs of society. In order to do so, the principles of sentencing and the circumstances of each offender should be accounted for. In the 1960s, courts developed rules and policies to bring about uniformity which resulted in some of the sentencing principles we know today. The codified principles read:

718. 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: (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.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

718.2: goes to other mandatory sentencing principles such as deemed aggravating

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