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Sentencing PRINCIPLES “Totality”, “Jump”, “Step” and “Gap”.   

Fitness of Sentence.  Aggravating Factors.  Deference. “Coke Principle”.


R. v. Bernard, 2011 NSCA 53 (CanLII)


... the judge provisionally calculated a total sentence of 29 months in his own mind as being appropriate.  He then reduced this transitional sentence by five months (based on a double credit for the 2½ months spent on remand).  He then apportioned the remaining sentence among individual offences in a series of consecutive or concurrent sentences, which he then adjusted to arrive at a final sentence of two years less a day

...                       [standard of review]


[10]         The standard of review in sentencing matters is well known. In R. v. Knockwood, 2009 NSCA 98 (CanLII), 2009 NSCA 98 this Court observed:

[11]      There is no dispute as to the proper standard of review in this case.  This Court’s review of a sentencing order is a highly respectful one.  We must show great deference whenever we are asked to consider appeals against sentence.  Absent an error in principle, a failure to consider a relevant factor, or an over-emphasis of appropriate factors, we should only vary a sentence imposed at trial if we are convinced that the sentence is demonstrably unfit.  See for example, R. v. L.M., 2008 SCC 31 (CanLII), 2008 SCC 31; R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500; R. v. Longaphy, 2000 NSCA 136 (CanLII), 2000 NSCA 136 and R. v. Conway, 2009 NSCA 95 (CanLII), 2009 NSCA 95.

See also R. v. Solowan, 2008 SCC 62 (CanLII), [2008] 3 S.C.R. 309; R. v. Markie, 2009 NSCA 119 (CanLII), 2009 NSCA 119; and R. v. A.N., 2011 NSCA 21 (CanLII), 2011 NSCA 21.

.. [totality principle”]


12]         Section 718.2(c) of the Criminal Code legislates what is known as the “totality principle”.  It provides:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

...

(c)        where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

[13]         The totality principle is an instrument used by judges in the context of consecutive sentences to ensure that the level of punishment imposed is commensurate with the moral blameworthiness of the offender.  As Chief Justice Lamer observed in R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 at para. 40:

40       ... It is a well-established tenet of our criminal law that the quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender.  As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 533:


     It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentence proportionate to the seriousness of the offence.  Only if this is so can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system.

["the principle of proportionality"]

Cory J. similarly acknowledged the importance of "the principle of proportionality" in speaking for the Court in R. v. M. (J.J.), 1993 CanLII 91 (SCC), [1993] 2 S.C.R. 421, at p. 431, noting that "[i]t is true that for both adults and minors the sentence must be proportional to the offence committed".  Indeed, the principle of proportionality in punishment is fundamentally connected to the general principle of criminal liability which holds that the criminal sanction may only be imposed on those actors who possess a morally culpable state of mind.  In discussing the constitutional requirement of fault for murder in R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633, at p. 645, I noted the related principle that "punishment must be proportionate to the moral blameworthiness of the offender", and that "those causing harm intentionally [should] be punished more severely than those causing harm unintentionally".  On the principle of proportionality generally, see R. v. Wilmott, [1967] 1 C.C.C. 171, at pp. 178-79 (Ont. C.A.);  Sentencing Reform: A Canadian Approach, supra, at p. 154.

41 Within broader parameters, the principle of proportionality expresses itself as a constitutional obligation.  As this Court has recognized on numerous occasions, a legislative or judicial sentence that is grossly disproportionate, in the sense that it is so excessive as to outrage standards of decency, will violate the constitutional prohibition against cruel and unusual punishment under s. 12 of the Charter.  See Smith, supra, at p. 1072; R. v. Luxton, 1990 CanLII 83 (SCC), [1990] 2 S.C.R. 711, at p. 724; R. v. Goltz, 1991 CanLII 51 (SCC), [1991] 3 S.C.R. 485, at pp. 498-99.   However, as I noted in Smith, at p. 1072, "[w]e should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation", and thus the review of the proportionality of sentences should normally be left to the "usual sentencing appeal process" directed at the fitness of sentence.

42 In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the "totality principle".  The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.  As D. A. Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56:

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate".

Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, supra, at pp. 44-45:

The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate "just and appropriate".  A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects.

[14]         We thoroughly reviewed these principles in R. v. Adams, 2010 NSCA 42 (CanLII), 2010 NSCA 42.  There, Justice Bateman, writing for a unanimous Court, rejected an approach that would take totality into account by first calculating a global sentence and then assigning individual sentences to fit within the whole.

[15]         Justice Bateman renounced such a methodology as problematic.  Uncertainty was sure to arise when attempting to discern what the appropriate sentence might have been for the individual convictions, had they arisen independently.  Bateman, J.A. explained the proper approach this way:

[23]      ... The judge is to fix a fit sentence for each offence and determine which should be consecutive and which, if any, concurrent.  The judge then takes a final look at the aggregate sentence.  Only if concluding that the total exceeds what would be a just and appropriate sentence is the overall sentence reduced. ...


... [“clean slate”]


25]         In my opinion, once we find that a trial judge has erred in principle when imposing a sentence, any deference which might otherwise have been paid is ignored,  and we are presented with a “clean slate” to decide for ourselves what constitutes a fit sentence.


[powers on appeal against sentence]

[26]         Our powers on appeal against sentence are set out in s. 687(1) of the Criminal Code:

687(1)  Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive,

(a)        vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or

(b)        dismiss the appeal. ...

[The “Jump”, “Step” and “Gap” Principles]

[33]         In certain circumstances it may be necessary for judges to consider the “jump” (or “step”) effect in punishing for unlawful behaviour.  This is intended to take into account the level of severity in penalties for previous offences when compared to the sentence about to be imposed.  In other words, it is a recognition of the importance of comparing the relative degrees of punishment for past and present offences.


...


[40]         Here, while Mr. Bernard had a criminal record, he had never before been incarcerated. The Crown served notice of its intention to seek increased penalties.  Mr. Bernard’s convictions in 1991, 1997 and 2001 triggered the statutory minimum for any subsequent offence.  Thus, it was not contested that the appellant was facing a minimum of 120 days incarceration for each of the current driving offences, as s. 255(1) directs.  By extension, the appellant faced a minimum of one year in jail after pleading guilty to the three drunk driving related charges (3 x 120 days).

[41]         However, in starting his analysis with an assumption that a global sentence of almost 2½ years in federal prison was appropriate, the judge does not appear to have accounted for the fact that Mr. Bernard had never faced jail for any previous offence, or that his lawyer at trial had urged that something close to the mandatory minimum (120 days) be imposed for each offence.  The judge seems to have overlooked the fact that such a lengthy custodial term would constitute a very marked increase in punishment from the fines and probation imposed for his previous related offences.  As the editors of Sentencing, 7th ed. (LexisNexis Canada Inc., 2008) observe at § 2.55:

... A cumulative sentence may offend the totality principle if it is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if it is “a crushing sentence” not in keeping with the offender’s record and future prospects.


In my respectful opinion, a notional sentence of almost 2½ years in federal prison is substantially above the normal level for any one of the drunk driving related offences to which the appellant pleaded guilty.  In other words, such a punishment constitutes a substantial and marked departure from the sentence customarily imposed for similar offenders committing similar crimes, and thus requires our intervention. R. v. M.(C.A.), supra.

[42]         I would also find that the judge failed to take into account the significant passage of time between these incidents and the appellant’s last conviction for a similar offence.  Mr. Bernard had previous convictions for impaired driving offences in 1991, 1997 and 2001.  This represents an eight year gap to the time of his arrest on the present charges.   

....

  [“Coke principle” ]


[54]         Before pronouncing Mr. Bernard’s sentence I wish to deal with a point made by Crown counsel at the hearing.  Expecting that we might be inclined to reduce the appellant’s overall sentence, counsel for the respondent cautioned against our imposing incremental custodial sentences for the drunk driving related offences fearing that such an approach would offend the so-called “Coke principle”.  


...

[55]         The Supreme Court of Canada, per Laskin, C.J., described the principle in the following terms in R. v. Skolnick, 1982 CanLII 54 (SCC), [1982] 2 S.C.R. 47:


...  What Coke said literally was that a person cannot be convicted (and, presumably, if I follow him, sentenced) of a third offence before he has been convicted of the second nor of the second before he has been convicted of the first; and the second offence must be committed after the first conviction and the third after the second conviction. As subsequently understood, the principle, or perhaps, better, policy was that an accused does not face the jeopardy of an increased penalty for a third offence unless he has previously been convicted and sentenced for a second offence. ...

A comprehensive consideration of Lord Coke’s rule is contained in the reasons of Robertson, J.A. in R. v. Andrade, 2010 NBCA 62 (CanLII), 2010 NBCA 62.

[56]         Since the point was only raised in passing and did not receive the benefit of thorough submissions from the parties I decline to explore the matter definitively. That is best left to another day. Whole treatises and a sizeable body of jurisprudence have considered the law and theory surrounding a court's ability to take into account previous-in-time offences or a series of past offences for which an offender is contemporaneously sentenced at a single hearing.  What I will say is that on the facts of this case I do not think the principle would be offended if we were inclined to impose incremental, consecutive sentences here.

[57]         First, Mr. Bernard had already been previously convicted of similar offences and so faced the jeopardy of mandatory minimum imprisonment as Parliament has declared in the punishment devised in s. 255(1)(a)(iii) and (4).

 

[58]         Second, Mr. Bernard’s astonishing blood alcohol content levels in separate incidents while other charges were pending suggests to me a lack of respect for the law and heightened moral blameworthiness.  These are factors I would take into account in imposing incremental and consecutive sentences.

[59]         Further s.725(1)(a) of the Code obliges judges to "... consider, if it is possible and appropriate to do so, any other offences of which the offender was found guilty by the same court, and shall determine the sentence to be imposed for each of those offences...".  Here Mr. Bernard's rapid recidivism after a first arrest is certainly a relevant consideration, whether as an aggravating factor in the sense Parliament intended under s. 718.2(a) leading to an increased sentence on the conviction being sentenced (see R. v. Larche, [ 2006] SCC 56 at ¶ ff.), or used to negate whatever mitigating factors could be said to arise in his case. (see Andrade supra. at ¶ 14).

[60]         Finally, the logical extension of the Crown’s concern would be that a trial judge would be prohibited from ever imposing a greater consecutive sentence in cases where an offender had pleaded guilty to a series of several offences.  Such a result would very clearly compromise the traditionally broad discretion retained by trial judges whose job it is to craft a fit sentence.

[61]         After taking into account the principles and norms of sentencing to which I have previously referred, as well as the circumstances of these offences and this offender, I would impose the following sentence:

Count #1: Over .08:                               5 months

Count #2: Over .08:                               7 months, consecutive

Count #3: Refusal                                 9 months consecutive

Count #4: Breach of Recognizance:                1 month, consecutive

Count #5: Breach of Recognizance:                2 months, consecutive

Total:                                 24 months

Less: 2:1 credit for 2½ months on remand                -5 months

Net sentence to be served:                    19 months

 

Saunders, J.A.


Jim O'Neil, LL.B.

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