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R. v. Smith, 2006 NSCA 95 (CanLII)



[36]         As is apparent from his sentencing decision, the judge focussed solely on the length of the appellant’s criminal record, and the variety of offences for which he had been convicted.  


9.  The appellant had a substantial criminal record [not set out in the decision] and it certainly was an aggravating factor that needed to be considered in imposing sentence.  Without knowing what the trial judge thought of this offence, as he gave no reasons, he appears to have sentenced the appellant on his record, without consideration for the particulars of the offence.  It must be remembers that the appellant had already paid the price for his earlier convictions.   (Emphasis added)

[37]         The trial judge here gave no consideration to the fact that considerable time had passed since the appellant had been convicted of any offence, other than driving offences.  Clayton Ruby, Sentencing (Sixth Edition), (Toronto, Butterworths, 2001), sets out the reasoning behind the “gap principle,” and provided illustrations from the case law:

8.78   Since both sentencing and crime are human endeavours, it is natural for the courts to give credit to someone who has made an honest effort to avoid conflict with the criminal law.  In the nature of things, an effort such as this will often not be completely successful, but if a substantial period of time passes without convictions, this is often a matter which will be taken into consideraton.  As put by Cross: “Assuming that it is not merely the outcome of lucky non-detection, the trouble-free period shows in these cases that the offender is not a professional criminal, and therefore the public needs less protection from him.”  It shows that there is some hope of rehabilitation.

                                                               . . . .


8.80  In Kennedy, the accused was convicted of manslaughter and sentenced to two years less one day.  The Crown appealed, bringing forward a record involving jail sentences over a period of years for such crimes as assault, breaking and entering, escape custody, mischief, wilful damage and another breaking and entering.  All criminal involvement had ceased for a five-year period prior to the manslaughter conviction.  In these circumstances the Court of Appeal determined that: “after having gone five years without involvement in the law, the past record should not be a too material factor in determining an appropriate sentence”.

8.81  In Hodson, the court had to evaluate a lengthy record, but noted that, though there had been more recent convictions, there had earlier been an eight-year period without convictions and indeed “some intervals in which he is known to have got an honest living.”  The court regarded this interval as “a new start” and was disposed to show leniency.  Accordingly a term of five years was reduced to 12 months’ imprisonment.  This case was approved by the Ontario Court of Appeal in Harrell, where an offender with a record for similar offences was sentenced to five years’ imprisonment.  There was a gap of 11 years where he was not convicted of “any serious offence” followed by further convictions for breaking and entering and uttering two forged cheques — uttering being the very offence of which he had been convicted and for which he now stood sentenced.  The court, noting this 11-year gap which did not immediately precede the conviction at bar, came to the conclusion that this “long interval, free from serious convictions is entitled to due weight” and noting other factors as well, reduced the sentence to three years.  In Re Morand and Simpson, the offender, Simpson, had a nine-year gap between the present offence and his only previous offence.  In the result the three-year sentence for breaking and entering was reduced to two years less one day.  Similarly in Murray, the court noted the offender “deserves credit” for a one-and-a-half-year period free from crime following his marriage, a period which had been interrupted only by the crime under consideration.  A “change in lifestyle” over a seven-year period is properly reflected in the sentence imposed.



8.83 For the gap principle to come into effect the period under consideration need not be totally crime free.  A nine-year period marred only by minor offences, such as causing a disturbance and driving a motor vehicle while disqualified, merited consideration in Graveline, Bezaire and Cassidy.  The court concluded ‘it would appear that since then he has been making some effort to stay out of trouble or at least he has not been in as much trouble since then.”  Accordingly a one-year period was reduced, for this reason among others, to six months.  Similarly in Harnett, the court gave effect, upon a charge of possession of stolen cooper wire, to the gap of 14 years marred only by offences of disorderly conduct that were attributable to an alcohol problem, but dishonesty had not been a part of them.  In the result a sentence of two years with three years’ probation was reduced to one year followed by two years’ probation.”  (Emphasis added)

Jim O'Neil, LL.B.

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