A Review of the Principles and Purposes of Sentencing in Sections 718-718.21 of the Criminal Code

D. The Genesis and Content of the Current Statement

1. Background to the Enactment of Sections 718-718.21

The road to the enactment of Bill C-41Footnote 2 in 1995, which provided new sentencing provisions in Part XXIII of the Criminal Code, was a long and arduous one. It was shaped and influenced by a number of sentencing stops along the way: the Ouimet Report in 1969;Footnote 3 multiple reports by the Law Reform Commission of Canada [LRCC] between 1973 and 1977;Footnote 4 the federal government Report entitled Criminal Law in Canadian Society in 1982;Footnote 5 and 3 related events in 1984: the release of the federal government’s Report entitled Sentencing,Footnote 6 the introduction and death of Bill C-19Footnote 7 dealing with sentencing, and the appointment of a one-time Sentencing Commission to study and report, amongst other things, on sentencing guidelines and how such guidelines may be best utilized.

In 1987, the Canadian Sentencing Commission released its Final Report entitled Sentencing Reform: A Canadian Approach,Footnote 8 which was the most detailed, extensive and empirically researched study of sentencing ever conducted in Canada. In 1988, Parliament’s Standing Committee on Justice and Solicitor General published a report entitled Taking ResponsibilityFootnote 9 (Daubney Report) which largely reviewed the recommendations in the Canadian Sentencing Commission’s Report. In 1990, the federal government issued a Green Paper entitled Sentencing: Directions for ReformFootnote 10 which followed closely the recommendations in the Daubney Report. In June 1992, the Conservative government gave first reading to Bill C-90Footnote 11 dealing with sentencing reform. The Bill did not return to Parliament for second reading until May 7th, 1993 and was then partially examined in Committee (May 12 and 25, 1993). But when an election was called later that year, Bill C-90 died on the order paper. On June 14, 1994 the newly elected Liberal government introduced Bill C-41Footnote 12 which was enacted in 1995 and came into force as our new sentencing law on September 3rd, 1996. In many significant respects Bill C-41 and Bill C-90 were very similar.

In the twenty-one year journey from Ouimet (1969) to the Green Paper (1990), the authors of these reports repeated again and again the same deficiencies in Canada’s sentencing laws:

Likewise the above noted Commissions and Reports were consistent in their recommendations for remedying these sentencing problems:

Unfortunately, in its new sentencing laws, Parliament chose not to create a permanent sentencing commission to fulfill the three critical functions noted above. Thus, the 1996 amendments only provided a partial dose of the medicine needed to remedy our sentencing ills. Sadly, but not surprisingly, that partial dose has been largely ineffective in curing our major sentencing deficiencies.

2. The Structure of Sections 718-718.2 as enacted in 1996

In sections 718-718.2, Parliament has constructed a statement of purposes and principles which first sets out the fundamental purpose of sentencing, and then the six objectives or methods that can be used in pursuing that fundamental purpose, followed by six principles of sentencing that should be applied, the first of which is entitled the “fundamental principle” of sentencing.

  1. The Fundamental Purpose. Section 718 sets out “the fundamental purpose” of sentencing as:
    • “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”
  2. The Six Objectives. The fundamental purpose of sentencing can be pursued by applying “one or more” of the following six “objectives”:
    1. denunciation
    2. deterrence
    3. separation
    4. rehabilitation
    5. reparation
    6. offender-victim-community restoration
  3. Proportionality as the Fundamental Principle of Sentencing. Section 718.1 sets out the principle of proportionality; it is expressly entitled the “fundamental principle” of sentencing and s. 718.1 states that it “must” be applied to all sentences. It states:
    • “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
  4. Additional Sentencing Principles. The five additional sentencing principles that judges “must take into consideration” are set out in 718.2:
    1. the principle that sentences should be increased or reduced in accordance with the existence of aggravating and mitigating circumstances
    2. the principle of parity
    3. the principle of totality
    4. the principle of imposing the least restrictive appropriate sanction
    5. the principle of restraint in the use of imprisonment, with particular attention to the circumstances of Aboriginal offenders

3. Amendments to the Statement of Purposes and Principles Since 1996

(a) Amendments to Section 718

Section 718 has only been amended once. In 2015, the words “protection of society” in the opening sentence of s. 718 and the words “harm done to victims or community by unlawful conduct” in s. 718(a) were expressly added to emphasize that the purposes of sentencing include protection of society and reparation for harm to victims and community.Footnote 13 Clearly, sentencing laws are created to assist in the protection of society. That concept of protection of society is explicit or at least implicit in the original words in s. 718 which refer to “maintenance of a just, peaceful and safe society” [my emphasis]. Likewise, in my view, the words in the original paragraph s.718(a) “to denounce unlawful conduct” naturally include denouncing the harm that flows from that unlawful conduct to victims and/or the community.

Recommendation: While the above two phrases added in 2015 were both clearly implicit in the original s. 718 and therefore could be deleted, making those concepts more explicit, will increase the clarity of s. 718 at least marginally and therefore I recommend that the words added in 2015 be retained.

(b) Addition of Sections 718.01, 718.02, and 718.03

These three sections were enacted in 2005, 2009, and 2015 respectively. They are all drafted in the same fashion. They identify three types of offences: (1) offences involving abuse of a person under 18 [s.718.01]Footnote 14, (2) assault offences against peace officers or intimidation of justice participants [s. 718.02]Footnote 15, and (3) offences against certain animals under s.445.01(1) [s. 718.03]Footnote 16. In each of these provisions Parliament states that the sentencing judge “shall give primary consideration to the objectives of denunciation and deterrence of such conduct.” The other four objectives listed in s.718, especially rehabilitation and reconciliation with victims and community, are by implication of secondary significance. Giving priority to denunciation and deterrence will normally result in a longer, stiffer “punishment”.

There is value in trying to prioritize sentencing objectives. The major problem with these three provisions is the fact that they cover only three isolated, unconnected and disparate situations. These are not the most serious offences in the Criminal Code. Why are these three offences selected for special treatment when dozens and dozens of other important offences are not? There is no answer to that question other than “hot button, political opportunities”. 

Recommendation: Delete sections 718.01, 718.02 and 718.03 and look for some more generic way to prioritize sentencing objectives. The development of sentencing guidelines (by appellate courts or a sentencing commission) for each offence or offence group is the most effective way to meaningfully prioritize sentencing objectives.

(c) Section 718.1 (Proportionality)

No amendments have been made to s.718.1. By stating that proportionality is the fundamental principle in imposing a just sanction and by explaining that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”, Parliament is expressing its view that sentencing shall be conducted on a “just desserts” model.Footnote 17

Recommendation: No changes to s.718.1 are required.

(d) Section 718.2(b) to (e) (Other Sentencing Principles)

The principles of parity, totality and least restrictive sanction in s.718.2(b), (c) and (d) have not been amended. In my view, they do not need to be changed.  

The principle of restraint in the use of imprisonment in s.718.2(e) was amended in 2015 by adding the words “consistent with the harm done to victims or the community.”Footnote 18 The original wording indicated that sentences other than imprisonment should be imposed if it is “reasonable in the circumstances” to do so. To be “reasonable in the circumstance”, a sentence must take into account “the harm done to victims or the community”. Thus, the new words added to 2015 simply make express what was already implicit.

Recommendation: While the additional words added to s.718.2(e) in 2015 simply make express what was already implicit, I would nonetheless be inclined to retain them in the interests of removing any future uncertainty. I do, however, issue a caveat on retaining these word in the Recommendation in Part E 4 at page 18 below.

(e) Section 718.2(a) (Aggravating and Mitigating Factors)

The principle in s.718.2(a) states that “a sentence should be increased or reduced to account for relevant aggravating or mitigating circumstances relating to the offence or offender”. This is an important expression of how the requirement for proportionality in s.718.1 is to be achieved. But in the 1996 amendments, Parliament listed only three aggravating factors and no mitigating factors. They left the job of specifying the other 30 to 40 aggravating or mitigating factors to sentencing judges. The three aggravating factors originally listed in s. 718.2(a) are important, but not necessarily the three most important factors. For example, the nature and length of an offender’s criminal record which is one of the most significant aggravating sentencing factors is not listed.

Section 718.2(a) has been amended five times since it was enacted in 1996. The amendments have added the following new aggravating factors: clause (iv) in 1997Footnote 19, clause (v) in 2001Footnote 20, clause (ii.i) in 2005Footnote 21, clause (iii.i) in 2012Footnote 22, and clause (vi) in 2015Footnote 23. The content of these new aggravating clauses are not in themselves problematic. What is unsatisfactory about s.718.2(a) is the hodge-podge, ad hoc nature of listing some factors and not listing others.

Recommendation: Repeal paragraphs (i) to (vi) of s.718.2(a) and substitute the words “in accordance with the list of aggravating and mitigating circumstances listed in Appendix A”. The Appendix would be best drafted and updated by a Sentencing Commission as they develop sentencing guidelines. Lists of aggravating and mitigating factors can be found in books, cases and reports.Footnote 24 Guidelines could also be developed to clarify the significance of aggravating or mitigating factors in different types of cases. For example, there is current judicial uncertainty in respect to the circumstances in which an offender’s “old age” or frailty should and should not be a mitigating factor.Footnote 25

(f) Addition of Section 718.21

Section 718.21 was added to the Criminal Code in 2003Footnote 26 as part of the reform package dealing with corporate criminal liability. If a corporation (or other “organization”) is convicted of an offence, s.718.1 provides that the judge who is sentencing a corporation “shall also take into consideration” the ten factors listed in paras (a) to (j). These factors all appear to be reasonable and useful. For various reasons, which in my opinion are generally inappropriate, corporations and other organizations are virtually never prosecuted, convicted and sentenced for criminal offences. As a result, s.718.21 has received very little judicial attention. Although s.718.21 has been referred to in twenty-nine cases available electronically, only three of those cases involved criminal convictions.Footnote 27 All the other cases involved federal or provincial regulatory offences.Footnote 28

Recommendation: There is not enough judicial experience with s.718.21 in the criminal law context to warrant making any amendments to that section at this time.