Sentencing
Modern trilogy
R v Lacasse, 2015 SCC 64
Sentencing ranges should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case.
R v Friesen, 2020 SCC 9
It is inappropriate for a court of appeal to artificially constrain a sentencing judges’ ability to impose a proportionate sentence by establishing a range of sentence that can only be departed from in “exceptional circumstances”.
R v Parranto, 2021 SCC 46
The “exceptional circumstances” test is dead. There is no longer space to interpret starting points (or ranges) as binding in any sense.
Collateral consequences
R v Nasogaluak, 2010 SCC 6
It may be appropriate to reduce the sentence for state misconduct that is relevant to the circumstances of the offender. The state misconduct need not rise to the level of a Charter breach to be relevant in sentencing.
R v Pham, 2013 SCC 15
It may be appropriate to reduce a sentence to avoid immigration consequences, so long as the sentence imposed remains proportionate to the gravity of the offence and the degree of responsibility of the offender.
R v Suter, 2018 SCC 34
A collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender. It can result in a reduced sentence, provided the overall sentence remains proportionate.
Systemic discrimination
R v Gladue, [1999] 1 SCR 688
Foundational case on recognizing the legacy of colonialism and genocide in sentencing Indigenous offenders.
R v Ipeelee, 2012 SCC 13
Harsh rebuke to lower courts for failing to deliver on the promise of Gladue. Affirmation that Indigenous persons are entitled to mitigation for the role colonialism and genocide played in bringing them before the court.
R v Morris, 2021 ONCA 680
Landmark Ontario case on the relevance of systemic anti-Black racism in sentencing. Relevant to: moral culpability, assessment of antecedents, principle of restraint, preference for conditional sentences.
R v Marfo, 2020 ONSC 5563
“If a sentence is more onerous for a Black man because of systemic anti-Black racism in the correctional system, then any sentence I impose must be shortened to recognize this fact.”
R v Anderson, 2021 NSCA 62
Sentencing ranges established without consideration of social context evidence may need to be revisited.
R v Reid, 2016 ONSC 8210
Conditional sentence imposed on recidivist drug trafficker in recognition that restraint should take on primary significance in sentencing Black persons convicted of drug offences.
Mitigating Factors
R v Kwok, 2021 ONCJ 315
While not the same as a guilty plea, “a focused trial spares valuable court time, Crown preparation time, judicial deliberation time and saves witnesses from testifying. In the COVID and Jordan eras, where time is at a premium, some credit must be given for an efficiently run trial”.
R v SK, 2021 ONCA 619
The Priest principle — that a youthful first offender should receive the shortest sentence possible — applies in all cases, including serious violent offences.
R v Bosley, 1992 ONCA
Excessive delay which causes prolonged uncertainty for the accused but does not reach constitutional limits can be taken into consideration as a factor in mitigation on sentence. (Recently aff’d in Hartling, 2020 ONCA.)
R v Basha, 2019 ONCA 236
An offender’s “secondary role” in a drug trafficking scheme is a mitigating factor that, combined other factors, can justify a sentence outside the range.
R v Williams, 2018 ONCA 367
Even offenders found guilty of serious drug trafficking offences are entitled to significant mitigation for being a youthful first offender.
R v McGill, 2016 ONCJ 138
Where there is evidence that the offender has been rehabilitated, “denunciation and deterrence take on more muted roles in the final calculus”, even for serious drug trafficking offences.
R v Premji, 2021 ONCA 721
Courts should generally refrain from imposing a fixed-term sentence that exceeds the offender’s expected remaining lifespan.
R v Marshall, 2021 ONCA 344
Harsh conditions of pre-trial custody are a mitigating factor to be considered in the balance of sentencing with all the other relevant factors in the case.
R v Vassall, 2022 ONSC 3696
Marshall credit, like Summers credit, can be deducted from mandatory minimum sentences.