Jan 11, 2016 - PROPORTIONALITY IN SENTENCING: WHITE COLLAR OFFENDERS BEWARE - Part 3


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VI. PROPORTIONALITY TRUMPS PARITY AND ALLOWS FOR EVOLUTION OF SENTENCING LAW


Justice Wagner clearly sets out the order of sentencing principles: “The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the fundamental principle of proportionality.” This ordering of principles is applied to the concept of sentence ranges that evolved over the years.  The Court views sentencing ranges as summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, the Court cautions that they “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”.

The matrix of the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case underlie the principle of proportionality that will trump sentence ranges in certain cases, putting the sentence either above or below those ranges.

The following paragraph from the judgment is an important description of the methodology of proportionality:

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case.

The reference to the process as going “beyond a purely mathematical calculation”  is consistent with the rejection of sentencing ranges as straightjackets.   I would however argue that the proportionality principle which reflects a matrix of factors (as illustrated above)  has a basis in mathematical weighing of values. When a sentencing Justice departs from the matrix of  the gravity of the offence and  the offender’s degree of responsibility in a way that impacts the sentence, it is appropriate for a reviewing Court to intervene to restore the sentence that is consistent with this matrix.  This may of course result in sentences being adjusted upwards or downward in specific circumstances.


VII. DETERRENCE AND DENUNCIATION


The following passage from Justice Wagner’s decision is of particular relevance for the sentencing of white collar offenders:

While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences. Impaired driving offences are an obvious example of this type of offence, as this Court noted in Proulx:

[D]angerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the ones most likely to be deterred by the threat of severe penalties: see R. v. McVeigh (1985), 22 C.C.C. (3d) 145 (Ont. C.A.), at p. 150; R. v. Biancofiore (1997), 119 C.C.C. (3d) 344 (Ont. C.A.), at paras. 18-24; R. v. Blakeley (1998), 40 O.R. (3d) 541 (C.A.), at pp. 542-43. [para. 129]

The emphasis on deterrence continues with the Court’s reference to the fact that it is young people who are affected the most by motor vehicle accidents that result from impaired driving. In light of the importance that must be attributed to the objectives of deterrence and denunciation in such cases as well as the dire consequences of the accident in the Lacasse case, the Supreme Court endorsed the  reduction of the weight attached to  youth as a mitigating factor.


VIII. LOCAL SITUATION


In conducting his sentencing analysis, the trial judge also referred to the “local situation” factor and stressed the need to convey a strong message of general deterrence and denunciation. The Supreme Court affirms this approach, noting that even though the Criminal Code applies everywhere in the country, local characteristics in a given region may explain certain differences in the sentences imposed on offenders by the courts. The frequency of a type of offence in a particular region can certainly be a relevant factor for a sentencing judge.

Justice Wagner recognizes that  the fact that a type of crime occurs frequently in a particular region is not in itself an aggravating factor.  However,  there may be circumstances in which a judge might nonetheless consider such a fact in balancing the various sentencing objectives, including the need to denounce the unlawful conduct in question in that place and at the same time to deter anyone else from doing the same thing.

Justice Wagner also recognizes that considerations of procedural fairness will generally require that a judge who intends to attach weight to the local reality and to the frequency of a crime in a given region offer the parties an opportunity to make representations on the subject. Moreover  it was open to the sentencing Justice  to take judicial notice of the evil represented by the large number of offences related to drinking and driving that are committed in the Beauce district  as the frequency of impaired driving offences is something that can be determined objectively by consulting the court rolls. In short, it is public information that is known and uncontroversial, and the local reality was not in dispute in the instant case.


XI. CONCLUSION 


The sentence of six years and six months’ imprisonment imposed by the sentencing Judge in Lacasse although severe, falls within the overall range of sentences normally imposed in Quebec and elsewhere in the country and is not demonstrably unfit for the offence of impaired driving causing two deaths.

The fundamental principle of proportionality, which trumps the parity of sentences, provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”.   This matrix of factors is the same matrix of factors that underlies risk assessment and compliance in the area of white collar offences.  At this stage however, it is risk management on its head as the sentencing focuses on the failure of  the risk assessment that is essential to compliance.

Compliance programs are even more essential now, given the message from the Court that the objectives of deterrence and denunciation are particularly relevant to offences that might be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences.

Source: Global Compliance News


 

Last updated on: 2016-02-01 | Link to this post