Judicial Discretion and The Methodology of Sentencing
Before the 19 century, most felonies were capital offences. The move away from the
pervasive use of capital punishment relied originally on transportation, and then on
The Current Framework for Discretion
Murder carries with it a mandatory penalty of life imprisonment, the most common
mandatory minimum sentence applies to subsequent convictions for impaired driving;
and in the 1996 firearms legislation resulted in minimum punishments of four years
imprisonment for stipulated offences committed with firearms.
This is the challenge which the Criminal Code presents: maintaining discretion,
encouraging creativity and still ensuring consistency and fairness.
The Exercise of Sentencing Discretion
1) The Traditional Approach
“The circumstances surrounding the commission of an offence differ in each case so that
even for the same offence sentences may justifiably show a wide variation.”
These comments reflect the acceptance of a sentencing methodology which is guided by
the choice of objective, or objectives, which suit the circumstances of the case.
Sentences are closely related to the individual judge’s experience and sentencing
2) Range, Tariffs, and Individualization
1982 Canadian Sentencing Handbook prepared by the Canadian Association of
Provincial Court Judges advocated the “blending imperative” from Willaert
This approach suggests that judges must consider the relevant purposes of sentencing to
craft the sanction which reflects the most appropriate purpose or combination of purposes
for the offence.
In the same section, however, the Handbook says that a sentence will likely not go wrong
by imposing the “usual” sentence in the “run-of-the-mill case”
3) Starting Points
The Criminal Code gives appellate courts a broad authority to set sentencing standards
within their territorial jurisdiction through the sentence appeal process, which requires a
consideration of the “fitness of the sentence.”
Sentencing discretion has continued to cover a wise area. This encourages
individualization but also may permit disparity. Appeals are expensive and time-
consuming; it is not realistic to assume that all errors, or even a large portion of them,
will reach the appellate level. One way in which appellate courts have attempted to
structure trail-level discretion is the “starting point” approach.
First offences were categorized into “archetypical cases described with as much precision
Then a starting sentence would be attached to the category Lastly, the sentencing court would apply the relevant mitigating and aggravating factors
to vary the sentence up or down from the starting point
Applying this methodology, the court defined the category of “major sexual assault” as
being cases where “a person, by violence or threat of violence, forces an adult victim to
submit to sexual activity of a sort or intensity such that a reasonable person would know
beforehand that the victim likely would suffer lasting emotional or psychological injury,
whether or not physical injury occurs.
Over the next decade, the starting point approach was extended to a large number of
Manslaughter presented an obstacle for the new regime –the court concluded that the
offence description covered so many routes to culpability that it was not amenable to the
starting point approach.
Codified Principles of Sentencing
The legislative responsibility to determine the nature of criminal culpability and the