Substantive Principles of Sentencing
The Role of Principles
Canadian judges continue to consider the amalgam of justificatory objectives in an
attempt to determine which one, or combination, deserves priority in a given case. The
process of choosing the right objective may be difficult depending on the gravity of the
offence, the harm caused, and the antecedents of the offender, but it is a misnomer to
refer to the objectives in section 718 as “principles.”
Under the heading “fundamental principle,” section 718.1 provides:
A sentence must be proportionate to the gravity of the offence and the degree of
responsibility of the offender
The idea of proportionality is now a central element in Canadian sentencing but its
origins are far from recent
In the 18 century, Beccaria argued that punishments “should be chosen in due
proportion to the crime so as to make the most efficacious and lasting impression on the
minds of men, and the least painful impressions on the body of the criminal.”
Recently, from a philosophical perspective, the role of proportionality has been promoted
by the interest in “just deserts” models of sentencing.
Von Hirsch, the prominent “just deserts” theorist, has explained the reason for the current
focus on proportionality.
It is because the principle embodies, or seems to embody, notions of justice. People have
a sense that punishments scaled to the gravity of the offenses are fairer than punishments
that are not. Departures from proportionality –though perhaps eventually justifiable –at
least stand need of defence.
Gravity of the Offence
Proportionality is a relative concept which consists of two dimensions, both of which are
measures of gravity
First, the sentence for an offence must properly reflect the relation in terms of gravity that
the offence generally bears to other offences
An individual sentence can be placed on a scale of punishments at a point where it is in
close proximity to offences of similar blameworthiness but perceptibly distant from those
that are distinctly more or less blameworthy
The sentence must reflect the various degrees of seriousness which might apply to the
range of conduct covered by the offence. This includes the quantum of harm caused or
potentially caused, and the degree of participation.
Gravity is a common word that masks some difficult sentencing problems. It is a
compendious description that encompasses three elusive concepts: harm, potential harm,
and blameworthiness. For sentencing purposes each generates its own problems of proof,
theoretical justification, and conceptual coherence.
Proportionality and Blameworthiness Proportionality was at the centre of the discussion of the role of retribution in sentencing
by Lamer CJC in RvM. He argued that retribution provides the “conceptual link”
between criminal liability and the eventual sanction, and that proportionality determines
its measure. Distinguishing retribution from vengeance, he stated:
Retribution in a criminal context, by contrast, represents an objective, reasoned and measured
determination of an appropriate punishment which properly reflects the moral culpability of the
offender, having regard to the intentional risk-taking of the offender, the consequential harm
caused by the offender, and the normative character of the offender’s conduct. Furthermore,
unlike vengeance, retribution incorporates a principle of restraint; retribution requires the
imposition of a just and appropriate punishment, and nothing more.
First, proportionality must be a central feature of a constitutional sentencing system.
Second, at the individual level, proportionality must be present but will take the form of a
Proportionality and Harm
Given the importance of harm to gravity, and the centrality of gravity to proportionality, a
preferable view would be to use the simpler approach of restricting harm to intended,
foreseen, or reasonably foreseeable consequences for all offences. This position reflected
in the recent Youth Criminal Justice Act.
The relationship between blameworthiness and harm must be a function of the relevant
culpability standard. Using manslaughter as an example, death will, with the exception of
provocation cases have been unintended.
Culpability is reduced as the prospect of death diminishes in relation to the violence
which produced it –the less violent the act, the less culpable the offender.
When the prospect of harm falls below the level of reasonably foreseeable bodily harm,
the offence is no longer manslaughter
If proportionality is a constitutional obligation, the gravity of an offence for punishment
purposes must be linked to culpability and the kinds of consequences which may
reasonably be expected.
Actual Harm and Potential Harm
The issue of potential harm also depends on the nature of the offender and the relevant
In cases where conduct without consequences is in issue, as is the case with dangerous
driving or impair drivi