Ch.6 Rules of Sentencing
Multiple Sentences: The Consecutive/Concurrent Issue
The General Rule
At common law, a sentence commenced when imposed but judges had the power, in
certain circumstances, to add one term of imprisonment to another. The first rule is
reflected by the current section 719(1) which provides:
A sentence commences when it is imposed, except where a relevant enactment otherwise
The ability to postpone a sentence was included in the English Draft Code of 1879 which
found its way, along with its archaic language, into our Criminal Code, 1892
The approach to multiple sentences whether imposed by the same or subsequent judges,
is governed by a combination of statutory provisions and common law jurisprudence.
There is power to make a sentence consecutive to one previously imposed but this is
usually a discretionary decision subject to a few common law principles.
The Paul Problem
Until recently, there were situations in which a consecutive sentence was not legally
permissible because of the sequence in which multiple convictions were registered.
The key date for determining whether the sentence for offence B could be made
consecutive to the sentence for offence A was the date of conviction for offence B. The
only sentences to which the sentence for offence B could be made consecutive were
sentences extant as of the date of conviction.
For example, if a person was convicted of offence A on January 1 but not sentenced until
February 1, a conviction for offence B registered on January 15 could not result in a
sentence consecutive to that for offence A, since on the date of conviction, the offender
was not subject to a previously imposed sentence.
This historical anomaly, which resulted in a number of illegal consecutive sentences, was
eliminated by an amendment effective June 16, 1997
The operative date is the date of a subsequent sentence. However, consecutive sentences
imposed prior to June 16, 1997, are not remedied by the new amendment and there may
still be some prisoners serving aggregate terms that include Paul problems.
The Transaction Concept
Exercising discretion over whether to order terms to be served concurrently or
consecutively, the sentencing judge should ordinarily be governed by the principle that
sentences which are part of the same event or transaction ought to be served concurrently
but offences which are discrete in time or nature can be the subject of consecutive terms.
The Kienapple principle ensues that multiple convictions are not entered when the
elements of contemporaneous offences overlap. When there are multiple convictions for
related offences, there is a real concern about double punishment.
It is generally assumed that culpability is aggravated by the fact that more than one
offence has been committed
While this mutual aggravation of culpability may increase individual sentences, it should
not be compounded by making them consecutive When related convictions can be considered to be parts of the same transaction or event,
they should ordinarily result in sentences served concurrently. In this way it is the
transaction which determines the sanction.
An analogy can be drawn to pleading rules in criminal procedure where the single
transaction concept is also used to ensure that, in general, each count in an indictment
applies to a single transaction.
Courts have noted that “single transaction: is not synonymous with a single incident,
occurrence, or offence.
Multiple offences can be included within the single transaction concept if there is
continuity between them in the sense of forming part of an ongoing transaction.
Exceptions to the single transaction concept occur when other principles intervene to
distinguish elements of the event. For example, violence used against a police officer
who has interrupted an offence for is attempting an arrest immediately after an offence is
usually treated distinctly from the original offence
The Totality Principle
The global effect of consecutive sentences cannot produce excessive punishment,
regardless of the number of offences. This is known as the totality principle, and is now
entrenched in the Criminal Code.
Section 718.2 c where consecutive sentences are imposed, the combined sentence should not
be unduly long or harsh.
In determining whether a merged sentence is excessive, courts usually consider the age
and rehabilitative prospects of the offender.
It’s also relevant to consider the relative gravity of the underlying offences. For example,
it would be extremely unusual if a string of “theft under” convictions, no matter how
long, would warrant a penitentiary term of imprisonment
There has been some controversy over how to calculate individual sentences when the
totality principle operates to cap the global sentence. One method would be to artificially
reduce the duration of the component sentences so that when grouped together
consecutively they add up to the appropriate global sentence.
Latter method is preferable because it ensures frankness in that each conviction will
generate an appropriate sentence, whether served concurrently or consecutively.
The impact of individual sentences will be preserved even if an appeal intervenes to
eliminate some of the elements of the merged sentence.
In 1999, the House of Commons passed Bill C-251 which, as well as dealing with murder
sentences, also addressed multiple convictions for sexual assault. It provided that a
person sentenced for more than one offence of sexual assault would be required to serve
each component sentence consecutive to all others.
Proportionality, individualization, and restraint would be subverted unjustifiably by
mandatory consecutive sentences.
The global sentence will be grossly disproportionate so as to implicate the guarantee
against cruel and unusual punishment in section 12 of the Charter
Youthful Offenders, First Offenders, and First Custodial Sentences
General Approach While these 3 qualities are distinct, they should be considered together because they
often arise in the same context and they have a common source
The general principle that applies to youthful offenders and first offenders and the issue
of a first custodial sentence stems from a combination of restraint and the notion that a
lack of experience with the world warrants leniency and optimism for the future
Restraint also combines with optimism when considering a first custodial sentence in the
sense that courts will attempt to limit the incarceration.
Presumption Against Incarceration
There is a presumption against incarceration for youthful offenders, especially if they are
first offenders. While restraint ought to apply to all offenders, special care should be
taken with youthful offenders to explore all alternatives and only incarcerate when the
gravity of the offence requires it.
This often results in suspended sentences with terms of probation.
First Custodial Sentence
Given the range of offences committed by youthful offenders, incarceration may
sometimes be considered. Dealing specifically with a robbery, the Ontario Court of
Appeal has said:
A first sentence of imprisonment especially for a first offender should be as short as possible
and tailored to the individual circumstances of the accused rather than solely for the purpose of
Who Is a Youthful Offender?
Since the Young Offenders Act standardized the age of adult responsibility at 18 years,
the term “youthful offender” refers to a narrower group of young adults.
Subject to a finding of experience and maturity that disentitles an offender from inclusion
in the group, youthful offenders will usually be between 18 and 25 years old.
- The General Rule
With the exception of murder, which requires a mandatory sentence of life imprisonment,
all Criminal Code offences have a stipulated maximum sentence.
The general rule is that the maximum sentence is reserved for the worst offence
committed by the worst offender. The threshold has also been cast in terms of whether
the offence falls into a “category for which no other sentence is appropriate.”
The issue is not simply whether a sentencing court can imagine worse circumstances. It
may be that the crime is sufficiently vile or heinous to warrant the maximum sentence
even if it cannot be described as the worst
The “stark horror” of an attempted murder may be sufficient to justify the maximum
sentence of life imprisonment even though the circumstances do not satisfy the rubric of
“worst offence by the worst offender”
The imposition of a maximum sentence is, and ought to be, rare. In cases where the maximum is life imprisonment, usually for crimes against the person,
the principal justification for a maximum sentence is a finding of dangerousness based on
a record of violence and the consequential need to address public protection.
No Cap for Fixed-term Sentences
A question related to the issue of maximum sentences is whether there is a notional cap
which can be imposed on the length of a fixed-term sentence
Earlier jurisprudence in BC had held that when life imprisonment was available as a
maximum punishment but the trial judge decided not to impose it, there was a “qualified
ceiling” of twenty years on the fixed term used in its place.
While this issue has gone through a rocky history, section 719(3) of the Criminal Code
In determining the sentence to be imposed on a person convicted of an offence, a court may
take into account any time spent in custody by the person as a result of the offence
Notwithstanding “bail reform,” it is clear that there are large numbers of remand
prisoners who, depending on the offence and their personal circumstances, spend
considerable time in custody prior to disposition either as a result of a detention under
section 515(5) or (6), or an inability to meet the conditions of a release order.
Extent of Credit
Judicial views on the extent of the credit which should be given for pre-sentence custody
have changed over time
While courts have accepted that there is no strict formula for translating pre-sen