Supreme Court of Canada affirms starting-point approach to the ‘art’ of criminal sentencing

November 13, 2021
Supreme Court of Canada affirms starting-point approach to the 'art' of criminal sentencing

The Supreme Court of Canada says it is appropriate for appeal courts to set starting-point benchmarks for sentencing offenders in criminal cases.

The high court ruling came Friday in the cases of two men who received stiffer penalties when Alberta’s Court of Appeal ruled that convictions for wholesale fentanyl trafficking should carry a prison sentence of at least nine years.

As a result of the Alberta decision, Cameron O’Lynn Parranto was sentenced to a total of 14 years on various counts including trafficking in fentanyl in Edmonton, while in another case Patrick Felix received 10 years behind bars for his role in a Fort McMurray trafficking network.

The appeal court noted in the Felix decision that fentanyl trafficking had created a crisis in Alberta and across the country.

Parranto and Felix criticized the starting-point approach and argued that sentencing ranges were a preferable means of providing guidance to judges.

The Crown contended there was no reason to abolish starting-point sentences, saying they were simply guidelines and effectively no different from sentencing ranges.

‘Sentencing must begin somewhere’

In its decision, which included four sets of reasons from different justices, a majority of the Supreme Court said starting points are a permissible form of sentencing guidance from appeal courts.

“Sentencing must begin somewhere, and both starting-point and range methodologies assist sentencing judges by providing a place to start, in the form of either a single number or a range,” said four of the six justices who endorsed starting points.

But they also acknowledged there is no such thing as a uniform sentence for a particular crime.

“Neither tool relieves the sentencing judge from conducting an individualized analysis taking into account all relevant factors and sentencing principles,” justices Russell Brown and Sheilah Martin wrote on behalf of the four.

They noted the top court had repeatedly expressed that sentencing is one of the most delicate stages of the criminal justice process.

“More of an art than a science, sentencing requires judges to consider and balance a multiplicity of factors,” the four said.

“The goal in every case is a fair, fit and principled sanction.”

Justices Rosalie Abella and Andromache Karakatsanis also endorsed the notion that starting points are a permissible form of appellate sentencing guidance.

But they stressed that appeal courts can only intervene if the trial judge has erred in principle in a way that affected the sentence or if the sentence was demonstrably unfit.

Dissenting opinions

In the minority, three members of the court, Michael Moldaver, Malcolm Rowe and Suzanne Cote, said starting points should no longer be used, calling the approach contrary to Parliament’s sentencing regime and the court’s jurisprudence.

Moldaver also took the opportunity to underscore the threat posed by fentanyl, saying it had altered the landscape of the substance abuse crisis in Canada, revealing itself as public enemy No. 1.

“Ultimately, large-scale trafficking in fentanyl is a crime that preys disproportionally on the misery of others — the marginalized and those whose lives are marked by hopelessness and despair,” Moldaver wrote on behalf of Cote.

“It is a crime motivated by greed and by a callous disregard for the untold grief and suffering it leaves in its wake. Above all, it is a crime that kills — often and indiscriminately.”

He said that while the range of sentences currently imposed for the leaders of large fentanyl operations straddles the upper single digits and lower double digits, sentencing judges should feel justified, when appropriate, in applying mid-level double digit sentences and, in particularly aggravating circumstances, potential sentences of life imprisonment.

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