R. v. C.A.M. (1996), 194 N.R. 321 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
………………..
Her Majesty The Queen (appellant) v. C.A.M. (respondent)
(24027)
Indexed As: R. v. C.A.M.
Supreme Court of Canada
Lamer, C.J.C., La Forest, L’Heureux-Dubé,
Sopinka, Gonthier, Cory, McLachlin,
Iacobucci, and Major, JJ.
March 21, 1996.
Summary:
The accused pleaded guilty to eleven counts of sexual assault, incest, assault with a weapon, assault and uttering a threat, arising from the sexual and physical abuse of his nine children over several years. The trial judge sentenced the accused to a total of 25 years’ imprisonment. The accused appealed against sentence.
The British Columbia Court of Appeal, Seaton, J.A., dissenting, in a decision reported 40 B.C.A.C. 7; 65 W.A.C. 7, allowed the appeal and reduced the total sentence to 18 years and eight months’ imprisonment. The court held that the totality principle limited fixed-term cumulative sentences to 20 years, absent special circumstances. The Crown appealed.
The Supreme Court of Canada allowed the appeal, rejected the 20 year cap and restored the sentence of 25 years’ imprisonment.
Courts – Topic 3108
Supreme Court of Canada – Jurisdiction – Appeals from provincial courts – Criminal cases – Appeals against sentence – The Supreme Court of Canada noted that as a matter of established practice and sound policy the court rarely hears appeals relating to the fitness of individual sentences – However, the court stated that as part of its national duty as a general court of appeal for the better administration of the laws of Canada, the court would entertain appeals involving the legal principles which ought to govern the pronouncement of sentence – See paragraph 33.
Criminal Law – Topic 4591
Procedure – Costs – On appeal – Against the Crown – The accused pleaded guilty to several offences arising from the sexual and physical abuse of his children – A cumulative sentence of 25 years’ imprisonment was imposed, but reduced on appeal – The Supreme Court of Canada restored the 25 year sentence – The accused requested costs on a solicitor-client basis (Supreme Court Act, s. 47) – The court acknowledged that it had power to order costs in both summary conviction and indictable matters; however, the prevailing convention of criminal practice was that whether the accused was successful or unsuccessful, he or she was not entitled to costs – Here, the accused’s request was denied where the Crown’s appeal was allowed because of appeal court errors and there was nothing “remarkable” about the case warranting a costs order against the Crown – See paragraphs 97, 98.
Criminal Law – Topic 5655
Punishments (sentence) – Imprisonment and parole – Term of imprisonment – General – The Supreme Court of Canada discussed the general principles governing fixed-term sentences and parole eligibility under the Criminal Code and the Corrections and Conditional Release Act – See paragraphs 35 to 46.
Criminal Law – Topic 5662.1
Punishments (sentence) – Imprisonment and parole – Term of imprisonment – Consecutive sentences – [See first and second
Criminal Law – Topic 5804
].
Criminal Law – Topic 5666
Punishments (sentence) – Imprisonment and parole – Parole – General – The Supreme Court of Canada discussed the history and nature of the parole system and the purpose and effect of the parole eligibility rules in the Corrections and Conditional Release Act – See paragraphs 58 to 62.
Criminal Law – Topic 5801.1
Sentencing – Proportionality – The Supreme Court of Canada stated that in the context of consecutive sentences, the general principle of proportionality expresses itself through the “totality principle” – The “totality principle” requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender – See paragraph 42.
Criminal Law – Topic 5804
Sentencing – Consecutive sentences – Totality principle – The British Columbia Court of Appeal limited fixed-term sentences to 20 years, barring special circumstances – The Supreme Court of Canada rejected the 20 year cap – Trial judges have wide discretion in selecting “just and appropriate” fixed-term sentences which adequately promote traditional sentencing goals, subject only to the fundamental principle that the global sentence imposed reflect overall culpability in the circumstances – Numerical sentences ought not to be de facto limited at 20 years as a matter of judicial habit or convention – Whether a fixed-term sentence beyond 20 years is imposed as a sentence for a single offence where life imprisonment is available but not imposed, or as a cumulative sentence for multiple offences where life sentence is not available, there is no a priori ceiling on fixed-term sentences under the Criminal Code – See paragraph 72.
Criminal Law – Topic 5804
Sentencing – Consecutive sentences – Totality principle – The accused pleaded guilty to eleven counts of sexual assault, incest, assault with a weapon, assault and uttering a threat, arising from the sexual and physical abuse of his nine children over several years – None of the offences carried life imprisonment as a penalty – A cumulative sentence of 25 years’ imprisonment was imposed with no credit for time served – The British Columbia Court of Appeal reduced the sentence to 18 years and eight months, incorporating credit for time served, holding that where life imprisonment was not available as a penalty, the totality principle limited fixed-term cumulative sentences to 20 years, absent special circumstances – The Supreme Court of Canada restored the 25 year sentence, holding that the appeal court erred in imposing the 20 year cap – See paragraphs 33 to 75.
Criminal Law – Topic 5804
Sentencing – Consecutive sentences – Totality principle – [See
Criminal Law – Topic 5801.1
, first
Criminal Law – Topic 5839
and
Criminal Law – Topic 5841
].
Criminal Law – Topic 5807
Sentencing – Multiple convictions – [See second
Criminal Law – Topic 5804
].
Criminal Law – Topic 5831
Sentencing – Considerations – Retribution – The Supreme Court of Canada held that retribution is an accepted and important principle of sentencing – The court discussed the meaning of retribution and distinguished the concept of retribution from vengeance and the concept of denunciation – See paragraphs 76 to 82.
Criminal Law – Topic 5839
Sentencing – Considerations – Parole and parole legislation – The British Columbia Court of Appeal limited fixed-term sentences to 20 years, absent special circumstances – The Supreme Court of Canada held that there was no evidence in either the Criminal Code or the Corrections and Conditional Release Act (the Act) that Parliament intended to constrain a trial judge’s traditionally broad sentencing discretion through the imposition of a qualified legal ceiling on numerical sentences – Whether or not life imprisonment is available as a maximum sentence in the particular case, there is no pre-set ceiling on fixed-term sentences under the Criminal Code – Further, given the nature of the parole regime, there are limited, if any, inferences that one can draw concerning the structure of maximum sentences under the Code, from the operation of the parole eligibility provisions of the Act – See paragraphs 56, 57.
Criminal Law – Topic 5839
Sentencing – Considerations – Parole and parole legislation – [See
Criminal Law – Topic 5655
].
Criminal Law – Topic 5841
Sentencing – Considerations – Age of accused – The Supreme Court of Canada declined to impose any cap on the length of fixed-term sentences – The court stated that “in our justice system, the ultimate protection against excessive criminal punishment lies within a sentencing judge’s overriding duty to fashion a ‘just and appropriate’ punishment which is proportional to the overall culpability of the offender” – See paragraph 73 – The court cautioned that in determining a just and appropriate fixed-term sentence, the sentencing judge should be mindful of the offender’s age – A sentencing judge should generally refrain from imposing a fixed-term sentence which so greatly exceeds an offender’s expected remaining life span that the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value – See paragraph 74.
Criminal Law – Topic 5842
Sentencing – Considerations – Previous criminal offences (incl. repeat or dangerous offenders) – The Supreme Court of Canada referred to the relationship between a trial judge’s traditional sentencing discretion and the statutory regime for dangerous offenders created under Part XXIV of the Criminal Code, but left consideration of the issue for another day – See paragraphs 83 to 87.
Criminal Law – Topic 5848.2
Sentencing – Considerations – Time already served – [See second
Criminal Law – Topic 5804
].
Criminal Law – Topic 5848.9
Sentencing – Considerations – Sexual offences against children – [See second
Criminal Law – Topic 5804
].
Criminal Law – Topic 5861
Sentence – Assault – [See second
Criminal Law – Topic 5804
].
Criminal Law – Topic 5863
Sentence – Incest – [See second
Criminal Law – Topic 5804
].
Criminal Law – Topic 5883
Sentence – Assault with a weapon – [See second
Criminal Law – Topic 5804
].
Criminal Law – Topic 5895
Sentence – Threats – [See second
Criminal Law – Topic 5804
].
Criminal Law – Topic 5932
Sentence – Sexual assault – [See second
Criminal Law – Topic 5804
].
Criminal Law – Topic 5936
Sentence – Multiple offences – [See second
Criminal Law – Topic 5804
].
Criminal Law – Topic 6200
Sentencing – Appeals – Variation of sentence – General principles – [See
Courts – Topic 3108
].
Criminal Law – Topic 6201
Sentencing – Appeals – Variation of sentence – Powers of appeal court – The Supreme Court of Canada discussed the appropriate standard of review that a court of appeal should use in reviewing the fitness of sentence under s. 687(1) of the Criminal Code – The court stated that “absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit” – See paragraph 90 – This deferential standard of review applies not only where the sentencing judge presided over the full trial, but where the offender has pleaded guilty to an offence and the sentencing judge has only enjoyed the benefit of oral and written sentencing submissions – See paragraph 91.
Criminal Law – Topic 6201
Sentencing – Appeals – Variation of sentence – Powers of appeal court – The Supreme Court of Canada noted that appeal courts serve an important function in reviewing and minimizing the disparity of sentences imposed by sentencing judges for similar offenders and similar offences committed throughout Canada – The court stated that “… a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes” – See paragraph 92.
Criminal Law – Topic 6201
Sentencing – Appeals – Variation of sentence – Powers of appeal court – The accused pleaded guilty to eleven counts of sexual assault, incest, assault with a weapon, assault and uttering a threat, arising from the sexual and physical abuse of his nine children over several years – A cumulative sentence of 25 years’ imprisonment was imposed with no credit for time served – The British Columbia Court of Appeal held that the sentence was unfit and reduced the sentence to 18 years and eight months, incorporating credit for time served – The Supreme Court of Canada held that the appeal court erred by engaging in an overly interventionist mode of appellate review of the “fitness” of sentence which transcended the standard of deference articulated by the Supreme Court in R. v. Shropshire (1995) – The court restored the 25 year sentence – See paragraphs 88 to 96.
Criminal Law – Topic 6510
Dangerous offenders – Detention – Powers of judge – [See
Criminal Law – Topic 5842
].
Criminal Law – Topic 9001
Appeals to Supreme Court of Canada – General – [See
Courts – Topic 3108
].
Practice – Topic 7347
Costs – Costs in criminal proceedings – Payable by Crown – General – [See
Criminal Law – Topic 4591
].
Practice – Topic 8602
Costs – Supreme Court of Canada – Court’s discretion respecting costs – [See
Criminal Law – Topic 4591
].
Practice – Topic 8604
Costs – Supreme Court of Canada – Costs against the Crown – [See
Criminal Law – Topic 4591
].
Cases Noticed:
R. v. Rooke, [1990] B.C.J. No. 643 (C.A.), refd to. [para. 20].
R. v. G.W.D., [1990] B.C.J. No. 728 (C.A.), refd to. [para. 20].
R. v. Sweeney (J.R.) (1992), 7 B.C.A.C. 1; 15 W.A.C. 1; 11 C.R.(4th) 1 (C.A.), refd to. [para. 26].
R. v. Hinch and Salanski, [1968] 3 C.C.C. 39 (B.C.C.A.), refd to. [para. 26].
R. v. E.D. (1992), 16 B.C.A.C. 193; 28 W.A.C. 193 (C.A.), refd to. [para. 30].
R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361; 68 C.C.C.(2d) 477, refd to. [para. 33].
R. v. Chaisson (J.L.), [1995] 2 S.C.R. 1118; 183 N.R. 300; 163 N.B.R.(2d) 81; 419 A.P.R. 81; 99 C.C.C.(3d) 289, refd to. [para. 33].
R. v. Bédard (L.) (1989), 21 Q.A.C. 173 (C.A.), refd to. [para. 36].
R. v. Ko (1979), 50 C.C.C.(2d) 430 (B.C.C.A.), refd to. [para. 36].
R. v. Pruner (1979), 9 C.R.(3d) S-8 (Ont. C.A.), refd to. [para. 36].
R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321; 34 C.C.C.(3d) 97; 40 D.L.R.(4th) 435; [1987] 5 W.W.R. 1; 58 C.R.(3d) 193; 15 B.C.L.R.(2d) 273, refd to. [para. 37].
Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; [1986] 1 W.W.R. 481; 23 C.C.C.(3d) 289; 48 C.R.(3d) 289; 24 D.L.R.(4th) 536; 36 M.V.R. 240; 69 B.C.L.R.(2d) 145; 18 C.R.R. 30, refd to. [para. 40].
R. v. J.J.M., [1993] 2 S.C.R. 421; 152 N.R. 274; 85 Man.R.(2d) 161; 41 W.A.C. 161; 81 C.C.C.(3d) 487, refd to. [para. 40].
R. v. Martineau, [1990] 2 S.C.R. 633; 112 N.R. 83; 109 A.R. 321; 58 C.C.C.(3d) 353; [1990] 6 W.W.R. 97; 79 C.R.(3d) 129; 76 Alta. L.R.(2d) 1; 50 C.P.R. 110, refd to. [paras. 40, 79].
R. v. Wilmott, [1967] 1 C.C.C. 171 (Ont. C.A.), refd to. [para. 40].
R. v. Luxton, [1990] 2 S.C.R. 711; 112 N.R. 193; 111 A.R. 161, refd to. [para. 41].
R. v. Goltz, [1991] 3 S.C.R. 485; 131 N.R. 1; 5 B.C.A.C. 161; 11 W.A.C. 161; 67 C.C.C.(3d) 481; 7 C.R.R.(2d) 1; 8 C.R.(4th) 82; 61 B.C.L.R.(2d) 145, refd to. [para. 41].
R. v. Saumer, [1977] 3 W.W.R. 385 (B.C.C.A.), refd to. [para. 43].
R. v. Nichols (1978), 9 A.R. 203 (C.A.), refd to. [para. 43].
R. v. Belmas, Hansen and Taylor (1986), 27 C.C.C.(3d) 142 (B.C.C.A.), refd to. [para. 43].
R. v. Gorham (1987), 22 O.A.C. 237 (C.A.), refd to. [para. 43].
R. v. Currie (1990), 98 N.S.R.(2d) 287; 263 A.P.R. 287 (C.A.), refd to. [para. 43].
R. v. Yazdani (K.); R. v. Amadzadegan-Shamirzadi (S.), [1992] R.J.Q. 2385; 50 Q.A.C. 288 (C.A.), refd to. [para. 43].
R. v. Velmurugu (V.) (1994), 74 O.A.C. 393 (C.A.), refd to. [para. 43].
R. v. Parsons (1993), 65 O.A.C. 61; 24 C.R.(4th) 112 (C.A.), refd to. [para. 43].
R. v. Pelletier (1989), 52 C.C.C.(3d) 340 (Que. C.A.), refd to. [para. 43].
R. v. Charest (A.) (1989), 30 Q.A.C. 227 (C.A.), refd to. [para. 43].
R. v. Childs (1984), 52 N.B.R.(2d) 9; 137 A.P.R. 9 (C.A.), refd to. [para. 43].
R. v. J.T.J., Jr. (1991), 73 Man.R.(2d) 103; 3 W.A.C. 103 (C.A.), refd to. [para. 50].
R. v. Nienhuis (1991), 117 A.R. 253; 2 W.A.C. 253 (C.A.), refd to. [para. 50].
R. v. Dipietro (1991), 120 A.R. 102; 8 W.A.C. 102 (C.A.), refd to. [para. 50].
R. v. Caissie (R.) (1993), 24 B.C.A.C. 57; 40 W.A.C. 57 (C.A.), refd to. [para. 51].
R. v. J.A.C. (1995), 86 O.A.C. 135 (C.A.), refd to. [para. 52].
R. v. Gamble, [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 62].
R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; 102 C.C.C.(3d) 193, refd to. [para. 63].
R. v. Ly (1992), 73 Man.R.(2d) 294; 3 W.A.C. 294; 72 C.C.C.(3d) 57 (C.A.), refd to. [para. 64].
R. v. Hicks (D.J.) (1995), 56 B.C.A.C. 259; 92 W.A.C. 259, refd to. [para. 76].
R. v. Eneas, [1994] B.C.J. No. 262 (C.A.), refd to. [para. 76].
R. v. D.E.S.M. (1993), 80 C.C.C.(3d) 371 (B.C.C.A.), refd to. [para. 76].
R. v. Hoyt (L.K.) (1992), 19 B.C.A.C. 231; 34 W.A.C. 231 (C.A.), refd to. [para. 76].
R. v. Pettigrew (1990), 56 C.C.C.(3d) 390 (B.C.C.A.), refd to. [para. 76].
R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1; 61 C.R.(3d) 1; 44 D.L.R.(4th) 193, refd to. [para. 77].
R. v. Jones (S.), [1994] 2 S.C.R. 229; 166 N.R. 321; 43 B.C.A.C. 241; 69 W.A.C. 241; 89 C.C.C.(3d) 353, refd to. [para. 78].
R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161; 68 Nfld. & P.E.I.R. 281; 209 A.P.R. 281; 60 C.R.(3d) 289; 39 C.C.C.(3d) 118, refd to. [para. 79].
R. v. Calder (1956), 114 C.C.C. 155 (Man. C.A.), refd to. [para. 80].
R. v. Sargeant (J.H.) (1974), 60 Cr. App. R. 74 (C.A.), refd to. [para. 81].
R. v. Hill (No. 2) (1974), 15 C.C.C.(2d) 145 (Ont. C.A.), affd. [1977] 1 S.C.R. 827; 7 N.R. 373, refd to. [para. 86].
R. v. Hastings (1985), 58 A.R. 108 (C.A.), refd to. [para. 86].
R. v. Kempton (1980), 21 A.R. 212; 53 C.C.C.(2d) 176 (C.A.), refd to. [para. 86].
R. v. Pontello (1977), 38 C.C.C.(2d) 262 (Ont. C.A.), refd to. [para. 86].
R. v. Haig (1974), 26 C.R.N.S. 247 (Ont. C.A.), refd to. [para. 86].
R. v. Gourgon (1981), 58 C.C.C.(2d) 193 (B.C.C.A.), refd to. [para. 89].
R. v. Knife (1982), 16 Sask.R. 40 (C.A.), refd to. [para. 92].
R. v. Wood (1979), 21 C.L.Q. 423 (Ont. C.A.), refd to. [para. 92].
R. v. Mellstrom (1975), 22 C.C.C.(2d) 472 (Alta. C.A.), refd to. [para. 92].
R. v. Morrissette (1970), 1 C.C.C.(2d) 307 (Sask. C.A.), refd to. [para. 92].
R. v. Baldhead, [1966] 4 C.C.C. 183 (Sask. C.A.), refd to. [para. 92].
R. v. Trask, [1987] 2 S.C.R. 304; 79 N.R. 145; 68 Nfld. & P.E.I.R. 271; 209 A.P.R. 271; 59 C.R.(3d) 179, refd to. [para. 67].
Berry v. British Transport Commission, [1962] 1 Q.B. 306 (C.A.), refd to. [para. 97].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 7 [paras. 62, 78]; sect. 12 [paras. 37, 41].
Conditional Liberation of Penitentiary Convicts, An Act to provide for (Ticket of Leave Act) S.C. 1899, c. 49, generally [para. 58].
Conditional Liberation of Persons Undergoing Sentences of Imprisonment, An Act to provide for, S.C. 1958, c. 38, sect. 2(d), sect. 11(1) [para. 59].
Corrections and Conditional Release Act, S.C. 1992, c. 20, sect. 3(a) [para. 70]; sect. 99(1) [para. 60]; sect. 120(1) [para. 44]; sect. 120(2) [para. 45]; sect. 128(1) [para. 60]; sect. 133(3), sect. 135(1) [para. 61].
Corrections and Conditional Release Act Regulations (Can.), SOR/92-620, sect. 161(1) [para. 61].
Criminal Code, R.S.C. 1985, c. C-46, sect. 235 [para. 37]; sect. 683(3) [para. 97]; sect. 687(1) [para. 88]; sect. 717(1) [paras. 37, 90]; sect. 717(2) [para. 37]; sect. 717(4)(c) [para. 39]; sect. 721(1) [para. 44]; sect. 721(3) [para. 96]; sect. 741.2 [para. 45]; sect. 744 [para. 64]; sect. 839(3) [para. 97]; Part XXIV [paras. 30, 83].
Parole Act, R.S.C. 1970, c. P-2, generally [para. 59].
Parole Act Regulations (Can.), Parole Regulations, SOR/60-216, sect. 2(1)(a), SOR/73-298, sect. 1 [para. 45].
Penitentiary Act, S.C. 1868, c. 75, generally [para. 58].
Supreme Court Act, R.S.C. 1985, c. S-26, sect. 47 [para. 97].
Ticket of Leave Act – see Conditional Liberation of Penitentiary Convicts, An Act to provide for.
Authors and Works Noticed:
Archibald, Bruce P., Crime and Punishment: The Constitutional Requirements for Sentencing Reform in Canada (August 1988), p. 18 [para. 78].
Campbell, Mary E. and Cole, David P., Conditional Release Considerations in Sentencing (1985), 42 C.R.(3d) 191, pp. 203 [paras. 58, 59]; 204, 205 [para. 61].
Canada, Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (1987), pp. 63 [para. 36]; 133, 134, 141 to 145, 153 [para. 78]; 154 [para. 40].
Canada, Report of a Committee appointed to inquire into the Principles and Procedures followed in the Remission Service of the Department of Justice (Fauteux Report) (1956), generally [para. 59].
Code, W.E. Brett, Proportionate Blameworthiness and the Rule against Constructive Sentencing (1992), 11 C.R.(4th) 40, pp. 41, 42 [para. 79].
Cole, David P. and Manson, Allan, Release from Imprisonment (1990), pp. 159 to 167 [para. 58].
Cross, Rupert, The English Sentencing System (2nd Ed. 1975), p. 121 [para. 80].
Fauteux Report – see Canada, Report of a Committee appointed to inquire into the Principles and Procedures followed in the Remission Service of the Department of Justice.
Friedland, M.L., Controlling the Administrators of Justice (1988-89), 31 Crim. L.Q. 280, p. 311 [para. 36].
Rice, Michael E., Fixed-Term Sentences of More Than 20 Years Versus Life Imprisonment (1994), 36 Crim. L.Q. 474, p. 474, n. 1 [para. 43].
Ruby, Clayton C., Sentencing (4th Ed. 1994), pp. 13 [para. 80]; 44, 45 [paras. 36, 42].
Thomas, D.A., Principles of Sentencing (2nd Ed. 1979), p. 56 [para. 42].
Counsel:
Elizabeth Bennett, Q.C., for the appellant;
Clayton C. Ruby, for the respondent.
Solicitors of Record:
Peck, Tammen, Bennett, Vancouver, British Columbia, for the appellant;
Ruby & Edwardh, Toronto, Ontario, for the respondent.
This appeal was heard on June 1, 1995, before Lamer, C.J.C., La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada. The following decision was delivered for the court in both official languages by Lamer, C.J.C., on March 21, 1996.
