I. Factual Background
2 The respondent is a 55-year-old man with no prior history of criminal conduct. In 1972, after two previous marriages, the respondent married his third wife (now deceased). During that marriage, he fathered nine children. The children included an older pair of female twins, E.M.M. and J.P.M., born in 1974, and a number of younger male and female children. For most of his life, the respondent worked as a labourer across the Western provinces, alternatively employed as a hard rock miner, a truck driver, a mechanic and an oil field worker. As a result of the transient nature of his employment, the family was somewhat itinerant and moved frequently from locations in Manitoba, Alberta, Saskatchewan and British Columbia. In or about February 1987, the family moved to Fort Nelson, B.C., and in or about February, 1988, the family relocated again to Saanich, B.C.
3 On May 14, 1992, a Canada Post letter carrier called the Saanich Police Department to report that he had observed several young children who had been left unattended in distressing living conditions at the respondent's residence. At 1:30 p.m. that day, two police constables visited the residence accompanied by a social services worker. By their accounts, the residence contained no furniture or food, and was filthy. The children were barely clothed, malnourished, and slightly delirious. One constable also noticed numerous long-term scars over the arms and legs of the children. In his report, the same constable described his reaction to the exigent circumstances under which the children were living:
I have attended hundreds of residences in the past seven and a half years and in my opinion the residence was the worst I had ever seen, and that the children were in need of apprehension.
Upon inquiries, the older children advised the constables that their father, the respondent, had left the home approximately one year before. The respondent, it would later be revealed, had left the residence in 1990 for Fort Nelson, and eventually Moose Jaw, Saskatchewan, following separation from his wife. In their ensuing discussions with the constables, the older daughters also began to disclose allegations of past physical and sexual abuse by their father.
4 In the next two days, one of the daughters met with the police constables, at which time she spoke at length concerning the physical and sexual abuse which she had suffered at the hands of the respondent. In the course of the ensuing investigation, the respondent was arrested in Moose Jaw and was returned to Victoria in police custody. On November 30, 1992, the respondent entered a plea of guilty before Filmer Prov. Ct. J. to an amended information which included five counts of assault with a weapon, two counts of assault, two counts of sexual assault, one count of incest and one count of uttering a threat. The respondent was convicted, and the judge ordered psychological and psychiatric evaluations and scheduled a hearing for the purpose of sentencing.
II. Sentencing Submissions
5 On February 8, 1993, Filmer Prov. Ct. J. convened a hearing to entertain submissions as to sentence. Although the respondent had been convicted of a number of serious offences, none of the offences carried life imprisonment as a penalty. The respondent, however, had pleaded guilty to one offence which bore a maximum term of imprisonment of 14 years, and to six offences which carried maximum terms of imprisonment of 10 years, in addition to the remaining lesser offences which carried maximum sentences of 5 years. The Crown, from the outset, requested a cumulative sentence of more than 20 years imprisonment given the magnitude of the respondent's crimes. In its oral and written submissions before the court, the Crown presented a psychological report by a Dr. Malcolm, a psychiatric report by a Dr. Lohrasbe, and written victim impact statements by E.M.M. and J.P.M., among other exhibits including letters and poems written by children. Counsel for the defence, in reply, contended that the Crown's request was excessive and that a sentence of 10 to 14 years was adequate to advance the sentencing goals of deterrence and denunciation. While conceding the "extensive" physical and sexual abuse committed by the respondent, counsel underscored his client's past personal experiences with abuse, his client's willingness to forego a painful trial, and his client's genuine expressions of remorse for his crimes.
6 Given that this appeal implicates questions concerning the reasonableness of the sentence imposed by Filmer Prov. Ct. J., I find it necessary to examine the sentencing submissions of both the Crown and the respondent in some depth in order to illustrate the full gravity of the respondent's crimes.
A. Submissions of the Crown
7 In the course of developing its submissions, the Crown revealed a disturbing, horrific pattern of physical and sexual abuse which the nine children suffered at the hands of the respondent. From 1988 to 1991, it does not appear to be seriously contested that the daily lives of these children were punctuated by cruel, spontaneous acts of aggravated violence perpetrated by their father. Rather than representing a caring figure of love and protection, their father appeared to represent a haunting, malevolent figure who instilled fear in their daily existence.
8 In its pleadings, the Crown described how the four eldest children suffered a long history of physical abuse which consisted of almost daily beatings administered by their father. Although the beatings normally involved the use of open hands, fists and feet, on more serious occasions they included the use of weapons such as steel-toed work boots, knives, belts, broomsticks, electrical cords, tools and (on one alleged occasion) a toaster. Although the children could not identify any discrete point in time during which the beatings began, the physical assaults assumed a regularity in timing and in intensity once the family had moved to Fort Nelson. The beatings did not appear to follow any consistent pattern of motivation on behalf of the respondent; at times, it appears that the respondent was motivated by spontaneous bursts of anger, while other times, the respondent's violence was provoked by superficial excuses related to the misbehaviour or failure of the children, such as the receipt of a poor report card or an incident of bed-wetting.
9 E.M.M., one of the two female twins, suffered some of the most severe abuse. On seemingly countless occasions, she was beaten with the bare hands of the respondent, including being thrown by the respondent against cupboards and down stairs. When the family moved to Victoria, she was subjected to more aggravated assaults involving repetitive whippings with a wet electrical cord, or with a leather belt emblazoned with metal snaps - an instrument the children would learn to call the "Devil's Fang" because the hook of the buckle would cut skin when pulled away. E.M.M. also sustained beatings with miscellaneous household instruments ranging from broomsticks, screwdrivers, wrenches to hammers. According to her accounts, during one egregious incident, the respondent castigated her for burning toast by shoving her face into the hot toaster.
10 By the Crown's description, the other children were similarly forced to endure a regular pattern of fist beatings. The respondent, however, appeared to single out his older children for the most violent abuse. Often, he would force the other children to watch as he targeted one particular child out for corporal punishment. The older children were all exposed to the electric cord whippings. The sheer brutality of the respondent's whippings is clearly conveyed by E.M.M.'s description of the event. As she described one particular incident in her impact statement:
The cord was doubled and doubled and doubled until the whole thing looked like a bunch of hoops held together. Anyways he started whipping us with it, we still had our wet clothes on but after a few swats he told us to take them off. I remember us screaming with every strike, it felt like my whole entire body was being struck by lightning. The pain was so strong it felt like electrical shocks travelling all over my body with every whip. He didn't care where he hit. It landed on our backs, arms, legs, anywhere he pleased. Anyways, he wouldn't stop unless we stopped screaming. . . . I managed to stop screaming by biting into my cheeks and tongue finding out afterwards the reason he stopped was because he saw blood. I was bleeding and bruising on my back, buttocks, legs, arms and shoulders, but most of the bleeding and bruising was on my back. [Three of the children] had the same, only [J.P.M.] had it mostly on her legs, [another] had it mostly on his shoulders and arms, [the third] had it mostly on her butt.
One particular daughter suffered additional abuse because she would not (or could not) stop crying during and following her beatings. She was once purportedly hit so many times that she lost consciousness. One son was frequently kicked by the respondent's steel-toed boots in his shins, abdomen and back. J.P.M. was subjected to physical discipline administered with a wrench, a screwdriver and the flat portion of a knife. She still carries an approximately three-inch long scar on her arm when the respondent cut her while she was cleaning dishes.
11 The pain and suffering experienced by the three eldest daughters was magnified by a degrading pattern of sexual abuse inflicted by the respondent. According to the Crown's interviews with the victims, the respondent would watch and fondle all three children as they bathed and dressed themselves. When the family was living in Fort Nelson, both E.M.M. and J.P.M. were forced to masturbate the respondent and perform oral sex on him. E.M.M. recalls one night in Fort Nelson when the respondent had some of his friends over, and the group of men forced her to undress and collectively felt her genitalia. During one particularly disturbing occasion involving J.P.M. (an occasion which the respondent submits he does not recollect), the respondent allegedly invited his friends to the family residence, and permitted his friends to have intercourse with his young daughter in exchange for money. According to J.P.M.'s account of the event, when she resisted, the respondent helped physically restrain his daughter to facilitate the transaction.
12 When the family moved to Saanich in February 1988, the sexual assaults against three older female children became more frequent and grew in intensity. The bathroom fondlings became a regular event in the lives of E.M.M. and J.P.M. and they escalated to include full digital penetration by the respondent. When E.M.M. was about thirteen, she was forced to perform full intercourse with the respondent on a number of occasions in the parents' bedroom. J.P.M. too was compelled to engage in full intercourse with her father on more than one occasion. By her accounts, the accused would sleep in some days and call her into his room to have sex with him before he started his day. J.P.M. recalls that the last incident of intercourse occurred in the spring of 1991 shortly before her father had moved from the province.
13 The suffering and degradation experienced by the children from the physical and sexual abuse was only aggravated by the respondent's persistent, dehumanizing emotional abuse. The respondent exhibited a callous disregard for the emotional well-being of his children. As the Crown described, he would rarely call his offspring by their given names. Rather, he would ordinarily label them collectively according to an obscene expletive. Additionally, the respondent regularly terrorized his children with death threats. According to their statements, there appears to be little doubt that the children were convinced that their father would kill them if they ever discussed the abuse they had experienced under his care.
14 The Crown's submissions and the children's respective impact statements suggest that the abused children will continue to experience the devastating consequences of the respondent's physical, sexual and emotional abuse for a significant time to come. The children appear to live in enduring fear that even if their father is sent to prison, he will eventually return and kill them. As Dr. Lohrasbe indicated in his psychiatric report:
The family are totally terrorized. They believe that [C.A.M.] will somehow return to carry out his threats. They are fearful that he will work his way through the correctional system, or escape, and return to carry out his threats. It is unlikely that these fears will subside any time soon.
The children are clearly withdrawn, and they appear to have experienced considerable difficulty in socially adjusting to their environment at school. Perhaps most tragically of all, the children seem to partially blame themselves for the physical and sexual brutality they experienced at the hands of their father. In her statement, E.M.M. rebukes herself for the cruel abuse she has suffered:
It's driving me crazy! I mean how could I let these people treat me so badly? Why did I allow my body to go through all the torture and pain? How could I be so stupid?
Dr. Lohrasbe expressed considerable pessimism over whether the children would ever fully recover from the lasting effects of the abuse they had endured. As the doctor expressed his clinical findings in his report: "there is little doubt in my mind that recovery, if it is to occur, will take many, many years".
15 The Crown argued on the basis of the psychological report and the psychiatric report that the respondent enjoys few prospects for rehabilitation. In his report, Dr. Lohrasbe cast serious doubt on the sincerity of the respondent's ex post expressions of remorse. As the expert expressed his view:
In regards to rehabilitating this man, it is important for me to point out that [C.A.M.] currently shows little interest or motivation in genuine change. His verbal expressions of contrition appear to be little more [than] a contrivance to protect his self-esteem. He is unwilling to acknowledge, never mind change, his more serious acts.
More generally, Dr. Lohrasbe concluded that the respondent experiences "severe and pervasive distortions in his personality that overlap several discrete diagnostic patterns of personality disorder". Accordingly, the psychiatrist was not optimistic about the respondent's possibilities for reform. As the psychiatrist described his diagnostic conclusions:
The extent and depth of the personality distortions suggest that it is going to be extraordinarily difficult to change this man's attitudes and behaviour. . . .
Individuals with less severe syndromes of controlling abuse are still difficult treatment candidates. There is no recognized treatment method by which change can predictably occur. With [C.A.M.], it would be wise to assume that very little, if anything, can be done to examine and eliminate the causes of his offending. It will have to be assumed that, at whatever point he is able to dominate other individuals, he will continue in his controlling and abusive ways.
Dr. Malcolm, the psychologist, generally shared Dr. Lohrasbe's pessimism. As Dr. Malcolm concluded in his report:
Certainly, therapy should be made available to [the respondent] but at the present time it has not been notable for success in others with this diagnostic pattern. Sadly, given [the respondent's] long history of abusing all three of his wives and many of his children it is difficult to presume that his aggressiveness towards others, especially family members, would diminish. . . . There is no present reason to assume that this pattern would change without intensive therapy which may well, as noted, be unsuccessful.
16 Accordingly, in light of the devastating pattern of physical, sexual and emotional abuse the respondent inflicted upon his children, and in light of the respondent's questionable prospects for rehabilitation, the Crown requested a stringent term of imprisonment in excess of 20 years. The Crown was of the view that a term of 30 years might even be warranted by the crimes of the respondent.
B. Submissions of Counsel for the Defence
17 In his submissions, counsel for the defence largely accepted the Crown's account of the physical and sexual abuse committed by the respondent. It was admitted that "there can be no doubt" that the abuse visited by the respondent upon his children was both "extensive" and "terrible". Counsel, however, did take issue with some of the particular allegations of the Crown. While the respondent recalls striking and kicking the children on numerous occasions, including with the electrical cord, he could not recall assaulting the children with a knife or a screwdriver. Furthermore, in relation to the sexual abuse, contrary to the Crown's suggestion, he asserted that he only had sexual intercourse with E.M.M. and J.P.M. on a few discrete occasions. He also denied recollection of the incident during which he purportedly held down J.P.M. for the benefit of his friends. But on the whole, the respondent did not seriously dispute the larger pattern of physical, sexual and emotional abuse depicted by the Crown.
18 Counsel did, however, spend considerable effort in calling attention to the mitigating circumstances surrounding the respondent's crimes. To begin, counsel underscored the respondent's dysfunctional childhood and troubled youth. As a result of recently revived memories which had allegedly been repressed, C.A.M. contends that he has discovered that he himself was a victim of sexual abuse at a very early age. He also emphasized the long-term trauma he has suffered in relation to two near-death experiences, one in relation to a serious automobile accident, and one in relation to "mine gassings" which occurred while he was working as a miner.
19 In addition to the foregoing factors, the respondent also stressed his advanced age, and his willingness to plead guilty to almost all of the counts of the information in order to avoid having his children endure the pain of a lengthy trial. As well, it was contended through counsel that responsibility for the abuse of the children ought to be shared with his deceased wife; in his characterization of the relevant events, the mother was a "willing participant" in the physical beatings of the children. Finally, he represented that he was genuinely remorseful for his crimes. In light of all these factors, counsel for the defence submitted that an appropriate term of imprisonment should be set at 10 to 14 years.
III. Judgments Below
A. Provincial Court
20 At the outset, Filmer Prov. Ct. J. commented that the crimes of the respondent were "as egregious as any offences that I have ever had the occasion to deal with, either as counsel or in these courts". He further remarked that "[t]his matter transcends what I would consider the parameters of the worst case". However, he noted that none of the respondent's offences carried life imprisonment as an available punishment. Furthermore, he took cognizance of two recent rulings of the British Columbia Court of Appeal in R. v. Rooke, B.C.C.A., Victoria Registry V000354 and V000355, February 9, 1990, [1990] B.C.J. No. 643, and R. v. D. (G.W.), Vancouver Registry CA009244, March 8, 1990, [1990] B.C.J. No. 728 (sub nom. R. v. Danchella), which held that where life imprisonment is available as a punishment but is not imposed, the maximum numerical sentence available under the Criminal Code is 20 years imprisonment, absent special circumstances warranting a more onerous sentence.
21 Filmer Prov. Ct. J. concluded that the qualified ceiling on sentences established in Rooke and D. (G.W.) did not apply in this instance, as the ratio decidendi of that line of jurisprudence was limited to circumstances where life imprisonment was available as penalty. Accordingly, he held that he could consider sentences which exceeded 20 years.
22 Filmer Prov. Ct. J. found that, based on the psychological and psychiatric reports, "therapy in this particular matter, if it is to be successful at all, will take a protracted period of time". He then stressed the "extremely high" and "shocking" level of violence exhibited in the respondent's physical and sexual abuse, and the "devastating consequences to the victims" resulting from the abuse. With these factors in mind, Filmer Prov. Ct. J. concluded that a cumulative sentence of 25 years, with no credit for time served, was appropriate and just. As he reasoned:
[The circumstances of this case] fit[] all of the criteria of the serious side of this type of offence. It is in the extreme upper limits . . . .
It is my view that the sentence in this particular case must exceed twenty years . . . . I know I potentially walk in harm's way if the Court of Appeal feels that their dictate is that a sentence that is not a life sentence should only in very limited circumstances not exceed twenty years . . . .
I intend to use a sentence in this particular matter that, in my view, will give the parole system an opportunity to function appropriately. I think they require a significant period of rehabilitation, of counselling . . . in this man's best interests.
23 To give effect to this aggregate sentence, Filmer Prov. Ct. J. structured his sentencing order according to the following terms, with a number of particular sentences running concurrently.
Consecutive Sentences
Offence |
Criminal Code Provision |
Max. Statutory Sentence (Years) |
Sentence Imposed (Years) |
Sexual Assault |
s. 271 |
10 |
8 |
Incest |
s. 155(1) |
14 |
7 |
Sexual Assault |
s. 271 |
10 |
5 |
Assault w/Weapon |
s. 267(1) |
10 |
5 |
Total |
- |
- |
25 |
Concurrent Sentences
Offence |
Criminal Code Provision |
Max. Statutory Sentence (Years) |
Sentence Imposed (Years) |
Assault w/Weapon |
s. 267(1) |
10 |
3 |
Assault w/Weapon (Three Counts) |
s. 267(1) |
10 (for each) |
6 (total) |
Common Assault |
s. 266 |
5 |
3 |
Common Assault |
s. 266 |
5 |
2 |
Threatening |
s. 264.1(1)(a) |
5 |
1 |
Total |
- |
- |
15 |
B. British Columbia Court of Appeal (1994), 28 C.R. (4th) 106
24 In contrast to Filmer Prov. Ct. J., the majority of the Court of Appeal held that the qualified ceiling on fixed-term sentences set out in Rooke and D. (G.W.) applied equally to cases of cumulative sentencing where life imprisonment is not available as a penalty. Accordingly, the majority (Wood J.A. and Rowles J.A.) concluded that "the principle of totality" required the Court to reduce the respondent's sentence from 25 years to 18 years and 8 months' imprisonment, incorporating credit for time served prior to the imposition of sentence.
1. Reasons of Wood J.A.
25 While Wood J.A. agreed with the trial judge that the respondent ought to be sentenced to a "severe" punishment, Wood J.A. was not persuaded that the traditional objectives of sentencing would be better served in this instance through a sentence of 25 years relative to a sentence of 20 years. As he explained, at p. 116:
The [respondent's] crimes against his children were such as to bring forth in all decent and right thinking people a natural desire to see the most severe form of punishment imposed upon him. But the law stands between the convicted felon and such natural emotions. The law requires a principled approach to sentencing, one that restrains the urge to punish by its adherence to definable and rational sentencing objectives, as well as by its acceptance of such guidance as Parliament has offered in the Criminal Code and in other statutes such as the Corrections and Conditional Release Act , S.C. 1992, c. 20 .
I do not need to dwell at length on the proper objectives of sentencing which have been recognized and accepted many times in past decisions of this court. Suffice it to say that general deterrence, denunciation, and direct protection of the public through isolation, are all accepted objectives of punishment which in this case, whether considered individually or collectively, require that a long sentence of imprisonment be imposed on the [respondent]. What must be asked, however, is whether those objectives are significantly better served by a total sentence substantially in excess of twenty years than they would be by a sentence of twenty years. In my view, there is no reason to think that they would be. [Emphasis added.]
26 To illustrate his point, Wood J.A. proceeded to examine whether or not a marginal increase in sentence of five years beyond a sentence of 20 years would, in this instance, result in a significant advancement of the sentencing goals of deterrence, denunciation, rehabilitation and the protection of society. To begin, he argued that an increased sentence of 25 years imprisonment would not better promote the objectives of general and specific deterrence; relying on the empirical research he outlined in his concurring judgment in R. v. Sweeney (1992), 11 C.R. (4th) 1 (B.C.C.A.), Wood J.A. further argued that the incremental deterrent effect of an increased sentence drops off sharply past the 20-year mark. Wood J.A. also argued that the incremental returns to societal denunciation follow a similar path of diminishing returns. As he stated: "it does not seem realistic to assume that the measure of society's denunciation of this appellant's crimes would be lessened in any way by imposing a sentence of twenty years" (p. 116). On that point, he noted that denunciation ought to be distinguished from its "illegitimate retributive cousin", as "retribution is not a legitimate goal of sentencing", citing R. v. Hinch and Salanski, [1968] 3 C.C.C. 39 (B.C.C.A.).
27 Along the same theme, he argued that relative to a 20-year sentence, a 25-year sentence would not significantly advance the utilitarian goals of the protection of society and the rehabilitation of the offender given the present structure of the Criminal Code and the Corrections and Conditional Release Act , S.C. 1992, c. 20 (the "Corrections Act "). With respect to the former goal, Wood J.A. noted that under the combined parole eligibility provisions of both statutes, an increase in sentence to 25 years would not significantly extend the respondent's eligible date for parole. As he explained (at p. 117):
As for the extra protection society receives from the imposition of an isolative sentence of twenty-five years, it must be noted that, in the absence of an order under s. 741.2 of the Criminal Code , and no such order was made in this case, the minimum eligibility date for a full parole in respect of all sentences, except those imposed for murder and treason, is the lesser of one third of the sentence imposed and seven years, calculated from the date of sentencing. Thus, if the prison system has the rehabilitative effect on the [respondent] which the trial judge apparently expects it to have, the increase in the isolative "value" of the sentence he imposed, compared with one of twenty years, is potentially limited to an additional four months of imprisonment, with the balance of the sentence served under parole. [Emphasis added.]
With respect to the latter goal, Wood J.A. concluded that in the absence of dangerous offender proceedings initiated by the Crown, the trial judge was not entitled to impose a lengthy term of sentence to reflect the respondent's resistance to rehabilitation. As he continued (at p. 117):
[The trial judge] was apparently of the view that an additional five years of parole supervision would add substantially to the rehabilitative value of the sentence he imposed. With respect, the appellant was 52 years of age when sentenced. If there was any realistic possibility that he would not be fully rehabilitated by the time he finished serving his parole from a twenty-year sentence, the Crown had an obligation to bring dangerous offender proceedings against him. No such proceedings were brought. [Emphasis added.]
28 More fundamentally, in his examination of the parole eligibility scheme of the Corrections Act, Wood J.A. suggested that Parliament did not contemplate fixed-term sentences beyond 20 years under the Code. To begin, under s. 120(1) of the Corrections Act, as a default rule, any sentence beyond 20 years carries a fixed parole eligibility date of seven years. As such, Wood J.A. concluded that "at least for the purposes of parole eligibility, Parliament regards the numerical difference between a sentence of twenty-one years and anything in excess thereof, including life imprisonment, as largely irrelevant" (p. 118). Secondly, as a result of s. 120(2) of the Corrections Act, Wood J.A. noted that if the respondent could be sentenced to life imprisonment, he would be eligible for parole before the date he would be eligible for parole if he were sentenced to 21 years or more. Given the counter-intuitive implication that a person sentenced to life for a more serious offence would be eligible for parole before a person sentenced to 20 or more years for a less serious offence, Wood J.A. strongly intimated that Parliament did not intend for trial judges to impose numerical sentences beyond 20 years' imprisonment.
29 Accordingly, Wood J.A. held that the "proper approach to sentencing" in this case was established in Rooke and D. (G.W.). He rejected the trial judge's attempt to distinguish both cases, and concluded that the qualified ceiling on numerical sentences applied whether or not life imprisonment was available as a penalty. As he articulated the applicable legal principle of sentencing (at p. 119):
. . . in the absence of circumstances which direct that a specific term of imprisonment in excess of twenty years be imposed, the totality principle should be applied in a case such as this to restrain the imposition of punishment beyond that limit. That principle applies equally to cases involving convictions for offences which carry a maximum punishment of less than life imprisonment, as it does to those where life imprisonment is available. [Emphasis in original.]
2. Reasons of Rowles J.A.
30 Rowles J.A. concurred with the substance of the reasons of Wood J.A. However, she wrote separately to reiterate that the logic of Rooke and D. (G.W.) applied equally to circumstances involving cumulative sentences where life imprisonment was not available as a penalty. Furthermore, she stressed, at p. 125, that the trial judge made no particular finding that a sentence beyond 20 years was necessary to advance the core sentencing principle of "the protection of society". Rowles J.A. emphasized that lengthy sentences justified by reference to "the protection of society" should not be used "as an expedient alternative to dangerous offender proceedings which may be taken by the Crown under Pt. XXIV of the Criminal Code " (p. 125). On that point, it was hinted that the Crown should not be permitted to seek such a lengthy sentence in order to obviate the "procedural and substantive safeguards [of Pt. XXIV] which are not part of the usual sentencing process" (p. 125). Finally, she held that the facts of this case did not amount to sufficient "special circumstances" warranting a sentence beyond 20 years, hence distinguishing this case from R. v. E.D. (1992), 16 B.C.A.C. 193.
3. Reasons of Seaton J.A.
31 Seaton J.A. dissented from the reasons of Wood J.A. and Rowles J.A. He reviewed the reasons of Filmer Prov. Ct. J. in some detail, and expressed agreement with the sentencing judge that this case represents a "worst offence" involving a "worst offender". Accordingly, consistent with the framework set out in Rooke and D. (G.W.), Seaton J.A. was of the view that special circumstances were indeed present warranting a sentence in excess of 20 years. As such, Seaton J.A. was not persuaded that the respondent's sentence of 25 years ought to be reduced on appeal. However, he suggested that the sentence imposed by Filmer Prov. Ct. J. approached the legal ceiling of numerical sentences under the Criminal Code ; as he stated: "I have no doubt that 25 years is at the outer edge of suitable sentences and would be available only where there was a number of worst offences by a worst offender" (p. 111).
IV. Grounds of Appeal
32 The Crown sought leave to appeal the Court of Appeal's reduction of sentence on the basis of the following grounds:
1. That the Court of Appeal for British Columbia erred in law in applying as a principle of sentencing that absent the imposition of a life sentence, the maximum sentence that may be imposed for any number of offences is 20 years.
2. That the Court of Appeal for British Columbia erred in law in finding that retribution is not a legitimate principle of sentencing.
3. That the Court of Appeal for British Columbia erred in law in finding that if the respondent would not be rehabilitated during a 20-year sentence the Crown was obligated to bring dangerous offender proceedings against him.
4. That the Court of Appeal for British Columbia erred in law in reducing the sentence from 25 years' imprisonment to 18 years and 8 months' imprisonment.
V. Analysis
33 As a matter of established practice and sound policy, this Court rarely hears appeals relating to the fitness of individual sentences. As Dickson J. expressed in R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 404:
Although I am of the view that the Court has jurisdiction to assess the fitness, i.e. the quantum of a sentence, I am equally of the view that as a matter of policy we should not do so. It is a rule of our own making and a good rule.
Nonetheless, as part of its national duty as a general court of appeal for the better administration of the laws of Canada, this Court will entertain appeals involving the legal principles which ought to govern the pronouncement of sentence. See Gardiner, at p. 405; R. v. Chaisson, [1995] 2 S.C.R. 1118, at p. 1123. Given that this appeal raises a number of important legal issues in relation to the general principles of criminal sentencing, we granted leave.
34 In my view, the most important issue posed by this appeal concerns whether the Court of Appeal erred in holding that there is a legal ceiling on fixed-term sentences under the Criminal Code , albeit qualified with an exception for special circumstances. Accordingly, I will address this issue first and in the most depth.
A.Did the Court of Appeal err in holding that there is a qualified ceiling on numerical sentences under the Code?
35 Before dealing with the crux of this issue, it would be instructive to survey both the general principles governing fixed-term sentences and parole eligibility under the Code and the Corrections Act, as well as the evolution of the qualified legal ceiling developed by the British Columbia Court of Appeal in Rooke and D. (G.W.).
1. General Principles
36 For the multiplicity of offences against public order contained in the Criminal Code , the Code provides for a range of punishments including absolute and conditional discharges, probation orders, and fines. But by far the most common and recognized form of criminal sanction under our justice system is imprisonment. For offences where imprisonment is available, the Code sets maximum terms of incarceration in accordance with the relative severity of each crime. The current structure of the Code staggers maximum sentences for the full range of offences at numerical intervals of one year, two years, five years, ten years, and fourteen years, followed next by the most severe punishment under our general criminal law, life imprisonment. It has often been remarked that such maximum sentences ought to be reserved for the worst offender committing the worst type of offence. See R. v. Bédard (1989), 21 Q.A.C. 173, at p. 181; R. v. Ko (1979), 50 C.C.C. (2d) 430 (B.C.C.A.), at p. 436; R. v. Pruner (1979), 9 C.R. (3d) S-8 (Ont. C.A.), at p. S-11; C. Ruby, Sentencing (4th ed. 1994), at pp. 44-45; Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (1987), at p. 63. On the basis of this standard, the Commission noted that as a matter of judicial practice, the sentencing maxima of the Code for individual offences are rarely imposed by Canadian courts. For this and other reasons, the Commission commented that the structure of maximum penalties under the Code frequently provides little guidance to sentencing judges in imposing punishments in individual cases. See similarly, M. L. Friedland, "Controlling the Administrators of Criminal Justice" (1989), 31 Crim. L.Q. 280, at p. 311.
37 In some instances, the Code also sets mandatory minimum sentences for a number of offences. For instance, under s. 235, the mandatory minimum sentence for first and second degree murder is life imprisonment. In the past, however, this Court has viewed some such mandatory minimum sentences with constitutional suspicion in light of s. 12 of the Canadian Charter of Rights and Freedoms . See R. v. Smith, [1987] 1 S.C.R. 1045. But within these two distant statutory poles, the Code delegates to trial judges considerable latitude in ordering an appropriate period of incarceration which advances the goals of sentencing and properly reflects the overall culpability of the offender. See s. 717(1) and (2) of the Code.
38 The text of the Code, however, falls silent with regard to whether there is an upper limit on fixed-term or numerical terms of incarceration (i.e., non-life, quantitative terms of imprisonment). In a number of potential situations, a trial judge will be in a position to impose a total fixed-term sentence beyond 14 years, but life imprisonment will either be unavailable or inappropriate as a potential sentence. The first such instance will arise when an offender is convicted of a single count of an offence which carries a maximum punishment of life imprisonment, but the trial judge concludes that life imprisonment is not warranted on the facts. In such circumstances, the trial judge is presumably entitled to impose a sentence beyond 14 years, but the Code offers no guidance as to the upper range of fixed-term sentences which he or she may impose short of life imprisonment.
39 The second such instance arises when an offender is convicted of a number of distinct counts in relation to a single offence or in relation to a set of different offences. In such situations, s. 717(4)(c) of the Code empowers a trial judge to order that certain numerical sentences be served consecutively as opposed to concurrently. In the presence of such an order, an offender could quite easily be forced to serve a cumulative fixed-term sentence well beyond 14 years, depending on the number of counts and the maximum sentence associated with each count. But once again, the Code falls silent as to whether or not there is an upper limit on cumulative sentences in our criminal law.
40 In both such circumstances, notwithstanding the lack of any explicit statutory ceiling on numerical sentences, Canadian courts have generally refrained from exploring whether there is indeed a limit on fixed-term sentences under the Code. Rather, guided by the legal obligation that a term of imprisonment be "just and appropriate" under the circumstances, courts have generally avoided imposing excessively harsh and onerous sentences which might test the potential legal ceilings governing the imposition of sentence. It is a well-established tenet of our criminal law that the quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 533:
It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system.
Cory J. similarly acknowledged the importance of "the principle of proportionality" in speaking for the Court in R. v. M. (J.J.), [1993] 2 S.C.R. 421, at p. 431, noting that "[i]t is true that for both adults and minors the sentence must be proportional to the offence committed". Indeed, the principle of proportionality in punishment is fundamentally connected to the general principle of criminal liability which holds that the criminal sanction may only be imposed on those actors who possess a morally culpable state of mind. In discussing the constitutional requirement of fault for murder in R. v. Martineau, [1990] 2 S.C.R. 633, at p. 645, I noted the related principle that "punishment must be proportionate to the moral blameworthiness of the offender", and that "those causing harm intentionally [should] be punished more severely than those causing harm unintentionally". On the principle of proportionality generally, see R. v. Wilmott, [1967] 1 C.C.C. 171, at pp. 178-79 (Ont. C.A.); Sentencing Reform: A Canadian Approach, supra, at p. 154.
41 Within broader parameters, the principle of proportionality expresses itself as a constitutional obligation. As this Court has recognized on numerous occasions, a legislative or judicial sentence that is grossly disproportionate, in the sense that it is so excessive as to outrage standards of decency, will violate the constitutional prohibition against cruel and unusual punishment under s. 12 of the Charter . See Smith, supra, at p. 1072; R. v. Luxton, [1990] 2 S.C.R. 711, at p. 724; R. v. Goltz, [1991] 3 S.C.R. 485, at pp. 498-99. However, as I noted in Smith, at p. 1072, "[w]e should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation", and thus the review of the proportionality of sentences should normally be left to the "usual sentencing appeal process" directed at the fitness of sentence.
42 In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the "totality principle". The totality principle, in short, 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. As D. A. Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56:
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate".
Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, supra, at pp. 44-45:
The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate "just and appropriate". A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects.
43 Whether under the rubric of the "totality principle" or a more generalized principle of proportionality, Canadian courts have been reluctant to impose single and consecutive fixed-term sentences beyond 20 years. See M. E. Rice, "Fixed-Term Sentences of More Than 20 Years Versus Life Imprisonment" (1994), 36 Crim. L.Q. 474, at p. 474, n. 1. As Rice has noted, as a matter of practice, provincial courts of appeal have only been willing to sustain sentences in excess of 20 years on rare occasions. See, e.g., R. v. Saumer, [1977] 3 W.W.R. 385 (B.C.C.A.) (cumulative sentence of 25 years for robbery); R. v. Nichols (1978), 9 A.R. 203 (C.A.) (cumulative sentence of 27 years for robbery); R. v. Belmas, Hansen and Taylor (1986), 27 C.C.C. (3d) 142 (B.C.C.A.) (cumulative sentence of 22 years for terrorist activities); R. v. Gorham (1987), 22 O.A.C. 237 (C.A.) (cumulative sentence of 23 years for robbery and firearms); R. v. Currie (1990), 98 N.S.R. (2d) 287 (C.A.) (cumulative sentence of 26 years for robbery and sexual assault); Yazdani v. La Reine, [1992] R.J.Q. 2385 (C.A.) (cumulative sentence of 25 years for heroin importation). More commonly, sentences in excess of 20 years imposed at trial have been reduced to beneath 20 years on appeal, often through reference to the principle of totality. See, e.g., R. v. Velmurugu (1994), 74 O.A.C. 393 (C.A.); R. v. Parsons (1993), 24 C.R. (4th) 112 (Ont. C.A.); R. v. Pelletier (1989), 52 C.C.C. (3d) 340 (Que. C.A.); R. v. Charest (1989), 30 Q.A.C. 227; R. v. Childs (1984), 52 N.B.R. (2d) 9 (C.A.).
44 In contrast to the absence of any explicit codal rules governing the limits on fixed-term sentences of imprisonment, the Criminal Code , read together with the Corrections Act, sets very clear rules governing the determination of parole eligibility. A person sentenced to a numerical term of imprisonment under the Code (i.e., not life) becomes eligible for full parole after serving the lesser of one third of the sentence or seven years. As s. 120(1) of the Corrections Act reads:
120. (1) Subject to sections 747 and 761 of the Criminal Code and to any order made under section 741.2 of that Act, the portion of a sentence of imprisonment that must be served before an offender may be released on full parole is the lesser of
(a) one third of the sentence of imprisonment, and
(b) seven years. [Emphasis added.]
The commencement date for the determination of parole eligibility has generally been understood to coincide with the commencement of sentence, namely the date when sentence is imposed. See s. 721(1) of the Code.
45 A person sentenced to life imprisonment other than as a minimum punishment (i.e., non-murder offences) becomes eligible for full parole after serving seven years. However, in contrast to a person sentenced to a numerical term of imprisonment, the calculation of parole eligibility for life imprisonment begins at an earlier date. Under s. 120(2) of the Corrections Act, the parole eligibility clock effectively begins to run from the date of arrest. The provision stipulates as follows:
120. . . .
(2) The portion of a sentence of imprisonment for life, imposed otherwise than as a minimum punishment, that must be served before an offender may be released on full parole is seven years less any time spent in custody between the day on which the offender was arrested and taken into custody, in respect of the offence for which the sentence was imposed, and the day on which the sentence was imposed. [Emphasis added.]
In the case of most violent offences short of first and second degree murder and most drug offences prosecuted by indictment, these default periods of parole ineligibility may be extended by the trial judge pursuant to an order under s. 741.2 of the Code. I note that these default rules of parole eligibility, specifically the seven-year limit on parole ineligibility, have been a feature of our correctional system for quite some time. See Parole Regulations, SOR/60-216, s. 2(1)(a), promulgated under the Parole Act, S.C. 1958, c. 38 (four years maximum); SOR/73-298, s. 1 (increasing the maximum to seven years).
46 It is against this backdrop of statutory provisions that the British Columbia Court of Appeal has developed its qualified judicial rule limiting fixed-term sentences of imprisonment.
2. The Jurisprudence
47 In response to the silence of the Criminal Code on maximum numerical sentences, through the course of a number of cases, the British Columbia Court of Appeal has fashioned a rule which limits fixed-term sentences to a period of 20 years, barring special circumstances warranting a more onerous term of imprisonment. In justifying this qualified rule, the Court of Appeal has placed considerable reliance upon inferences drawn from the mechanics of the parole eligibility provisions of the Code and Corrections Act. For a cogent summary of this line of judicial authority, see Rice, "Fixed-Term Sentences of More Than 20 Years Versus Life Imprisonment", supra.
48 The origin of this judicially created rule of sentencing appears to trace to Rooke, supra. In Rooke, the offender was convicted of conspiracy to traffic in cocaine, among other drug offences; the offence carried a maximum term of life imprisonment. The trial judge sentenced the offender to 25 years' imprisonment. On appeal, the Court of Appeal reduced the sentence to 20 years. In reducing the sentence, Lambert J.A., speaking for the majority, attached considerable weight to the language of McIntyre J.A. (as he then was) in R. v. Bell, B.C.C.A., Vancouver Registry CA771150, September 27, 1978. Lambert J.A. responded to the Crown's request for a sentence beyond 20 years as follows:
Most markedly, counsel for the Crown was not able to indicate any case where a sentence of less than life imprisonment was merited and the sentence imposed was nonetheless more than 20 years. That this seems to be the conclusion, namely, that the appropriate sentence for the worst offence committed by the worst offender is life imprisonment and the next step down the scale is a sentence of 20 years imprisonment, is borne out by the reasons of Mr. Justice McIntyre in R. v. Bell. . . . Mr. Justice McIntyre was there giving the judgment of the Court on a sentence appeal. He said:
"Life imprisonment is the maximum sentence that can be imposed for this offence. In my view, this offence, grave as it is, does not quite reach the maximum and does not call for the maximum punishment."
"Considering all the circumstances of this case, and particularly the reports from prison authorities, which the trial judge did not have before him and which we have had, and which are strongly in favour of the appellant, I would allow the appeal and substitute a sentence of 20 years' imprisonment."
Mr. Justice McIntyre uses the phrase "this offence . . . does not quite reach the maximum". It seems to me that Mr. Justice McIntyre is suggesting that there is no intervening step between 20 years imprisonment and life imprisonment, unless there are peculiar circumstances that would demand the insertion of such a step. [Emphasis added.]
Wood J.A., the author of the majority ruling of the Court of Appeal in this instance, concurred separately in Rooke. He would have preferred to leave the question of the ceiling open for another day, since, in his view, the issue was a "matter[] of some complexity upon which I would want the benefit of a full argument devoted to the rational underlying principles of sentencing".
49 Nearly a month later, the formative rule of Rooke was applied again in D. (G.W.), supra. In D. (G.W.), the offender was convicted of a number of sexual offences against young children, and was sentenced to a cumulative sentence of 25 years. On appeal, Lambert J.A., speaking for a unanimous court, reduced the sentence to 20 years. Lambert J.A. held that life imprisonment, the maximum available penalty, was not a fitting sentence in this instance. He thus turned to consider what an appropriate fixed-term sentence would be. In so doing, however, Lambert J.A. noted that if the offender had been sentenced to life, a more serious sentence, he would have been eligible for parole a full year earlier than if he had been sentenced to 25 years. As Lambert J.A. explained the apparent irony of the provisions:
In this case a sentence of life imprisonment would, in some respects, be a better sentence from the point of view of the appellant than a sentence of 25 years, the sentence which was imposed. The reason is that the eligibility for parole in the case of a life sentence is calculated as seven years. Indeed, in every case the eligibility for parole arises on serving one‑third of the sentence or seven years, whichever is less. But in the case of a life sentence, the sentence is considered to start running from when the imprisonment started before trial. That introduces a quirk to the sentencing principles in this case.
In the case of a sentence of a fixed period, the sentence is considered to start running from the time when the sentence was imposed. Because the appellant spent more than a year in custody the effect would be that he would have eligibility for parole, in this case, a year at least earlier if he received a life sentence than he would on the basis of a sentence of 25 years. [Emphasis added.]
In light of this "quirk" of the parole eligibility rules, Lambert J.A. concluded that the rule in Rooke ought to be followed.
50 The qualified ceiling set out in Rooke and D. (G.W.) has been reaffirmed by the British Columbia Court of Appeal, and has since been followed by other provincial courts of appeal. In E.D., supra, a unanimous bench of the court endorsed the rulings of both cases, and expressed the sentencing rule in the following terms, at pp. 203-4:
It is recognized that apart from a sentence of life imprisonment, in the absence of special circumstances the totality principle operates to curtail a single sentence, or a number of consecutive sentences, to a total of 20 years.
The qualified ceiling ruling has also been adopted by the Manitoba Court of Appeal in R. v. J.T.J. (1991), 73 Man. R. (2d) 103 (C.A.). In J.T.J., after a number of trials, the offender was convicted of manslaughter, and sentenced to 22 years' imprisonment. The offender appealed the sentence, relying in part on the jurisprudence of the British Columbia Court of Appeal in Rooke and D. (G.W.). Twaddle J.A., speaking for the court, agreed that fixed-term sentences ought to be generally limited to 20 years, with the next sentencing step being life imprisonment. In so holding, Twaddle J.A. attached similar importance to the operation of the parole eligibility provisions, at p. 107:
As Lambert, J.A., pointed out in R. v. Danchella, supra, the Parole Regulations provide that a prisoner becomes eligible for parole no matter how long his sentence, it not being for murder or high treason, after he has served seven years. The only purpose, therefore, of imposing a fixed term in excess of 20 years is to ensure that the offender may be detained for a longer time if the Parole Board is of the view at the end of 20 years that the offender's release would still constitute an undue risk to society. But, if a judge thinks it necessary to authorize detention for more than 20 years, surely the next step is life. At that point, the additional period of detention required is speculative. No judge can safely foresee how much longer is required.
But in contrast to the previous cases, instead of reducing the offender's sentence from 22 years to 20 years, Twaddle J.A. concluded that in light of the gravity of the offender's crimes, his sentence ought to be increased to life. See also R. v. Nienhuis (1991), 117 A.R. 253 (C.A.), and R. v. Dipietro (1991), 120 A.R. 102 (C.A.), where the Alberta Court of Appeal increased an offender's sentence from 23½ years and 22 years respectively to life imprisonment, although in neither case did the court base its ruling on the operation of the parole eligibility provisions.
51 More recently, however, the British Columbia Court of Appeal has emphasized the qualified nature of its rule. More specifically, in two cases since Rooke and D. (G.W.), the court has found special circumstances warranting the imposition of a sentence beyond 20 years. In E.D., supra, the court sustained a cumulative sentence of 23 years for numerous offences against women and children. Speaking for the court, Hinds J.A. endorsed the case law of Rooke and D. (G.W.), but noted, at p. 204, that "there are cases where in special circumstances sentences totalling more than 20 years have been approved or given by this Court". In light of the "extremely serious circumstances of the offences" and "the danger of [the offender] repeating his transgressions against women and children", he concluded that special circumstances were present justifying a lengthy sentence beyond the qualified legal ceiling. Similarly, in R. v. Caissie (1993), 24 B.C.A.C. 57, the court upheld a cumulative sentence of 22 years for sexual assault and robbery. Although life imprisonment was available for the robbery conviction, Hinds J.A. declined to impose the maximum penalty since the offender did not represent a "worst offender". Nonetheless, Hinds J.A. held that the offender's propensity for violence and his dim prospects for rehabilitation justified a cumulative sentence beyond 20 years. As he held, at p. 65: "In the special circumstances of this case the totality principle of sentencing is not offended."
52 Finally, it is appropriate to note that the judicial consensus on the qualified ceiling rule has not been unanimous. Following the majority decision of Wood J.A. in the Court of Appeal below, the Ontario Court of Appeal had the opportunity to consider the wisdom of the Rooke and D. (G.W.) jurisprudence in R. v. J.A.C. (1995), 86 O.A.C. 135. The offender in J.A.C. was found guilty by a jury of a pattern of physical and sexual abuse against his stepchildren which has disturbing parallels with the pattern of abuse inflicted by the respondent. The trial judge, finding that the case represented "one of the worst offences involving the worst offender" (p. 141), sentenced the offender to 30 years' imprisonment through consecutive sentences. On appeal of sentence, the court acknowledged the majority ruling of the British Columbia Court of Appeal in this case, but declined to adopt the qualified ceiling rule. As the court stated (at p. 142): "we would respectfully disagree with Wood, J.A., in the R. v. C.A.M. case that there should be some cap or limit to the sentences for these serious cases". Nevertheless, the Court of Appeal concluded that the 30-year sentence was excessive and reduced the offender's sentence to 21 years.
3.The Argument for a Qualified Ceiling on Fixed-Term Sentences
53 The core issue in this appeal concerns whether or not Parliament intended fixed-term sentences under the Code to generally be limited to 20 years' imprisonment, whether as a sentence for a single offence where life imprisonment is available but unwarranted, or as a sentence for multiple offences involving consecutive terms of imprisonment. If I have understood the jurisprudence of the British Columbia and Manitoba Courts of Appeal correctly, the principal arguments in support of such an intent to limit the otherwise broad sentencing discretion of trial judges are based on inferences drawn from the operation of the parole eligibility provisions contained within both the Code and the Corrections Act.
54 The central argument advanced by the proponents of such a ceiling is that Parliament, by fixing the default parole ineligibility period for any numerical sentence beyond 20 years (absent an order under s. 741.2) at seven years, implicitly intended to cap numerical sentences at 20 years. Given the fact that an offender sentenced to 30 or 40 years is still eligible for full parole at seven years, the suggestion is that Parliament saw little utility in such lengthy terms of imprisonment. As Wood J.A. argued at the Court of Appeal, "at least for the purposes of parole eligibility, Parliament regards the numerical difference between a sentence of twenty-one years and anything in excess thereof, including life imprisonment, as largely irrelevant" (p. 118).
55 As a related argument, the same proponents point to an apparently absurd consequence which would result if fixed-term sentences beyond 20 years were permitted under the Code. When one compares the parole eligibility rules governing life imprisonment to the analogous rules governing numerical sentences, it is clear that an offender sentenced to life is eligible for parole before an offender sentenced to a numerical term beyond 20 years. Given the apparently absurd result that an offender sentenced for a more serious offence is eligible for parole before an offender sentenced for a less serious offence or set of offences, the suggestion advanced is that Parliament must have intended to preclude numerical sentences beyond 20 years.
56 With the greatest respect, I find no evidence in either the Code or the Corrections 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 pegged at 20 years' imprisonment. Rather, in my reading of both statutes, beyond setting statutory maximum and minimum sentences which reflect the relative severity of different offences, Parliament intended to vest trial judges with a wide ambit of authority to impose a sentence which is "just and appropriate" under the circumstances and which adequately advances the core sentencing objectives of deterrence, denunciation, rehabilitation and the protection of society. Accordingly, in my view, 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 Code.
57 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 Corrections Act. As I shall endeavour to demonstrate, Parliament established the parole system as a regime by which the conditions of incarceration of a sentence could be altered by subsequent executive review, rather than as a regime by which the sentence itself could be reduced. In my view, the fact that conditions of incarceration are subject to review and possible change at a particular point in time says little about the efficacy and limits of a global fixed-term sentence in advancing the traditional goals of sentencing. Put differently, there is no indication that the parole ineligibility rules of the Corrections Act were intended to constrain a court's ability to advance the goals of deterrence, denunciation, rehabilitation and the protection of society through numerical sentences beyond 20 years. Indeed, the Corrections Act was enacted to establish an administrative regime for executing and implementing the scheme of discretionary punishments anticipated by its legislative parent, the Criminal Code . To suggest that the mechanical parole rules contained within the Corrections Act have the contrary effect of dramatically restricting the sentencing discretion of trial judges under the Code, with respect, fundamentally misreads the relationship between the two statutes.
4. The Nature of the Parole System
58 The origins of our modern parole system date from the early part of this century. Prior to Confederation, a sentence imposed at trial could be commuted to "banishment" or "transportation" (i.e., forced removal to another colony), or could be reduced through an exercise of the Royal prerogative of mercy. But apart from these exceptional means, the laws of Canada provided no general mechanism for the administrative modification or suspension of a judicial sentence. See, generally, D. P. Cole and A. Manson, Release from Imprisonment (1990), at pp. 159-63. The earliest legislative scheme resembling parole appears to date from the Penitentiary Act of 1868, S.C. 1868, c. 75, which provided for a simple mechanism for sentence remission. However, the first contemporary regime for conditional release was established at the end of the 19th century with the "Ticket of Leave Act", An Act to provide for the Conditional Liberation of Penitentiary Convicts, S.C. 1899, c. 49. Under that statute, a convict could apply to executive authorities for early release, subject to a variety of conditions of supervision, prior to the expiration of his sentence. See Cole and Manson, supra, at pp. 164-67. As M. E. Campbell and D. P. Cole point out, "Conditional Release Considerations in Sentencing" (1985), 42 C.R. (3d) 191, at p. 203, n. 14, the "Ticket of Leave Act" was generally viewed as a mechanism which codified and regularized the exercise of the Crown's prerogative of clemency. Accordingly, applications under the Act were understood as a mechanism for the reduction of sentence.
59 However, with the publication of the "Fauteux Report", Report of a Committee Appointed to Inquire into the Principles and Procedures Followed in the Remission Service of the Department of Justice of Canada (1956), and the ensuing passage of the first modern Canadian Parole Act (An Act to provide for the Conditional Liberation of Persons Undergoing Sentences of Imprisonment), S.C. 1958, c. 38, the parole system was transformed into a regime by which executive authorities were vested with authority to review and alter the conditions under which imprisonment is served. Under s. 11(1) of that Act, the judicially imposed sentence of a paroled inmate was "deemed to continue in force" until the expiry of the term of imprisonment (emphasis added). Similarly, under s. 2(d), parole was defined as "authority granted under this Act to an inmate to be at large during his term of imprisonment" (emphasis added). Under that Act and its subsequent incarnations, administrative parole authorities enjoyed no authority to reduce a sentence by altering the expiry date of the warrant of committal, i.e. the formal judicial order imposing sentence. See Parole Act, R.S.C. 1970, c. P-2, as amended by S.C. 1976-77, c. 53. See also Campbell and Cole, supra, at p. 203. As McLennan J.A. described the legal premise of the modern parole system in Wilmott, supra, at pp. 181-82.
It is to be emphasized that the effect of a grant of parole is not to alter the length of a sentence imposed by a Court upon an offender. Parole provides that the offender serves his sentence outside the prison, not as a free man, but under supervision and subject to terms and conditions imposed. A person on parole is not a free man. The grant may be revoked in the discretion of the Board and the offender is thereupon recommitted to serve the portion of the original term of imprisonment that remains unexpired at the date parole was granted. . . . A grant of parole does not reduce a sentence. The Board has power in appropriate cases only to change the place where it is served. [Emphasis added.]
60 The essential nature of the parole system remained unchanged with the legislative modernization of the Parole Act in 1992. Section 99(1) of the Corrections Act continues to define "full parole" as the authority to grant an offender the right "to be at large during the offender's term of imprisonment" (emphasis added). As well, s. 128(1) reiterates that "[a]n offender who is released on parole, statutory release or unescorted temporary absence continues, while entitled to be at large, to serve the sentence of imprisonment until its expiration according to law" (emphasis added).
61 Furthermore, as Campbell and Cole underscore, supra, at pp. 204-5, the realities of the conditional release system reinforce the argument that parole is an alteration of the conditions of sentence, rather than a reduction of sentence. Under the Corrections Act and its attendant regulations, an offender on parole is subject to strict limits on his or her freedom. While an offender on conditional release is no longer physically confined, a parolee is subject to mandatory parole conditions set out under the Corrections and Conditional Release Regulations, SOR/92-620 (October 29, 1992). For instance, a parolee must remain at all times within a fixed area designated by the parole supervisor, must report to the police as instructed by the supervisor, and must advise the supervisor of any change in his or her residential, financial, or occupational status. See Regulations, s. 161(1). Additionally, under the Corrections Act, a parolee is subject to any additional restrictions that the National Parole Board deems "reasonable and necessary" in order "to protect society". A parolee may also be ordered to reside in a community-based residential facility. The Parole Board may suspend parole in response to a breach of these conditions, or if at any time it is "necessary and reasonable" to prevent such a breach or to protect society. See ss. 133(3) and (4) and 135(1) of the Corrections Act.
62 In short, the history, structure and existing practice of the conditional release system collectively indicate that a grant of parole represents a change in the conditions under which a judicial sentence must be served, rather than a reduction of the judicial sentence itself. Needless to say, an offender enjoys a greater measure of freedom and liberty when the conditions of his or her imprisonment are changed from physical confinement to full parole. Indeed, as we implicitly held in R. v. Gamble, [1988] 2 S.C.R. 595, at pp. 609 and 647, continued incarceration with an extended period of parole ineligibility (much less continued incarceration through an actual denial of parole) may constitute a deprivation of a cognizable liberty interest under s. 7 of the Charter . But even though the conditions of incarceration are subject to change through a grant of parole to the offender's benefit, the offender's sentence continues in full effect. The offender remains under the strict control of the parole system, and the offender's liberty remains significantly curtailed for the full duration of the offender's numerical or life sentence. The deterrent and denunciatory purposes which animated the original sentence remain in force, notwithstanding the fact that the conditions of sentence have been modified. The goal of specific deterrence is still advanced, since the offender remains supervised to the extent and degree necessary to prevent possible crime, and since the offender remains under the shadow of re-incarceration if he or she commits another crime. As well, the goal of denunciation continues to operate, as the offender still carries the societal stigma of being a convicted offender who is serving a criminal sentence.
5. The Effect of the Parole Eligibility Rules
63 Against this backdrop, the purpose and effect of the parole eligibility rules in the Corrections Act become clear. Within the broad statutory minimum and maximum sentences of the Code, Parliament has vested trial judges with considerable discretion to direct a just and appropriate sentence which advances the principles of deterrence, denunciation, rehabilitation and protection of society among other sentencing goals. But in addition to providing for the imposition of a global sentence which reflects the culpability of the offender, Parliament also established threshold periods of parole ineligibility, because it concluded that the traditional blend of sentencing principles also required that a minimum portion of the global sentence be served through conditions of physical confinement. As Iacobucci J. recently noted in R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 23, in discussing the mandatory minimum period of parole ineligibility for first degree murder: "parole ineligibility is part of the `punishment' and thereby forms an important element of sentencing policy".
64 While Parliament was undoubtedly animated by the full range of sentencing principles in setting such threshold periods, it appears to have been principally motivated by the sentencing goals of deterrence and denunciation. By establishing a fixed formula for a minimum period of parole ineligibility under s. 120(1) of the Corrections Act (i.e., the lesser of 1/3 of the sentence or seven years), Parliament seems to have concluded that a minimum period of physical confinement was necessary to advance the causes of general deterrence and denunciation even if the offender was completely rehabilitated and posed absolutely no threat to society at the time of sentence. Courts of appeal have similarly concluded that other minimum parole ineligibility periods set by the Code are principally motivated by the concerns of deterrence and denunciation. As the Manitoba Court of Appeal concluded in R. v. Ly (1992), 72 C.C.C. (3d) 57, at p. 61, in discussing the 10-year parole ineligibility for second-degree murder under s. 744 of the Code: "Parliament's purpose in adding a minimum period of parole ineligibility to a life sentence was, in my view, twofold. It was to deter and denounce the crime."
65 But I find no necessary inference from this larger scheme of parole eligibility rules governing review of the conditions of sentence that Parliament
intended to cap the quantum of sentence available under the Code. Under s. 120(1) of the Corrections Act, Parliament quite clearly fixed the default parole ineligibility period for any numerical sentence beyond 20 years at seven years. As I understand the purpose of the seven-year rule, Parliament apparently concluded that the principles of deterrence and denunciation only required that an offender spend seven years under the conditions of physical confinement. But there is no indication that the default parole ineligibility rules exhaust a court's ability to advance the goals of deterrence, denunciation, rehabilitation and the protection of society through the imposition of a numerical sentence beyond 20 years. Even though the conditions of the offender's term of imprisonment may be subject to change after seven years, the interaction of well-accepted sentencing principles could still require that the offender remain under the supervisory aegis of the parole system (if not under imprisonment) for well beyond 20 years. In short, I am not persuaded that the parole eligibility rules necessarily undermine a trial judge's ability to advance the goals of sentencing through a fixed-term sentence beyond 20 years. As such, there is no necessary inference that Parliament implicitly imposed a qualified cap on fixed-term sentences through its adoption of the Corrections Act and its predecessors.
66 The argument advanced by the British Columbia Court of Appeal in favour of a sentence ceiling suffers from other logical flaws. On the basis of the seven-year rule contained within s. 120(1) of the Corrections Act, Wood J.A. submits that Parliament attached little practical utility to terms of imprisonment which exceed 20 years. But with respect, if that was the case, it seems odd that Parliament would nonetheless have explicitly provided for life imprisonment as a potential sentence, since a life sentence will often exceed 20 years in effect. Furthermore, even if one can finesse that logical difficulty, there is no reasonable basis for inferring from s. 120(1) that Parliament intended a qualified ceiling on fixed-term sentences, which permits sentences beyond 20 years in the presence of vaguely defined "special circumstances".
67 In addition to the foregoing arguments in support of a legal ceiling on numerical sentences, the British Columbia Court of Appeal attached some weight to an apparent absurdity in the mechanics of the parole eligibility rules. Interpreting the provisions of the Corrections Act according to their plain meaning, as a default rule, an offender sentenced to life imprisonment would be eligible for parole before an offender sentenced to a numerical sentence beyond 20 years. At face value, the operation of the parole ineligibility rules seems counter-intuitive; one would normally think that an offender sentenced to a more serious crime where life imprisonment was available would be eligible for parole after an offender sentenced to a lesser crime. As such, the suggestion is that Parliament must have intended to avoid such an absurdity, and that the courts ought to prevent such an absurdity through the imposition of a cap on fixed-term sentences.
68 Quite frankly, I fail to see any obvious absurdity on the face of the parole eligibility scheme. Upon close examination, one can readily infer an intelligible legislative intent behind the operation of the rules. Parliament could have concluded that as a result of the unique life-long parole restrictions associated with a term of life imprisonment, an offender sentenced to life ought to be entitled to have his or her pre-trial custody credited to his or her parole ineligibility time.
69 Furthermore, any alleged absurdity on the face of the statute will rarely manifest itself in the actual release dates of prisoners. The rules of the Corrections Act only govern an offender's eligibility for full parole; the actual granting of full parole remains within the discretion of the National Parole Board. If an offender has committed a severe enough offence to warrant a life sentence, the offender will, ceteris paribus, represent a greater threat to society than an offender who received a non-life sentence. As such, notwithstanding the operation of the parole eligibility rules, I am inclined to believe that the Parole Board will ordinarily conclude that the protection of society requires an offender sentenced to life imprisonment to remain under conditions of physical incarceration longer than an offender serving a fixed-term sentence of imprisonment. Accordingly, in the actual operation of these rules, it will simply not be the normal practice that an offender sentenced to life will receive conditional release before an offender sentenced to a fixed-term sentence beyond 20 years.
70 Finally, even if one assumes that the parole eligibility rules result in an absurdity, I believe that such a legislative absurdity would only be compounded rather than corrected by imposing a strict restriction on the sentencing discretion of trial judges under the Criminal Code . The Corrections Act was enacted for the purpose of creating a comprehensive correctional system to execute the larger system of criminal sentencing established by the Code. As the Corrections Act defines its own purpose:
3. The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by
(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; . . . [Emphasis added.]
In my view, it would seriously pervert both the very purpose and function of the statute to suggest that the peculiarities of the parole eligibility rules contained within the Corrections Act ought to dictate and control the structure of sentences under the Code. The Corrections Act was intended to facilitate the sentencing discretion of trial judges rather than frustrate it. As such, I simply cannot accept that we should modify the basic architecture of our criminal justice system to avoid a potential anomaly arising from the comparative rules governing the commencement of parole eligibility under ss. 120(1) and (2) of the Corrections Act.
6. Conclusion
71 In summary, I find no evidence from the parole eligibility rules under the Corrections Act that Parliament intended to impose a qualified ceiling on numerical sentences under the Code. A numerical sentence beyond 20 years may still significantly advance the traditional continuum of sentencing goals ranging from deterrence, denunciation, rehabilitation to the protection of society, notwithstanding the fact that an offender is eligible for review of the conditions of his or her incarceration after seven years (absent an order extending the period of ineligibility under s. 741.2 of the Code). Accordingly, I remain thoroughly unpersuaded that Parliament intended to preclude such numerical sentences through the adoption of the Corrections Act and its legislative predecessors. The very purpose of the Corrections Act was to enable a trial judge's sentencing discretion under the Code rather than to hobble it. In the absence of a clearer expression of legislative intent on such an important subject implicating the basic structure of our criminal justice system, I decline to read such a dramatic restriction on the sentencing discretion of judges into the Criminal Code .
72 In my view, within the broad statutory maximum and minimum penalties defined for particular offences under the Code, trial judges enjoy a wide ambit of discretion under s. 717 in selecting a "just and appropriate" fixed-term sentence which adequately promotes the traditional goals of sentencing, subject only to the fundamental principle that the global sentence imposed reflect the overall culpability of the offender and the circumstances of the offence. As such, I decline to delineate any pre-fixed outer boundary to the sentencing discretion of a trial judge, whether at 20 years, or even at 25 years as suggested by Seaton J.A. in dissent at the Court of Appeal. Similarly, I see no reason why numerical sentences in Canada ought 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 imprisonment is not available, there is no a priori ceiling on fixed-term sentences under the Code.
73 The bastion which protects Canadians from unduly harsh fixed-term sentences is not found in the mechanics of the Corrections Act but rather in the good sense of our nation's trial judges. For many of the lesser crimes presently before our courts, a single or cumulative sentence beyond 20 years would undoubtedly be grossly excessive, and probably cruel and unusual. In other circumstances, such a stern sentence would be both fitting and appropriate. In our system of justice, 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.
74 However, in the process of determining a just and appropriate fixed-term sentence of imprisonment, the sentencing judge should be mindful of the age of the offender in applying the relevant principles of sentencing. After a certain point, the utilitarian and normative goals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimation of the offender's remaining natural life span. Accordingly, in exercising his or her specialized discretion under the Code, 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. But with that consideration in mind, the governing principle remains the same: Canadian courts enjoy a broad discretion in imposing numerical sentences for single or multiple offences, subject only to the broad statutory parameters of the Code and the fundamental principle of our criminal law that global sentences be "just and appropriate".
75 Pursuant to the foregoing discussion, I conclude that the British Columbia Court of Appeal erred in applying as a principle of sentencing that fixed-term sentences under the Criminal Code ought to be capped at 20 years, absent special circumstances. However, the Court of Appeal also justified its reduction of the respondent's sentence on the grounds that the sentence imposed by Filmer Prov. Ct. J. was unfit under the particular circumstances. Accordingly, it is still necessary to examine whether the Court of Appeal erred in law in its review of the fitness of the respondent's sentence. But before turning to that question, I intend to deal briefly with the Crown's two remaining grounds of appeal.
B.Did the Court of Appeal err in holding that retribution is not a legitimate principle of sentencing?
76 As a second and independent ground of appeal, the Crown argues that the Court of Appeal erred in law by relying on the proposition that "retribution is not a legitimate goal of sentencing" (p. 116) in reducing the sentence imposed by Filmer Prov. Ct. J. to 18 years and 8 months. In my reading of the judgment of the Court of Appeal below, I find little evidence that the passing remarks of Wood J.A. in relation to the legitimacy of retribution played a significant role in his conclusion that the respondent's sentence ought to be reduced to 18 years and 8 months' imprisonment. It should be noted that Rowles J.A., in her concurring reasons, did not even discuss retribution as a principle of sentencing. Similarly, there is no evidence that Filmer Prov. Ct. J. placed any explicit reliance on the objective of "retribution" in initially rendering his stern sentence. Accordingly, whether or not Wood J.A. erred as a strict matter of law in his discussion of the philosophical merits of retribution as a principle of sentencing, I conclude that Wood J.A.'s discussion of retribution was not a decisive element in the majority of the Court of Appeal's conclusion that the sentence of the respondent ought to be reduced to below 19 years. Therefore, I am persuaded that the remarks of Wood J.A. in relation to retribution did not constitute a reversible error. However, given the continued judicial debate over this issue, particularly in recent judgments of the British Columbia Court of Appeal (see, e.g., R. v. Hicks (1995), 56 B.C.A.C. 259, at para. 14 (rejecting retribution), R. v. Eneas, [1994] B.C.J. No. 262, at paras. 45 and 46 (endorsing retribution); R. v. M. (D.E.S.) (1993), 80 C.C.C. (3d) 371, at p. 376 (rejecting retribution); R. v. Hoyt, [1992] B.C.J. No. 2315, at paras. 21 and 22 (rejecting retribution); R. v. Pettigrew (1990), 56 C.C.C. (3d) 390, at pp. 394-95 (endorsing retribution)), it would be prudent for this Court to clarify briefly the existing state of Canadian law in this important area.
77 It has been recognized by this Court that retribution is an accepted, and indeed important, principle of sentencing in our criminal law. As La Forest J. acknowledged in discussing the constitutionality of the dangerous offender provisions of the Criminal Code in R. v. Lyons, [1987] 2 S.C.R. 309, at p. 329:
In a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender. No one would suggest that any of these functional considerations should be excluded from the legitimate purview of legislative or judicial decisions regarding sentencing. [Emphasis added.]
This Court has since re-endorsed this passage on a number of occasions as a proper articulation of some of the guiding principles of sentencing in a number of subsequent cases. See Luxton, supra, at p. 721; Goltz, supra, at p. 503; and Shropshire, supra, at para. 23.
78 The Canadian Sentencing Commission in its 1987 Report on Sentencing Reform also endorsed retribution as a legitimate and relevant consideration in the sentencing process. While the Commission noted that strict retributivist theory on its own fails to provide a general justification for the imposition of criminal sanctions, the Commission argued that retribution, in conjunction with other utilitarian justifications of punishment (i.e., deterrence and rehabilitation), contributes to a more coherent theory of punishment (supra, at pp. 141-42, 143-45). More specifically, the Commission argued that a theory of retribution centred on "just deserts" or "just sanctions" provides a helpful organizing principle for the imposition of criminal sanctions (at p. 143). Indeed, as the Commission noted, retribution frequently operates as a principle of restraint, as utilitarian principles alone may direct individualized punishments which unfairly exceed the culpability of the offender. As the Report stated at pp. 133-34:
The ethical foundation of retributivism lies in the following principle: it is immoral to treat one person as a resource for others. From this principle it follows that the only legitimate ground for punishing a person is the blameworthiness of his or her conduct. It also follows that sanctions must be strictly proportionate to the culpability of a person and to the seriousness of the offence for which that person has been convicted. . . . According to these principles, all exemplary sentences (i.e. the imposition of a harsher sanction on an individual offender so that he or she may be made an example to the community) are unjustified, because they imply that an offender's plight may be used as a means or as a resource to deter potential offenders.
See, similarly, B. P. Archibald, Crime and Punishment: The Constitutional Requirements for Sentencing Reform in Canada (August 1988), at p. 18. With these considerations in mind, the Commission explicitly defined the fundamental purpose of sentencing with reference to the normative goal of imposing "just sanctions". As the Commission cast the guiding purpose of criminal sentencing, at p. 153:
In furtherance of the overall purpose of the criminal law of maintaining a just, peaceful and safe society, the fundamental purpose of sentencing is to preserve the authority of and promote respect for the law through the imposition of just sanctions. [Emphasis added.]
A majority of this Court has since expressed approval of this passage as an accurate statement of the essential goals of sentencing. See R. v. Jones, [1994] 2 S.C.R. 229, at p. 291 (although I dissented on the merits of the case).
79 Retribution, as an objective of sentencing, represents nothing less than the hallowed principle that criminal punishment, in addition to advancing utilitarian considerations related to deterrence and rehabilitation, should also be imposed to sanction the moral culpability of the offender. In my view, retribution is integrally woven into the existing principles of sentencing in Canadian law through the fundamental requirement that a sentence imposed be "just and appropriate" under the circumstances. Indeed, it is my profound belief that retribution represents an important unifying principle of our penal law by offering an essential conceptual link between the attribution of criminal liability and the imposition of criminal sanctions. With regard to the attribution of criminal liability, I have repeatedly held that it is a principle of "fundamental justice" under s. 7 of the Charter that criminal liability may only be imposed if an accused possesses a minimum "culpable mental state" in respect of the ingredients of the alleged offence. See Martineau, supra, at p. 645. See, similarly, Re B.C. Motor Vehicle Act, supra; R. v. Vaillancourt, [1987] 2 S.C.R. 636. It is this mental state which gives rise to the "moral blameworthiness" which justifies the state in imposing the stigma and punishment associated with a criminal sentence. See Martineau, at p. 646. I submit that it is this same element of "moral blameworthiness" which animates the determination of the appropriate quantum of punishment for a convicted offender as a "just sanction". As I noted in Martineau in discussing the sentencing scheme for manslaughter under the Code, it is a recognized principle of our justice system that "punishment be meted out with regard to the level of moral blameworthiness of the offender" (p. 647). See the similar observations of W. E. B. Code in "Proportionate Blameworthiness and the Rule Against Constructive Sentencing" (1992), 11 C.R. (4th) 40, at pp. 41-42.
80 However, the meaning of retribution is deserving of some clarification. The legitimacy of retribution as a principle of sentencing has often been questioned as a result of its unfortunate association with "vengeance" in common parlance. See, e.g., R. v. Hinch and Salanski, supra, at pp. 43-44; R. v. Calder (1956), 114 C.C.C. 155 (Man. C.A.), at p. 161. But it should be clear from my foregoing discussion that retribution bears little relation to vengeance, and I attribute much of the criticism of retribution as a principle to this confusion. As both academic and judicial commentators have noted, vengeance has no role to play in a civilized system of sentencing. See Ruby, Sentencing, supra, at p. 13. Vengeance, as I understand it, represents an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as a reprisal for harm inflicted upon oneself by that person. 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. As R. Cross has noted in The English Sentencing System (2nd ed. 1975), at p. 121: "The retributivist insists that the punishment must not be disproportionate to the offender's deserts."
81 Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass". The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code .
82 As a closing note to this discussion, it is important to stress that neither retribution nor denunciation alone provides an exhaustive justification for the imposition of criminal sanctions. Rather, in our system of justice, normative and utilitarian considerations operate in conjunction with one another to provide a coherent justification for criminal punishment. As Gonthier J. emphasized in Goltz, supra, at p. 502, the goals of the penal sanction are both "broad and varied". Accordingly, the meaning of retribution must be considered in conjunction with the other legitimate objectives of sentencing, which include (but are not limited to) deterrence, denunciation, rehabilitation and the protection of society. Indeed, it is difficult to perfectly separate these interrelated principles. And as La Forest J. emphasized in Lyons, the relative weight and importance of these multiple factors will frequently vary depending on the nature of the crime and the circumstances of the offender. In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a "just and appropriate" sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender.
C.Did the Court of Appeal err in holding that the Crown was obligated to bring dangerous offender proceedings?
83 As a third ground of appeal, the Crown submits that the majority of the Court of Appeal erred by stating that the Crown had an obligation to bring dangerous offender proceedings under Part XXIV of the Criminal Code against the respondent. The relevant passage of the judgment of Wood J.A. occurs in his discussion of the alleged justifications of the respondent's sentence, at p. 117:
The other utilitarian goal of sentencing which must be taken into account when sentence is passed is the rehabilitation of the offender. Very little was said about the appellant's rehabilitation by the trial judge, although as the second passage from his reasons indicates he clearly had it in mind. He was apparently of the view that an additional five years of parole supervision would add substantially to the rehabilitative value of the sentence he imposed. With respect, the appellant was 52 years of age when sentenced. If there was any realistic possibility that he would not be fully rehabilitated by the time he finished serving his parole from a twenty-year sentence, the Crown had an obligation to bring dangerous offender proceedings against him. No such proceedings were brought. [Emphasis added.]
In the course of its oral and written submissions, the Crown argued that the foregoing statement of Wood J.A. represented a serious intrusion upon an established domain of prosecutorial discretion in finding that the Crown was required to initiate dangerous offender proceedings in this instance. In support of its argument, the Crown drew attention to this Court's judgment in Lyons, at p. 348, which unambiguously recognized the importance of prosecutorial discretion in the imposition of dangerous offender proceedings under Part XXIV.
84 With respect, I believe that the Crown has profoundly misunderstood the remarks of Wood J.A. in this context. In contrast to the Crown, I would stress the conditional tone of the introductory clause of Wood J.A.'s remark ("If there was any realistic possibility . . ."). I do not interpret the foregoing passage as holding that the Crown was required to invoke dangerous offender proceedings in this case. Indeed, it would be quite odd for Wood J.A. to insist that the respondent ought to have been subjected to indefinite detention for dangerousness in the context of a larger judgment in which he concluded that the fixed-term sentence of the respondent was overly harsh and ought to be significantly reduced. Rather, I understand the relevant passage as stating that given that the Crown has chosen not to invoke dangerous offender proceedings, there are limits to the ability of the sentencing judge to impose a long fixed-term sentence in light of the existence of the dangerous offenders regime. The meaning of the disputed passage is elucidated by the concurring remarks of Rowles J.A. on the implications of the existence of the dangerous offenders regime for the sentencing discretion of judges. As she stated, at pp. 125-26:
There is no dispute that one of the applicable sentencing principles which had to be considered by the trial judge in this case was the protection of society. Consideration of that principle generally arises in the case of violent offenders, but its application is not to be used as an expedient alternative to dangerous offender proceedings which may be taken by the Crown under Pt. XXIV of the Criminal Code . . . . Part XXIV of the Code provides for some procedural and substantive safeguards which are not part of the usual sentencing process. The wisdom of having such safeguards cannot, I think, be seriously questioned, considering the substantial body of literature on the problems and complexities of predicting dangerousness over the long term. . . .
As Mr. Justice Wood has pointed out, dangerous offender proceedings were not brought by the Crown in this case, and no determination was made by the trial judge that an isolative sentence beyond 20 years was required for the protection of society. [Emphasis added.]
In short, I interpret the position of the majority of the Court of Appeal to be that since the Crown did not pursue dangerous offender proceedings in this instance, the sentencing judge should not have imposed a lengthy term of imprisonment motivated principally by the dangerousness of the respondent and the protection of society which obviated the substantive and procedural protections of Part XXIV of the Code.
85 As such, I find that this ground of appeal, as originally framed by the Crown, must fail. The comments of Wood J.A., interpreted in light of the parallel comments of Rowles J.A., did not hold that the Crown was obliged to pursue dangerous offender proceedings against the respondent.
86 The comments of the Court of Appeal, however, raise important questions concerning 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 . More specifically, Wood J.A. and Rowles J.A. identify issues relating to the sentencing responsibility of judges where the Crown has declined to pursue dangerous offender proceedings. In Lyons, supra, I was in substantial agreement with the majority judgment of La Forest J. that there may indeed be circumstances where a life sentence, motivated in large part by the dangerousness of the offender, may be undesirable in light of Parliament's creation of a separate and distinct dangerous offenders regime. Prior to Lyons, a number of appellate court decisions, most notably R. v. Hill (1974), 15 C.C.C. (2d) 145 (Ont. C.A.), aff'd [1977] 1 S.C.R. 827, had suggested that a trial judge should exercise his or her discretion to impose a sentence of life imprisonment (if available) when faced with a patently dangerous offender who enjoys no prospects for rehabilitation. As Jessup J.A. expressed the sentencing principle in Hill, at p. 147:
When an accused has been convicted of a serious crime in itself calling for a substantial sentence and when he suffers from some mental or personality disorder rendering him a danger to the community but not subjecting him to confinement in a mental institution and when it is uncertain when, if ever, the accused will be cured of his affliction, in my opinion the appropriate sentence is one of life. [Emphasis added.]
Pursuant to this principle, the Court of Appeal increased a sentence of 12 years for an aggravated rape to one of life imprisonment. See, similarly, R. v. Hastings (1985), 58 A.R. 108 (C.A.), at pp. 111-12; R. v. Kempton (1980), 53 C.C.C. (2d) 176 (Alta. C.A.), at pp. 191-92 ; R. v. Pontello (1977), 38 C.C.C. (2d) 262 (Ont. C.A.), at pp. 268-69 ; R. v. Haig (1974), 26 C.R.N.S. 247 (Ont. C.A.), at pp. 247-48. In Lyons, however, this Court cast serious doubt on the continuing validity of the Hill principle. As La Forest J. stated, at pp. 330-31:
It is true that the Hill principle, which amounts to judge-made dangerous offender law, has clearly been limited by subsequent decisions. However, the basis of the retrenchment has not been a rejection of the principle of indeterminate detention for dangerous offenders. Rather, it has been the concern that the Hill principle not be used to circumvent the provisions of Part XXI [now Part XXIV] with its attendant safeguards for the offender. [Emphasis added.]
87 In my view, however, the Hill principle is not implicated by this appeal. Upon a close examination of the reasons of decision of both Wood J.A. and Rowles J.A., I am satisfied that their joint comments on the relationship between fixed terms of imprisonment and the dangerous offenders regime did not substantially contribute to their mutual decision to reduce the sentence of the respondent to 18 years and 8 months. Therefore, similar to my conclusion in relation to Wood J.A.'s remarks on retribution as a principle of sentencing, I hold that the remarks of both appellate judges on this issue did not amount to a reversible error. Furthermore, in my scrutiny of the reasons of decision of the sentencing judge, I find no evidence that Filmer Prov. Ct. J. relied principally or even substantially on the dangerousness of the offender in justifying his imposition of a 25-year term of imprisonment. Accordingly, for the purposes of this appeal, it is unnecessary to address the question of whether there are circumstances where a stringent fixed-term sentence (as opposed to a life sentence) motivated almost exclusively by the acute dangerousness of the offender may inappropriately circumvent the substantive and procedural protections of Part XXIV of the Criminal Code . That question is best left for another day.
D.Did the Court of Appeal err in reducing the sentence from 25 years to 18 years and 8 months?
88 In addition to relying on the sentencing principles it had developed in Rooke and D. (G.W.), the Court of Appeal also justified its reduction of the respondent's sentence on the grounds of fitness. More specifically, the Court of Appeal concluded that the sentence of 25 years imposed by the sentencing judge ought to be reduced as it was "unfit" under the circumstances. Accordingly, the Court of Appeal exercised its power of review under s. 687(1) of the Code to vary the sentence of the respondent from 25 years to 18 and 8 months, incorporating credit for time served in custody.
89 In Shropshire, supra, this Court recently articulated the appropriate standard of review that a court of appeal should adopt in reviewing the fitness of sentence under s. 687(1). In the context of reviewing the fitness of an order of parole ineligibility, Iacobucci J. described the standard of review as follows, at para. 46:
An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable. [Emphasis added.]
As my learned colleague noted, this standard of review traces part of its lineage to the jurisprudence of the British Columbia Court of Appeal. As Bull J.A. described the nature of a trial judge's sentencing discretion in R. v. Gourgon (1981), 58 C.C.C. (2d) 193, at p. 197:
. . . the matter is clearly one of discretion and unless patently wrong, or wrong principles applied, or correct principles applied erroneously, or proper factors ignored or overstressed, an appellate Court should be careful not to interfere with the exercise of that discretion of a trial Judge.
90 Put simply, 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. Parliament explicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code . As s. 717(1) reads:
717. (1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts the person who commits the offence. [Emphasis added.]
91 This deferential standard of review has profound functional justifications. As Iacobucci J. explained in Shropshire, at para. 46, where the sentencing judge has had the benefit of presiding over the trial of the offender, he or she will have had the comparative advantage of having seen and heard the witnesses to the crime. But in the absence of a full trial, where the offender has pleaded guilty to an offence and the sentencing judge has only enjoyed the benefit of oral and written sentencing submissions (as was the case in both Shropshire and this instance), the argument in favour of deference remains compelling. A sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community. The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly.
92 Appellate courts, of course, 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. See, e.g., R. v. Knife (1982), 16 Sask. R. 40 (C.A.), at p. 43; R. v. Wood (1979), 21 Crim. L.Q. 423 (Ont. C.A.), at p. 424; R. v. Mellstrom (1975), 22 C.C.C. (2d) 472 (Alta. C.A.), at p. 485; R. v. Morrissette (1970), 1 C.C.C. (2d) 307 (Sask. C.A.), at pp. 311-12; R. v. Baldhead, [1966] 4 C.C.C. 183 (Sask. C.A.), at p. 187. But in exercising this role, courts of appeal must still exercise a margin of deference before intervening in the specialized discretion that Parliament has explicitly vested in sentencing judges. It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. See Mellstrom, Morrissette and Baldhead. Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. For these reasons, consistent with the general standard of review we articulated in Shropshire, I believe 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.
93 In the case at hand, the majority of the Court of Appeal reduced the sentence of the respondent primarily as a result of the framework of sentencing principles the court inherited from the previous cases of Rooke and D. (G.W.), supra. As I have argued previously, I believe that this framework was incorrect in law. But the Court of Appeal also justified its reduction of sentence with reference to a contextual application of the accepted principles of sentencing to this case. More specifically, the majority concluded that the goals of deterrence and denunciation do not support a sentence of 25 years in this case, because both of these sentencing goals experience sharply diminishing returns following 20 years. On the subject of deterrence, Wood J.A. pointed to the empirical studies he outlined in his concurring judgment in Sweeney, supra, which question the deterrent effect of criminal sanctions. The majority also concluded that the protection of society would not be advanced by such a sentence; as Wood J.A. argued, as a result of the parole eligibility rules, an increase of sentence of 5 years to 25 years is potentially limited to an additional 4 months of imprisonment.
94 With the greatest respect, I believe the Court of Appeal erred in this instance by engaging in an overly interventionist mode of appellate review of the "fitness" of sentence which transcended the standard of deference we articulated in Shropshire. Notwithstanding the existence of some empirical studies which question the general deterrent effect of sentencing, it was open for the sentencing judge to reasonably conclude that the particular blend of sentencing goals, ranging from specific and general deterrence, denunciation and rehabilitation to the protection of society, required a sentence of 25 years in this instance. Moreover, on the facts, the sentencing judge was entitled to find that an overall term of imprisonment of 25 years represented a "just sanction" for the crimes of the respondent.
95 The respondent committed a vile pattern of physical and sexual abuse against the very children he was entrusted to protect. The degree of violence exhibited in these crimes was disturbingly high, and the respondent's children will undoubtedly be scarred for life. The psychiatrist and psychologist who examined the respondent agree that he faces dim prospects of rehabilitation. Without doubt, the respondent deserves a severe sentence which expresses the society's revulsion at his crimes.
96 After taking into account all the circumstances of the offence, the trial judge sentenced the respondent to 25 years' imprisonment. In imposing that term of imprisonment, Filmer Prov. Ct. J. was at liberty to incorporate credit for time served in custody pursuant to s. 721(3) of the Code, but chose not to. I see no reason to believe that the sentencing order of Filmer Prov. Ct. J. was demonstrably unfit.
VI. Costs
97 Finally, the respondent has filed a request for costs on a solicitor-client basis under this Court's discretionary authority under s. 47 of the Supreme Court Act , R.S.C., 1985, c. S-26 . We have previously acknowledged that this discretionary power extends to making an order for costs in a criminal case, including both summary conviction matters (R. v. Trask, [1987] 2 S.C.R. 304 (costs denied)) and indictable matters (Olan v. The Queen, No. 14000, October 11, 1977 (costs allowed)). But the prevailing convention of criminal practice is that whether the criminal defendant is successful or unsuccessful on the merits of the case, he or she is generally not entitled to costs. See Berry v. British Transport Commission, [1962] 1 Q.B. 306 (C.A.), at p. 326, per Devlin L.C.J. The Criminal Code codifies this convention as a matter of appellate practice before provincial courts of appeal in cases involving indictable offences. See s. 683(3) of the Code, but see. s. 839(3) regarding summary conviction cases. Consistent with this established convention, in Trask, we denied costs under s. 47 to a criminal defendant following a successful appeal of a summary conviction matter, as there was nothing "remarkable" about the defendant's case, nor was there any "oppressive or improper conduct" alleged against the Crown (at pp. 307-8).
98 Since I would allow the Crown's appeal in light of the errors committed by the British Columbia Court of Appeal, and since I similarly fail to find anything "remarkable" about this case warranting an order for costs against the Crown, I would deny the respondent's request.
VII. Disposition
99 For the foregoing reasons, I find that the British Columbia Court of Appeal erred in law in reducing the respondent's sentence through its application of sentencing principles and through its standard of review for reviewing the fitness of sentence. I would allow the appeal, set aside the judgment of the British Columbia Court of Appeal, and restore the trial judge's sentence of 25 years which commenced to run as of February 8, 1993.
Appeal allowed.
Solicitors for the appellant: Peck, Tammen, Bennett, Vancouver.
Solicitors for the respondent: Ruby & Edwardh, Toronto.
Email this Content