HomeCanada LawPutting Parity in Perspective | ABlawg

Putting Parity in Perspective | ABlawg


By: Lisa Silver

Case commented on: R v Germain, 2022 ABCA 257 (CanLII)

PDF model: Putting Parity in Perspective

The latest Alberta Court docket of Enchantment choice of R v Germain, 2022 ABCA 257 (CanLII), reads like a decide’s “easy methods to” guide for making use of the sentencing precept of parity. Right here, the Court docket not solely discusses the function of parity in making a sentencing willpower but additionally offers a step-by-step strategy to making use of the precept in observe. To do that, the Court docket depends on precedent and deference, the cornerstones of appellate evaluation of sentencing. Considerably, the choice makes an attempt to reconcile a protracted line of Court docket of Enchantment selections on beginning factors, with latest route by the Supreme Court docket of Canada in R v Parranto, 2021 SCC 46 (CanLII), R v Friesen, 2020 SCC 9 (CanLII), and R v Lacasse, 2015 SCC 64 (CanLII), that sentencing shouldn’t be a “senseless numbers recreation” involving a strict adherence to a minimal sentencing regime (see R v Ostertag, 2000 ABCA 232 (CanLII) at para 21). Slightly, sentencing strives for individualization within the context of normal rules. This seemingly incongruous job creates uncertainty in these very rules the sentencing court docket is sure to use. Though the Germain choice clarifies the practicalities of sentencing, there stays appreciable room in future selections for additional delineation of the framework of sentencing and the right placement of the parity precept inside it.

Douglas Germain entered a plea of responsible to voyeurism below s 162(1)(a) of the Felony Code, involving over 100 recordings taken over six years of girls both going to the washroom or altering their clothes (at para 4). Mr. Germain captured these recordings in the middle of his employment, working as a plumber (at para 5). No less than two of the ladies had been below eighteen years of age (at para 6). In line with defence submissions, the offences had been out of character. Mr. Germain attended psychological counselling previous to sentencing. The Crown requested a one-year jail time period, whereas the defence submitted {that a} conditional sentence order was applicable (at para 7). In help of the sentencing submissions, each counsel relied upon a number of sentencing selections. The sentencing decide (Decide G.B. Lepp) imposed a 15-month conditional sentence order with situations (at para 1).

In imposing sentence, the decide listed a number of aggravating and mitigating circumstances (at paras 20 –21). For instance, the truth that Mr. Germain dedicated the offences in the middle of his employment was an aggravating characteristic. The decide additionally relied on the sentencing goals of denunciation, normal deterrence, and rehabilitation (at para 23). The decide discovered Mr. Germain was not at a major danger of reoffending (at para 23). The sentencing decide thought of each similarities and variations in earlier sentencing selections in an effort to use the precept of parity – that like offenders obtain like sentences (at para 24).

On this seek for parity, the sentencing decide thought of, amongst different circumstances, the choice in R v Weinheimer, 2007 ABPC 349 (CanLII), the place the offender acquired a suspended sentence for taking pictures of males utilizing the urinals on 15 events over 2 years (at para 25). The decide discovered the offences in Weinheimer brought about much less hurt than the case at hand and the offender was much less culpable than Germain (at para 25). One other choice thought of was R v Dekker, 2014 ABPC 61 (CanLII), the place the offender acquired 9 months conditional sentence after recording 77 movies of individuals, a few of whom had been minors, in washrooms over a prolonged interval (at para 25). The sentencing decide discovered this case to be comparable in information and culpability to Germain’s case however there was no breach of belief (at para 25). Nonetheless one other choice relied upon was R v Jarvis, 2019 ONSC 4938 (CanLII). This case concerned a schoolteacher who made a number of movies of younger folks with a pen digital camera in a typical space of a highschool (at para 25). The sentencing decide discovered Jarvis to be “considerably” extra culpable primarily based on the age of the victims however discovered Germain brought about extra hurt because of the variety of victims and the substantial breach in privateness (at para 25).

In utilizing these earlier sentencing selections, the sentencing decide “calibrated” Germain’s sentence “up or down” to replicate the precise circumstances of the case (at para 24). In the end the sentencing decide discovered Germain’s culpability and the seriousness of the offence “excessive” (at para 27). The sentencing decide then took under consideration the rules surrounding the imposition of a conditional sentence order, in addition to whether or not such a sentence would fulfill the first sentencing goal of proportionality (at paras 28 – 31). The basic sentencing precept of proportionality, as discovered below s 718.1 of the Felony Code, requires a sentence to be “proportionate to the gravity of the offence and the diploma of accountability of the offender.”

The first floor of enchantment urged by the Crown was the sentencing decide’s misapplication of the parity precept (at para 32). In seven fastidiously written paragraphs (at paras 39 – 45), the Court docket (Justices Jo’Anne Strekaf, Ritu Khullar, and Kevin Feehan) outlined the parity precept, beginning with its statutory expression discovered below s 718.2(b) of the Felony Code. Below that part, the sentencing decide “shall” contemplate the parity precept by imposing a sentence that “ought to be just like sentences imposed on comparable offenders for comparable offences dedicated in comparable circumstances.” You will need to pause and study the language used on this part. First, through the use of the phrase “shall,” the sentencing decide should contemplate parity, however in making use of the precept, the decide “ought to”, not “should”, impose the same sentence for like offenders and offences. It is a concession to the necessity for individualization in sentencing, permitting the decide to train their discretion by deviating from the precept. This “shall” versus “ought to” dichotomy leaves room for a debate on the centrality of parity as a precept and the right emphasis and placement of that precept within the sentencing matrix.

Maybe recognizing this pressure inherent within the consideration after which utility of the precept, the Court docket in Germain famous parity will be considered as each a “discrete sentencing requirement” and as a “crucial means” to reaching a proportionate sentence (at para 39). This duality places parity in perspective as a stand-alone precept to be utilized within the title of sentencing ranges or tips, and as a software of individualization utilized in fulfilling the basic and overarching precept of proportionality. Parity thus turns into a secondary precept of sentencing, which should give method to proportionality when applicable (see Lacasse at para 54 and Friesen at para 10).

The Germain Court docket then offers useful “how-to” directions in making use of parity as a precept and in utilizing it to attain proportionality. First, the sentencing decide should assemble an correct image of the offender and the offence, with specific consideration to these information or elements which relate to proportionality, specifically the gravity of the offence and the culpability of the offender (at para 40).  Though the Court docket suggests different information not “immediately” linked to proportionality could also be related, different information can be necessary to meet the individualization inherent in a match and correct sentence such because the offender’s background, rehabilitative prospects, and neighborhood help.

As soon as the factual foundation is decided, the decide then turns to the case legislation “to adjust to the parity precept” (at para 41). Right here is the place the choice turns into fascinating. This case legislation evaluation could possibly be considered as a compendium of related circumstances that talk to parity as a precept. The compendium may be considered because the “historic portraits”, topic to judicial discretion, as described by Chief Justice Richard Wagner, as he’s now, in Lacasse when describing sentencing tips or sentencing beginning factors (Lacasse at para 54). However the Court docket in Germain views this in a different way, suggesting that such a evaluation of previous circumstances could also be redundant or “pointless” the place there may be a longtime place to begin or sentencing vary (at para 41). This remark appears counter-intuitive, suggesting that the parity course of is frozen in time when a sentencing place to begin is enunciated.

The suggestion {that a} case legislation evaluation is pointless by-passes the necessity for individualization. Parity does relaxation on comparability; nonetheless, comparability requires some modicum of element by searching for the precise similarities and peculiar variations arising within the offender’s case. Sentencing beginning factors are extra normal, utilizing a broad-brush strategy to generalize the “portrait” circumstances.  In these ranges and beginning factors we see patterns however not the main points. Though ranges could also be extraordinarily helpful in calibrating the sentencing strategy, it should be stuffed in and supported by the sentencing decide to meet pertinent sentencing goals and proportionality necessities. The Germain Court docket does acknowledge, as per Supreme Court docket of Canada authorities, that beginning factors and ranges are “not legally binding in concept or in observe” (at para 41). If that is so, as an alternative of an either-or proposition, parity as a precept and as a software of proportionality can be higher fulfilled if sentencing beginning factors had been a software, and never an endpoint, to help within the seek for these comparable circumstances.

Notably, the Court docket of Enchantment acknowledges the problem parity presents. No two circumstances will ever be the identical. How comparable or completely different they are going to be is “a matter of diploma” (at para 43). There’ll all the time be “similarities and variations”, in line with the Court docket, making the parity train an train in futility ought to the decide be trying to find excellent parity (see additionally R v MacKinnon, 2022 NSPC 12 (CanLII) at para 44). Slightly the decide ought to put parity in perspective by recognizing parity rests on individualization (Germain at para 44). It’s the synergy between parity and individualization that promotes proportionality and ensures the sentence is a match one.

The Court docket didn’t talk about the function of discretion within the parity course of, but discretion and deference is the stuff of which parity is made. Parity requires discernment and the judicial lens of expertise, in addition to common sense (see Friesen at para 33). Above all, parity requires a robust understanding of the human situation. The parity precept “preserves equity in sentencing” (R v Pearce, 2021 ONCA 239 (CanLII) at para 17) and strengthens public confidence within the justice system. It guides and restrains discretion in arriving at a proportionate sentence (see Lacasse at para 2, and R v Nasogaluak2010 SCC 6 (CanLII), [2010] 1 SCR 206 at para 44).

The Crown additionally argued that within the Germain case, the precept of parity conflicted with the overarching want for proportionality with the decide focusing an excessive amount of on parity to the detriment of proportionality (at para 54). Within the Crown’s view, proportionality guidelines and, in the long run, if after reaching a sentence in line with parity, the next sentence is required to adjust to proportionality, then the next sentence a ought to be imposed. The Court docket disagreed with this place as a “normal proposition” (at para 57). It’s helpful on this level to take a look at the Supreme Court docket’s dialogue of the connection between parity and proportionality in Friesen and Parranto. Notably, Justices Russell Brown and Sheilah Martin, in Parranto, name proportionality an “organizing” precept (Parranto at para 10) that “all sentencing begins with” (see additionally Friesen at para 30). It’s tough to see battle between proportionality and parity when proportionality is the one precept that binds all sentencing rules and goals and acts because the container by which these goals and rules reside. However as we’ve got gleaned, parity shouldn’t be static. If proportionality is ever current within the sentencing willpower, then battle is unattainable; proportionality begets parity as parity is an “expression” of proportionality (see Parranto at para 11 and Friesen at para 32). Chief Justice Wagner in Friesen succinctly places parity in perspective by explaining how “parity offers which means to proportionality” and is the proverbial glue, selling consistency in sentencing (Friesen at para 33). This dynamic duo of proportionality and parity imparts relevancy to sentencing tips, guaranteeing sentencing selections, as historic portraits and as present-day selections, are a part of the identical cloth that’s resilient, versatile, and smart sufficient to maintain future sentencing selections. The Court docket in Germain views parity as an anchoring system, which frees the decide from an intuitive strategy to sentencing in favour of a reasoned, delicate, and equitable one (at paras 57 – 58).

There are two caveats to all the above. First, the Court docket of Enchantment reminds us of the priority raised in Friesen that parity is barely workable when the sentencing tips are themselves responsive “to society’s present understanding and consciousness” of what proportionality requires or “to the legislative initiatives of Parliament” (at paras 61 and 62, and see Friesen at para 35). To make sure this responsiveness, judges might deviate from the previous.

Second, as talked about earlier on this put up, parity shouldn’t be excellent within the sense that the compendium of case legislation representing parity is usually not full. In Germain, the Court docket explains how previous case legislation could also be imperfectly inscribed, leading to written selections which are too temporary and will miss or miss important particulars (at para 64). This methodological deficiency, coupled with a reliance on counsels’ curation of the case legislation, which can itself be incomplete, requires “a level of warning and the train of judgment” in utilizing previous selections as a measure of parity (at para 65). Though the compendium supplied to the sentencing decide could also be incomplete, absolutely the sentencing decide has the instruments to counterbalance these potential deficiencies, both by way of their very own lens of judicial expertise or by way of the flexibility to do additional authorized analysis previous to imposing sentence. A sentencing decide shouldn’t be a silent companion within the sentencing course of, however an energetic participant, who, with counsel’s enter, has the accountability to craft a match and simply sentence.  In any occasion, the purpose ought to be well-taken as an admonition to counsel to be duly diligent in presenting correct and detailed case authority.

In the long run, the Court docket of Enchantment utilized their reasoning along with an utility of deference to search out the sentencing decide had correctly and fairly arrived at an applicable sentence (at para 53).

The Germain choice is a helpful depiction of parity in observe. It helps us perceive how parity and proportionality each attempt collectively to provide a simply sentencing end result. Even so, the choice leaves us wanting extra on the topic. The connection between parity and proportionality nonetheless feels sketched out, needing extra particulars to be actually understood and utilized. Additionally, what’s parity’s standing constitutionally? Though proportionality shouldn’t be a precept of basic justice enshrined within the structure, a grossly disproportionate sentence does entice Constitution therapy (see R v Safarzadeh-Markhali, 2016 SCC 14 (CanLII) at para 70). Does this imply a grossly disparate sentence by way of parity should be a grossly disproportionate one for Constitution functions? If that’s the case, is parity all the time a matter of perspective, and due to this fact magnified by different sentences, or is there an inherent facet of parity that may be objectively assessed and measured? Can parity be fully equated with sentencing beginning factors and tips or is there extra? Furthermore, the idea that deviations from parity can happen and may very well be wanted to make sure the previous is related to the current and future is an space requiring additional research. Lastly, the professionalism facet of parity – that parity is a sentencing presentation by counsel that requires due care and a focus, is a very necessary idea needing a re-assessment. All of those questions and extra assist put parity, and maybe different sentencing ideas, into a bigger perspective than we anticipated.

 


This put up could also be cited as: Lisa Silver, “Putting Parity in Perspective” (August 18, 2022), on-line: ABlawg, http://ablawg.ca/wp-content/uploads/2022/08/Blog_LS_Germain_Aug2022.pdf

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