Jan 15, 2017

Let’s Talk About Lacasse, Part 1: Raising the Standard for Appellate Review of Sentencing Decisions

R. v. Lacasse, 2015 SCC 64 (CanLII)

This is the first part of a two-part series on the Supreme Court’s decision in R v Lacasse. Part 1 discusses how the majority decision in Lacasse raises the standard for appellate review on sentencing decisions. Part 2 highlights two problematic aspects of Lacasse: the majority’s unconvincing reasoning in justifying a high standard of review and the implications of the majority’s endorsement of using local crime rates as a factor in the sentencing process.

Surprisingly little commentary has been published following the release of the Supreme Court’s decision in R v Lacasse, 2015 SCC 64 (Lacasse), in late December of last year, despite the case heralding two large changes to the approach both trial judges and appellate courts are permitted to take with regards to rendering sentences. First, the decision raises the already high standard of permissible appellate review of sentencing decisions even higher. Second, the decision expressly allows trial judges to consider the local frequency of a particular crime when determining the length of a sentence in order to deter future individuals from committing crimes of the same nature.

The relative absence of legal discussion on Lacasse is all the more surprising given that the decision is clearly on the minds of appellate court judges. I witnessed this first-hand when attending appellate-level motions court this past summer. When one counsel brought a motion for leave to appeal a sentencing decision, the judge sitting that day pre-empted oral submissions with the following emphatic caution: ‘remember counsel, our ability to review sentences is very, very narrow following Lacasse.’

This is a two-part post that will discuss my interpretation of Lacasse, and its impact on appellate review of sentencing decisions. Today’s post, Part 1, begins with a discussion of what came before Lacasse: both the statutory provisions dealing with sentencing, and the Supreme Court’s interpretation of them. I then discuss how Justice Wagner’s judgment in Lacasse effectively raises the standard dictating when appellate courts can intervene in sentencing decisions.

A Brief History of Sentencing Law

The current trend of showing strong deference to the sentencing decisions of trial judges was not always a given. As Professor Allan Manson overviews in his book, The Law of Sentencing (Toronto: Irwin Law, 2001), two approaches to appellate review of sentencing decisions originally emerged in Canada in the 20th century. The first approach reflects that favoured in recent years, with certain appellate courts choosing to circumscribe their powers of review by only intervening where trial judges had made an error in principle. The second approach saw other appellate courts exercising a more active, interventionist power of review regarding sentencing, intervening whenever the sentence itself was deemed to be unfit.

Aside from the emergence of these two approaches, Canadian sentencing law remained a relatively quiescent field until a set of legislative changes in the mid-1990s clarified the purposes of sentencing, the principles behind the sentencing process, and the standard of appellate intervention. In 1996, Parliament introduced sections 718, 718.1, and 718.2 to the Criminal Code, RSC 1985, c C-46. These provisions provide pronouncements on the purpose of sentencing, as well as the principles that judges must rely on to guide the sentencing process.

Section 718 codifies the purpose of sentencing, which is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” using the objectives of denouncement, deterrence, incarceration, rehabilitation, reparation, and promoting responsibility among offenders.

The 1996 provisions also make clear that the principle of proportionality is the touchstone that guides all sentencing decisions. As Justice Lebel wrote in R v Nasogaluak, 2010 SCC 6 (Nasogaluak), section 718.1 mandates that a sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender.” The sentencing process must also be informed by a number of secondary principles enumerated in section 718.2. These include:

  1. The consideration of relevant aggravating or mitigating circumstances in the sentencing analysis;
  2. The principle of parity, which states that similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances;
  3. The principle of totality, which states that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
  4. The principle of restraint, which states that the least restrictive sanction short of incarceration should be resorted to whenever appropriate; and
  5. The consideration of all available sanctions, other than imprisonment, in the sentencing analysis.

Proportionality nevertheless remains at the heart of the sentencing process. A judge has discretion to weigh the secondary principles of sentencing in whatever manner he or she deems appropriate, but as Justice Lebel explains, the resulting sentence nonetheless “must respect the fundamental principle of proportionality [emphasis in original].”

Shropeshire and M (CA): The Supreme Court Interprets Sections 718-718.2 of the Code

The very same year that Parliament made the Criminal Code amendments ushering in sections 718-718.2, the Supreme Court handed out a major decision, R v Shropeshire, [1995] 4 SCR 227 (Shropeshire), explaining when appellate courts can intervene with sentencing decisions. Eschewing the interventionist approach favoured by some courts, the Supreme Court made it clear that the standard was one of strong deference. In Shropeshire, Justice Iacobucci held for a unanimous court that appellate intervention is only justified in one of two situations: either when there is an error in principle, or the sentence is “clearly unreasonable.”

One year later, the holding in Shropeshire was further refined in R v M (CA), [1996] 1 SCR 500 (M(CA)), where Chief Justice Lamer cautioned that sentences could only be interfered with if they were either “demonstrably unfit,” or if they reflected an error in principle, the failure to consider a relevant factor, or the over-emphasis of a relevant factor. Furthermore, if a trial judge, in the course of rendering a sentencing decision, gives too much or too little weight to a relevant factor, an appellate court cannot interfere with this balancing process unless the trial judge is exercising his or her discretion unreasonably.

The test laid out in Shropeshire and M (CA) has been repeatedly upheld by the Supreme Court, most recently in Nasogaluak and R v Nur, 2015 SCC 15. But the settled shores of the Shropeshire test have been kicked up in the wake of Lacasse, leaving the law of sentencing all the cloudier for it.

Lacasse: Surreptitiously (Inadvertently?) Raising the Test for Appellate Review of Sentencing Decisions

Given the Supreme Court’s fidelity to the Shropeshire and M (CA) articulation of the test for appellate review of sentencing decisions, it is surprising that Justice Wagner prefaces his majority judgment in Lacasse with the statement that the case is an opportunity to clarify the law on appellate review of sentencing decisions. In his dissent, Justice Gascon retorts that in his opinion, such clarification was not necessary, as “the applicable standard is well-known.” I agree, although on a careful reading of Justice Wagner’s decision, I believe he is doing more than simply restating the law for clarity. Following Lacasse, the already high standard governing when an appellate court may intervene in sentencing decisions has been raised even higher.

Justice Wagner’s judgment raises the standard in two ways. First, Justice Wagner states that, if the trial judge made an error in principle, failed to consider a relevant factor or overemphasized appropriate factors, the sentence cannot be varied unless “it appears from the trial judge’s decision that such an error had an impact on the sentence.” This alone raises the standard: the mere presence of one of the above errors in principle or reasoning was previously sufficient cause for appellate review of a sentencing decision. Now, an appellant must also satisfy a court that these errors had a direct impact on the sentence itself before the sentence can be reviewed.

Second, Justice Wagner’s interpretation of the standard of review of sentencing decisions mandates that a sentence must be demonstrably unfit before an appellate court can review it. The test originally articulated in Shropeshire is disjunctive, requiring that the lower court judge either erred in principle, or that the sentence itself is demonstrably unfit. In contrast, Justice Wagner articulates a test that is conjunctive. In his words, appellate courts may “intervene only if the sentence the trial judge imposed is demonstrably unfit [emphasis added].” Effectively, Justice Wagner is saying that appellate intervention can never occur unless the sentence is demonstrably unfit—regardless of the presence of an error in principle. It is unclear whether this change is intentional on Justice Wagner’s part: he cites the disjunctive test from Shropeshire with approval earlier on in his decision, and never explicitly addresses the fact that his favoured formulation is different.

Nonetheless, Justice Gascon’s reading of his colleague’s decision certainly supports the conclusion that Justice Wagner has indeed imposed a more stringent test. At paragraph 137, Justice Gascon comments on the effect of Justice Wagner’s decision as follows:

If a party shows that the trial judge made an error in principle, failed to consider a relevant factor or overemphasized appropriate factors, I do not think it can be said that the judge acted within the limits of his or her discretion in sentencing matters. In such cases, the relevant decisions of this Court do not require that the sentence also be shown to be demonstrably unfit before an appellate court can intervene. The effect of such a requirement would be to raise the recognized standard of intervention.

Justice Gascon’s interpretation of Justice Wagner’s judgment accords with my own. We are both of the mind that the effect of Justice Wagner’s judgement is to raise an already high standard even higher. In tomorrow’s post, I will discuss why I think Justice Wagner’s defence of this high standard is ill-founded. I will also discuss a second, equally interesting aspect of Lacasse: the acknowledgement that local crime rates can impact the length of a convicted individual’s sentence.