By Randann Sargent
Starting point sentencing in Alberta is on the precipice of a fundamental shift, assuming its criminal defence bar can muster a unified front.
Recently, the court in R v Parranto grappled with the use of the starting point methodology in sentencing offenders. This approach to sentencing is a form of appellate guidance that provides a place to begin in determining a proportionate sentence. While the Court ultimately rejected arguments to abolish this method because of its tendency to anchor and cluster sentences, undermining the individualization of crafting a fit sentence, it did provide guidance that reminded courts how the method should be utilized. The Supreme Court explicitly stated their decision was not an endorsement of how starting points have sometimes been enforced by the Alberta Court of Appeal. Rather, its intent was to clarify and revise our understanding of the methodology to a point where starting-point guidance in Alberta conformed with the objectives and principles of sentencing.
Starting-points are non-binding, both in theory and in practice. Quantitative tools used by sentencing judges are mere “navigational buoys” in determining a fit sentence for a particular crime where the “factual circumstances of each case vary infinitely.” There is “no such thing as a uniform sentence for a particular crime,” and the starting point methodology does not relieve the sentencing judge from conducting an individualized analysis that considers relevant variables and principles. This requires the sentencing judge to note the starting point prescribed by the appropriate appellate court, and then individualize the sentence, considering mitigating and aggravating factors to justify a lesser or lengthier punishment.
Departure from a starting-point is not an error in principle. While the Alberta Court of Appeal in R v Arcand stated that sentencing judges “will give due consideration to starting points and the process that starting-point sentencing entails,” the court in Parranto emphasizes that directions as to the binding nature of starting points have been overtaken by R v Lacasse and R v Friesen, and no longer reflect the standard of appellate review. Starting points legitimately seek to minimize idiosyncrasies in sentencing, however, there is “no one uniform approach to sentencing” and any attempts at such are “misguided.” As such, significant departure in unexceptional circumstances can be justifiable, and even warranted.
Sentencing judges have the discretion to select the sentencing method used, as well as how it is used. The focus is whether the sentencing judge properly applied the principles of sentencing, and not if the correct starting point or other appellate-suggested methodology was used. Parranto explicitly and categorically rejected the argument that it is an open question on whether sentencing judges can abstain from using a starting-point method suggested by the relevant appellate court. Starting points are not binding “in any sense.” As such, parity becomes secondary to proportionality; departures in sentences should be expected, and even significant departures do not necessarily indicate unfitness. The appropriate question is not how far the sentence departs from any quantitative guidance considered by the sentencing judge, but rather if the sentence was determined with reference to the principles and objectives of sentencing in the Criminal Code. Departure does not require exceptional circumstances.
Finally, sentencing judges have the discretion to weigh principles, such as rehabilitation, more heavily than deterrence or denunciation—which often take primacy in the establishment of a starting point. Suggestions that principles of restraint or rehabilitation have been considered in crafting a starting point for an offence are incorrect. This understanding of starting-point creation prohibits the undermining of the sentencing judge’s proper role of individualizing the sentence for the offender before them. Consequently, the principles giving rise to a starting point cannot render impotent other sentencing principles. Indeed, the 1996 sentencing reforms were precisely intended to meaningfully recognize and apply restorative justice principles and address over-incarceration.
Notably, Justice Rowe in his concurring statements, argued that the revised approach articulated by the majority should be met with heavy skepticism as the Alberta Court of Appeal has received guidance from the Supreme Court on other occasions, yet their application remained unchanged. Justice Rowe goes as far as to argue that starting-point sentencing as a methodology should be abandoned. While his argument is not binding, it serves as a stark reminder of not only the risks in continuing to use the methodology, but that Supreme Court guidance up until this point has, generally, been practically rejected in Alberta—or at least deeply flawed. If the revised approach outlined in Parranto is to have meaning in this jurisdiction, sentencing judges need to sincerely engage with and internalize what the majority stated: sentencing judges have discretion and should let the principles of sentencing guide their craft—not the overbearance of a quantitative guidance regime suggested by its appellate court.
Considering the foregoing, although Parranto upheld the use of the starting point methodology, it unequivocally states it is non-binding and can even be entirely rejected by the sentencing judge. Reasons must, of course, still be provided to justify either the choice of method or departure from a starting point. In this sense, sentencing courts need to be extremely cautious when weighing the insight of comparator cases that rely too heavily on a starting point and relegate sentencing principles or otherwise take for granted that the starting point adequately considers them. That said, it is often the case that reasoning from a sentencing court which incorporates a starting point will necessarily speak to sentencing principles; starting points do utilize them. The issue is when a sentencing judge fails to recognize they have the discretion to weigh the principles differently than the appellate court did when establishing the guidance. Logically, this also implies that other seemingly influential comparators of similar levels of courts do not militate the current sentencing judge to adopt the same ranking of principles undertaken in a different case. The ultimate and proper guiding tool at reaching a fit sentence is the objectives and principles prescribed in the Criminal Code. Any reliance upon starting points must operate in an ancillary capacity as by nature they relate only to the offence, and assume deterrence and denunciation are superior principles.
While Parranto directly abolishes the reasoning in Arcand that would see lower courts in Alberta treat starting points as binding or restrictive, they make it clear that this problematic aspect in the Arcand decision cannot be used to reject starting points altogether; however, we must be mindful that the Parranto decision marks the fourth time the Supreme Court has cautioned us in the application of the methodology. Interestingly, as argued recently by Andrew Phypers in R v Duperron, Parranto compels sentencing courts to appreciate Alberta’s misuse of starting points to where jurisprudence in other jurisdictions ought to be more seriously considered in appreciating the anchoring effect from cases like Arcand. How the Alberta defence bar utilizes Parranto in their future sentencing submissions could mark a fundamental shift in how offenders are sentenced in Alberta, despite starting points as a methodology ultimately surviving Supreme Court scrutiny.
