Canadian Criminal Sentencing/Purpose and Principles of Sentencing/Totality Principle

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General Principles[edit | edit source]

Section 718.2, states "c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;"

The principle of totality comes into play where there is a sentence for multiple offences. The principle requires the court to craft a global sentence of all offences that is not excessive. [1] If the total sentence is excessive the court must adjust the sentence so that the "total sentence is proper". [2]

The totality principle was "intended to avoid sentences that cumulatively are out of proportion to the gravity of the offences"[3]

The sentence may violate the totality principle where the global sentence considerably exceeds the "normal" level of the most serious of the individual offences.[4]

The sentence may also violate the principle where the global sentence "exceeds what is appropriate given the offender's overall culpability.[5]

Depending on the jurisdiction, this process can be done either by summing the individual sentences and then adjusting accordingly [6] or by making a global sentence and calculating individual sentences from that number.[7] It is more frequently the former than the latter.[8]

The Newfoundland and Labrador Court of Appeal decision in R v Hutchings sets out "guidelines for the analytical approach to be taken" when considering applying the principle of totality:[9]

1. When sentencing for multiple offences, the sentencing judge should commence by identifying a proper sentence for each offence, applying proper sentencing principles.
2. The judge should then consider whether any of the individual sentences should be made consecutive or concurrent on the ground that they constitute a single criminal adventure, without consideration of the totality principle at this stage.
3. Whenever, following the determinations in steps 1 and 2, the imposition of two or more sentences, to be served consecutively, is indicated, the application of the totality principle is potentially engaged. The sentencing judge must therefore turn his or her mind to its application.
4. The approach is to take one last look at the combined sentence to determine whether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender.
5. In determining whether the combined sentence is unduly long or harsh and not proportionate to the gravity of the offence and the degree of responsibility of the offender, the sentencing court should, to the extent of their relevance in the particular circumstances of the case, take into account, and balance, the following factors:
(a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved;
(b) the number and gravity of the offences involved;
(c) the offender’s criminal record;
(d) the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing;
(e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender’s degree of responsibility.
6. Where the sentencing judge concludes, in light of the application of those factors identified in Step 5 that are deemed to be relevant, that the combined sentence is unduly long or harsh and not proportionate to the gravity of the offences and the offender’s degree of responsibility, the judge should proceed to determine the extent to which the combined sentence should be reduced to achieve a proper totality. If, on the other hand, the judge concludes that the combined sentence is not unduly long or harsh, the sentence must stand.
7. Where the sentencing court determines that it is appropriate to reduce the combined sentence to achieve a proper totality, it should first attempt to adjust one or more of the sentences by making it or them concurrent with other sentences, but if that does not achieve the proper result, the court may in addition, or instead, reduce the length of an individual sentence below what it would otherwise have been.
8. In imposing individual sentences adjusted for totality, the judge should be careful to identify:
(a) the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, without considerations of totality;
(b) the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and
(c) the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are, for this purpose, to be made concurrent or to be otherwise reduced.
9. Finally, the sentencing judge should indicate whether one or more of the resulting sentences should be further reduced to reflect any credit for pre-trial custody and if so, by how much.

It has been suggested that where there are multiple counts from a single transaction, the best practice is to first consider the worst of the offences and then assess what affect the collateral offences have on the overall culpability, thus treating the lesser offences as modifiers of the initial sentence.[10]

Totality can be applied to spree crimes, a string of similar offences over a short period of time. Though they are separate offences, the courts can treat them as a single transaction due to the linkage between them.[11] This form of totality must be considered carefully as it should not give the impression that offences are "cheaper" when done in succession. It has a reduction effect in part due to the frequency that the offender is young and rehabilitation is still a major consideration.

  1. M. (C.A.), [1996] 1 S.C.R. 500, 1996 CanLII 230 at para 42
  2. R. v. Keshane, 2005 SKCA 18
    R. v. Hicks, 2007 NLCA 41
  3. R. v. D.F.P. (2005), 197 C.C.C. 498 (N.L.C.A.); See also Ruby, Sentencing, 4th edition (Toronto: Butterworths, 1994) at __ ( "...The purpose [of the totality principle] 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.” )
  4. R. v. E.T.P., 2001 MBCA 194
  5. R v Wharry, 2008 ABCA 293, 234 CCC 3d 338, 437 AR 148 at para. 35
    R v Abrosimo, 2007 BCCA 406, 225 CCC 3d 253 at paras. 20 to 31
    see also R v Tiegs, 2012 ABCA 116 (CanLII), 2012 ABCA 116, [2012] AJ No. 378
  6. R. v. Newhook 2008 NLCA 28
    R v Lapointe, 2010 NBCA 63 at 32
  7. R. v. Lombardo, 2008 NSCA 97
  8. e.g. R. v. Adams, 2010 NSCA 42 at 23
  9. R. v. Hutchings, 2012 NLCA 2 at para 83
  10. R. v. May, 2012 ABCA 213 at para 8
    see e.g. R v Fait, (1982) 68 CCC 2d 367, 37 AR 273 (CA)
    R v Raber, 1983 ABCA 325 (CanLII), (1983) 57 AR 360
    R v Keough, 2012 ABCA 14 (CanLII), 2012 ABCA 14, 519 AR 236 at para. 17 and paras. 26 to 30, but c.f. paras. 58 to 63 from dissent
  11. R. v. May, 2012 ABCA 213 at para 9
    R v Johnas, (1982) 2 CCC 3d 490, 41 AR 183