Starting Off on the Wrong Point: An Academic Critique of Starting Points in Sentencing - Noah Lesiuk

Setting the Law Straight on Starting Points

Sentencing within the realm of criminal law can be a tricky continuum of complex considerations and difficult balancing. Starting points, which are set guidelines for sentencing relative to a certain offence, are meant to ease the complexity of the judge’s job by reducing idiosyncrasies and providing them with a marker from which to start their sentencing analysis.[1] An illustrative example is the case of R v Sandercock, where the court stated that “the starting point for a major sexual assault is three years.”[2] Recently, in the case of R v Parranto, the Supreme Court of Canada (SCC) confirmed starting points as a legitimate exercise of appellate court guidance.[3] This blog seeks to advance cautious skepticism about this ruling by offering a critique of the starting point framework. To begin, the facts of the Parranto case and its ruling will be outlined. Next, it will be argued that starting points hinder the individualized nature of sentencing and undermine proportionality. Following this, it will be asserted that starting points depart from forward-thinking modern restorative justice initiatives. Lastly, I will conclude by offering my thoughts on what the common law should do moving forward.

Facts

In Parranto, there were two appellants, Mr. Felix and Mr. Parranto, who both pled guilty to various offences including fentanyl trafficking contrary to sections 5(1) and 5(2) of the Controlled Drugs and Substances Act.[4] They were both found to be operational minds in wholesale commercial fentanyl trafficking schemes.[5] At trial, they were tried separately; Parranto received a 9-year sentence while Felix received a 7-year sentence.[6] These sentences were appealed to the Alberta Court of Appeal (ABCA) and were heard jointly. The purpose of this joint hearing was to set a starting point for wholesale fentanyl trafficking, which the ABCA set at 9 years.[7] Following this ruling, both Felix and Parranto were levied increased sentences; Felix now faced 10 years and Parranto 14 years.[8] They both appealed, arguing that the starting point methodology should be abolished and that the ABCA erred in increasing their sentences.[9]

Ruling

In Parranto, the court was quite split. The majority was comprised of Chief Justice Wagner and Justices Brown, Martin, Wagner and Kasirer. Justices Moldaver and Côté concurred, along with Justice Rowe who wrote his own concurrence. Lastly, the dissent was formed by Justices Karkatsanis and Abella. The majority dismissed the appeal, finding the sentences imposed by the ABCA appropriate and confirming the “legitimacy of starting points” as an effective form of appellate court guidance.[10] Justices Moldaver and Côté also dismissed the appeal and upheld the sentences but argued that fentanyl trafficking should lead to more severe terms of imprisonment than those imposed by the ABCA.[11] Regarding starting points, Justices Moldaver and Côté agreed with the reasons of Justice Rowe.[12] Justice Rowe also dismissed the appeal and agreed with the sentences imposed by the ABCA. However, Justice Rowe fiercely opposed starting points, finding them impermissible.[13] Forming the dissent, Justices Karkatsanis and Abella would have allowed the appeal and found the original sentences imposed by the ABCA to be inappropriate.[14] Nevertheless, they agreed with the majority that starting points are a reasonable and legitimate exercise of appellate guidance.[15] Moving forward, this blog seeks to draw upon the essence of Justice Rowe’s judgement to advance a focussed critique of starting points by expanding upon his arguments in an analytical fashion.

Starting Points as Antithetical to Individualized Sentencing

Sentencing is a difficult discretionary task for a judge that is based on a confluence of factors that are to be considered in the analysis. The fundamental principle of sentencing is known as proportionality, and it posits that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”[16] On numerous occasions, the SCC has recognized sentencing as a highly individualized process that must be tailored to the specific circumstances of the offender and the offence.[17] Indeed, in R v M. (C.A.), the court elaborated that “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.”[18] Inherent in this logic is that a sentence is not a precise and rigid scientific quantification, but a discretionary practice of weighing that incorporates the qualitative nature of one’s lived experiences and the context surrounding their offence. As Justice Rowe ardently advances, a proportional and just sentence is elicited via an individualized process and has been recognized by the SCC as such.[19] Starting points present a threat to individualized and proportional sentencing, as their very purpose is, according to the majority, to “reduce idiosyncratic decision-making” and to increase consistency and uniformity in sentences.[20] Elaborating further on purpose, the majority states that starting points are meant to achieve the “objectives and principles of sentencing, primarily proportionality.” [21] However, there is a problematic nature to this assertion which contradicts the reduction of idiosyncrasies as the purported essence of starting points. The reduction of individualized decision-making to increase consistency stands in stark opposition to the SCC’s previous rhetoric of individualized sentencing as a paramount concern to achieve proportionality.[22] Flowing logically from this notion, the objective of starting points—to decrease idiosyncrasies—undermines individualization, confines judicial discretion, and actually hinders the attainment of proportionality. Arguably, this illustrates that the purposes of starting points, as advanced by the majority, are contradictory, as individualization is an imperative feature of just and proportionate sentencing.

The majority attempts to argue that starting points do not hinder individualization, as judges can begin at the starting point and move up or down from it based on individual factors.[23] While this argument is fair, it contains flaws that impede its persuasiveness. Starting points build in the mitigating factors of good character and no criminal record. In effect, this prevents judges from using an individual's good character to justify lowering a sentence from a starting point.[24] As Justice Rowe briefly mentions, this assumes good character “applies in the same way to all offenders.”[25] Expanding upon this premise, I would contend that character is an innately individual characteristic, and the term “good character” should not be used to compartmentalize the variance of differing expressions of moral human behaviour amongst individuals. By grouping all good behaviour into one category, sentencing judges are hindered in their ability to consider an accused’s exemplary or commendable conduct as mitigating; this hinderance clearly frustrates individualized sentencing and, thus, proportionality. Moreover, by effectively removing the ability of the sentencing judge to consider the mitigating factors of absence of a criminal record and good character, it makes it much more difficult for a sentence to be lowered from its starting point. As cogently stated by the court in R v Kain, starting points “establish quasi-minimum sentences which intrude on individualization.”[26] While I do respect the decision in Parranto, it is upon the premises advanced insofar that I disagree with the majority on starting points, as I believe they threaten individualization and its core connection to the fundamental sentencing principle of proportionality.

Moving Backwards: Stepping Away from Restorative Justice

While starting points threaten the individual nature of sentencing, they also disregard restorative approaches to justice. The majority in Parranto confirms this notion, stating that starting points emphasize “deterrence and denunciation” and “should not be viewed as incorporating sentencing principles such as restraint or rehabilitation.”[27] By providing a starting point for incarceration, a carceral sentence is inevitable. The starting point approach chooses to lock individuals up and throw away the key instead of seeking to engage in restorative justice as a mechanism to reintegrate an offender back into society as a prosocial individual. Surely, this archaic retributive focus on incarceration is dated at best and flies in the face of progressive shifts towards diversionary methods and restorative programming. For example, here in Manitoba, the legislature passed The Restorative Justice Act in 2014 with the purpose of “the development and use of restorative justice programs in Manitoba.”[28] Undoubtedly, this conveys the legislature’s intent to increase the use of restorative justice in Manitoba. In juxtaposition, starting points directly oppose this legislative intent by dogmatically focussing on incarceration and retributive principles. While I am not so naïve to believe that restorative justice can be employed in every situation, the starting point methodology is antiquated and runs in conflict with modern shifts towards restorative justice.

Moving Forwards: Do Away with the Starting Point

As society moves forward in a progressive manner, the administrators of justice and the courts are supposed to follow. In agreement with Justice Rowe, I believe that the starting point approach should be discontinued to ensure that individualized sentencing and restorative justice remain primary and pertinent concerns in the administration of justice. Unfortunately, the likelihood of this seems slim at best, as the court was split 6-3 on this matter in Parranto. Additionally, Justice Moldaver, who supported Justice Rowe on abolishing the starting point, will retire in September 2022. Ultimately, I stand with Justice Rowe in opposition to starting points, and I implore the reader to think about which side of the argument they support. Let me know below!

[1] R v Parranto, 2021 SCC 46 at para 34 [Parranto]. [2] R v Sandercock, 1985 ABCA 216 at para 17. [3] Parranto, supra note 1 at para 83. [4] Ibid at para 2. [5] Ibid. [6] Ibid. [7] Ibid. [8] Ibid. [9] Ibid at paras 2, 6. [10] Ibid at para 83. [11] Ibid at para 84. [12] Ibid at para 85. [13] Ibid at paras 102, 106. [14] Ibid at para 206. [15] Ibid at para 205. [16] Criminal Code, RSC 1985, c C-46, s 718. [17] R v Gladue, [1999] 1 SCR 688, 171 DLR (4th) 385 at para 80; R v Proulx, 2000 SCC 5 at para 82 [Proulx]. [18] R v M (CA), 1996 SCC 230 at para 92. [19] Parranto, supra note 1 at para 114; see Proulx, supra note 17 at para 92. [20] Parranto, supra note 1 at para 20; quoting R v Arcand, 2010 ABCA 363 at para 102. [21] Parranto, supra note 1 at para 25. [22] Proulx, supra note 17 at para 92. [23] Parranto, supra note 1 at paras 44-47. [24] Ibid at paras 127, 185. [25] Ibid at para 174. [26] R v Kain, 2004 ABCA 127 at para 32; quoting Allan Manson, The Law of Sentencing (Toronto: Irwin Law, 2001) at 72. [27] Parranto, supra note 1 at para 46. [28] The Restorative Justice Act, SM 2014, c 2, s 3.