The Struggle Between Individualization and Starting-Point Sentencing - Brittney Macht

Introduction

In Canada, the widespread use and trafficking of drugs, especially fentanyl, poses a national crisis.[1] In 2017 alone, approximately eleven lives were lost each day because of opioid overdoses.[2] However, despite almost 45% of the population agreeing that opioid use does present a crisis in Canada, when it comes to sentencing procedures, there is a tug-o-war occurring.[3] The differing of opinions is prevalent when considering what a proper sentence is for those using and trafficking fentanyl and how an individual’s unique circumstances are to be factored into account in determining an appropriate sentence.[4] Although the seriousness of the opioid crisis in Canada is a significant consideration, this cannot detract from Canada’s concerning over-incarceration rates, nor should it discount the individual characteristics that may be relevant in determining an appropriate sentence.

The following discussion will touch on the case of R v Parranto and the Court’s discussion of starting point sentencing.[5] I will also discuss the opinions of a scholar on this issue and how I believe starting point sentencing tools have problematic implications on sentencing.

R v Parranto

R v Parranto involves two appellants, Patrick Felix (“Felix”) and Cameron Parranto (“Parranto”) who pled guilty to several drug trafficking operations.[6] The Court found that the two men had been leading a sophisticated wholesale commercial drug operation, specifically of fentanyl.[7] Parranto went on to be sentenced for a total of eleven years, and Felix was sentenced to seven.[8] Both Parranto and Felix appealed, and the Court of Appeal agreed to hear the appeals for the purpose of establishing a starting point sentence for wholesale fentanyl trafficking.[9]

Starting point sentences are described by the Court as “…a non-binding tool aimed at achieving a fit and appropriate sentence.”[10] To properly implicate this sentencing tool, it involves three stages; first, it involves the Court defining the category of an offence that the starting point would apply; next, the Court will set the starting point; third, they will look to individualizing the sentence on the current facts.[11]

The Court of Appeal here set a nine-year starting point sentence for wholesale fentanyl trafficking.[12] Based off this new starting point, the Court increased Parranto’s sentence to fourteen years and Felix’s sentence to ten years.[13] The two appellants appealed to the Supreme Court of Canada where the Court considered whether the Court of Appeal correctly increased their sentences.[14]

The majority dismissed the appeals, as they found the higher sentences imposed by the Court of Appeal were justified.[15] The Court went on to affirm the use of starting points as a tool in sentencing, as they noted starting points are helpful as they offer a place for judges to begin their thinking.[16] They also noted that it is important to remember these starting points are guidelines, and should not to be interpreted as binding.[17] The Court emphasized how important it is for sentencing judges to still having the ultimate discretion in sentences, and how they encourage them to take other individualized factors into consideration of their ultimate finding.[18] Lastly, the Court rejected the argument that starting points would relieve judges from conducting an individualized sentencing analysis. The Court concluded that starting points are still compatible with Gladue factors, as sentencing judges can adopt an individualized approach to the unique circumstances of Indigenous offenders.”[19]

The Court decided to reinstate the order of the Court of Appeal and noted that appellate courts should not interfere with the sentencing judges’ decision unless the sentence is demonstrably unfit.[20]

Justice Rowe’s Criticisms of Starting Points

Despite the fact Justice Rowe did agree with the majority on the ultimate sentence imposed, he made an objection to the use of starting points as a sentencing tool.[21] There were a number of flaws Justice Rowe noted in his concurrence as to why starting points should be abolished.[22] Two of these reasons were that starting points had both structural and practical flaws.[23] Justice Rowe noted the fact that the starting point approach was built off of the idea of variability being the problem needing fixing; that this “…means the entire approach is built on a flawed foundation. Individualization is… an imperative, not a problem.”[24] Justice Rowe also made some interesting findings on what he believed would be the impact of this tool on the future; he believed this tool would hinder “…individualized and proportionate sentences…. overemphasize deterrence and denunciation… (and) they are incompatible with Parliament’s direction for sentencing Aboriginal offenders.”[25]

Scholarly Opinion of Starting Points

An article written by Paul Moreau (“Moreau”) titled “In Defence of Starting Point Sentencing” offers his opinion in favour of this sentencing principle.[26] Moreau is of the view that starting points in fact create “…the most articulate, internally consistent, and logically cohesive…” tool.[27] However, Moreau notes that historically, critics have had concerns on the effect of starting points in creating the effect of narrowing the range of resulting sentences to “cluster” at the starting point number, rather than providing a broad range of sentences to reflect individualized characteristics.[28] He notes that these scholars believe the starting point tool would eliminate the mitigating effect of good conduct or a lack of criminal record of an offender. Moreau counters this argument by addressing how scholars are misunderstanding the purpose of these tools, and that one must remember these starting points are simply guiding principles. He notes it is implicit within them that the judge may depart from them to increase or decrease a sentence. However, I would like to note that this does not necessarily mean judges will vary from the guideline set out in precedent, and it is difficult to see how strictly following starting points would not be a likely result of the implementation of this tool.[29]

Additionally, Moreau argues that the starting point approach is “…clearly not appropriate for every kind of offence…”[30] and he goes on to cite how the Alberta Court of Appeal declined to use this approach in dealing with sentencing for manslaughter due to the “…range of fact situations within that offence seemed to be simply too expansive….”[31] This approach leaves me with more questions than answers. It would be difficult to ascertain what offences would be appropriate to implicate starting points, then, and it also brings us back to the criticisms Moreau noted; such as, historically when these mechanisms were implemented, they worked to “cluster” sentences around a starting point number rather than providing a sentence that reflected individualized characteristics.

The Problematic Impact of Starting Points on Sentencing

Reading the decision of Justice Rowe in R v Parranto, I can see the potential impact starting points can have on sentencing and over incarceration of offenders. By providing a comprehensive sentencing tool that creates a fixed rather than variable approach judges can use, I believe this could create an “easy way out” so to speak for judges to take little to no consideration of individualized characteristics and impose a sentence that falls within this range. A further argument that I would like to acknowledge is that if a starting point is in place, it could create even more difficulty for those appealing a sentence to show that a sentencing judge’s verdict was demonstrably unfit. As long as a judge can demonstrate they followed the starting point mechanism, I believe it could be easier for them to justify the sentence provided as they are merely following a guide imposed by the courts. This could lead to a judge to pay more consideration to the starting point mechanism than to the offenders’ circumstances. In my view, this could likely lead to an over incarceration of individuals and less weight being put on individualized characteristics.

Although the majority also noted this tool is not meant to be binding, I view this as extremely problematic because when a higher-level court imposes a sentencing tool that they view to be correct, how could one expect a lower court judge to deviate from this set principle?

Concluding Thoughts

Although starting points may be justified in cases such as wholesale trafficking in fentanyl, given the societal impact of the drug, the potential impact this could have in increasing the incarceration rate in Canada should be noted. Additionally, it is easy to foresee that sentencing judges will be less likely to consider individualized characteristics as they would be unwilling to deviate from this interpretative tool implemented by the courts. It is left to be determined whether a perfect balance can be found between imposing a correct sentence and correctly considering all applicable individualized factors of the offender. From how the law currently stands and the reasons noted above, I believe starting points are problematic. As a result of their widespread use, I anticipate a decrease in the use of individualized characteristics and an increase in incarceration levels, along with the number of appeals alleging judicial error.

[1] Government of Canada, “Canada’s Opioid Crisis” (2018), online (pdf): Government of Canada <www.canada.ca/content/dam/hc-sc/documents/services/publications/healthy-living/canada-opioid-crisis.pdf> [perma.cc/CM7G-ZSJU]. [2] Ibid. [3] John Elflein, “Drug use in Canada – Statistics & Facts” (2022), online: Statista <www.statista.com/topics/4533/drug-use-in-canada/#dossierKeyfigures> [perma.cc/ZGJ8-VHL7]. [4] R v Parranto., 2021 SCC 46. [5] Ibid at para 9. [6]Ibid at para 2. [7] Ibid. [8] Ibid. [9] Ibid. [10] Ibid. [11] Ibid at para 18. [12] Ibid at para 59. [13] Ibid at para 2. [14] Ibid. [15]Ibid at para 106. [16] Ibid at para 235. [17] Ibid at para 26. [18] Ibid at para 9-10. [19] Ibid at para 49. [20] Ibid at para 54. [21] Ibid at para 152. [22] Ibid. [23]Ibid at para 150. [24] Ibid at para 143. [25] Ibid at para 165. [26] Paul Moreau, “In Defence of Starting Point Sentencing” (2016) 63:3 Crim LQ at 345. [27] Ibid. [28] Ibid at 353. [29] Ibid at 356. [30] Ibid. [31] Ibid.