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Criminal - Sentencing - Proportionality. Quebec (Attorney General) v. Denis
In Quebec (Attorney General) v. Denis (SCC, 2026) the Supreme Court of Canada allowed an appeal, this brought against a Quebec CA ruling that found a mandatory minimum sentence for conviction under s.286.1(2)(a) ['Obtaining sexual services for consideration from person under 18 years'] was invalid under Charter 12 ['Treatment or punishment' (cruel and unusual)].
Here the court considers basics of criminal sentencing, including 'proportionality' and 'moral blameworthiness':(a) General Principles of Sentencing
[75] The fundamental purpose of sentencing is to protect society and prevent crime in the broad sense by imposing just punishments that, depending on the case, have one or more of the penological objectives set out in the Criminal Code (s. 718 Cr. C.). These objectives are divided into two broad categories: punitive objectives, which include denunciation, deterrence and separation of the offender from society (s. 718(a), (b) and (c) Cr. C.), and restorative objectives, which include rehabilitation (reintegration into society), reparation of harm and promotion of a sense of responsibility (s. 718(d), (e) and (f) Cr. C.; R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 43). Tensions may exist in the pursuit of these objectives, but it is up to the sentencing judge to strike a proper balance between them and to weigh their importance based on the nature of the offence and the characteristics of the offender (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43; R. v. Bissonnette, 2022 SCC 23, [2022] 1 S.C.R. 597, at para. 49; R. v. J.W., 2025 SCC 16, at para. 40).
[76] This broad discretion is constrained by the cardinal principle of proportionality, which seeks the imposition of a sentence that is sufficient to denounce the offence and punish the offender, without exceeding what is necessary (Senneville, at para. 35; J.W., at para. 41; Bissonnette, at para. 50; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 36-37; Nasogaluak, at paras. 40-42; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 111, per Rowe J., concurring). This principle requires the court to consider the gravity of the offence and the degree of moral blameworthiness of the offender, in order to arrive at a sentence that is proportionate to these two factors (s. 718.1 Cr. C.; see also Friesen, at para. 30). To inform this analysis, s. 718.2 Cr. C. sets out a series of secondary principles, “including the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and the instruction to consider ‘all available sanctions other than imprisonment that are reasonable in the circumstances’, with particular attention paid to the circumstances of aboriginal offenders” (Nasogaluak, at para. 40; see also J.W., at para. 46). In short, proportionality “serves to give effect” to the objectives of sentencing and to guide the court’s discretionary balancing of them (J.W., at para. 46; see also para. 57).
(b) Proportionality
(i) Gravity of the Offence
[77] The gravity of the offence has an objective component and a subjective component. We explained at length above that obtaining sexual services from a child is an offence with significant objective gravity, as indicated by the 10-year maximum sentence by which it is punishable. This reflects society’s strong condemnation of this offence and Parliament’s clear intention that it be severely punished.
[78] Subjective gravity is assessed in light of the facts surrounding the commission of the offence in question. In this regard, relevant facts will include the manner in which the offence was committed and its consequences for the victim (Hills, at para. 58).
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(ii) Moral Blameworthiness
[81] Moral blameworthiness is a function of various factors relating to the offender’s mens rea and state of mind before and at the time of committing the offence, as well as aspects of their background and personal circumstances that affect their degree of responsibility for the offence (Hills, at para. 58). The case law also recognizes that certain circumstances subsequent to the commission of the offence may be mitigating. This is true, for example, of the various indicators of the offender’s rehabilitation and the promotion of their sense of responsibility (Bertrand Marchand, at para. 72). While it is open to doubt that they are mitigating factors in the strict sense (Suter, at para. 48; Pham, at para. 11), these indicators nonetheless remain relevant in balancing the applicable penological objectives. At paras 85-94 the court assesses the required sentence in this case, illustrating relevant sentencing principles.
. R. v. Gilmore
In R. v. Gilmore (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal sentence appeal, here which "illustrates the tension between the principle of proportionality and the objective of public protection".
Here the court considers the "Purpose, Objectives and Principles" of criminal sentencing, including proportionality and public protection:(2) The Purpose, Objectives and Principles of Sentencing
[32] Part XXIII – Sentencing of the Criminal Code addresses both substantive and procedural aspects of sentencing. The purpose and objectives of sentencing are set out in s. 718 of the Criminal Code:Purpose
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [Emphasis added.] [33] These objectives are largely utilitarian in nature, and in service of the stated fundamental purpose of sentencing: Julian V. Roberts and Andrew Von Hirsch, “Legislation the Purpose and Principles of Sentencing”, in Julian Roberts and David P. Cole, Making Sense of Sentencing (Toronto: University of Toronto Press, 1999), at pp. 52-53. A number of these objectives were in play in this case, particularly denunciation (s. 718(a)), deterrence (s. 718(b)), separating offenders from society, where necessary (s. 718(c)), and rehabilitation (s. 718(1)(d)).
[34] Parliament has identified the “fundamental principle” of sentencing in s. 718.1: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” The proportionality principle is rooted in retributive or desert-based theories of punishment that define a just sanction as one that is deserved by an offender, based solely on the seriousness of the offence and an offender’s moral blameworthiness: see Benjamin L. Berger, “Proportionality and the Experience of Punishment”, in David Cole & Julian Roberts, eds., Sentencing in Canada: Essays in Law, Policy, and Practice (Toronto: Irwin Law, 2020), at p. 369. In Canada, proportionality operates as a restraint or limitation on punishment: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37.
[35] Proportionality is not a self-applying concept; nor does it operate in a vacuum: Friesen, at paras. 33, 39; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 11; and J.W., at para. 46. Rather, section 718.2 identifies “other sentencing principles” or “secondary principles” (Parranto, at para. 10) that sentencing judges “shall” consider “in giving effect to proportionality”: J.W., at para. 44. The section provides for the principle of individualization, that a sentence “should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.” Moreover, s. 718.2(b) identifies the parity principle, which explains that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”
[36] The fundamental principle of proportionality in s. 718.1, and the secondary principles of sentencing in s. 718.2, operate within the broader framework of sentencing in Part XXIII. In this regard, the Supreme Court of Canada has highlighted the opening words of s. 718: “The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions…” (emphasis added): see, e.g., Friesen, at para. 122; J.W., at paras. 39-40. In R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, Karakatsanis J. wrote, at para. 33: “It is clear from the plain language of s. 718 that public protection is part of the very essence of the purpose and principles governing the sentencing process” (emphasis added). Proportionality acts as a brake to ensure that, in the pursuit of public protection measures, including deterrence and denunciation, sentences are not unduly excessive; but it does not remove public protection from the equation, nor does it nullify the objectives of sentencing in s. 718.
[37] The public protection purpose of sentencing is most clearly evident in Part XXIV – Dangerous and Long-Term Offenders of the Criminal Code: L.M., at para. 42. As LeBel J. explained in Ipeelee, at para. 48:Reading the Criminal Code and the [Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”)] and the applicable jurisprudence together, we can therefore identify two specific objectives of long-term supervision as a form of conditional release: (1) protecting the public from the risk of reoffence, and (2) rehabilitating the offender and reintegrating him or her into the community. The latter objective may properly be described as the ultimate purpose of an LTSO, as indicated by s. 100 of the CCRA, though it is inextricably entwined with the former. . R. v. Habib
In R. v. Habib (Ont CA, 2024) the Ontario Court of Appeal considered the sentencing principle of 'proportionality':[35] These principles also respect Parliament’s direction to impose proportionate sentences. As Hamilton held, at para. 91, proportionality requires courts to consider factors that “decrease the offender’s personal responsibility.” For young adults, immaturity is one such factor. While as adults they are morally responsible for their actions, “[f]ull maturity and all the attributes of adulthood are not magically conferred on young [adults] on their 18th birthdays.” See R. v. Clarke, [2018] EWCA Crim 185, [2018] 1 Cr. App. R. (S.) 52, at para. 5. Instead, young adults are more impulsive, emotionally volatile, and susceptible to negative influences and bad judgment. This can make them less blameworthy than more mature adults. See R. v. Scott, 2015 ABCA 99, 28 Alta. L.R. (6th) 78, at para. 13; Fournier c. R., 2012 QCCA 1330, at paras. 42-45. By accounting for immaturity, courts ensure that turning 18 “does not present a cliff edge for … sentencing.” See Clarke, at para. 5; see also Bertrand Marchand, at para. 132; R. v. Leask (1996), 1996 CanLII 17936 (MB CA), 113 Man. R. (2d) 265 (C.A.), at para. 3.
[36] Proportionality also requires considering the greater impact of incarceration on young adults. See Hills, at para. 135. Incarceration disrupts a transitional stage where they should be “developing … job prospects and relationships that provide the base for a productive life” and learning pro-social skills and values from positive mentors and peers. See R. v. Hutchings, 2012 NLCA 2, 316 Nfld. &. P.E.I.R. 211, at para. 107. Each year is felt more keenly during this critical period of transition. See R. v. Lai, 2006 BCCA 368, 229 B.C.A.C. 236, at para. 104. . R. v. R.S.
In R. v. R.S. (Ont CA, 2023) the Court of Appeal considered 'proportionality' as a sentencing principle:The requirement of proportionality
[26] Proportionality means that a sentence is “proportionate to the gravity of the offence and the degree of responsibility of the offender”: Criminal Code, s. 718.1. As Lacasse instructs, at para. 53, proportionality is determined both on an individual basis – considering the gravity of the offence committed and the degree of responsibility of the particular offender – and having regard to sentences imposed for similar offences committed in similar circumstances. Proportionality demands that individualization and parity be reconciled. . R. v. Simeunovich
In R. v. Simeunovich (Ont CA, 2023) the Court of Appeal considered criminal sentencing 'proportionality':Proportionality and parity
[16] The sentencing judge properly instructed himself that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As the Supreme Court of Canada instructed in R. v. Parranto, 2021 SCC 46, 411 C.C.C. (3d) 1, at para. 10, proportionality is the organizing principle in reaching the goal of a fair, fit, and principled sanction for a specific case; the principles of parity and individualization, while important, are secondary principles.
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