R. v. Parranto, 2021 SCC 46

SUPREME COURT OF CANADA Citation: R. v. Parranto, 2021 SCC 46 Appeals Heard: May 18, 2021 Judgment Rendered: November 12, 2021 Docket: 39227

Between: Cameron O’Lynn Parranto, also known as Cameron O’Lynn Rocky Parranto Appellant and Her Majesty The Queen Respondent And Between: Patrick Douglas Felix Appellant and Her Majesty The Queen Respondent - and - Attorney General of Manitoba, Attorney General of Alberta, Criminal Trial Lawyers’ Association, Canadian Civil Liberties Association, Aboriginal Legal Services, Legal Aid Society of Alberta and Association québécoise des avocats et avocates de la défense Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Joint Reasons for Judgment: (paras. 1 to 83) Brown and Martin JJ. (Wagner C.J. and Kasirer J. concurring) Concurring Reasons: (paras. 84 to 101) Moldaver J. (Côté J. concurring) Concurring Reasons: (paras. 102 to 204) Rowe J. Dissenting Reasons: (paras. 205 to 253) Karakatsanis J. (Abella J. concurring)

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports . Cameron O’Lynn Parranto, also known as Cameron O’Lynn Rocky Parranto Appellant v. Her Majesty The Queen Respondent - and - Patrick Douglas Felix Appellant v. Her Majesty The Queen Respondent and Attorney General of Manitoba, Attorney General of Alberta, Criminal Trial Lawyers’ Association, Canadian Civil Liberties Association, Aboriginal Legal Services, Legal Aid Society of Alberta and Association québécoise des avocats et avocates de la défense Interveners Indexed as: R. v.

Parranto 2021 SCC 46 File No.: 39227. 2021: May 18; 2021: November 12.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. on appeal from the court of appeal of alberta Criminal law — Sentencing — Starting points — Sentencing ranges — Standard of review in sentencing appeals — Accused sentenced for offence of wholesale trafficking in fentanyl — Crown appealing sentences — Court of Appeal setting starting point for sentence for offence and increasing sentences — Role played by starting points and sentencing ranges in appellate review of sentences — Whether accused’s sentences demonstrably unfit .

F and P pleaded guilty to various offences arising out of unrelated drug trafficking operations, including trafficking fentanyl at the wholesale commercial level. F received a global sentence of 7 years and P received a global sentence of 11 years. The Crown appealed the sentences. The Court of Appeal set a starting point sentence of 9 years for wholesale fentanyl trafficking and increased F’s global sentence to 10 years and P’s global sentence to 14 years. Held (Abella and Karakatsanis JJ. dissenting): The appeals should be dismissed.

Per Wagner C.J. and Brown , Martin and Kasirer JJ.: The sentences at trial were demonstrably unfit and the Court of Appeal’s intervention was appropriate. There is no need to disavow the starting-point approach to sentencing. Sentencing ranges and starting points are simply different tools that assist sentencing judges in reaching a proportionate sentence. It is not for the Court to dictate which of these tools can or cannot be used. Provincial appellate courts should be afforded the respect and latitude to provide their

own forms of guidance to sentencing judges, as long as that guidance comports with the principles and objectives of sentencing and with the proper appellate standard of review. However, starting points must be properly treated as non-binding guidance by both sentencing and appellate courts and appellate courts must adhere to the deferential standard of review in sentencing appeals and to the Court’s clear direction on how to account for starting points when reviewing sentences for errors in principle and demonstrable unfitness. Sentencing is one of the most delicate stages of the criminal justice process.

It requires judges to consider and balance a multiplicity of factors and it remains a discretionary exercise. The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal, and parity and individualization are secondary principles. Individualization is central to the proportionality assessment. Each offence is committed in unique circumstances by an offender with a unique profile. The question is always whether the sentence reflects the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of each case.

Sentencing courts are best-positioned to craft a fit sentence for the offenders before them. As for appellate courts, they play two roles: considering the fitness of a sentence appealed against and promoting stability in the development of the law while providing guidance to lower courts to ensure the law is applied consistently. Appellate courts are well-positioned to provide such guidance because of their appreciation of overall sentencing practices, patterns and problems in their jurisdiction.

Appellate guidance may take the form of quantitative tools such as sentencing ranges and starting points, non-quantitative guidance explaining the harms entailed by certain offences, or a mix of both. Quantitative appellate guidance, generally starting points or sentencing ranges, operate to ensure sentences reflect the sentencing principles prescribed in the Criminal Code . Neither relieves the sentencing judge from conducting an individualized analysis. Sentencing ranges generally represent a

summary of the case law that reflects past minimum and maximum sentences imposed by trial judges. Starting points are an alternative to ranges. The starting-point methodology has three stages: defining the category of an offence to which the starting point applies; setting a starting point; and individualization of the sentence by the sentencing court. Both reflect judicial consensus on the gravity of the offence. Irrespective of the preferred sentencing methodology, the purpose of the modality is to assist the sentencing judge in achieving the objectives and principles of sentencing, primarily proportionality.

Ranges and starting points are simply different paths to the same destination: a proportionate sentence. Courts of appeal have discretion to choose which form of guidance they find most useful; however, because starting points are not binding precedents, parties seeking to challenge them need not have resort to a reconsideration application procedure. Sentencing decisions are entitled to a high level of deference on appeal. Deviation from a range or starting point does not in itself justify appellate intervention.

Unless a sentence is demonstrably unfit or the sentencing judge made an error in principle that impacted the sentence, an appellate court must not vary the sentence. Ranges and starting points cannot be binding in theory or practice and appellate courts cannot apply the standard of review to enforce them. Directions in R. v. Arcand , 2010 ABCA 363 , relating to the binding nature of starting points do not reflect the required standard of appellate review.

It is not the role of appellate courts to enforce a uniform approach to sentencing through the application of the standard of review; rather, appellate courts must guard against undue scrutiny of the sentencing judge’s discretionary choice of method. There is no longer space to interpret starting points or ranges as binding in any sense. Departing from a range or starting point is appropriate where required to achieve proportionality and exceptional circumstances are not required when departing from a range or starting point to achieve proportionality.

Starting points do not relieve the sentencing judge from considering all relevant sentencing principles. Sentencing judges have discretion over which objectives to prioritize and may choose to weigh rehabilitation and other objectives more heavily than “built-in” objectives like denunciation and deterrence. Appellate sentencing guidance ought not to purport to pre-weigh or build in any mitigating factors and starting points should not be viewed as incorporating principles such as restraint or rehabilitation.

Sentencing judges are not precluded from considering any factor that is built in to a starting point as mitigating in the individual circumstances and retain the discretion to weigh all relevant factors in their global assessment of a fit sanction. When setting starting points and ranges, inclusion of characteristics of an archetypal offender could impede individualization of sentences. Sentencing ranges and starting points are applicable only inasmuch as they solely speak to the gravity of the offence.

By restricting starting points and ranges to strictly offence-based considerations, they will continue to be useful without fettering discretion or impeding individualization in a way that could produce clustering of sentences. Any risk of clustering is properly addressed by ensuring sentencing judges consider all factors relevant to each individual offender and by clarifying the proper standard of review on appeal. Starting-point methodologies are not mutually incompatible with Gladue principles.

When reviewing sentences imposed on Indigenous offenders, appellate courts must bear in mind that a formalistic approach to parity should not be allowed to undermine the remedial purpose of s. 718.2( e ). They must also factor in the unique circumstances of an Indigenous offender which could reasonably and justifiably impact the sentence. Starting points do not relieve sentencing judges from considering whether different or alternative sanctions may more effectively achieve the objectives of sentencing. Finally, starting-point sentencing is not a quasi-legislative endeavour.

Judicially created categories for sentencing are not unique to starting points. Appellate courts are entitled to conclude that certain forms of conduct are generally more serious and should attract a higher range or starting point. The risk of incursion into the legislative sphere arises only where an appellate court departs from the standard of review by treating a sentencing judge’s selection of a category as an error in principle. The Court of Appeal did not err in setting a starting point for wholesale fentanyl trafficking.

It was not necessary to wait for the development of an historical portrait of past sentences. Appellate courts must sometimes set a new direction that reflects a contemporary understanding of the gravity of the offence. It was open to the Court of Appeal to set out guidance conveying the gravity of wholesale trafficking in fentanyl. A key factor in the categorization of drug offences has always been the nature of the drug and harm-based analyses are not an unfamiliar judicial exercise. Appellate courts may step in to provide guidance to ensure sentences reflect harms, even where the drug is relatively new.

The Court of Appeal was entitled to take the lead and consider the public health crisis in Alberta. F’s seven-year sentence was demonstrably unfit. The sentencing judge misapprehended the gravity of the offence and referred to cases that were significantly factually distinct. A more accurate sentencing range for this offence would be 8 to 15 years. The sentencing judge’s error impacted his assessment of parity. F’s sentence was a substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes.

An assessment of the gravity of the offence may take into account the offender’s willingness to exploit at-risk populations and communities. F was trafficking fentanyl destined for resale in the remote communities in Nunavut. The sentence of 10 years imposed by the Court of Appeal should be upheld.

P’s 11-year global sentence was also demonstrably unfit. There is no reason to disturb the sentence of 14 years imposed by the Court of Appeal. The trial judge erred in his selection of comparator cases and in finding a relevant range of 5 to 7 years’ imprisonment. P was in possession of significant amounts of fentanyl and other drugs, guns and body armour. He had a lengthy criminal record and re-established his presence as a wholesale trafficker following his release.

Based on the gravity of the offence, Gladue factors and P’s aggravating and mitigating circumstances, a global sentence of 14 years is appropriate. Per Moldaver and Côté JJ.: The appeals should be dismissed. The sentences imposed by the sentencing judges in both cases were demonstrably unfit. They fall markedly below the range of sentences warranted in cases involving the directing minds of largescale fentanyl trafficking operations. With respect to the role of starting points in sentencing, there is agreement with Rowe J.

Appellate courts can and should depart from prior sentencing precedents that no longer reflect society’s understanding of the gravity of a particular offence and the blameworthiness of particular offenders. The gravity of largescale trafficking in fentanyl for personal gain requires severe penalties, ranging from mid-level double digit penitentiary terms up to and including life imprisonment. Trafficking in hard drugs leads to addiction, debilitating adverse health effects, death by overdose and an increase in all manner of crime by those seeking to finance their addiction and organized crime syndicates.

Much of this criminal activity is violent. A devastating consequence of the hard drug trade is its impact on families and the intergenerational trauma it causes. It leads to significant costs to society in terms of health care and law enforcement expenses, as well as lost productivity. Fentanyl has altered the landscape of the substance abuse crisis in Canada. It is a highly addictive substance which puts its users at risk of serious harm, far greater than other opioids. Various courts have described fentanyl as a national crisis and the epidemic shows no signs of abating.

The time has come for the perception of the gravity of largescale trafficking in fentanyl to accord with the gravity of the crisis it has caused. Accordingly, heavy penitentiary sentences will be appropriate where offenders have trafficked in large quantities of fentanyl and assumed leadership roles in the trafficking operation. Substantial sentences should be neither unusual nor reserved for exceptional circumstances, and maximum sentences should not be reserved for the abstract case of the worst crime committed in the worst circumstances.

Sentencing judges should feel justified, where circumstances warrant, in applying mid-level double digit sentences and, in particularly aggravating circumstances, potential sentences of life imprisonment. Per Rowe J.: The appeals should be dismissed . There is agreement with Moldaver J. and the additional guidance he provides. Starting points are not a permissible form of appellate guidance. The starting-point approach is, in theory and in practice, contrary to Parliament’s sentencing regime and the Court’s jurisprudence.

It undermines the discretion of sentencing judges and departs from the standard of deference required by appellate courts. As a result, it thwarts the imposition of proportionate and individualized sentences. Despite guidance from the Court on numerous prior occasions, the Court of Appeal’s approach has remained unchanged. There is only one effective response: to say that starting-point methodology can no longer be used. As mandated by s. 718.1 of the Criminal Code , in all cases, s entences must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Secondary principles also guide the sentencing process, in particular parity, which requires that similar offenders who commit similar offences in similar circumstances receive similar sentences. In order to produce proportionate sentences, sentencing must be highly individualized. Sentencing judges must determine which objectives of sentencing merit greater weight and evaluate the importance of mitigating or aggravating factors, to best reflect the circumstances of each case.

An appellate court can only vary a sentence if it is demonstrably unfit or the sentencing judge made an error in principle that had an impact on the sentence. An appellate court cannot intervene simply because it would have weighed relevant factors and objectives differently. Starting points are, by their nature, a prescriptive form of appellate guidance, in that they provide a sequence to follow when determining a fit sentence. Their foundational rationale is the idea that appellate courts are institutionally responsible for creating and enforcing a uniform approach to sentencing.

The starting-point approach seeks to reduce arbitrariness, disparity and idiosyncratic decision-making in order to maintain public confidence in the administration of justice. The flaw in this rationale is apparent. Variability resulting from individualization is an essential feature of just sentencing, not a problem. Giving effect to Parliament’s choice to confer broad discretion on sentencing judges will inevitably produce variation in sentences. Focussing on variability as a problem is inconsistent with the Court’s jurisprudence; it also creates or reinforces problems.

Jail becomes the norm, starting points become hardened into fixed sentences, and factors leading to systemic discrimination are ignored or inadequately dealt with . The starting-point approach is also grounded in an erroneous view of proportionality. P roportionality is not achieved by ranking of offences and categories of offences . I t is achieved through individualized sentencing that takes into account the specific circumstances of both the offender and the offence. The Court of Appeal’s approach is dismissive of the value of precedent in achieving proportionality.

Finally, the starting-point approach is premised on a misconception of the role of appellate courts. It sees individualization as a threat to the rule of law and requires appellate courts to create and enforce a uniform approach to sentencing. It reverses the logic of deference to sentencing judges and frames appellate courts as being primarily institutionally responsible and capable for sentencing. Starting points shift effective decision-making authority from individual sentencing judges and concentrate that authority in the Court of Appeal.

The starting-point approach also produces practical issues at each of its stages. Setting starting points is a policy-intensive process which the legislature or a statutory body is better suited to conduct. Starting points can operate like judicially-created criminal offences but creating new offences is the exclusive preserve of Parliament. Furthermore, starting points raise procedural fairness concerns. The offender may not have the resources to guide the court in setting a starting point and future offenders do not have the opportunity to challenge the evidence relied on to set starting points.

Sentencing requires flexibility to ensure a result that is fit for the offender and for the administration of criminal justice and the starting-point approach does not provide adequate room for such flexibility. The application of starting points by trial judges is another area in which the starting-point approach is inconsistent with the

principles of sentencing. Sentencing judges have less discretion to fully consider all relevant circumstances and are less likely to arrive atindividualized and proportionate sentences. Starting points overemphasize deterrence and denunciation. They are defined solely inrelation to the gravity of the offence. Moral blameworthiness and personal characteristics are secondary considerations. This is amethodological problem because the gravity of the offence and moral blameworthiness must be considered in an integrated manner toachieve proportionate sentences.

Sentencing judges using a presumptive sentence do not follow a truly individualized process. Buildingin some factors to the starting point effectively prescribes the weight to be given to these factors, displacing the sentencing judges’discretion to determine their weight. Under the starting-point approach, categorization is pivotal, and this improperly shifts the mainfocus from whether a sentence is just and appropriate to which judicially-created category applies. The starting-point approach alsobunches sentences around a median. This clustering effect is antithetical to individualization.

Starting points are often established toemphasize deterrence and denunciation and to ensure more retributive punishment. This runs contrary to the objectives of reducingprison as a sanction and expanding use of restorative justice principles. As well, starting points make it more difficult for judges to giveadequate weight to restorative justice principles because they are designed to be easy to move up and hard to move down. They explicitlyor implicitly foreclose reliance on multiple mitigating factors, which risks overlooking lower, appropriate sentences.

In addition, starting points are incompatible with Parliament’s direction for sentencing Aboriginal offenders. Gladue requiressentencing judges to undertake sentencing of Aboriginal offenders individually and differently, taking into account systemic andbackground factors that bear on the culpability of the offender and the types of sanctions which might be appropriate because of theoffender’s Aboriginal heritage or connection.

Methodologically, it would be an error to determine an appropriate sentence for Aboriginaloffenders by reference to a typical non-Aboriginal offender and the starting-point approach is contrary to Parliament’s direction to takeinto account the unique circumstances of Aboriginal offenders. Finally, starting points are aggressively enforced by appellate courts. The Court of Appeal of Alberta continues to rely onstarting points to circumvent the settled standard of appellate sentencing review.

Sentencing judges are not free to ignore starting pointsand failure to place an offence within the correct category is considered reviewable error. The time is past due to deal decisively with themethodological problems inherent in starting points. Those flaws are structural. They cannot be cured by repeating exhortations relatingto the standard of review. The only effective response is to say that the starting-point methodology should no longer be used.

Per Abella and Karakatsanis JJ. (dissenting): There is agreement with Brown and Martin JJ. that starting points are apermissible form of appellate sentencing guidance, provided that they are not used to curtail the highly deferential sentencing standard ofappellate review. However, both appeals should be allowed and the original sentences should be restored. The Court of Appeal did notact with restraint and deference. Neither trial judge made an error in principle nor was either sentence demonstrably unfit.

Both trialjudges appreciated the very grave nature of the offences and reasonably exercised their discretion to place great weight on mitigatingfactors and rehabilitative sentencing principles. It was not open to the Court of Appeal to reweigh those factors or to second-guess thoseprinciples. The principles of appellate sentencing review are well-settled. Appellate courts can only intervene if the trial judge has erredin principle in a way that impacted the sentence or if the sentence was demonstrably unfit.

A trial judge has not erred in principle simplybecause the appeal court would have weighed the relevant sentencing factors differently. A sentencing judge has discretion over whichsentencing objectives to prioritize and which sentencing range is applicable in any given case. An appellate court cannot intervene justbecause it would have used a different range. Even if an error in principle is found, deference must be shown unless the error impactedthe sentence.

In the absence of any errors in principle that impacted the sentence, an appellate court can only intervene if the sentence isdemonstrably unfit, meaning that it constitutes an unreasonable departure from the fundamental principle that a sentence must beproportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence is not demonstrably unfit simplybecause it falls outside of a particular sentencing range or there is significant deviation from a starting point. Whether a sentence isdemonstrably unfit is a qualitative rather than a quantitative assessment.

What matters is whether the trial judge imposed a proportionatesentence by reasonably appreciating the gravity of the offence and the degree of responsibility of the offender in the specificcircumstances of the case. The Court of Appeal was not justified in intervening in either F or P’s case. None of the purported errors in principle areborne out on a fair reading of the trial reasons. It cannot be said that F’s trial judge took such a lenient view of wholesale fentanyltrafficking or minimized F’s culpability to such a degree that the sentence was an unreasonable departure from the proportionalityprinciple.

The trial judge considered placing F within a range of five to nine and a half years but did not do so as this would not giveappropriate weight to mitigating factors. The trial judge found multiple strong mitigating factors, including F’s extremely promisingprospects of rehabilitation. It was not open to the Court of Appeal to reweigh these factors. The trial judge made no errors in principlethat impacted the sentence. In P’s case, the trial judge’s initial notional sentence of 15 years represents an appropriately grave view ofgrave offences.

The Court of Appeal took issue with the trial judge’s use of three mitigating factors: P’s lack of knowledge of the harmsof fentanyl, P’s addiction and P’s Métis heritage. In the absence of palpable and overriding error, the Court of Appeal was not entitled todisagree and all three critiques impermissibly intruded upon the trial judge’s factual findings. The Court of Appeal also took issue withthe trial judge’s totality analysis. However, totality is a sentencing principle. Different judges may have approached totality differentlybut that does not mean the trial judge erred.

The trial judge did not err in principle and P’s sentence was not demonstrably unfit. Cases Cited By Brown and Martin JJ. Disapproved: R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199; referred to: R. v. Lacasse, 2015 SCC 64, [2015] 3S.C.R. 1089; R. v. Friesen, 2020 SCC 9; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500; R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227; R. v. Williams, 2019 BCCA 295; R. v. Sandercock (1985), 1985 ABCA 218 , 40 Alta. L.R. (2d)265; R. v. Smith, 2019 SKCA 100, 382 C.C.C. (3d) 455; R. v. Brennan and Jensen (1975), (NS CA), 11 N.S.R. (2d)84; R. v.

McDonnell, (SCC), [1997] 1 S.C.R. 948; R. v. Stone, (SCC), [1999] 2 S.C.R. 290; R. v.Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Hajar, 2016 ABCA 222, 39 Alta. L.R. (6th) 209; R. v. McCowan, 2010 MBCA 45,251 Man. R. (2d) 295; R. v. Lemaigre, 2018 SKCA 47; R. v. Smith, 2017 BCCA 112; R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330;R. v. H. (C.N.) (2002), (ON CA), 62 O.R. (3d) 564; R. v. Voong, 2015 BCCA 285, 374 B.C.A.C. 166; R. v.

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L.R. (6th) 215; R. v. J.A.S., 2019ABCA 376; R. v. Moriarty, 2016 ABPC 25, 34 Alta. L.R. (6th) 110; R. v. Boriskewich, 2017 ABPC 202, 62 Alta. L.R. (6th) 194; R. v.Wakefield, 2020 ABCA 352; R. v. Roberts, 2020 ABCA 434, 17 Alta. L.R. (7th) 255; R. v. Morton, 2021 ABCA 29; R. v. Tran, 2010ABCA 317, 490 A.R. 229; R. v. G.B., 2013 ABCA 93, 544 A.R. 127; R. v. Brodt, 2016 ABCA 373, 46 Alta. L.R. (6th) 213. By Karakatsanis J. (dissenting) R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Friesen, 2020 SCC 9; R. v. Nasogaluak, 2010 SCC 6, [2010] 1S.C.R. 206; R. v.

McKnight (1999), (ON CA), 135 C.C.C. (3d) 41; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R.v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. M. (C.A.), (SCC),[1996] 1 S.C.R. 500. Statutes and Regulations Cited Alberta Rules of Court, A.R. 124/2010, r. 16.27. Body Armour Control Act, S.A. 2010, c. B-4.8. Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 5(1), (2), (3)(a), 10(1), (2). Criminal Code, R.S.C. 1985, c. C-46, ss. 9(a), 95, 117.01(1), 145(3), 687,

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Bennett, Mark W. “Confronting Cognitive ‘Anchoring Effect’ and ‘Blind Spot’ Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw” (2014), 104 J. Crim. L. & Criminology 489. Bloos, Marvin R., and Michael C. Plaxton. “Starting-Point Sentencing and the Application of Laberge In Unlawful Act Manslaughter Cases” (2003), 6 C.R. (6th) 346 . Bloos, Marvin R., and Wayne N. Renke. “Stopping Starting Points: R. v. McDonnell ” (1997), 35 Alta. L. Rev. 795. Brown, Graeme. Criminal Sentencing as Practical Wisdom . Protland, Or.: Hart, 2017. Canada. Canadian Sentencing Commission.

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Ottawa: Canadian Centre on Substance Use and Addiction, 2020. Crystal, Michael A. “Are the Days of Range Sentencing and Starting Points Numbered? The Cases of R. v. Felix and R. v. Parranto ” (2021), 15 J.P.P.L. 125. Desrosiers, Julie, et Hugues Parent. “Principes”, dans JurisClasseur Québec — Collection droit pénal — Droit pénal général , par Marie- Pierre Robert et Simon Roy, dir. Montréal: LexisNexis, 2013, fascicule 20 (feuilles mobiles mises à jour mars 2021, envoi n o 14) . Doob, Anthony N. “The Unfinished Work of the Canadian Sentencing Commission” (2011), 53 C.J.C.C.J. 279. Government of Canada.

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Hrymak, Haley. “A Bad Deal: British Columbia’s Emphasis on Deterrence and Increasing Prison Sentences for Street-Level Fentanyl Traffickers” (2018), 41 Man. L.J. 149. Isaacs, Daniel M. “Baseline Framing in Sentencing” (2011), 121 Yale L.J. 426. Manson, Allan. “ McDonnell and the Methodology of Sentencing” (1997), 6 C.R. (5th) 277 . Manson, Allan. The Law of Sentencing . Toronto: Irwin Law, 2001. Manson, Allan, et al. Sentencing and Penal Policy in Canada: Cases, Materials, and Commentary , 3rd ed. Toronto: Emond Montgomery, 2016. Marder, Ian D., and Jose Pina-Sánchez. “Nudge the judge?

Theorizing the interaction between heuristics, sentencing guidelines and sentence clustering” (2020), 20 C.C.J. 399. Moreau, Paul. “In Defence of Starting Point Sentencing” (2016), 63 Crim. L.Q. 345. Moreau, Paul L. “Trouble for Starting Points?” (2021), 68 C.R. (7th) 129 . Parent, Hugues, et Julie Desrosiers. Traité de droit criminel , t. III, La peine , 3 e éd. Montréal: Thémis, 2020. Québec. Groupe de travail sur la lutte contre la drogue. Rapport du groupe de travail sur la lutte contre la drogue . Québec, 1990.

Quigley, Tim. “Are We Doing Anything about the Disproportionate Jailing of Aboriginal People?” (1999), 42 Crim. L.Q. 129. Quigley, Tim. “Has the Role of Judges in Sentencing Changed . . . or Should it?” (2000), 5 Can. Crim. L.R. 317. Roberts, Julian V. “Structuring Sentencing in Canada, England and Wales: A Tale of Two Jurisdictions” (2012), 23 Crim. L.F. 319.

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Montréal: Yvon Blais, 2021. APPEAL from a judgment of the Alberta Court of Appeal (Paperny, Watson, Slatter, Crighton and Antonio JJ.A.), 2019 ABCA 457 , 98 Alta. L.R. (6th) 114, [2020] 5 W.W.R. 1, [2019] A.J. No. 1587 (QL), 2019 CarswellAlta 2519 (WL Can.), varying a sentence entered by Ouellette J., 2018 ABQB 863 , [2018] A.J. No. 1225 (QL), 2018 CarswellAlta 2338 (WL Can.). Appeal dismissed, Abella and Karakatsanis JJ. dissenting. APPEAL from a judgment of the Alberta Court of Appeal (Paperny, Watson, Slatter, Crighton and Antonio JJ.A.), 2019 ABCA 458 , 98 Alta.

L.R. (6th) 136, [2020] 5 W.W.R. 420, [2019] A.J. No. 1588 (QL), 2019 CarswellAlta 2520 (WL Can.), varying a sentence entered by Burrows J., 2019 ABQB 183 , [2019] A.J. No. 303 (QL), 2019 CarswellAlta 454 (WL Can.). Appeal dismissed, Abella and Karakatsanis JJ. dissenting. Paul Moreau , for the appellant Cameron O’Lynn Parranto. Andrew Phypers and Jared Craig , for the appellant Patrick Douglas Felix. David W. Schermbrucker and Monique Dion , for the respondent. Renée Lagimodière , for the intervener the Attorney General of Manitoba. Joanne B. Dartana , for the intervener the Attorney General of Alberta. Daniel J.

Song , for the intervener the Criminal Trial Lawyers’ Association. Sarah Rankin , for the intervener the Canadian Civil Liberties Association. Jonathan Rudin , for the intervener the Aboriginal Legal Services. Dane F. Bullerwell , for the intervener the Legal Aid Society of Alberta. Hugo Caissy , for the intervener Association québécoise des avocats et avocates de la défense. The judgment of Wagner C.J. and Brown, Martin and Kasirer JJ. was delivered by Brown and Martin JJ. — I. Overview [ 1 ] In these appeals, the appellants ask this Court to abolish the starting-point method of sentencing.

Like sentencing ranges, starting points are a form of appellate guidance that provide a place to begin the exercise of reaching a fit and proportionate sentence. [ 2 ] The appellants, Patrick Douglas Felix and Cameron O’Lynn Parranto, pleaded guilty to various offences arising out of unrelated drug trafficking operations, including fentanyl trafficking contrary to s. 5(1) and s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (“ CDSA ”). Both appellants were found to be operating at the “wholesale” commercial level. At sentencing, Mr.

Felix received a global 7-year sentence ( 2019 ABQB 183 ), and Mr. Parranto received a global sentence of 11 years ( 2018 ABQB 863 ). The Crown appealed the sentences to the Court of Appeal of Alberta, where a five-member panel heard the appeals jointly for the express purpose of setting a “starting point” for wholesale fentanyl trafficking. In separate decisions released concurrently, the Court of Appeal set a 9-year starting point for wholesale fentanyl trafficking and increased Mr. Felix’s sentence to 10 years ( 2019 ABCA 458 , 98 Alta. L.R. (6th) 136), and Mr. Parranto’s to 14 years ( 2019 ABCA 457 , 98 Alta.

L.R. (6th) 114).

[ 3 ] The appellants and several interveners sought to discredit the starting-point approach by arguing that it has undesirable results, including higher rates of incarceration for Indigenous and other offenders. These criticisms lose their force, however, if starting points are properly treated as non-binding guidance by both sentencing and appellate courts. Further, such criticisms speak to the risks inherent in using any form of quantitative sentencing guidance, including sentencing ranges.

But these risks can be avoided if appellate courts adhere to the deferential standard of review in sentencing appeals, and if this Court provides clear direction on how appellate courts should account for starting points when reviewing sentences for errors in principle and demonstrable unfitness.

What follows, therefore, is not an endorsement of starting points as they have sometimes been enforced at the Court of Appeal of Alberta, but rather a revised understanding, bringing them into conformance with the standard of appellate review and principles and objectives of sentencing. [ 4 ] Accordingly, there is no need to disavow the starting-point approach to sentencing. Sentencing ranges and starting points are simply different tools that assist sentencing judges in reaching a proportionate sentence.

It is not for this Court to dictate which of these tools can or cannot be used by appellate courts across the country. Provincial appellate courts should be afforded the respect and latitude to provide their own forms of guidance to sentencing judges, as long as that guidance comports with the principles and objectives of sentencing under the Criminal Code , R.S.C. 1985, c. C-46 , and with the proper appellate standard of review. [ 5 ] Nor would we interfere with the sentences imposed upon Mr. Felix and Mr. Parranto at the Court of Appeal.

In our respectful view, the sentences imposed on these offenders by the respective sentencing judges were demonstrably unfit. The Court of Appeal’s intervention was therefore appropriate. [ 6 ] Therefore, and for the reasons that follow, we would dismiss the appeals, affirm the orders of the Court of Appeal, and confirm that starting points, when properly understood and applied, represent a valid form of sentencing guidance. II. Parties’ Submissions [ 7 ] The appellants submit that the Court of Appeal erred in intervening to impose its own views over those of the sentencing judge in each case.

The foundation of this error, they say, is the starting-point approach to sentencing. The appellants raise several criticisms of the starting-point approach and argue that sentencing ranges are a preferable means of providing quantitative guidance to sentencing judges. They submit that, in light of these concerns, this Court must abolish starting-point sentences. [ 8 ] The Crown, on the other hand, submits that there is no reason to abolish starting-point sentences. Starting points are merely guidelines and functionally no different from sentencing ranges.

The Crown argues that the Court of Appeal correctly intervened as the sentences imposed at first instance were demonstrably unfit and, in the case of Mr. Parranto, the trial judge’s sentencing decision contained errors in principle that affected the sentence. III. Analysis A. Standard of Review

(1) Basic Sentencing Principles [ 9 ] This Court has repeatedly expressed that sentencing is “one of the most delicate stages of the criminal justice process in Canada” ( R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089, at para. 1 ). More of an art than a science, sentencing requires judges to consider and balance a multiplicity of factors. While the sentencing process is governed by the clearly defined objectives and principles in

Part XXIII of the Criminal Code , it remains a discretionary exercise for sentencing courts in balancing all relevant factors to meet the basic objectives of sentencing ( Lacasse , at para. 1 ). [ 10 ] The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal. Unlike other principles of sentencing set out in the Criminal Code , proportionality stands alone following the heading “Fundamental principle” ( s. 718.1 ).

Accordingly, “[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender” ( R. v. Friesen , 2020 SCC 9 , at para. 30 ). The principles of parity and individualization, while important, are secondary principles. [ 11 ] Despite what would appear to be an inherent tension among these sentencing principles, this Court explained in Friesen that parity and proportionality are not at odds with each other.

To impose the same sentence on unlike cases furthers neither principle, while consistent application of proportionality will result in parity (para. 32). This is because parity, as an expression of proportionality, will assist courts in fixing on a proportionate sentence (para. 32).

Courts cannot arrive at a proportionate sentence based solely on first principles, but rather must “calibrate the demands of proportionality by reference to the sentences imposed in other cases” (para. 33). [ 12 ] As to the relationship of individualization to proportionality and parity, this Court in Lacasse aptly observed: Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. [para. 53] Individualization is central to the proportionality assessment.

Whereas the gravity of a particular offence may be relatively constant, each offence is “committed in unique circumstances by an offender with a unique profile” (para. 58). This is why proportionality sometimes demands a sentence that has never been imposed in the past for a similar offence. The question is always whether the sentence reflects the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of each case (para. 58).

(2) Role of Sentencing Courts and Appellate Courts [ 13 ] Appellate and sentencing courts each have distinct roles in sentencing, based on the Code and their respective institutional capacities. In s. 718.3(1), Parliament has “explicitly vested sentencing judges with a discretion to determine the appropriate

degree and kind of punishment under the Criminal Code” (R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 90(emphasis deleted)). Sentencing courts are best-positioned to craft a fit sentence for the offenders before them. Sentencing is a“profoundly subjective process”, and the sentencing judge “has the advantage of having seen and heard all of the witnesses whereas theappellate court can only base itself upon a written record” (R. v.

Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46).The sentencing judge also has “unique qualifications of experience and judgment from having served on the front lines” and “willnormally preside near or within the community which has suffered the consequences of the offender’s crime” (M. (C.A.), at para. 91). [14] In sentencing appeals, provincial appellate courts play two roles “in ensuring the consistency, stability andpermanence of the case law” (Lacasse, at para. 36). First, the court of appeal must “consider the fitness of the sentence appealed against”and is empowered to vary the sentence (Code, s. 687).

In fulfilling this role, appellate courts safeguard against errors of law made bysentencing courts while reviewing the reasonableness of the judge’s exercise of discretion. They also ensure that sentencing courts statethe law correctly and apply it consistently (Lacasse, at para. 36). [15] Secondly, provincial appellate courts must promote stability in the development of the law while providing guidanceto lower courts to ensure the law is applied consistently in a particular jurisdiction (Lacasse, at para. 37).

In carrying out this role,appellate courts may provide guidance to assist sentencing judges in reaching a proportionate sentence that properly balances parity andindividualization (para. 2). Appellate courts are well-positioned to provide such guidance because of their appreciation of “overallsentencing practices, patterns and problems” in their jurisdiction (R. v. Arcand, 2010 ABCA 363, 40 Alta.

L.R. (5th) 199, at para. 153).Appellate guidance may take the form of quantitative tools (such as sentencing ranges and starting points), non-quantitative guidanceexplaining the harms entailed by certain offences, or a mix of both (see, e.g., Friesen, at paras. 42-105 and 114-16; R. v. Williams, 2019BCCA 295, at paras. 64-66 and 71 ; R. v. Sandercock (1985), 1985 ABCA 218 , 40 Alta. L.R. (2d) 265 (C.A.), atpp. 270-71).

(3) Forms of Quantitative Appellate Guidance [16] Quantitative appellate guidance generally takes one of two forms: starting points, or sentencing ranges. These toolsare best understood as “navigational buoys” that operate to ensure sentences reflect the sentencing principles prescribed in the CriminalCode. Busy sentencing judges face a challenging task; the Code often provides for a wide range of possible sentences and the factualcircumstances of each case vary infinitely.

Sentencing must begin somewhere, and both starting-point and range methodologies assistsentencing judges by providing a place to start in the form of either a single number or a range. As this Court has recognized, however,“there is no such thing as a uniform sentence for a particular crime” (M. (C.A.), at para. 92). Neither tool relieves the sentencing judgefrom conducting an individualized analysis taking into account all relevant factors and sentencing principles. [17] Sentencing ranges generally represent a

summary of the case law that reflects the minimum and maximum sentencesimposed by trial judges in the past (Lacasse, at para. 57; Friesen, at para. 36). They “provide structure and guidance and can preventdisparity”, while leaving judges space to “weigh mitigating and aggravating factors and arrive at proportional sentences” (R. v. Smith,2019 SKCA 100, 382 C.C.C. (3d) 455, at para. 126). The range, therefore, “reflects individual cases, but does not govern them” (C. C.Ruby, Sentencing (10th ed. 2020), at § 23.7, citing R. v.

Brennan and Jensen (1975), (NS CA), 11 N.S.R. (2d) 84(C.A.)). [18] Contrary to the comments of the Court of Appeal in Arcand, at para. 148, this Court has subsequently and expresslyheld that starting points are an “alternative” to ranges, with “[s]imilar principles” applying to both (Friesen, at para. 36). Thestarting-point methodology has three stages: (1) defining the category of an offence to which the starting point applies; (2) setting astarting point; and (3) individualization of the sentence by the sentencing court (Sandercock, at p. 269).

Both ranges and starting pointsare attached to “a category of offences that share enough common features that it is useful to judge them by the same rubric” (Friesen, atpara. 39). At the second stage, the court of appeal must choose a “reasonable” number which “may be viewed as the mid-point in thetraditional range of sentences for a particular sort of crime” (R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, at para. 60,per McLachlin J.; contra, Arcand, at paras. 150-56).

At the final stage, the sentencing judge considers whether aggravating or mitigatingfactors justify moving the sentence up or down from the starting point (McDonnell, at paras. 79-80). [19] The quantitative guidance set by appellate courts can be distinguished from informal or “discerned” ranges relied onby sentencing courts. Since starting points and appellate sentencing ranges — which may be described as “formal” or “established”ranges — do not exist for every offence, sentencing judges must often attempt to discern the appropriate range from the case law withthe assistance of counsel.

As with appellate guidance, discerned ranges are a tool for reaching a fit and proportionate sentence.

Afterhearing the parties’ submissions on analogous case law and on the appropriate disposition in the circumstances, the exercise ofdiscerning a range requires the sentencing judge to consider comparator cases that best represent the gravity of the offence and thecircumstances of the offender. [20] Starting points and sentencing ranges set by appellate courts, on the other hand, often reflect judicial consensus onthe gravity of the offence, helping to advance parity and “prevent any substantial and marked disparities” in sentencing (Lacasse, atpara. 2; see also R. v.

Stone, (SCC), [1999] 2 S.C.R. 290, at para. 244; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R.206, at para. 44; Smith (2019), at para. 126). The primary rationale for the use of starting points is to “reduce idiosyncraticdecision-making” (Arcand, at para. 102; R. v. Hajar, 2016 ABCA 222, 39 Alta. L.R. (6th) 209, at para. 72; R. v. McCowan, 2010 MBCA45, 251 Man. R. (2d) 295, at para. 11; R. v. Lemaigre, 2018 SKCA 47, at para. 20 ).

In Sandercock, for instance, a three-yearstarting point was established to address the “wide, and unjustified, divergence amongst judges about appropriate sentences for rape andequally serious forms of sexual assault” (Arcand, at para. 102).

The starting point stated in Sandercock was intended to ensure that theharms caused by a particular category of offence — “major sexual assaults” — are consistently accounted for in sentencing. [21] Quantitative appellate guidance — whether in the form of a range or a starting point — may draw on sentencesimposed in past cases, or it may be intended to change the existing approach to sentencing for a particular offence. As we haveexplained, sentencing ranges generally represent a “historical portrait” of past decisions.

This portrait reflects “all the principles andobjective of sentencing” (Lacasse, at para. 57) as well as the “collective wisdom of the appellate courts” (M. A. Crystal, “Are the Daysof Range Sentencing and Starting Points Numbered? The Cases of R. v. Felix and R. v. Parranto” (2021), 15 J.P.P.L. 125, at p. 139).

[22] In some cases, however, an appellate court must also set a new direction, bringing the law into harmony with a new societal understanding of the gravity ofcertain offences or the degree of responsibility of certain offenders (R. v.

Stone, (SCC), [1999] 2 S.C.R. 290, atpara. 239). . . . as a general rule, appellate courts should take the lead in such circumstances and give sentencing judges the tools todepart from past precedents and craft fit sentences. [Emphasis added.] (Friesen, at para. 35) This reflects the reality that “[i]t is a common phenomenon . . . for sentences to increase and decrease as societal and judicial knowledgeand attitudes about certain offences change” (R. v. Smith, 2017 BCCA 112, at para. 36 (emphasis deleted), citing R. v.

Nur,2011 ONSC 4874, 275 C.C.C. (3d) 330, at para. 49). [23] The same applies to starting points. While some jurisprudence from the Court of Appeal of Alberta suggests thatstarting points are established through an independent policy-laden inquiry rather than by looking to precedent (e.g., Arcand, atpara. 104), an appellate court may derive a starting point in whole or in part from past sentencing decisions. It may also choose to departfrom past trends to recalibrate how the gravity of the offence is weighed in the proportionality analysis.

Like established ranges, then,starting points may reflect “collective court experience” by drawing on an overview of the case law for a range of sentences imposed, butthey may also represent a departure based on a “consensus view of [all] the social values and policy considerations relating to thecategory of crime in question” (Arcand, at para. 104). [24] While each jurisdiction tends to prefer one of these two methodologies, describing a jurisdiction as either a “rangejurisdiction” or “starting-point jurisdiction” represents an incomplete view of appellate guidance.

Contrary to the references contained insubmissions from many parties on these appeals, the division between “range jurisdictions” and “starting-point jurisdictions” cannot bedescribed in absolute or dichotomous terms. Even in so-called “starting-point jurisdictions”, appellate courts have established startingpoints only for a limited number of offences, with other forms of guidance — including established and discerned sentencing ranges —used to reach a proportionate sentence for other offences. This flexibility in sentencing modalities also applies in “range jurisdictions”.

Inpractice, courts that have either rejected or failed “to fully endorse the starting point” approach have, in effect, adopted something similarto the starting-point methodology by either setting sentencing ranges without a top end (Smith (2017)), or by incorporating mitigatingfactors such as prior good character into the sentencing range, an approach usually associated with starting points (R. v. H. (C.N.) (2002), (ON CA), 62 O.R. (3d) 564 (C.A.), at para. 52; R. v. Voong, 2015 BCCA 285, 374 B.C.A.C. 166; R. v. Cunningham(1996), (ON CA), 27 O.R. (3d) 786 (C.A.), at p. 790; see also P.

Moreau, “In Defence of Starting Point Sentencing”(2016), 63 Crim. L.Q. 345, at pp. 356 and 365-66). [25] This flexibility in sentencing modalities is reflective of the primary goal of sentencing: to impose a fit sentence. Inour view, irrespective of the preferred sentencing methodology, the purpose of the modality is to assist the sentencing judge in achievingthe objectives and principles of sentencing, primarily proportionality. Ranges and starting points are simply different paths to the samedestination: a proportionate sentence.

Courts of appeal have discretion to choose which form of guidance they find most useful andresponsive to the perceived needs of their jurisdiction, which may vary across the country. As long as that guidance conforms to theprinciples and objectives of sentencing in the Code, this Court should respect the choices made by appellate courts.

Both sentencingranges and starting points, where properly applied and subject to the correct standard of review on appeal, are consistent with the Code.It is not this Court’s role to decide which form of guidance is superior, nor would it be desirable to confine appellate courts to giving oneor another form of quantitative guidance. [26] A final point that merits discussion is how a range or starting point is modified once it has been established. TheCourt of Appeal for Ontario has described how ranges vary: “Ranges” are not embedded in stone.

Given their nature as guidelines only, I do not view them as being fixed in law, as is the casewith binding legal principles. They may be altered deliberately, after careful consideration, by the courts. Or, they may be alteredpractically, as a consequence of a series of decisions made by the courts which have that effect. If a range moves by virtue of theapplication of individual cases over time, it is not necessary to overrule an earlier range that may once have been in vogue; it is onlynecessary to recognize that the courts have adapted and the guidelines have changed. (R. v.

Wright (2006), (ON CA), 83 O.R. (3d) 427 (C.A.), at para. 22) [27] In contrast, in Alberta, the Court of Appeal has required parties to formally apply for reconsideration of a startingpoint under r. 16.27 of the Alberta Rules of Court, A.R. 124/2010. Our colleague Rowe J. views this procedure as a judicial mandate andan expression of the Court of Appeal’s “aggressive enforcement” of starting points (para. 164). The reconsideration procedure, however,is a legislative requirement of general application (Alberta Rules of Court, r. 16.27).

The process is a judicial one whereby the Court ofAppeal weighs several criteria in deciding whether to “reconsider” the starting point, such as whether the starting point is new or old, hasbeen disapproved of or is contrary to decisions of other courts of appeal, was created by overlooking binding statute or authority,contains some “simple, obvious, demonstrable flaw”, or was established in Reasons for Judgment Reserved or a Memorandum ofJudgment (Arcand, at para. 199).

With the exception of the final criterion, all of these considerations are relevant in determining whetherthe starting point for a particular offence should be recalibrated. [28] While our colleague finds it difficult to reconcile the reconsideration procedure with the standard of review, theanswer, in light of this Court’s direction on the standard of review and the non-binding nature of starting points, is clear. Parties seekingto challenge a starting point need not have resort to the procedure, because starting points are not binding precedents.

If the procedure isused, the effect of a successful reconsideration application is merely to re-establish the point from which trial judges begin their thinking.Such applications provide the Court of Appeal with the opportunity to consider the sentencing landscape to determine if the starting point

still provides relevant appellate guidance and accurately reflects the gravity of the offence. To the extent the reconsideration procedure isperceived to be necessary to change starting points because they are binding precedents (Arcand, at para. 199; R. v. Melnyk, 2014 ABCA313, 580 A.R. 389, at para. 2), this perception cannot survive Lacasse and Friesen, as it is mistaken in law.

(4) Basis for Appellate Intervention [29] It is trite law that appellate courts cannot interfere with sentencing decisions lightly (see R. v. Suter, 2018 SCC 34,[2018] 2 S.C.R. 496, at para. 23, citing Shropshire, at para. 48; R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, at para. 25; R. v.L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14; Nasogaluak, at para. 46; Lacasse, at para. 39; and Friesen, at para. 25). Sentencingjudges are to be afforded wide latitude, and their decisions are entitled to a high level of deference on appeal (Lacasse, at para. 11).

Itremains the case that, where a judge deviates from a sentencing range or starting point, no matter the degree of deviation, this does not initself justify appellate intervention. [30] It bears emphasizing that the sentencing judge’s discretion includes the choice of a sentencing range or of a categorywithin a range, and that this exercise of discretion cannot in itself constitute a reviewable error (Lacasse, at para. 51). It is an error of lawfor an appellate court to intervene merely on the ground that it would have placed the offence in a different range or category.

Unless asentence is demonstrably unfit or the sentencing judge made an error in principle that impacts the sentence, an appellate court must notvary the sentence on appeal (paras. 11 and 67).

The focus of the demonstrable unfitness inquiry is on whether the sentence isproportionate, not whether the sentencing judge applied the correct starting point, sentencing range or category within a range (Lacasse,at paras. 51 and 53; Friesen, at para. 162). [31] Following the recent judgments of this Court in Lacasse and Friesen, we are of the view that these appeals do notrequire the Court to chart a new path, but rather requires us to reiterate and reinforce the standard for appellate intervention.

In particular,the Court must clarify the role that sentencing ranges or starting points play in appellate review of sentences. [32] The relationship between quantitative appellate guidance and the standard of review on appeal had led to exchangesbetween the various levels of court. But Lacasse and Friesen have brought finality to the matter, and they leave no room for doubt,interpretation or equivocation.

In Friesen, this Court made it clear that “[r]anges of sentence and starting points cannot be binding ineither theory or practice, and appellate courts cannot interpret or apply the standard of review to enforce them, contrary to [Arcand], atparas. 116-18 and 273” (para. 37 (emphasis added)). The Attorney General of Alberta intervened on these appeals and argued that thispassage is open to

interpretation, as the paragraphs it cites from Arcand closely mirror this Court’s guidance in Lacasse.

In Lacasse, atpara. 67, this Court stated that “a deviation from such a range or category is not an error in principle and cannot in itself automaticallyjustify appellate intervention unless the sentence that is imposed departs significantly and for no reason from the contemplatedsentences” (emphasis added). [33] While we agree that the Court of Appeal’s comments in Arcand do closely mirror this Court’s direction in Lacasse,there is an important distinction between Arcand and this Court’s sentencing jurisprudence.

The clear direction from this Court is that“[a]ppellate courts cannot treat the departure from or the failure to refer to a range of sentence . . . as an error in principle” (Friesen, atpara. 37 (emphasis added)). The Court of Appeal in Arcand, however, suggested the contrary, stating “that sentencing judges will givedue consideration to those starting points and the process that starting point sentencing entails” (at para. 273 (emphasis added)).

Toresolve any possible ambiguity that could have survived Friesen, we say this: the directions relating to the binding nature of startingpoints or the starting-point approach as set out in Arcand have been overtaken by Lacasse and Friesen and no longer reflect the requiredstandard of appellate review. [34] While the goal of the starting-point methodology has been framed as “uniformity of approach” (Arcand, at para. 92;R. v.

Johnas (1982), 1982 ABCA 331 , 41 A.R. 183 (C.A.), para. 31), the standard of review limits its function in this regard.Certainly, it is open to appellate courts to provide guidance to assist sentencing judges in minimizing idiosyncrasies and to promoteconsistency in approaches to sentencing. As R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, and Friesen make clear, however, there isno one uniform approach to sentencing in Canada. Attempts to create a single uniform approach are therefore misguided.

Different casesmay require different methods, and selecting the method of sentencing is within the discretion of the sentencing judge. [35] Moreover, it is not the role of appellate courts to enforce a uniform approach to sentencing through the application ofthe standard of review. Rather, the proper focus of appellate review is whether the sentence was fit and whether the judge properlyapplied the principles of sentencing. To be clear, those principles do not include an obligation to follow a particular uniform approach tosentencing.

While promoting consistency in method of sentencing may have a role to play in setting appellate guidance, at the stage ofappellate review, focusing on uniformity of approach is apt to mislead the reviewing court. Appellate courts must guard against unduescrutiny of the sentencing judge’s discretionary choice of method, as this may stray from the standard of review. [36] The key principles are as follows: 1. Starting points and ranges are not and cannot be binding in theory or in practice (Friesen, at para. 36); 2.

Ranges and starting points are “guidelines, not hard and fast rules”, and a “departure from or failure to refer to a range of sentenceor starting point” cannot be treated as an error in principle (Friesen, at para. 37); 3. Sentencing judges have discretion to “individualize sentencing both in method and outcome”, and “[d]ifferent methods may evenbe required to account properly for relevant systemic and background factors” (Friesen, at para. 38, citing Ipeelee, at para. 59); and, 4.

Appellate courts cannot “intervene simply because the sentence is different from the sentence that would have been reached hadthe range of sentence or starting point been applied” (Friesen, at para. 37). The focus should be on whether the sentence was fit andwhether the judge properly applied the principles of sentencing, not whether the judge chose the right starting point or category (Friesen,at para. 162). These principles settle the matter. Contrary to the Crown’s submission, it is not an open question whether sentencing judges are free to

reject the starting-point approach. Sentencing judges retain discretion to individualize their approach to sentencing “[f]or this offence,committed by this offender, harming this victim, in this community” (R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, atpara. 80 (emphasis in original)).

There is no longer space to interpret starting points (or ranges) as binding in any sense. [37] Having made clear that starting points and ranges are tools and not straitjackets, we turn to the role that a sentencingrange or starting point plays in appellate sentence review. [38] As we have already stated, sentencing is an individualized process, and parity is secondary to proportionality.Therefore, departures from the starting point or sentences above or below the range are to be expected. Even significant departures arenot to be treated as a prima facie indication of an error or demonstrable unfitness.

Fitness is assessed with reference to the principles andobjectives of sentencing in the Code, not with reference to how far the sentence departs from quantitative appellate guidance. [39] Ultimately, the sentencing judge’s reasons and the record must allow the appellate court to discern whether thesentence is fit in light of the principles and objectives in the Code.

Section 726.2 requires the sentencing court to provide reasons for thesentence imposed. This is not a new standard in criminal law. In sentencing, as with any decision, the reasons must, when read inconjunction with the record, show why the judge reached a particular result. [40] Most particularly, and irrespective of the modality used, the trial judge’s reasons and the record must demonstratewhy the sentence is proportionate to the moral blameworthiness of the offender and the gravity of the offence. This may involveadopting appellate guidance such as this Court’s comments in Friesen on the harms of the offence.

Quantitative appellate guidance mayalso be part of the jurisprudential background informing the gravity of the offence. As noted, it is not an error in principle for thesentencing judge to fail to refer to a starting point. Since starting points and ranges reflect the gravity of the offence, however, thesentencing judge’s reasons and the record must allow the reviewing court to understand why the sentence is proportionate despite asignificant departure from the range or starting point. This applies regardless of whether the reasons refer to the starting point or not.

Atthe very least, the appellate court must be able to discern from the reasons and the record why the sentence is fit in the circumstances ofthe offence and the offender. We emphasize, however, that it is inappropriate for appellate courts to “artificially constrain sentencingjudges’ ability to impose a proportionate sentence” by requiring “exceptional circumstances” when departing from a range (Friesen, atparas. 111-12; R. v. Burnett, 2017 MBCA 122, 358 C.C.C. (3d) 123, at para. 26).

Departing from a range or starting point is appropriatewhere required to achieve proportionality. [41] In Arcand, the Court of Appeal asked whether “starting point sentencing has a meaningful function in Canada”(para. 116). The answer is that it does, but that function is not to bind trial judges or to licence boundless appellate intervention.Quantitative sentencing tools need not be binding to provide useful guidance to busy sentencing courts.

Starting-point sentences, likeranges, assist sentencing judges in their day-to-day work by providing a frame of reference and a shorthand for judicial views on thegravity of the offence. This guidance is especially important where Parliament has left open the possibility of a wide range of sentences(R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 86). B. Starting Points [42] The Court heard many criticisms of the starting-point approach to sentencing in the course of these appeals.

So long,however, as appellate courts apply the appropriate standard of review to sentencing decisions, many of these criticisms fall away.Further, any risks associated with starting-point sentencing are inherent in other forms of quantitative appellate guidance, includingsentencing ranges.

Such risks therefore do not serve to compel the abolition of starting-point sentencing; they do, however, demonstratethe importance of individualizing sentences and applying the proper appellate standard of review, irrespective of the form of quantitativeguidance used. [43] Moreover, a caricatured version of the starting-point approach as it is pronounced in Arcand should not be relied onto reject starting points altogether. Focussing on Arcand fails to account for both subsequent developments in the law in Alberta (see,e.g., R. v. Stewart, 2021 ABCA 79, 21 Alta. L.R. (7th) 213; R. v.

Gandour, 2018 ABCA 238, 73 Alta. L.R. (6th) 26, at para. 55) andjurisprudence in other jurisdictions that use starting points. In Manitoba, for instance, the Court of Appeal has been clear that startingpoints are simply tools or guidelines, “not rigid tariffs that fetter the discretion of a sentencing judge to impose an individualizedsentence” (Burnett, at para. 10; see also R. v. Sidwell, 2015 MBCA 56, 319 Man. R. (2d) 144, at para. 50). Other jurisprudence thusshows that the starting-point approach can be compatible with the principles of sentencing and the standard of review on appeal.

Thestarting-point methodology ought not to be rejected wholesale by focusing on pre-Friesen cases decided at a time in which the Court ofAppeal of Alberta still spoke of starting points as binding. As we have made clear, and as the Court of Appeal of Alberta hasacknowledged in Stewart and Gandour, starting points are not binding and the jurisprudence of this Court prevails over any case law thatsuggests otherwise. [44] While not binding, however, sentencing ranges and starting points are useful tools because they convey tosentencing judges an appreciation of the gravity of the offence.

And, as we have already observed, they offer judges a place to begintheir thinking. When applying these tools, sentencing judges must individualize the sentence in a way that accounts for both aspects ofproportionality: the gravity of the offence and the offender’s individual circumstances and moral culpability. At the stage ofindividualizing the sentence, the sentencing judge must therefore consider “all of the relevant factors and circumstances, including thestatus and life experiences, of the person standing before them” (Ipeelee, at para. 75).

Those factors and circumstances may well justify asignificant downward or upward adjustment in the sentence imposed. [45] Starting points also do not relieve the sentencing judge from considering all relevant sentencing principles. Theprinciples of denunciation and deterrence are generally built into starting points and reflected in ranges, but those objectives “cannot beallowed to obliterate and render nugatory or impotent other relevant sentencing objectives” (R. v. Okimaw, 2016 ABCA 246, 340 C.C.C.(3d) 225, at para. 90).

When conducting an individualized analysis, sentencing judges are expected to account for other relevantsentencing objectives, including rehabilitation and restraint. Indeed, this Court has held that the 1996 sentencing reforms were intendedto both ensure courts consider restorative justice principles and to address the problem of over-incarceration in Canada (Gladue, atpara. 57; Proulx, at paras. 16-20). Sentencing judges have discretion over which objectives to prioritize (Nasogaluak, at para. 43;

Lacasse, at para. 54) and may choose to weigh rehabilitation and other objectives more heavily than “built-in” objectives likedenunciation and deterrence. Appellate courts should not lose sight of these principles — nor the deferential standard of review — whenreviewing sentences that depart from a starting point or range. [46] One objection to starting points advanced in these appeals is that they can easily harden into de facto minimumsbecause they build in the mitigating factor of prior good character, thus preventing sentencing judges from relying on that factor tojustify a downward departure (A.

Manson, The Law of Sentencing (2001), at p. 72; R. v. Kain, 2004 ABCA 127, 35 Alta. L.R. (4th) 5, atpara. 32, per Berger J.A.). But the same is sometimes true of ranges (Cunningham; Voong). Importantly, neither tool incorporates otherpotential mitigating circumstances or Gladue factors, nor should it. Appellate sentencing guidance ought not to purport to pre-weigh or“build-in” any mitigating factors (contra, Arcand, at para. 135).

Likewise, since starting points are intended to reflect the gravity of theoffence and the resulting need for deterrence and denunciation, they should not be viewed as incorporating sentencing principles such asrestraint or rehabilitation, contrary to the suggestion in Arcand, at para. 293. Where sentencing judges choose to refer to the starting pointor range, they are not precluded from considering any factor that is “built in” as mitigating in

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