One might think that the maximum sentence ought to be imposed for an offence only when the combination of worst offender and committing the offence in the worst way is met. That, simplistic, view has been put to rest by the Supreme Court of Canada in Friday's decision in R. v. Solowan, 2008 SCC 62. The maximum sentence may well be appropriate even where the offender is not the worst possible and the offence is not committed in the worst way. If a proper and fit sentence, as determined by the Court acting judicially, is at the maximum of the range set by Parliament, then the sentence is fit.
Specifically, the sentencing court must determine the appropriate punishment within the limits established by Parliament. Absent an error of principle, failure to consider a relevant factor, or overemphasis of the appropriate factors, any sentence within that range - including the maximum - should not be varied on appeal unless it is demonstrably inadequate or excessive. The "worst case, worst offender" principle no longer operates as a constraint on the imposition of a maximum sentence where a maximum sentence is otherwise appropriate
The Court held:
[3] The "worst offender, worst offence" principle invoked by the appellant in the Court of Appeal has been laid to rest. It no longer operates as a constraint on the imposition of a maximum sentence where a maximum sentence is otherwise appropriate, bearing in mind the principles of sentencing set out in Part XXIII of the Criminal Code, R.S.C. 1985, c. C-46: R. v. Cheddesingh, [2004] 1 S.C.R. 433, 2004 SCC 16; R. v. L.M., [2008] 2 S.C.R. 163, 2008 SCC 31. Unwarranted resort to maximum sentences is adequately precluded by a proper application of those principles, notably the fundamental principle of proportionality set out in s. 718.1 of the Code, and Parliament's direction in s. 718.2(d) and (e) to impose the least restrictive sanction appropriate in the circumstances: see R. v.-Gladue, [1999] 1 S.C.R. 688.
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