23 The cases to which we have been referred, and which my own research has uncovered, reflect a gamut of sentencing dispositions in "home invasion" cases from as low as four or five years,7 to as high as eleven to thirteen years8 - with the suggestion that even higher sentences may be reserved for situations involving kidnapping, the infliction of serious injuries, sexual assault or death.9 Whether a "range" of that elasticity is of much assistance to trial judges in their efforts to preserve sentencing parity for similar offences involving similar offenders - apart from signalling that a significant penitentiary jail term is generally called for - is not clear to me. The downside of attempting to articulate a range for a type of crime that can manifest itself in such a wide variety of ways, and be committed by such a wide variety of individuals, is that the "range" becomes so broad, it is virtually meaningless. Nonetheless, to the extent there can be said to be a range in home invasion cases, it would appear that the one that currently exists is the expansive one outlined above.
24 In my view, however, "home invasion" cases call for a particularly nuanced approach to sentencing. They require a careful examination of the circumstances of the particular case in question, of the nature and severity of the criminal acts perpetrated in the course of the home invasion, and of the situation of the individual offender. Whether a case falls within the existing guidelines or range - or, indeed, whether it may be one of those exceptional cases that falls outside the range and results in a moving of the yardsticks - will depend upon the results of such an examination. I agree with the British Columbia Court of Appeal in A.J.C. (at para. 29), however, that in cases of this nature the objectives of protection of the public, general deterrence and denunciation should be given priority, although of course the prospects of the offender's rehabilitation and the other factors pertaining to sentencing must also be considered. Certainly, a stiff penitentiary sentence is generally called for....
7 See R. v. Wang (2001), 153 C.C.C. (3d) 321 (Ont. C.A.); R. v. Ferreira, [1997] O.J. No. 799 (C.A.); R. v. Barnes 2006 CarswellOnt 4043 (S.C.J.).
8 See R. v. Nelson (2001), 147 O.A.C. 358; R. v. Harriott (2002), 161 C.C.C. (3d) 481 (Ont. C.A.), affirmed [2003] 1 S.C.R. 39; R. v. A.J.C. (2004), 186 C.C.C. (3d) 227 (B.C.C.A.); R. v. D.W., [2004] O.J. No. 5825 (S.C.J.).
9 R. v. A.J.C., supra, at paras. 42 and 46.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
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