Totality principle

In R. v. Gramlick, [1995] O.J. No. 2213 Finlayson, J.A. describes the Ontario approach to the application of the totality principle for sentencing when several offences are before the Court:

 

27     In my view, the appropriate approach in cases such as the two under appeal is to first, identify the gravamen of the conduct giving rise to all of the criminal offenses. The trial judge should next determine the total sentence to be imposed. Having determined the appropriate total sentence, the trial judge should impose sentences with respect to each offence which result in that total sentence and which appropriately reflect the gravamen of the overall criminal conduct. In performing this function, the trial judge will have to consider not only the appropriate sentence for each offence, but whether in light of totality concerns, a particular sentence should be consecutive or concurrent to the other sentences imposed.

 

This approach is quite different from that applied in Nova Scotia.  The recent Nova Scotia appeal decision in R. v. Adams, 2010 NSCA 42 sets out the Nova Scotia view and explains why that view is adopted.  There is some merit to the Nova Scotia position that the Ontario approach makes appeal review more difficult.

 

The Nova Scotia Court of Appeal writes:

 

 

[20]                                             In R. v. M. (C.A.), supra, Lamer, C.J.C. [C.A.M.], writing for the Court, referred to the totality principle as a particular application of proportionality which is a fundamental principle of Canadian sentencing law.  The Code provides:

 

718.1  A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

 

[21]                                             Lamer, C.J.C. describes the totality principle as follows:

 

42 In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the "totality principle". The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D. A. Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56:

 

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate".

 

Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, supra, at pp. 44‑45:

 

The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate "just and appropriate". A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects.

(Emphasis added)

 

[22]                                             In R. v. Gallant, 2004 NSCA 7 (CanLII), 2004 NSCA 7, Cromwell, J.A., as he then was, described the totality principle with his usual clarity:

 

[18] The purpose of the totality principle, said the Court in R. v. Dujmovic, [1990] N.S.J. No 144 (Q.L.)(C.A.) is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate just and appropriate. (See also R. v. ARC Amusements Ltd. reflex, (1989), 93 N.S.R. (2d) 86; N.S.J. No. 331 (Q.L.)(C.A.). . . .

 

[23]                                             In sentencing multiple offences, this Court has, almost without exception,  endorsed an approach to the totality principle consistent with the methodology set out in C.A.M., supra.  (see for example R. v. G.O.H. reflex, (1996), 148 N.S.R. (2d) 341 (C.A.); R. v. Dujmovic, [1990] N.S.J. No. 144 (Q.L.) (C.A.); R. v. Arc Amusements Ltd. reflex, (1989), 93 N.S.R. (2d) 86 (S.C.A.D.) and R. v. Best, 2006 NSCA 116 (CanLII), 2006 NSCA 116 but contrast R. v. Hatch (1979), 31 N.S.R. (2d) 110 (C.A.)).  The judge is to fix a fit sentence for each offence and determine which should be consecutive and which, if any, concurrent.  The judge then takes a final look at the aggregate sentence.  Only if concluding that the total exceeds what would be a just and appropriate sentence is the overall sentence reduced. (See for example, R. v. G.O.H., supra at para. 4 and R. v. Best, supra, at paras. 37 and 38)

 

[24]                                             This Court has addressed and rejected any approach that would suggest that, when sentenced for a collection of offences, the aggregate sentence may not exceed the "normal level" for the most serious of the offences (see R. v. Markie, 2009 NSCA 119 (CanLII), 2009 NSCA 119 at paras. 18 to 22, per Hamilton, J.A.).

 

[25]                                             Very recently in R. v. Draper, 2010 MBCA 35 (CanLII), 2010 MBCA 35, Steele, J.A. succinctly described the proper approach, as follows:

 

30     That procedure is for the sentencing judge to first determine whether the offences in question are to be served consecutively or not. Second, if they are to be served consecutively, then an appropriate sentence for each offence should be determined. Third, the totality principle should be applied to the total sentence thereby arrived at to ensure that the total sentence is not excessive for this offender as an individual. In effect, the sentence must be given a "last look." Fourth, if the judge decides that it is excessive, then the sentence must be adjusted appropriately. In some cases that might require a significant adjustment.

 

 

31     In R. v. Reader (M.), 2008 MBCA 42 (CanLII), 2008 MBCA 42, 225 Man.R. (2d) 118, Chartier J.A. confirmed that this was the approach suggested by the Supreme Court in R. v. M. (C.A.) when it explained the totality principle found in s. 718.2(c) of the Criminal Code. He explained at para. 27 that at this stage of the sentencing process, the purpose of this last look is to ensure that the total sentence respects the principle of proportionality (set out in s. 718.1 of the Criminal Code) by not exceeding the overall culpability of the offender. The "last look" requires an examination of the gravity of the offences, the offender's degree of guilt or moral blameworthiness with respect to the crimes committed and the harm done to the victim or victims. ...

 

[26]                                             Contrast this formulation of the totality principle with that endorsed by the Ontario Court of Appeal in R. v. Jewell; R. v. Gramlick, [1995] O.J. No. 2213(Q.L.).  There, Finlayson, J.A. describes that Court's application of the principle:

 

27     In my view, the appropriate approach in cases such as the two under appeal is to first, identify the gravamen of the conduct giving rise to all of the criminal offenses. The trial judge should next determine the total sentence to be imposed. Having determined the appropriate total sentence, the trial judge should impose sentences with respect to each offence which result in that total sentence and which appropriately reflect the gravamen of the overall criminal conduct. In performing this function, the trial judge will have to consider not only the appropriate sentence for each offence, but whether in light of totality concerns, a particular sentence should be consecutive or concurrent to the other sentences imposed.

 

[27]                                             In R. v. A.T.S., 2004 NLCA 1 (CanLII), 2004 NLCA 1, Rowe, J.A., writing for the Court, discussed these different approaches.  He concluded that, where a judge gives effect to totality by first fixing the global sentence and then assigning the individual sentences to fit within the whole, s/he is more likely to pass a sentence which is problematic.  As he observes, this formulation leads to confusion about the appropriate sentence for the individual convictions, had they been committed alone.  It creates further difficulties where some but not all of the convictions are successfully appealed.  In that instance, there is no guidance for the appellate court as to the appropriate sentence for the remaining offences.  I would agree.