What is the nature of starting point sentences and to what extent may appellate courts intervene to enforce them? This issue recently split the Alberta Court of Appeal in R v Godfrey and was clarified earlier this month by the Supreme Court of Canada in R v Friesen.

1. Introduction

Sentencing is a complex and nuanced task. Following a finding of guilt, a sentencing judge must determine a “fit sentence” by balancing and weighing all the relevant factors, circumstances and legal principles engaged in a particular case.

In Alberta, one of the common considerations for sentencing judges is how to factor in “starting point” sentences created by the Alberta Court of Appeal. While starting points are not meant to be a return to the tariff system of sentencing, a failure to adhere to them often leads to reversal on appeal.

2. The Nature of Starting Point Sentences

In an effort to promote parity in sentencing, courts in different provinces have created various categories of offences and identified ranges of incarceration that these offences will tend to attract. These categories are often called sentencing “ranges” in other provinces and are termed “starting points” in Alberta.

Starting point sentences abound in Alberta’s appellate jurisprudence. In the area of drug offences alone, the Alberta Court of Appeal has established the following starting points:

• 3 years for commercial cocaine trafficking on a more than minimal scale;
• 4.5 years for wholesale cocaine trafficking;
• 5 years for low-level commercial heroin trafficking; and,
• 9 years for wholesale fentanyl trafficking, with an increase for more potent analogues such as carfentanil. (See R v Felix.)

In 2015, the Supreme Court of Canada discussed the principles underlying sentencing ranges and so-called “starting point” sentences in R v Lacasse, . The court explained that no matter what terminology is used, such ranges are “nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives” (para 57).

The court expressly held that such ranges should not be considered “averages” or straitjackets for sentencing judges. Rather, they are simply “historical portraits” that judges can use as they exercise their discretion in each case. A judge can order a sentence outside any range as long as it complies with the principles and objectives of sentencing (para 58).

With respect to appellate intervention, Lacasse emphasized that ranges are guidelines, not hard and fast rules. Deviation from them is not an error of law or an error of principle. This is because if sentencing categories are narrowly defined and deviations from them are generally reversed, “the discretion that should be left in the hands of the trial and sentencing judges is shifted considerably to the appellate courts” (para 60). To allow this would “have the effect of authorizing appellate courts to create categories of offences with no real justification and accordingly intervene without deference to substitute a sentence on appeal” (para 61). Thus, absent an error in principle, an appellate court should only intervene where a sentence is demonstrably unfit.

3. Enforcing the Starting Point

Despite the Supreme Court of Canada’s direction in Lacasse, the proper role of starting points and the circumstances under which appellate courts should intervene to enforce them has remained a persistent issue. In Alberta, the tension is illustrated by the recent split decision in Godfrey.

(a) The Decision of the Sentencing Judge

In Godfrey (discussed in detail here), Judge Anne Brown of the Alberta Provincial Court sentenced two offenders to 90 days intermittent custody and 30 months probation for having trafficked in small amounts of cocaine. In her written reasons, Judge Brown expressly acknowledged that the three-year Maskell starting point was engaged and that she was bound by it (paras 2, 31 & 35). She reviewed the applicable sentencing principles and considered the facts of numerous prior cases in the area.

Judge Brown held that the circumstances of the offenders were exceptional. Mr Gervais had overcome severe hard drug addiction and Mr Godfrey was a new father and the sole support to his wife and child. Mr Godfrey’s mother was also undergoing cancer treatments. Both Mr Gervais and Mr Godfrey had been on bail without issue for approximately 3 years, were stable, employed, remorseful and well supported in the community. The Crown, having sought two years incarceration, appealed.

(b) The Divided Appellate Decision

Justice Jack Watson, writing for himself and Justice Frans Slatter, was highly critical of the sentencing judge’s approach. According to Justice Watson, Judge Brown had concluded that she could “subordinate” the three year starting point in pursuit of national consistency in sentencing and erred in concluding that she was “not bound” by authorities of the Alberta Court of Appeal (paras 2 and 8). In his view, Judge Brown had “noted the starting point in passing but abandoned it as a meaningful foundation for her analysis, and never explained why the resulting sentences were compatible with it” (para 17).

Justice Watson held that while sentencing outside of a guideline is not necessarily an error, this does not mean that starting points are “not binding.” Rather, they are “part of the law of the province” and cannot be viewed as “just one more source of guidance” for sentencing judges to consider (paras 4-6). He went on to state that it “is an error of principle for a sentencing judge to give no weight to or purport not to be bound by starting points set by the Court of Appeal” and equated such an approach with the error of “failing to consider a relevant factor” (para 6).

Justice Watson saw the particular circumstances of the offenders as “common” and not “sufficiently unusual” to be exceptional. He held that Judge Brown gave “disproportionate” weight to their rehabilitation, remorse and the impact of a longer sentence on their families (paras 16-17).

In dissent, Justice Brian O’Ferrall highlighted Judge Brown’s explicit acknowledgment that she was bound by the Maskell starting point and found that her reasons amply demonstrated that she had not ignored Alberta authorities. He saw the majority’s characterization of her having “subordinated” Alberta authorities as unfair and described her analysis as “transparent and reasonable” (paras 25, 35, 38).

Justice O’Ferrall noted that Judge Brown is an experienced criminal court judge who had weighed the relevant sentencing principles. While the majority would have weighed the factors differently, this did not amount to an error in principle, a failure to consider a relevant factor or an unfit sentence (para 32). To permit appellate intervention in such circumstances would be to “abandon deference altogether” (para 43).

Since Godfrey, the Supreme Court of Canada has addressed the topic of sentencing ranges and starting points again in Friesen. To the extent that Justice Watson used the standard of review to undermine Judge Brown’s exercise of judicial discretion and enforce the Court of Appeal’s starting point, the statement of law in Friesen suggests that the sentences Judge Brown imposed should not have been overturned.

4. The Standard of Review

In Friesen, the court squarely considered the issue of when appellate courts should intervene to vary sentences, particularly when starting points are engaged. The unanimous court was clear that a failure by a sentencing judge to refer to a starting point is not an error in principle. Further, appellate courts are not entitled to intervene simply because a sentence is different from the sentence that would have been reached had the range of sentence or starting point been applied.

The court held that “ranges of sentence and starting points cannot be binding in either theory or practice and appellate courts cannot interpret or apply the standard of review to enforce them, contrary to R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199, at paras. 116-18 and 273” (para 37).

Deference to sentencing judges ensures that sentencing remains an individualized process and that sentencing judges have “considerable scope to apply the principles of sentencing in any manner that suits the features of a particular case” (para 38, emphasis added).

5. The Future of Starting Point Sentences

The majority decision in Godfrey (and particularly Justice Watson’s reliance on Arcand at para 118) must now be read in light of Friesen. According to Friesen, sentencing judges need not even refer to a given starting point, let alone adhere to it. While Godfrey was not appealed to the Supreme Court of Canada, Friesen suggests that if it had been, it is likely that Justice O’Ferrall’s dissent would have prevailed.

What, then, are the broader implications of Friesen? The parties raised serious questions about the utility of starting point sentences as a helpful form of appellate guidance including that starting points fetter discretion, limit the effect of case-specific factors, result in sentences that cluster around the starting point, cause an unjustified increase in imprisonment, contribute to systemic bias against indigenous offenders and effectively act as minimum sentences. The court expressly declined to deal with these concerns but acknowledged that they raised an issue of importance that should be resolved in the future (paras 40-41).

6. Conclusion

Crafting a “fit sentence” is an art, not a science. It is a highly discretionary exercise that involves engaging both with the law and the realities of the human condition. Criminal trial courts deal directly with thousands of accused, victims and witnesses each year. They run specialized courts (such as drug treatment courts) and handle the vast majority of criminal litigation in the country.

Sentencing judges (such as Judge Brown, who has been a criminal court judge for nearly 20 years and was a Crown prosecutor before that) are well positioned to craft sentences that serve the needs of our society. They deal day in and day out with addicted and otherwise ill members of the community. They are entirely capable of assessing whether an individual’s recovery from a severe hard drug addiction has been truly exceptional. The exercise of judicial discretion is more than the ability to “balance” factors based on training and experience. Is one of the safeguards of human dignity in our legal system.

In his dissent in Godfrey, Justice O’Ferrall explained that that “guidance” in sentencing is a two-way street. It is not, and can never be, a top-down process. While appellate courts are able to provide guidance such as sentencing ranges, they would be unable to do so without the hundreds of decisions they consider from sentencing judges in lower courts.

Friesen confirms that starting point sentences cannot be used to undermine judicial discretion in theory or in practice. It also affirms that subject to error, sentencing judges may sentence in any manner they see fit in a particular case.