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Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

SENTENCING-THE GAP PRINCIPLE

R. v. Noltcho, 2021 SKCA 113, August 25, 2021, at paragraphs 26, 30 and 31:

It is appropriate for courts to give credit to those who have demonstrated an “honest effort to avoid conflict with the criminal law” (Clayton Ruby, Sentencing, 10th ed (Toronto: LexisNexis, 2020) at §8.110 [Sentencing]). Rehabilitative efforts will not always be successful, but a substantial passage of time between offences without convictions will often be taken into consideration when sentencing for a new offence. Crime‑free periods may show that the individual is not a career criminal, and it follows that the public would require less protection (Sentencing at §8.110, citing R. Cross, The English Sentencing System, 2d ed (London: Butterworths, 1975) at 168.)

The gap principle is considered in context with the other principles of sentencing and, thus, does not always serve to ameliorate a sentence. The effect of a gap in the criminal record of an offender depends on context and relevance. As noted in Sentencing, “[t]he nature of the offences, the circumstances of the offender, and any intervening events that render the record more or less relevant will affect the weight given to a prior criminal record” (at §8.117).

The principle does not require a timeline absent of all crime for it to come into  consideration. In this regard, in R v Oxford, 2010 NLCA 45, 257 CCC (3d) 484, the Court noted that the “gap principle is given effect even if the preceding period is not totally crime free but is free from crime of the serious nature of the crime for which punishment is then being considered” (at para 22, citing R v Graveline (1958), 1958 CanLII 462 (ON CA), 120 CCC 367 (Ont CA) and R v Letourneau, 1996 ABCA 309, 193 AR 62).