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


 In R. v. Parranto, 2021 SCC 46, November 12, 2021, the accused(Felix and Parranto) pleaded guilty to a number of offences involving trafficking in fentanyl. Felix was sentenced to a period of seven years of imprisonment and Parranto was sentenced to a period of eleven years of imprisonment.  The Crown appealed from the sentences imposed.  The Alberta Court of Appeal set a starting point sentence of nine years for wholesale fentanyl trafficking and increased Felix’s global sentence to ten years and Parranto’s sentence to fourteen years.  The accused appealed to the Supreme Court of Canada.

The appeals were dismissed. The Supreme Court rendered four judgments.  Based upon my reading of them, it appears that the Court’s majority decided:

1. The appeals should be dismissed and the sentences imposed by the Court of Appeal affirmed; and

2. Starting points are a permissible, provided they are not used to curtail a deferential sentencing standard of appellate review.

Per Wagner C.J. and Brown, Martin and Kasirer JJ:

The four Justices concluded that “the sentences imposed on these offenders by the respective sentencing judges were demonstrably unfit. The Court of Appeal’s intervention was therefore appropriate”.  However, they started of their reasons by stating that their judgment was “not an endorsement of starting points as they have sometimes been enforced at the Court of Appeal of Alberta, but rather a revised understanding, bringing them into conformance with the standard of appellate review and principles and objectives of sentencing” (at paragraph 3). [Justices Abella and Karakatsanis JJ, in a concurring opinion on this point, indicated that they agreed with Wagner C.J. and Brown, Martin and Kasirer JJ, that “starting points are a permissible form of appellate sentencing guidance, provided that starting points are not used to curtail the highly deferential sentencing standard of appellate review” (at paragraph 205)].

The four Justices noted that “[p]roportionality is the organizing principle in reaching this goal. Unlike other principles of sentencing set out in the Criminal Code, proportionality stands alone following the heading ‘Fundamental principle’ (s. 718.1). Accordingly, ‘[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender’ (R. v. Friesen, 2020 SCC 9, at para. 30). The principles of parity and individualization, while important, are secondary principles… Despite what would appear to be an inherent tension among these sentencing principles, this Court explained in Friesen that parity and proportionality are not at odds with each other. To impose the same sentence on unlike cases furthers neither principle, while consistent application of proportionality will result in parity (para. 32). This is because parity, as an expression of proportionality, will assist courts in fixing on a proportionate sentence (para. 32). Courts cannot arrive at a proportionate sentence based solely on first principles, but rather must “calibrate the demands of proportionality by reference to the sentences imposed in other cases” (para. 33)…Individualization is central to the proportionality assessment. Whereas the gravity of a particular offence may be relatively constant, each offence is ‘committed in unique circumstances by an offender with a unique profile’ (para. 58). This is why proportionality sometimes demands a sentence that has never been imposed in the past for a similar offence. The question is always whether the sentence reflects the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of each case” (at paragraphs 10 to 12).

As regards sentencing ranges and starting points, the Justices concluded that they “are simply different paths to the same destination: a proportionate sentence” (at paragraph 25):

…irrespective of the preferred sentencing methodology, the purpose of the modality is to assist the sentencing judge in achieving the objectives and principles of sentencing, primarily proportionality. Ranges and starting points are simply different paths to the same destination: a proportionate sentence. Courts of appeal have discretion to choose which form of guidance they find most useful and responsive to the perceived needs of their jurisdiction, which may vary across the country. As long as that guidance conforms to the principles and objectives of sentencing in the Code, this Court should respect the choices made by appellate courts. Both sentencing ranges and starting points, where properly applied and subject to the correct standard of review on appeal, are consistent with the Code. It is not this Court’s role to decide which form of guidance is superior, nor would it be desirable to confine appellate courts to giving one or another form of quantitative guidance. 

The Key Principles:

The Justices described the “key principles” as follows (at paragraph 36):

1. Starting points and ranges are not and cannot be binding in theory or in practice (Friesen, at para. 36): 

2. Ranges and starting points are “guidelines, not hard and fast rules”, and a “departure from or failure to refer to a range of sentence or starting point” cannot be treated as an error in principle (Friesen, at para. 37);

3. Sentencing judges have discretion to “individualize sentencing both in method and outcome”, and “[d]ifferent methods may even be required to account properly for relevant systemic and background factors” (Friesen, at para. 38, citing Ipeelee, at para. 59); and,

4. Appellate courts cannot “intervene simply because the sentence is different from the sentence that would have been reached had the range of sentence or starting point been applied” (Friesen, at para. 37). The focus should be on whether the sentence was fit and whether the judge properly applied the principles of sentencing, not whether the judge chose the right starting point or category (Friesen, at para. 162).

These principles settle the matter. Contrary to the Crown’s submission, it is not an open question whether sentencing judges are free to reject the starting‑point approach. Sentencing judges retain discretion to individualize their approach to sentencing “[f]or this offence, committed by this offender, harming this victim, in this community” (R. v. Gladue, [1999] 1 S.C.R. 688, at para. 80 (emphasis in original)). There is no longer space to interpret starting points (or ranges) as binding in any sense. [The Court’s emphasis]

How are Sentencing Judge’s to Apply Starting Points and Ranges?

In relation to this question, the Justices indicated that starting points and ranges “do not relieve the sentencing judge from considering all relevant sentencing principles” (at paragraphs 44 and 45):

While not binding, however, sentencing ranges and starting points are useful tools because they convey to sentencing judges an appreciation of the gravity of the offence. And, as we have already observed, they offer judges a place tobegin their thinking. When applying these tools, sentencing judges must individualize the sentence in a way that accounts for both aspects of proportionality: the gravity of the offence and the offender’s individual circumstances and moral culpability. At the stage of individualizing the sentence, the sentencing judge must therefore consider “all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them” (Ipeelee, at para. 75). Those factors and circumstances may well justify a significant downward or upward adjustment in the sentence imposed.

Starting points also do not relieve the sentencing judge from considering all relevant sentencing principles. The principles of denunciation and deterrence are generally built into starting points and reflected in ranges, but those objectives “cannot be allowed to obliterate and render nugatory or impotent other relevant sentencing objectives” (R. v. Okimaw, 2016 ABCA 246, 340 C.C.C. (3d) 225, at para. 90). When conducting an individualized analysis, sentencing judges are expected to account for other relevant sentencing objectives, including rehabilitation and restraint. Indeed, this Court has held that the 1996 sentencing reforms were intended to both ensure courts consider restorative justice principles and to address the problem of over‑incarceration in Canada (Gladue, at para. 57; Proulx, at paras. 16‑20). Sentencing judges have discretion over which objectives to prioritize (Nasogaluak, at para. 43; Lacasse, at para. 54) and may choose to weigh rehabilitation and other objectives more heavily than “built-in” objectives like denunciation and deterrence.Appellate courts should not lose sight of these principles — nor the deferential standard of review — when reviewing sentences that depart from a starting point or range.

The Justices noted that “[w]here sentencing judges choose to refer to the starting point or range, they are not precluded from considering any factor that is ‘built in’ as mitigating in the individual circumstances, and they retain the discretion to consider and weigh all relevant factors in their global assessment of a fit sanction. This comports with the principle that the sentencing judge must always consider all relevant individual circumstances in reaching a fit sentence tailored to the offender before the court” (at paragraph 46).

This Case:

The Justices concluded that “the Court of Appeal did not err in setting a starting point for wholesale fentanyl trafficking” (at paragraph 55).

Mr. Felix:

The Justices also agreed that “the seven‑year sentence imposed [upon Mr. Felix] at first instance was demonstrably unfit. It is clear the sentencing judge misapprehended the gravity of the offence… we emphasize that the commission of wholesale trafficking offences in fentanyl may very well be expected to attract more significant sentences as the harm to the end user and the devastating consequences to communities plagued by addiction is not contested” (at paragraphs 67 and 73).

Mr. Parrento:

The Justices held that “the 11‑year global sentence imposed at first instance was demonstrably unfit and Court of Appeal [sic] did not abrogate the standard of review in intervening. There is no reason for this Court to disturb the sentence of 14 years imposed by the Court of Appeal” (at paragraph 77).

Gladue Principles:

In relation to the application of the Gladue principles to Mr. Parrento, the Justices concluded (at paragraphs 80 and 81):

Mr. Parranto’s background circumstances can be said to have played a part in bringing him before the court. Against this must be weighed the reality that Mr. Parranto committed the second set of offences less than three months after being released on bail for the first set of offences. This suggests that restorative justice principles such as rehabilitation are less salient in this case compared to other objectives including protection of the public.

Based on the gravity of the offence, Gladue factors and the aggravating and mitigating circumstances, we agree with the Court of Appeal that a global sentence of 14 years is appropriate.

Justice Moldaver:

Justice Moldaver held that the “sentences imposed by the sentencing judges in both cases were demonstrably unfit. They fall markedly below the range of sentences that are warranted in cases like this, involving the directing minds of largescale fentanyl trafficking operations. In such cases, more severe sentences than those imposed by the Court of Appeal would have been justified; however, in the circumstances, the Court of Appeal cannot be faulted for failing to impose higher sentences than those sought by the Crown at the sentencing hearings” (at paragraph 84).

Justice Moldaver also indicated that “[w]ith respect to the role of starting points in sentencing, I agree with my colleague, Rowe J” (at paragraph 85).

Justice Rowe:

Justice Rowe also concluded that the appeals from sentence should be dismissed.  However, he held that the “starting‑point approach pioneered by the Court of Appeal of Alberta is, in theory and in practice, contrary to Parliament’s sentencing regime and this Court’s jurisprudence. The starting-point approach undermines the discretion of sentencing judges and departs from the standard of deference required by appellate courts. As a result, it thwarts the imposition of proportionate and individualized sentences” (at paragraph 102).

Abella and Karakatsanis JJ:

As noted earlier, these two Justices indicated that they agreed with Wagner C.J. and Brown, Martin and Kasirer JJ, that “starting points are a permissible form of appellate sentencing guidance, provided that starting points are not used to curtail the highly deferential sentencing standard of appellate review”. However, they would have allowed the appeals and restored the sentences imposed by the trial judges. They concluded that “neither trial judge made an error in principle, nor was either sentence demonstrably unfit” (at paragraphs 205 and 206).