International Law

R. v. L. M.

A decision from the Supreme Court on the application of maximum sentences.

An often-used rule of thumb in criminal law used to be that the maximum sentence for an offence should only be applied for the “worst offenders” — those who commit the worst crimes in the worst circumstances. The trial judge found this to be just such a case, involving a parent who sexually abused his four-year-old daughter, made pornographic videos of the activity, and distributed them on the Internet. The Quebec Court of Appeal reduced the sentence, considering sentences in other cases involving comparable activity and, at least in one opinion, holding that this was not the worst case in the worst circumstances since, among other things, penetration had not been proven.

The Supreme Court here points out that, even though it still crops up, the “worst case, worst offender” principle had been “firmly rejected” in Cheddesingh. They reiterate that it should be abandoned. The real question was whether the trial judge’s sentence represented “a substantial and marked departure from sentences customarily imposed on similar offenders for committing similar crimes.” In lonely dissent, Justice Fish would have deferred to the majority of the Quebec Court of Appeal’s decision that it did. The rest of the Court saw things differently, and made this rather pregnant comment (emphasis in the original): “Owing to the very nature of an individualized sentencing process, sentences imposed for offences of the same type will not always be identical. The principle of parity does not preclude disparity where warranted by the circumstances, because of the principle of proportionality.”

I look at these words and I have to admit I pull a blank on what they are saying. The principle of parity does not preclude disparity? After all, the qualification “where warranted by the circumstances” could mean just about anything. And the “one example” the Court uses isn’t very helpful. Apparently the Court of Appeal incorrectly compared this case to P. M. (emphasis added):

But in that case the pornographic materials were not posted on the Internet; they were sent only to two friends of the abused child?s father. Having disregarded L.M.?s wide distribution of the materials, made possible by the Internet, the Court of Appeal failed to demonstrate any real similarity between P. (M.) and the case at bar. Consequently, this attempt at achieving parity in sentencing, based as it was on an incorrect analogy, was itself inappropriate.

Huh? Is the Court really saying there was no similarity between these cases, making any analogy inappropriate, because in this case the pictures were posted to the internet and in P. (M.) they were distributed by another means? Is this an example of a case where circumstances will warrant jettisoning the principle of parity?

I rather agree with restoring the trial judge’s sentence in this case, but doesn’t this decision effectively torpedo any notion of parity in sentencing?

Full post as published by Criminal Review on May 30, 2008 (boomark / email).