Recent news reports from Ontario have highlighted the complicated practice of calculating credit for pre-sentence custody. Rangefindr has been a helpful resource for our members to suggest sentencing ranges and now Rangefindr has created a new guide to further assist calculating these sentences.
The rangefindr.ca “Guide to Credit for Pre-sentence Custody and Release” is now available behind the member portal.
The guide summarizes material on the sentencing of transgender and gender nonconforming offenders in the following topic areas:
Effect on moral blameworthiness and mitigation
Conditions of imprisonment
Placement in men’s or women’s prisons
The guide is especially timely given sentencing courts recognition of transgender identity as an important factor in imposing a proportionate sentence.
It is licensed under CC BY 4.0, meaning that it can be copied and distributed freely, in whole or in part, if the attribution to rangefindr.ca and the author is intact.
The guide also coincides with the activation of a new tag in Rangefindr: “Accused: Transgender/Gender non-conforming.” This tag allows users to easily find sentencing judgments in which the offender was transgender.
While Rangefindr is extremely helpful for all kinds of criminal sentencing research, it is particularly useful when trying to locate cases that do not lend themselves to keyword searching. For instance, imagine trying to find cases where a lawyer or a police officer is the accused person. It would be very difficult to construct a keyword search to locate only those cases, without bringing up irrelevant results that also involved lawyers or police officers in other capacities. Using Rangefindr, such cases can be identified with just a few clicks.
Instead of using Google-style keyword searching, Rangefindr is a filtering service. To find cases where lawyers were sentenced, one can simply click on the “Accused” category at the top left-hand side of the Rangefindr query page.
Scrolling down through the alphabetical list of filters (also called “tags”), clicking “Lawyer” reveals 63 cases in the Rangefindr database. As soon as the filter is applied, the dispositions in the 63 cases are displayed on the right-hand side of the screen. Apparently the 63 cases involved 4 absolute discharges, 3 conditional discharges, 10 conditional sentences, 2 intermittent sentences, 2 fines, 2 periods of probation and 40 imprisonments.
By clicking “Show Durations”, the display on the right toggles to show a breakdown of the 40 prison sentences. Clicking “View Cases” brings up the results page, which defaults to showing all 63 cases in reverse chronological order.
The cases can also be sorted by “Highest Punishment”, “Lowest Punishment”, “Judge” and “Level of Court”.
Clicking “Tags Associated with this Case” expands the brief case summary to show all of the filters that are associated with the case.
Jurisdictional filters can be added by clicking “Edit Search” and choosing the desired jurisdiction(s) under the “Jurisdiction” category on the left-hand side of the screen. Apparently there are 8 such cases from Manitoba in Rangefindr’s database.
Rangefindr provides links to all of the case results in CanLII (which is where it draws its data from). These links can be accessed for individual cases by clicking on “Download This Case” in the top-right corner.
Though the Rangefindr database is limited in scope (it generally includes appellate cases since 2000 and trial decisions from 2010 onward), it can help researchers quickly identify pertinent cases, particularly when they involve unique factual elements. In case you are wondering, Rangefindr’s filters are applied by human editors who go through a rigorous training process.
The Ontario Court of Appeal issued a significant decision striking down some restrictions on conditional sentences. One of the arguments in R. v. Sharma, 2020 ONCA 478 concerned s. 15 of the Charter.
[3] On this sentence appeal, Ms. Sharma asks the court to strike down s. 742.1(c), and a similar provision in s. 742.1(e)(ii),[1] on the basis that they contravene two sections of the Charter: they contravene s. 15 of the Charter because their effect is to discriminate against Aboriginal offenders on the basis of race, and they contravene s. 7 of the Charter because they are arbitrary and overbroad in relation to their purpose. …[4] I agree with Ms. Sharma that the impugned provisions contravene both ss. 7 and 15 of the Charter and are not saved by s. 1. I would allow the appeal and strike down the provisions. I would set aside Ms. Sharma’s custodial sentence. As submitted by Ms. Sharma, the appropriate sentence would have been 24 months less a day, to be served conditionally. However, as Ms. Sharma has served her custodial sentence, I would substitute a sentence of time served.
We get many requests for decisions on sentencing, particularly where parties are aware of a particular sentence, however, often the decision is not reported. Last month the Provincial Court of Manitoba published several sentencing decisions, some of which are highlighted here.
R. v. Alcantara, 2019 MBPC 67 challenged the constitutionality of the mandatory minimum sentence for the offence of luring.
[1] …. Counsel agree that the Court should first determine the fit and appropriate range of sentence, given this offender’s personal circumstances and need not examine the constitutional issue if the Court determines that the fit and appropriate sentence is within the range set out by the mandatory minimum. On the other hand, if the Court determines that a one year sentence is grossly disproportionate for Mr. Alcantara, the constitutionality of the sentencing provision is engaged, and the Court must determine if one year in jail amounts to cruel and unusual punishment for Mr. Alcantara.R. v. Alcantara (Rolston, P.J.)
R. v. Little, 2019 MPBC 60 concerns the appropriateness of a joint sentencing submission. Along with a pre-sentence report, the Court ordered a supplementary Gladue-style appendix for further consideration of the offender’s circumstances.
[45] … I am therefore, given his youth, his vulnerability and his Gladue and s. 718.2(e) factors (which apply to all offenders), of the view that the jointly proposed sentence should not be confirmed, that something less will be adequate and purposeful in the offender’s unique and most unfortunate circumstances. …R. v. Little (Corrin, P.J.)
R. v. Goodman, 2019 MBPC 77 describes the difficulty of arriving at an appropriate sentence when the offender, with a diagnosis of Fetal Alcohol Spectrum Disorder commits a serious offence.
[1] Sentencing is often described as more of an art than a science. This is because although the Criminal Codesets out sentencing principles, the Court must still balance them in light of the circumstances of the offence and the offender. R. v. Goodman (L.M. Martin, P.J.)
All of these decisions offer significant analysis in their reasons and guidance for future sentences. The library also has other resources available for finding sentencing decisions, in print and e-book format. Please don’t hesitate to contact us for help crafting your submissions on sentencing.
Way back in May 2018, I wrote about a project out of Saskatchewan to create a database for researching Gladue principles. This resource was going to operate under a subscription model, but has just received funding to make it open access. Content is from Saskatchewan, however, researchers in other jurisdictions will likely find it a useful starting point. It would be even better if other jurisdictions found a way to add on to it.
The Manitoba Law Library would like to acknowledge with gratitude that we are situated on Treaty One Territory, the traditional lands of the Anishinaabe, Cree and Dakota peoples, and the homeland of the Métis Nation.
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