Jul 21, 2015

Deterrence Achieved Through Suspended Sentences

R. v. Carrillo, 2015 BCCA 192 (CanLII)

The Court of Appeal in R. v. Carrillo, 2015 BCCA 192 reiterates why and how suspended sentences satisfy the principles of sentencing. While subsequent decisions of the same level of court have seemingly reined in the applicability of Carrillo, the decision remains useful and especially relevant at this time in promoting community-based sentencing.  


The offender received a two-year suspended sentence, after entering a plea of guilty to a charge of possession of cocaine for the purpose of trafficking. The Crown appealed, arguing that: the sentencing judge erred in principle by failing to appreciate the seriousness of the offence and the degree of moral culpability; and, secondly, the sentence was unfit. While a misapprehension of the facts was accepted on appeal, this was insufficient for determining that the judge erred in principle, considering, notably, that the judge accepted the Crown’s characterization of the offender as a ‘mid-level trafficker.’ In dismissing the appeal on the second ground as well, the Court of Appeal turned its mind to the use of community-based sentencing.


With respect to suspended sentences, Madam Justice MacKenzie, giving the decision for the Court of Appeal, stated the following:

            [30]  I agree it would have been wrong to use a suspended sentence and probation to effectively impose a conditional sentence when one is not available…A conditional sentence is a jail sentence that is served in the community. A suspended sentence and probation are not. As the court discussed in Proulx (at para. 28), as noted in Scott (at para. 8), “…there are strong indications that Parliament intended the conditional sentence to be more punitive than probation…” despite the similarities between the two sanctions regarding their rehabilitative purposes. But that is not to say a suspended sentence may not have a deterrent effect. Furthermore, stringent conditions of probation may be imposed.


            [35]  Although suspended sentences are primarily rehabilitative in nature, they can also address deterrence because an offender can be punished for repeating his criminal conduct during the period of probation, and face serious consequences from the conviction at hand: Criminal Code ss. 732.2(5) and 733.1(1). This feature of suspended sentences (sometimes referred to as the “Sword of Damocles”) represents an underlying but pervasive threat to the offender’s liberty.

            [36]  Strict conditions, including a substantial deprivation of liberty (e.g. the strict curfew in this case) can also be required by the probation order.

            [37]  As previously noted, Proulx distinguished between conditional sentence orders which are jail sentences served in the community, and suspended sentences which are not. Deterrence and denunciation can also be addressed other than through a jail sentence.

[Emphasis added]


Subsequent consideration of Carrillo in R. v. Oates, 2015 BCCA 259 (cited in R. v. Gillespie, 2015 BCCA 290), by the same level of court, has lessened the former’s scope of application. Carrillo is briefly addressed in Oates and distinguished on the basis of its circumstances and the modality of trafficking involved. With respect to its circumstances, Carrillo is described as involving highly exceptional circumstances. With respect to modality, the court in Oates finds that ‘dial-a-dope’ schemes – often referred to by the courts as particularly insidious – do not equate with mid-level trafficking and, by inference, are more egregious. Whether or not one agrees with these findings, the effects of distinguishing Carrillo in these ways, it’s submitted, are to pass over the chance to engage in the language put forward by Madam Justice MacKenzie in Carrillo and to essentially rein in its applicability.


In any event, Carrillo reiterates the deterrent and denunciatory effect of a suspended sentence in certain circumstances, at least, which breathes some life into the proposition that earlier decisions have already determined (see R. v. Saunders, [1993] B.C.J. No. 2887 (C.A.); R. v. George (1992), 112 N.S.R. (2d) 183 (C.A.); R. c. Savenco (1988), 26 Q.A.C. 291 (C.A.)). The usefulness of this is reflected in the recent decision of R. v. Miller, 2015 BCSC 1052, citing Carrillo and upholding the imposition of a suspended sentence on the basis that it can address the sentencing objective of denunciation. Moreover, given the recent amendments made by the Safe Streets and Communities Act, which results in a more limited availability of CSOs, language from the Court of Appeal supporting the imposition of suspended sentences, as found in Carrillo, is that much more relevant for keeping community-based sentencing on the table.