Totality Principle and Consecutive Sentences

The totality principle is properly applied to the total sentence imposed on an offender. Its purpose, where consecutive sentences are imposed, is to ensure that the total sentence is proportionate to the culpability of the offender.

As Lamer C.J. said in R. v. M. (C.A.), [1996] 1 S.C.R. 500, at p. 531:

“The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.”

The totality principle also operates to ensure that the total sentence imposed does not extinguish the rehabilitative potential of the offender. [FN1]

Having determined the fit disposition for each count, and running the sentences consecutive to one another, a trial judge is required to look at the total sentence and ask whether it exceeded the overall culpability of the offender. The failure to do so reflects an error in principle. [FN2]

One way to reconcile the overall sentence with the totality principle is to impose concurrent sentences, where otherwise the sentences would be consecutive. This approach has been favoured by the Court of Appeal for Ontario in a variety of decisions. [FN3]

 

Written by Stuart O’Connell (Barrister/Solicitor)

 

[FN1] See R. v. Angelis, 2016 ONCA 675, at para. 51 (per Watt J.A): “Totality is a principle of sentence the purpose of which is to ensure that the total sentence imposed does not extinguish the rehabilitative potential of the offender”; see also R. v. Hannora, 2020 ONCA 335, at para. 10.

FN[2]: However, the error in principle will justify appellate intervention only where it appears from the trial judge’s decision that the error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64 (CanLII), at para. 44.

[FN3]  R. v. Hannora, 2020 ONCA 335; R. v. Jewell (1995), 100 C.C.C. (3d) (Ont. C.A.), where Finlayson J.A. said, at p. 279: “In performing this function, the trial judge will have to consider not only the appropriate sentence for each offence, but whether in light of totality concerns, a particular sentence should be consecutive or concurrent to the other sentences imposed.”


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