Starting-Point Sentencing is Here to Stay, Supreme Court Rules in R v Parranto
In R v Parranto, 2021 SCC 46 [Parranto], the Supreme Court (“the Court”) weighed in on the criminal sentences of two drug traffickers in Alberta. In the process, they made powerful statements about individualized sentences, the power of provincial appeal courts and the future of criminal sentencing.
This case involves two appellants, Patrick Douglas Felix and Cameron O’Lynn Parranto, who pleaded guilty to numerous drug trafficking operations. The appellants were found to have been leading minds in sophisticated, “wholesale” commercial level drug operations, with Mr. Felix receiving a 7-year sentence and Mr. Parranto receiving 11 years (Parranto, para 2). The Crown appealed both sentences to the Court of Appeal of Alberta [“the Court of Appeal”], who heard the appeals jointly for the purpose of establishing a starting point sentence for wholesale fentanyl trafficking (Parranto, para 2).
Like criminal sentencing ranges, starting points are a non-binding sentencing tool aimed at achieving “fit and proportionate” sentences (Parranto, para 2). The methodology involves three stages: defining the category of an offence to which the starting point applies, setting a starting point, and individualizing the sentence (Parranto, para 18, citing R v Sandercock, 1985 ABCA 218, para 269).
The Court of Appeal ultimately set a 9-year starting point for wholesale fentanyl trafficking, meaning that Mr. Felix’s global sentence would increase to 10 years and Mr. Parranto’s to 14 years (Parranto, para 2).
The two offenders appealed to the Supreme Court. At issue was whether the Court of Appeal was correct in increasing the accused’s sentences.
A Splintered Bench
The decision led to a fragmented court as the 9 justices split between the majority, two concurrences, and a dissent.
The Majority Defends Starting Points
Writing for the majority, Justices Brown and Martin agreed with the higher sentences imposed by the Court of Appeal and dismissed the appeals. In doing so, they affirmed the use of starting points as a valid sentencing tool.
The majority stated that both offenders’ sentencing judges misapprehended the gravity of the offence by comparing them to factually distinct cases (Parranto, para 67). Specifically, the sentencing judge sought a range of 5 to 7 years when a more accurate range would have been within 8 to 15 years (Parranto, para 68). The sentencing judge’s error ultimately affected his assessment of parity, an important sentencing principle that suggests that similar crimes in similar circumstances receive similar penalties (Parranto, para 69).
The majority also asserted that it was within the Court of Appeal’s power to establish this starting point without relying heavily on legal precedent. In some cases, appellate courts can make changes that align the law with “new societal understanding of the gravity of certain offences” (Parranto, para 22 citing R v Friesen, 2020 SCC 9, para 35). In this instance, the Court of Appeal was empowered to consider the ongoing opioid crisis in Alberta when creating the 9-year starting point.
The majority emphasized that starting points are merely guidelines and must not be interpreted as binding (Parranto, para 36). Furthermore, they explained that a departure from these guidelines should not immediately suggest a reviewable error because sentencing judges have the ultimate discretion in individualizing sentences and can take other factors into account. Rather than policing the decisions of trial judges, appellate courts should focus on whether a sentencing judge’s sentence was fit and whether they properly applied the principles of sentencing—not whether the judge chose the correct starting point (Parranto, para 36).
The majority stated that appellate courts cannot interfere with a sentencing judge’s decision unless the sentence is demonstrably unfit or the sentencing judge makes “an error in principle” (Parranto, para 30). Central to this assessment is whether the sentence is proportionate. Starting points aim to further proportionality because they act as guiding tools that highlight the gravity of an offence and offer a place for sentencing judges to begin their thinking (Parranto, para 44). Although judges are free to make upward or downward adjustments to the starting point, a reviewing court “must be able to discern from the reasons […] why the sentence is fit in the circumstances” (Parranto, para 40). In this way, the majority concluded that starting points advance proportionality in sentencing.
The majority closed their reasoning by defending starting points from intervenor arguments. A predominant argument advanced against the starting-point methodology is that it threatens individualized sentences. The majority rejected this argument because starting points do not relieve sentencing judges from conducting an individualized analysis. Additionally, starting points are restricted to “strictly offence-based considerations” (Parranto, para 47). The majority used a similar line of reasoning in defending the use of starting points for Aboriginal offenders. Starting points are not incompatible with Gladue principles because lower courts can still adopt an individualized approach to the unique circumstances of Indigenous offenders (Parranto, para 49). The majority emphasized that the sentencing principle of parity cannot overpower the remedial nature of s. 718(e) of the Criminal Code, RSC 1985, c C-46 (Parranto, para 50).
Justices Moldaver and Côté Push for Stronger Penalties for Drug Trafficking Leaders
Justices Moldaver and Côté agreed with the majority that the sentences imposed by the sentencing judges were demonstrably unfit and upheld the Court of Appeal’s sentences. The justices emphasized the gravity of largescale fentanyl trafficking as an offence requiring “severe penalties” (Parranto, para 86). Describing the current state of fentanyl trafficking as a “national crisis”, Justice Moldaver relied on the direct and indirect harms caused by the rise in fentanyl trafficking, including addictions, overdose, and generational traumas (Parranto, paras 88-90, 96). For these reasons, they advocated for heavy penitentiary sentences for those who play lead roles in this activity.
The Dissent Stresses Deference to Sentencing Judges
Justices Karakatsanis and Abella would have allowed the appeals and restored the offenders’ original sentences. The dissent asserted that appellate courts must show a strong deference to sentencing judges’ discretion and can only intervene in narrow circumstances (Parranto, para 205). In other words, appellate courts cannot step in simply because they would reweigh or reconsider sentencing principles differently than the trial judge. Aptly summarized, Justice Karakatsanis explained that, “unless the trial judge made an error in principle […] or the sentence was demonstrably unfit, appellate intervention is not justified” (Parranto, para 205).
On these facts, the dissent reasoned that the criminal sentences were not demonstrably unfit. The trial judges properly appreciated the gravity of the offences and used their judicial discretion to place weight on other sentencing principles like rehabilitative efforts. While the appellants could have received a longer sentence, this was within the discretion of the sentencing judge.
The Highlight of Parranto: Justice Rowe’s Impassioned Concurrence
In his concurrence, Justice Rowe penned a fiery objection to the starting point method to which Justices Côté and Moldaver both concurred. Although his stance against starting points bore the trappings of a powerful dissent, Justice Rowe ultimately agreed that the offenders’ higher sentences were appropriate.
In no unclear terms, Justice Rowe advocated for the abolishment of the starting-point method. Central to his analysis were structural and practical flaws inherent in the sentencing tool. Referencing the contradictory nature of starting points with sentencing principles, he stated that:
the premise of the starting-point approach—that variability is a problem that needs to be fixed—means that the entire approach is built on a flawed system. Individualization is […] an imperative, not a problem (Parranto, para 143).
Additionally, Justice Rowe asserted that because the starting-point methodology improperly views individualization as a threat to just sentencing, appellate courts are compelled to enforce uniformity. In a manner that the Justice deemed both “deliberate” and “open” (Parranto, para 104), the intervention of appellate courts “reverses the logic of deference to sentencing judges” by putting the primary power of sentencing within the ambit of appeal courts (Parranto, para 149).
Justice Rowe also highlighted problematic implications for the future, should courts continue using starting points. Like the fentanyl crisis outlined in Parranto, appellate courts often establish starting points in response to a rise in a particular crime and its impact on society. Normally, the consensus is that criminal sentences for these offences must be higher. However, even when the severity of the crime may subside or change over time, the starting point is effectively “set in stone” (Parranto, para 162). This rigidity contrasts with sentencing ranges, which remain fluid through the common law.
In the Justice’s lengthy indictment of the starting point, he asserted that this approach is inconsistent with the principles of sentencing as they hinder individualized sentences, overemphasize deterrence and denunciation, and are incompatible with the treatment of Aboriginal offenders (Parranto, para 165). In short, abolishment is “long overdue” (Parranto, para 105).
The country has undoubtedly fallen victim to a serious opioid crisis, however the decision in Parranto sets a troubling precedent for the future of incarceration in Canada. In advancing the criminal starting-point methodology, the Supreme Court turned its back on the ideals of restorative justice, deference to sentencing judges, and creative sentencing.
An Emphasis on Incarceration
Sentencing objectives like deterrence and denunciation are built into starting points. Moreover, starting points are “designed to be easy to move up and hard to move down” (Parranto, para 185). These factors ultimately focalize incarceration as the dominant solution. The majority in Parranto justified this by stating that while starting points emphasize deterrence and denunciation, sentencing judges have the discretion to prioritize restorative justice principles such as rehabilitation when sentencing offenders (Parranto, para 45). Respectfully, this statement does little to meaningfully advance restorative justice.
Under the starting-point approach, incarceration-centric principles are made default and sentencing judges must go out of their way to integrate restorative justice principles into criminal sentences. On this logic, one can assume that the “default” of incarceration will prevail over restorative outcomes. The country may have an opioid crisis, but it cannot detract from Canada’s equally pressing over-incarceration crisis. The Court missed a valuable opportunity to center restorative principles as default sentencing practices.
Threatening the “Art” of Sentencing
Justices Brown and Martin discussed sentencing as “more of an art than a science” (Parranto, para 9). However, starting points effectively suppress the creativity of the lower courts. This suppression occurs when sentencing judges are compelled to slot offenders into ready-made criminal categories with ready-made starting points. In turn, they become distanced from the sentencing process and risk pigeon-holing offenders. Suddenly, the delicate art of sentencing can read as a cold and formulaic scientific practice.
Further, the Court threatens the art of sentencing in the notion that starting points advance a “uniformity of approach” to criminal sentencing (Parranto, para 34). The Court’s emphasis on parity here exists almost to a fault. Uniformity is antithetical to the idea that offenders require unique sentences that reflect the unique circumstances of their case. Ultimately, starting points can fetter the creative freedoms of sentencing judges, who are by the nature of the role in closer interaction with their respective communities than appellate courts.
Non-Binding in Theory, Binding in Practice
The Court emphasized throughout Parranto that starting points are not binding and any jurisprudence saying otherwise is no longer good law. However, while not binding in theory, the continued use of starting points could tell a different story on the ground.
One may find it unsurprising that appellate courts can review the “reasonableness of the judge’s exercise of discretion” (Parranto, para 13). But this statement is troubling when put into discussion with starting points. Appeal courts establish starting points by choosing a “‘reasonable’ number” which acts as a “mid-point” in the traditional range of sentences for similar crimes (Parranto, para 18). It follows then, that if a sentencing judge used her discretion to issue a lower sentence that is less than what was “reasonably” considered by higher courts, her decision could risk falling under review. Under the watchful eye of provincial appeal courts, sentencing judges may feel pressured to follow starting points closely—even after accounting for the individualization stage—to avoid the chance of a reviewable error. In doing so, they may disregard the uniqueness of the offender.