In R. v. Tasew the Alberta Court of Appeal considered the approach to be taken by a sentencing judge who identifies two alternative sentences, either of which would be fit for the offence and the offender. Slatter J.A., writing for the majority, held that in those circumstances the offender is entitled to receive the least onerous of the suitable sentences. Watson J.A. dissented in the result, but the Court was unanimous that it is not the mandate of the sentencing judge to compile a list of alternative sentences and leave it to the appellate court to select among them.
The trial judge sentenced the appellant to life imprisonment for attempted murder, but also identified a lighter alternative sentence that would be fit "in the case that someone considers the life imprisonment is inappropriate". Slatter J.A. noted that there is never one "fit" sentence, and it is possible that in a particular case several different sentences could meet the objectives of sentencing in the Criminal Code and survive appellate review. However, he held that despite the sentencing judge's good intentions, his approach was inconsistent with the proper administration of justice. Justice Slatter found that either sentence identified by the trial judge could have withstood judicial review, and imposed the alternative he identified because it was less onerous.
Watson J.A. agreed that the trial judge's approach was inappropriate and that an offender is entitled to receive the least onerous of potential fit sentences. However, he found that the alternative sentence was not fit and therefore would have affirmed the sentence imposed at trial.
August 9, 2011
Link to Decision
Diego Beltran, Marc Gibson & Daniel Lo
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