By: Lisa Silver
PDF Version: Sentencing to the Starting Point: The Alberta Debate
Case Commented On: R v Ford, 2019 ABCA 87
After R v Shropshire, [1995] 4 SCR 22, the future of starting points in sentencing seemed questionable but after R v M (CA), [1996] 1 SCR 500, the future of the concept seemed downright bleak. Yet, decades later in R v Lacasse, [2015] 3 SCR 1089, the Supreme Court still wrestled with the applicability of starting points in sentencing. Now, the province which embraced the concept is debating the efficacy of using this sentencing approach. Although the majority of the Alberta Court of Appeal has never wavered on the applicability of sentencing starting points, the meaning of such a tool has changed. In R v Ford, 2019 ABCA 87, the most recent pronouncement on the issue, the Court seems prepared to shed the past and move beyond this point of contention.
The Ford decision is brief and needs context. This requires a review of the principles surrounding starting points including a look back to the source of the principle. This review, however, and here is the spoiler alert, will not just engage a linear analysis of the law. It is not enough that we understand the divergent issues arising from applying starting points in sentencing to arrive at the final sentence determination in an individual case. We must also situate that starting point in the grander scheme of legal principle by asking the reason for using such a point in the first place. This exploration of the “why” requires us to understand what the attraction to a starting point in anything is anyway and whether, for this reason, we simply cannot shed the basic need to start from somewhere. For this part of the discussion, I will not start with the expected but with the unexpected.