“F and P pleaded guilty to various offences arising out of unrelated drug trafficking operations, including trafficking fentanyl at the wholesale commercial level. F received a global sentence of 7 years and P received a global sentence of 11 years. The Crown appealed the sentences. The Court of Appeal set a starting point sentence of 9 years for wholesale fentanyl trafficking and increased F’s global sentence to 10 years and P’s global sentence to 14 years.”
The SCC (with two judges writing, and two concurring; one judge writing concurring reasons, with one judge concurring therein; another judge writing separate concurring reasons; one judge writing dissenting reasons, with one judge concurring in the dissent) dismissed the appeals.
Justices Brown and Martin wrote as follows (at paras. 1-6, 21-26, 35-36, 53-54, 83):
“In these appeals, the appellants ask this Court to abolish the starting‑point method of sentencing. Like sentencing ranges, starting points are a form of appellate guidance that provide a place to begin the exercise of reaching a fit and proportionate sentence.
The appellants, Patrick Douglas Felix and Cameron O’Lynn Parranto, pleaded guilty to various offences arising out of unrelated drug trafficking operations, including fentanyl trafficking contrary to s. 5(1) and s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). Both appellants were found to be operating at the “wholesale” commercial level. At sentencing, Mr. Felix received a global 7‑year sentence (2019 ABQB 183), and Mr. Parranto received a global sentence of 11 years (2018 ABQB 863). The Crown appealed the sentences to the Court of Appeal of Alberta, where a five‑member panel heard the appeals jointly for the express purpose of setting a “starting point” for wholesale fentanyl trafficking. In separate decisions released concurrently, the Court of Appeal set a 9‑year starting point for wholesale fentanyl trafficking and increased Mr. Felix’s sentence to 10 years (2019 ABCA 458, 98 Alta. L.R. (6th) 136), and Mr. Parranto’s to 14 years (2019 ABCA 457, 98 Alta. L.R. (6th) 114).
The appellants and several interveners sought to discredit the starting‑point approach by arguing that it has undesirable results, including higher rates of incarceration for Indigenous and other offenders. These criticisms lose their force, however, if starting points are properly treated as non‑binding guidance by both sentencing and appellate courts. Further, such criticisms speak to the risks inherent in using any form of quantitative sentencing guidance, including sentencing ranges. But these risks can be avoided if appellate courts adhere to the deferential standard of review in sentencing appeals, and if this Court provides clear direction on how appellate courts should account for starting points when reviewing sentences for errors in principle and demonstrable unfitness. What follows, therefore, is not an endorsement of starting points as they have sometimes been enforced at the Court of Appeal of Alberta, but rather a revised understanding, bringing them into conformance with the standard of appellate review and principles and objectives of sentencing.
Accordingly, there is no need to disavow the starting‑point approach to sentencing. Sentencing ranges and starting points are simply different tools that assist sentencing judges in reaching a proportionate sentence. It is not for this Court to dictate which of these tools can or cannot be used by appellate courts across the country. Provincial appellate courts should be afforded the respect and latitude to provide their own forms of guidance to sentencing judges, as long as that guidance comports with the principles and objectives of sentencing under the Criminal Code, R.S.C. 1985, c. C‑46, and with the proper appellate standard of review.
Nor would we interfere with the sentences imposed upon Mr. Felix and Mr. Parranto at the Court of Appeal. In our respectful view, the sentences imposed on these offenders by the respective sentencing judges were demonstrably unfit. The Court of Appeal’s intervention was therefore appropriate.
Therefore, and for the reasons that follow, we would dismiss the appeals, affirm the orders of the Court of Appeal, and confirm that starting points, when properly understood and applied, represent a valid form of sentencing guidance.
Quantitative appellate guidance — whether in the form of a range or a starting point — may draw on sentences imposed in past cases, or it may be intended to change the existing approach to sentencing for a particular offence. As we have explained, sentencing ranges generally represent a “historical portrait” of past decisions. This portrait reflects “all the principles and objective of sentencing” (Lacasse, at para. 57) as well as the “collective wisdom of the appellate courts” (M. A. Crystal, “Are the Days of Range Sentencing and Starting Points Numbered? The Cases of R. v. Felix and R. v. Parranto” (2021), 15 J.P.P.L. 125, at p. 139).
In some cases, however,
- an appellate court must also set a new direction, bringing the law into harmony with a new societal understanding of the gravity of certain offences or the degree of responsibility of certain offenders (R. v. Stone,  2 S.C.R. 290, at para. 239). . . . as a general rule, appellate courts should take the lead in such circumstances and give sentencing judges the tools to depart from past precedents and craft fit sentences. [Emphasis added.]
(Friesen, at para. 35)
This reflects the reality that “[i]t is a common phenomenon . . . for sentences to increase and decrease as societal and judicial knowledge and attitudes about certain offences change” (R. v. Smith, 2017 BCCA 112, at para. 36 (CanLII) (emphasis deleted), citing R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, at para. 49).
The same applies to starting points. While some jurisprudence from the Court of Appeal of Alberta suggests that starting points are established through an independent policy‑laden inquiry rather than by looking to precedent (e.g., Arcand, at para. 104), an appellate court may derive a starting point in whole or in part from past sentencing decisions. It may also choose to depart from past trends to recalibrate how the gravity of the offence is weighed in the proportionality analysis. Like established ranges, then, starting points may reflect “collective court experience” by drawing on an overview of the case law for a range of sentences imposed, but they may also represent a departure based on a “consensus view of [all] the social values and policy considerations relating to the category of crime in question” (Arcand, at para. 104).
While each jurisdiction tends to prefer one of these two methodologies, describing a jurisdiction as either a “range jurisdiction” or “starting‑point jurisdiction” represents an incomplete view of appellate guidance. Contrary to the references contained in submissions from many parties on these appeals, the division between “range jurisdictions” and “starting‑point jurisdictions” cannot be described in absolute or dichotomous terms. Even in so‑called “starting‑point jurisdictions”, appellate courts have established starting points only for a limited number of offences, with other forms of guidance — including established and discerned sentencing ranges — used to reach a proportionate sentence for other offences. This flexibility in sentencing modalities also applies in “range jurisdictions”. In practice, courts that have either rejected or failed “to fully endorse the starting point” approach have, in effect, adopted something similar to the starting‑point methodology by either setting sentencing ranges without a top end (Smith (2017)), or by incorporating mitigating factors such as prior good character into the sentencing range, an approach usually associated with starting points (R. v. H. (C.N.) (2002), 62 O.R. (3d) 564 (C.A.), at para. 52; R. v. Voong, 2015 BCCA 285, 374 B.C.A.C. 166; R. v. Cunningham (1996), 27 O.R. (3d) 786 (C.A.), at p. 790; see also P. Moreau, “In Defence of Starting Point Sentencing” (2016), 63 Crim. L.Q. 345, at pp. 356 and 365‑66).
This flexibility in sentencing modalities is reflective of the primary goal of sentencing: to impose a fit sentence. In our view, irrespective of the preferred sentencing methodology, the purpose of the modality is to assist the sentencing judge in achieving the objectives and principles of sentencing, primarily proportionality. Ranges and starting points are simply different paths to the same destination: a proportionate sentence. Courts of appeal have discretion to choose which form of guidance they find most useful and responsive to the perceived needs of their jurisdiction, which may vary across the country. As long as that guidance conforms to the principles and objectives of sentencing in the Code, this Court should respect the choices made by appellate courts. Both sentencing ranges and starting points, where properly applied and subject to the correct standard of review on appeal, are consistent with the Code. It is not this Court’s role to decide which form of guidance is superior, nor would it be desirable to confine appellate courts to giving one or another form of quantitative guidance.
A final point that merits discussion is how a range or starting point is modified once it has been established. The Court of Appeal for Ontario has described how ranges vary:
- “Ranges” are not embedded in stone. Given their nature as guidelines only, I do not view them as being fixed in law, as is the case with binding legal principles. They may be altered deliberately, after careful consideration, by the courts. Or, they may be altered practically, as a consequence of a series of decisions made by the courts which have that effect. If a range moves by virtue of the application of individual cases over time, it is not necessary to overrule an earlier range that may once have been in vogue; it is only necessary to recognize that the courts have adapted and the guidelines have changed.
(R. v. Wright (2006), 83 O.R. (3d) 427 (C.A.), at para. 22).
Moreover, it is not the role of appellate courts to enforce a uniform approach to sentencing through the application of the standard of review. Rather, the proper focus of appellate review is whether the sentence was fit and whether the judge properly applied the principles of sentencing. To be clear, those principles do not include an obligation to follow a particular uniform approach to sentencing. While promoting consistency in method of sentencing may have a role to play in setting appellate guidance, at the stage of appellate review, focusing on uniformity of approach is apt to mislead the reviewing court. Appellate courts must guard against undue scrutiny of the sentencing judge’s discretionary choice of method, as this may stray from the standard of review.
The key principles are as follows:
- Starting points and ranges are not and cannot be binding in theory or in practice (Friesen, at para. 36);
- Ranges and starting points are “guidelines, not hard and fast rules”, and a “departure from or failure to refer to a range of sentence or starting point” cannot be treated as an error in principle (Friesen, at para. 37);
- Sentencing judges have discretion to “individualize sentencing both in method and outcome”, and “[d]ifferent methods may even be required to account properly for relevant systemic and background factors” (Friesen, at para. 38, citing Ipeelee, at para. 59); and,
- Appellate courts cannot “intervene simply because the sentence is different from the sentence that would have been reached had the range of sentence or starting point been applied” (Friesen, at para. 37). The focus should be on whether the sentence was fit and whether the judge properly applied the principles of sentencing, not whether the judge chose the right starting point or category (Friesen, at para. 162).
These principles settle the matter. Contrary to the Crown’s submission, it is not an open question whether sentencing judges are free to reject the starting‑point approach. Sentencing judges retain discretion to individualize their approach to sentencing “[f]or this offence, committed by this offender, harming this victim, in this community” (R. v. Gladue,  1 S.C.R. 688, at para. 80 (emphasis in original)). There is no longer space to interpret starting points (or ranges) as binding in any sense.
A final concern raised by these appeals is that starting‑point sentencing, through the use of judicially created categories, is a quasi‑legislative endeavour. Judicially created categories for sentencing are not, however, unique to starting points; both the range and starting‑point approaches rely on categorization of offences to ensure parity (Lacasse, at paras. 2 and 51; Arcand, at para. 93). This Court has recognized that courts may use categories to situate conduct along a continuum for the purposes of sentencing (Lacasse, at para. 67). Categorization can make sentencing more manageable, since many offences under the Code cover a wide range of conduct and may attract a broad range of sentences (McDonnell, at para. 85). Categorization assists sentencing judges by breaking down a single offence under the Code based on factors such as the type of conduct at issue, the circumstances in which it was committed, and the consequences for the victim or community (Arcand, at para. 95). Appellate courts are entitled to conclude that certain forms of conduct are generally more serious and thus should attract a higher range or starting point. The risk of incursion into the legislative sphere arises only where an appellate court departs from the standard of review by treating a sentencing judge’s failure to select the “correct” category as an error in principle. As always, the reviewing court is limited to questioning whether there is an error in principle that impacted the sentence or whether the sentence is demonstrably unfit. In some cases, mischaracterization of the offence will result in a sentence that is demonstrably unfit, but only if selecting the “wrong” category led the trial judge to misapprehend the gravity of the offence. An appellate court cannot conclude that the sentence is unfit simply because the judge failed to adhere to a judicially created category or range. Further, as in Friesen, a sentencing judge may make a “reasoned choice” — based on individualized factors — to place an offence in a sub‑category even where the established criteria for that sub‑category do not apply.
We would dismiss both appeals and affirm the orders of the Court of Appeal of Alberta. In doing so, we confirm the legitimacy of starting points on this revised basis as a permissible form of appellate guidance, within the framework provided by this Court that emphasizes deference to sentencing judges in the delicate task that Parliament has charged them with (Lacasse; Friesen). Just as the law recognizes the soundness of considering local conditions in crafting a fit sentence, there need not be a singular norm in achieving the goals of sentencing. Irrespective of the sentencing modality chosen, provincial appellate courts are best positioned to give the guidance necessary to achieve consistency of both reasoning and approach.”