Sanctioning Guidelines

An Alberta judge’s comments on the need for courts to develop sentencing guidelines in criminal matters may have application for professional regulators. In R v Quintero-Gelvez, 2023 ABCA 64 (CanLII), the court was wrestling with the length of a prison term for the defendant who engaged in sexual assault. While the entire court upheld the lower court’s decision for a period of incarceration of 4.5 years, one judge wrote at length about the need for courts to establish more sentencing guidelines.

The judge wrote that guidelines:

provide sentencers with a rational analytical sentencing framework that introduces “a common methodology” and ultimately produces more consistent sentencing patterns – offenders who are similarly situated and commit similar crimes receive similar sentences. Parliament and reasonable informed members of the public expect nothing less of our sentencing process. “Without guidelines, sentencers following generally accepted sentencing principles produce erratic and irrational sentencing patterns”. This is inevitable. And it undermines public confidence in the administration of justice. [citations omitted]

Given the failure of Parliament to issue such guidelines, it was left for appeal courts to do so. The judge, who had developed such guidelines in the past, stated it was a “task that requires hundreds of hours of the architect’s time”.

The judge suggested that ordinarily three subsets of ranges were optimal: egregious, more egregious, and most egregious. The judge then looked at indicators that would place the conduct within each of the three subsets. In the context of sexual assault of an adult, certain forms of non-consensual contact would generally be viewed as intrusive and typically causing greater physical and psychological harm. Other forms of contact would generally be considered less intrusive and harmful. Still other action would fall between those extremes. The judge gave explicit examples of actions falling within each of the three ranges.

The judge then looked for a maximum and minimum range for all of the subsets. The maximum, ten years, was set by legislation. While there was no minimum, the judge assessed that it would likely be about four years for the most egregious subset. The judge then assessed the minimum and maximum range for each subset. The ranges overlapped. For example, the top of the range for the middle subset (five years for more egregious sexual assaults) was higher than the lowest part of the range for the highest subset (four years for the most egregious sexual assaults). This part of the judge’s analysis might be viewed as controversial in the context of sexual assault.

The judge then discussed how aggravating and mitigating factors can be considered to adjust the sentence within the range. In some circumstances, extraordinary mitigating factors might even adjust a sentence downward below the usual floor of the range.

The judge indicated that the suitability of the sentence should still be assessed by considering the goals of sentencing. For example, does the overall sentence adequately denounce the conduct, provide general deterrence, and adequately protect the public? These considerations might affect the form of the sentence (e.g., prison, home confinement, etc.). The judge also identified a guilty plea as a separate and significant consideration.

Given that professional discipline proceedings rely on the expertise of a specialist tribunal, it likely is not appropriate for courts to establish sanctioning guidelines for those cases. Also, the types of sanctions available (reprimands, restrictions, remediation, ongoing supervision, in addition to suspensions) are not within the expertise of courts. The judge in this case suggested that it is challenging for an adjudicator in an individual case to perform all the work necessary to establish a guideline. As a result, if this approach is to be adopted by regulators, guidelines probably need to be developed by staff and regulators’ discipline tribunals through a policy-making process.

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