Last week, the Supreme Court of Canada unanimously dismissed a Crown appeal of a more lenient sentence for a first-time offender, and did so from the bench.Sean Kilpatrick/The Canadian Press
Lisa Kerr is an associate professor at Queen’s University’s Faculty of Law.
Public debates about criminal law policy tend to focus on the incorrigible repeat offender. We don’t tend to discuss what to do with a remorseful person who is facing imprisonment but has turned their life around.
But last week, in an important case about the relevance of personal transformation to criminal sentencing, the Supreme Court of Canada unanimously dismissed a Crown appeal of a more lenient sentence for a first-time offender, and did so from the bench – which tends to mean the result was obvious.
On June 9, 2020, Terrell Burke-Whittaker brought a gun to a Toronto funeral. While on the street outside the event, an unknown vehicle drove past, firing shots. Mr. Burke-Whittaker took cover and the danger passed. Still, he pulled out his firearm and shot at passing traffic on Highway 401. The round could have hit a passing vehicle and killed or injured innocent people.
Mr. Burke-Whittaker pled guilty to possessing a loaded prohibited firearm. He was a 24-year-old Black man with no criminal record. Raised by his mother and grandmother in Brampton, Ont., he had very little contact with his father, who was in and out of jail and died in 2023. The judge noted that Mr. Burke-Whittaker took personal responsibility and did not blame anyone but himself.
The experienced sentencing judge reviewed the law, concluding that this offence tends to carry a sentence of two to five years. There was an additional aggravating factor, because the weapon had been fired.
But the mitigating factors were strong. Mr. Burke-Whittaker had been out on bail for nearly three years before sentencing, and he used his time wisely. He started a small vending-machine business, worked for a landscaping company and was accepted to the Ontario Fire Academy for full-time firefighter training. He volunteered for 110 hours at a long-term care home. He was in a long-term relationship and taking care of his five-year-old daughter.
The evidence of post-offence rehabilitation was uncommonly strong: Sometimes bail works.
The judge imposed a conditional sentence of two years less a day, followed by three years of probation. If he continued on his positive path, Mr. Burke-Whittaker could avoid imprisonment altogether. The Crown appealed, and while the Ontario Court of Appeal dismissed the appeal, a majority agreed that the sentence was manifestly unfit. In dismissing yet another Crown appeal, the Supreme Court has made clear that Mr. Burke-Whittaker’s conditional sentence will stand.
At the hearing, several justices observed that the case had been a difficult one for the lower courts. The sentencing judge admitted that he “wrestled with this case”, but after “anxious consideration” found there was “no social utility” in sending Mr. Burke-Whittaker to the penitentiary. The Ontario Court of Appeal split into three separate opinions, with each judge taking their own path on whether the sentence was fit and on whether, if the sentence was to be overturned, Mr. Burke-Whittaker should be incarcerated now, given that he continued to do very well through the appeal period.
While we do not yet have the Supreme Court’s reasons, they will likely agree with Justice Jonathan Dawe from Ontario’s Court of Appeal, who accepted that the sentencing judge imposed an unusually lenient sentence, but one that the law allowed. The problem here wasn’t that the judge fell into error; the problem was that this case was a hard one, which is no basis for appellate interference.
The Court’s reasons are also likely to confirm that trial and appeal courts should be receptive to evidence of post-offence rehabilitation. After all, what is the point of incarceration when its main ostensible objectives have already been achieved? In a past case, the Supreme Court discussed how imprisonment had idealistic origins as a more productive alternative to bodily forms of punishment, but soon revealed itself as ineffective when it comes to rehabilitation. For many, the prison environment undermines the goals sentencing seeks to achieve. It exposes people to criminal influences, severs family and vocational ties, and limits the autonomy and responsibility that are essential to genuine rehabilitation.
In terms of public safety, it seems that incarceration would have been the risky decision in this case. In the community, Mr. Burke-Whittaker has continued to work, to study, and to support his family. These are the bonds of social life that will secure his long-term prospects, and would be broken by imprisonment. Add to this the fact that his five-year community-based penalty is actually a longer period of state supervision than a penitentiary sentence of three years (with statutory release at two-thirds of the sentence).
If we want safety instead of symbolism, judges must remain free to make decisions like this one.