Reform of the Purposes and Principles of Sentencing: A Think Piece

B. Fundamental Issues to be Addressed in any Reform

Any reform to the Criminal Code must be animated by an evil that we seek to remedy or a good that we aspire to achieve. The suggestions, reflections, and reforms that I offer in this piece are shaped by a concern with addressing a set of pressing policy issues that are fundamental to the justness and integrity of our criminal justice system, and by extension, to the safety and fairness of Canadian society as a whole. I suggest that there are three such fundamental issues to which a substantively appealing reform to our sentencing principles and practices must address. If one accepts the centrality and exigency of these criminal justice issues as premises, one is, in my view, impelled to the kinds of reforms and approaches that I explore below.

The first orienting point is the objective of reducing the use of incarceration in Canada. Bill C-41Footnote 1 was, in part, motivated by this concern, as reflected in the principles of parsimony and restraint found (albeit somewhat structurally buried, as I will discuss below) in ss. 718.2(d) and (e). However, as the Correctional Investigator for Canada reported in 2013, despite sharply declining crime rates, the number of federally incarcerated inmates in Canada had increased by 16.5%.Footnote 2 The objective of reducing reliance on incarceration – of reducing over-incarceration – is as philosophically and practically compelling, and even more pressing, as it was in the 1990s. Practically, heavy use of incarceration does not contribute, in lasting ways, to the safety of our communities, as the experience in the United States seems emphatically to teach. Prisons are poor environments for effecting the kinds of change and rehabilitation that conduce to the long- term safety of society when the offender re-enters the community, and incarceration does little to repair or restore the communities that have suffered the effects of crime. Philosophically, commitment to parsimony in the use of state force and restraint in the deprivation of individual liberty are principles that ought to guide a vision of the just response to wrongdoing in a liberal democratic system. And so I take the reduction in the use of incarceration generally — in favour of approaches to sentencing that respond to the individual’s circumstances and to the causes of crime — to be a fundamental orienting premise for any reform of these provisions.

Second, and related, any revisions to the purposes and principles of sentencing would have to be centrally inspired by and directed at the foundational justice issue of remedying the over-incarceration of Indigenous peoples. This objective is highlighted in the Minister of Justice and Attorney General’s mandate letter, which speaks of “increased use of restorative justice processes and other initiatives to reduce the rate of incarceration amongst Indigenous Canadians” as amongst the outcomes expected from this criminal justice system review. Of course that goal was also reflected in Bill C-41 and the 1996 sentencing provisions. The Supreme Court of Canada emphasized and sought to address this issue in R v Gladue,Footnote 3 interpreting s.718.2(e) of the Code ; but by R v Ipeelee Footnote 4 the Court conceded that, despite the amendments and the jurisprudence the “crisis” of Indigenous over representation in prisons had only deepened. And in 2016, the Correctional Investigator reported that for the first time in Canadian history, and despite being approximately 3% of the population, over 25% of federal inmates are Indigenous people.Footnote 5 Today, any change to the sentencing provisions of the Criminal Code must embed and integrate principles and purposes suited to the pursuit of this objective into the structural heart of sentencing practices in Canada. That is, the choice and design of the overall purposes and principles of sentencing should be fundamentally informed by the problem of Indigenous over-incarceration. The default frame must shift. Simply naming this issue as an ancillary or discrete sentencing consideration has failed over the last 20 years and does not match the magnitude of the injustice that our sentencing practices have created.

A third and final touchstone issue that would need to be addressed in any reform to the sentencing provisions of the Criminal Code is the incarceration of the mentally ill. This issue is also highlighted in the Minister’s Mandate Letter, wherein she was asked to address the treatment of those with mental illness in the criminal justice system. Published data from the last 10 years paints a harrowing picture, with up to 28% of those in Canadian carceral settings suffering from a significant form of Fetal Alcohol Spectrum Disorder (FASD) (compared with approximately 1% in the general population), a significantly higher incidence of Asperger’s syndrome amongst those involved in the criminal justice system as compared to the general population, and up to 35% of the prison population afflicted by a severe form of antisocial personality disorder.Footnote 6 Sentencing practices must respond in a more humane, individualized, and effective way to issues of mental illness in the criminal justice system and adopting sentencing purposes and practices that encourage actors in the process to prioritize appropriate responses to mental illness amongst offenders is both practically pressing and an ethical imperative. Avoiding the use of incarceration as a response to complex social problems of poverty, homelessness, and mental health is, it seems to me, an important measure of the justness of our criminal justice system.

Though it is but one element in the ecosystem of criminal justice in Canada (and one that arises well after the harms of crime have already occurred) there is a tendency in media, public and political debates to freight sentencing with more symbolic and political weight — and more various objectives — than it can reasonably bear. The result has been a confused set of sentencing purposes, tensions within the punishment provisions of the Criminal Code (e.g. an apparent emphasis on restraint but the proliferation of mandatory minimum sentences), and the development of Canadian sentencing practices and outcomes in troubling directions. My suggestion is that the substantive appeal of any amendments to the purposes and principles of sentencing should be measured by their sensitivity and responsiveness to these three fundamental issues facing our criminal justice system.

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