A Values and Evidence Approach to Sentencing Purposes and Principles

Summary and Conclusions

Sentencing is all about values: How we punish and how much we punish relate to our views of other people and how we interpret their transgressions. The purpose and principles sections of the Criminal Code, then, are not just philosophical statements that have no meaning in reality. They tell Canadians what sentencing is all about, and should reflect Canadian values.

Until 2006, there was a great deal of consensus in Canada about what how sentencing of offenders should be seen. This is not to imply that everyone was uniformly happy with sentences. But it does mean that those bodies – Parliament, Commissions, Governments, etc. – that looked into sentencing issues, tended to come up with the same view.

Although the majority of the Canadian public since the mid-20th century has said that sentences are too lenient, those groups (including Parliamentary committees, governments, commissions, etc.) that have examined sentencing in Canada have almost uniformly concluded that restraint in the use of imprisonment was important in sentencing, Statements urging that imprisonment should be used only when necessary and that sentences should reflect the seriousness of the offence and the offender’s responsibility for the offence have traditionally been seen as simply reflecting the obvious.

The “purposes and principles” sections of the sentencing bills that were introduced in 1984 by the Liberals and in 1992 by the Conservatives looked remarkably similar to each other and to the bill that finally put the current Part XXIII into the Criminal Code. Governments may have been worried about looking soft on those being sentenced, but their legislative initiatives were quite similar over time.

By the late 1980s, governments were beginning to be skeptical about the assertion that harsh sentences would lead to less crime. By 1999, when the Youth Criminal Justice Act was first introduced into Parliament, it would appear that the government’s sentencing policies (at least for youths in this instance) were congruent with the empirical evidence: sentencing was about holding those who have offended responsible for what they have done. The government did not take the view that severity of sentences was related to crime rates.

Restraint, holding offenders accountable for their actions, and proportionality are well established in Canada as principles that should guide sentencing decisions. By the late 1990s, these principles can be assumed to have reflected Canadian values.

Although imprisonment did not increase much during the Harper Decade, the Harper approach to criminal justice was very different. It was much more than simply a “tough on crime” regime. The message was a simple one: those who offend did not deserve to remain full members of society. Restrictions on pardons, consecutive parole ineligibility times for those convicted of murder, mandatory minimum that clearly violated proportionality were all signs of this. The values implicit in criminal justice policies promoted between 2006 and 2015 reflected a change from our past. Officially, the Harper government appeared to believe that crime could be controlled – at least in part – with harsh sentences. Empirical evidence suggests otherwise.

But even if the Harper government had – or has - succeeded in increasing the punitiveness of our courts, recent research suggests that neither the rate nor the duration for which offenders are imprisoned (across Canadian provinces) is related either to perceptions of severity of sentences by the Canadian public or Canadians’ confidence in the justice system.Footnote 51 Given that ordinary citizens have little information about sentences, this result is hardly surprising. But the findings of this study (and others like it) suggest that it is highly unlikely that public confidence in the justice system would be enhanced if punishment severity were to increase.

The Canadian public, it turns out, has complex views of sentencing. Although they say, in response to simple questions on public opinion polls, that they want harsher sentences, mandatory minimums, etc., it turns out that when pushed slightly, they reject rigid uniformly harsh approaches. Proportionality in sentencing is important. Holding those who offend responsible for their actions is important. The rigid imposition of fixed or minimum penalties is not part of Canadian justice values.

Taking all of this together would lead to the following recommendations with respect to a statement of purpose in sentencing.

  • Though the exact form of the language can easily be debated, it seems to me to be reasonable to suggest that a statement of purpose in sentencing should reflect the importance of imposing sentences that are seen as just and which, thereby, preserve the authority of the law and promote respect for the law.
  • Sentencing should not be held out as being an effective mechanism for controlling crime. Said differently, judges can’t reduce crime with harsh sentences. Governments have a responsibility not to suggest that a problem as serious as crime can be reduced through mechanisms that are known not to work.
  • At the same time, it seems reasonable – within limits defined by proportionality – to look for opportunities which would enhance the quality of Canadian society. Promoting reintegration into the community would be one such purpose as would attempts to make reparations to victims.
  • There is no value in promoting a criminal justice system that sees the interests of those being sentenced and their victims as a zero sum. Sentence severity should reflect the seriousness of the offence and the offender’s responsibility for it. And opportunities should be examined whereby the position of victims can be improved.

Such an approach need not be seen as being soft on those who offend. After all, those who commit the most serious offences are likely, in a proportionality model, to be given long prison sentences. The mechanisms by which the supposed utilitarian goals that some people believe in are achieved – long penitentiary sentences for serious violent offences, for example – are typically going to be imposed on the most serious offenders based simply on proportionality.

When one looks at more specific principles to guide the imposition of sentences, it is clear once again that each of the following has been part of Canada’s thoughts about sentencing for decades:

  • Sentences should be proportionate to the seriousness of the harm that was done and the offender’s responsibility for that harm.
  • Prison should be used with restraint.

Though not strictly part of sentencing, it is in the public interest to ensure that those who are removed from society for some time by being imprisoned are then given opportunities and guidance to reintegrate into society. At the moment, it would appear that for various reasons the “administration of sentences” (in particular prison and penitentiary sentences) is in need of attention.Footnote 52

Given that we now know that prisons and penitentiaries are likely to increase the likelihood that those subjected to them will commit offences, it is especially relevant to limit their use to those cases where other alternatives cannot be found or created that adequately reflect the severity of the crime. Therefore, consideration should be given to providing a more prescriptive set of provisions limiting the use of imprisonment such as those contained in Section 39(1) of the Youth Criminal Justice Act. Aside from any other considerations, guidance of this kind could help explain to the public what types of cases could reasonably be eligible for Canada’s harshest penalties. Clearly, however, provisions for adults are going to be more complex than the analogous provisions that were designed for youths.

In order to be consistent with both the purpose of sentencing and the restraint and proportionality principles, mandatory minimum sentences and consecutive sentences need to be modified so that they are presumptive, not mandatory. Judges should be provided with legislative guidance on what the criteria are for ‘escaping’ mandatory minimum sentences should be and the law should require them to state their reasons for not imposing mandatory minimums.

In the long run, however, there is a need to review mandatory minimum sentences (and requirement of consecutive sentences). The messages they communicate – especially when compared across offences – make no logical sense.

At the moment, only aggravating factors in sentencing are listed in the sentencing principles of the Criminal Code. Some are unnecessarily (e.g., that it is a terrorism offence); others are probably unnecessary but symbolically important (e.g., the hate provisions); others may have some value in stating factors that otherwise there could be some debate about (e.g., spousal abuse). It is peculiar that governments have not found any broad mitigating factors. I am quite certain that some could be listed. Again, listing these factors could provide a better understanding within the public, but could also lead to a more uniform approach across sentencing judges.

One can see the value of listing mitigating factors by looking at Section 718.21which deal with the sentencing of organizations. Some of these are almost certainly mitigating.Footnote 53 Listing them clearly can give guidance to judges in what to consider.

The overall review of the purpose of principles of sentencing should, however, be carried out with attention focused simultaneously on another serious Canadian problem – the over- representation of disadvantaged groups, in particular, Canada’s Indigenous peoples, in the justice system. As has been described elsewhere,Footnote 54 policies that appear on the surface to be neutral with respect to race of ‘groups’ in society may turn out not to be in practice. This is most obvious in programs that, for example, require certain levels of community support (e.g., in the form of adequate housing separate from vulnerable people, and those with criminal records or drug/alcohol problems) before sanctions such as a conditional sentence with house arrest can be imposed.

Assessing the impact of changes in the purpose and principles of sentencing on the current over-representation of Indigenous peoples in prison should be part of the reform of this part of the Criminal Code.

For more than 45 years, Canada has been talking about reviewing and ‘modernizing’ the criminal law. Plans to write ‘a new criminal code’ were abandoned decades ago. However, it is still clear that certain parts of the criminal law should be examined ‘as a whole’. Bail is one of these, conditional release from prisons and penitentiaries is another, pardon legislation is a third. And, of course, sentencing purposes and principles is another. Approached as an attempt to improve our justice system by trying to re-establish a consensus on how to proceed may be difficult. The mechanisms for engaging Canadians in discussions about sentencing purposes and principles have been successful in the past. It would be better, I would suggest, to move slowly and deliberately on this project than to see it as something that needs to be ‘fixed’ immediately.

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