The Principles and Purposes of Sentencing

Criminal law in Canada comes from three main source: the constitution, statutes (primarily the Criminal Code), and cases (which provide a new way of understanding existing rules).

Let’s have a quick look at the fundamental principles of sentencing. Canadians are nice. We have some nice ways of punishing bad guys. Drawing from the Ouimet report, we only want to punish things that are “substantially damaging” or “manifestly evil” to society. Additionally, instead of criminal prohibition, it is often better to use social forces, like legislation relating to mental health or social/economic disparities. Finally, laws shouldn’t give rise to more social and personal damage than it was meant to prevent.

The Law Reform Commission of Canada had similar suggestions. They said punishment is a “blunt and costly instrument,”  and suggested three conditions. First, it must cause harm to people, society, or those needing protection from themselves; second, the harm caused  is serious in nature and degree; third, the harm caused is best dealt through the mechanism of criminal law.

There is some discretion around sentencing, but in R v Arcand we learn that, “Unfettered discretion invites arbitrary decision-making.”

S. 718 “The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives…”

First, proportionality is the idea that you get what you deserve.

Whatever punishment you get, it needs to match how bad it was, how responsible you were, and how harmful it is. We see in R v Priest, that the sentence “must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence.” In Priest, a 19-year-old with no priors stole 2,700 worth of goods; he subsequently confessed, returned all goods, and pled guilty. The crown suggested 30-60 days, and the judge gave 1 year; the accused appealed, and the turned it into time served, 5 weeks, and one year probation.

S. 718.1 “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

Second, parity is the idea that similar offences serve the same punishment — it’s not fair that I get five years for stealing a cookie while you only get 1 year.

s. 718.2 (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances

Lastly, restraint is the nicest principle of sentencing. It’s the idea that you shouldn’t be deprived of liberties if other sanctions are appropriate — so you probably shouldn’t get hard time for stealing a cookie, but maybe I should get hard time for murdering you for stealing my cookie.

s. 718.2 (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances

Sentencing Indigenous Offenders

Canada had a problem. Parliament tried to address it. Looking at the statistics for incarceration, indigenous people are overrepresented by a long shot. There are many circumstances which are unique to indigenous factors that have to be addressed — things like intergenerational trauma, differing conceptions of law, and the history of colonialism.

718.2 A court that imposes a sentence shall also take into consideration the following principles: […] (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

 R. v. Gladue paved the way for addressing this problem and execute the principles of trying to understand the circumstances of indigenous offenders. In Gladue, a 19-year-old stabbed her boyfriend and was convicted of manslaughter. The court took into account her youth, status as a mother, and quoted a study that argued amount of young native people in persons is equivalent to residential schools. A side note: judges can already take into consideration the circumstances of an individual (this is called “judicial notice”), but additional measures can be set for indigenous offenders. In Gladue, this modification came in the form of a report — now, it’s called a “Gladue Report”. It’s applied for violet crimes and the report is meant to outline the  circumstances around the individual.

For instance, in R. v. Ipeelee, the Gladue report outlined the childhood history of the defendant. “…courts must take judicial notice of such matters as the history of colonialism, displacement, residential schools and how that history continued to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.”

Sentencing Black Offenders

The Gladue Report sparked further reports, like the Cultural Impact Report, which started with R v Borde.  In R v Morris,  a black was pursued, had has foot run over, and found on gun charges. Here, while the said that the distinct colonial history of Indigenous offenders cannot be analogized to Black Canadians, the judge could consider the social context for sentencing decisions.

Sources of Criminal Law

In R v Sedley, we see that there wasn’t a law prohibiting his behavior, but they just charged him on a trumped up charge of “violating the king’s peace.”

Something similar happened in Frey v Fedoruk, where “peeping tom” wasn’t an offense, so they had to let him go; however, parliament added it shortly after. They wrote, “…no one shall be convicted of a crime unless the offence with which he is charged is recognized as such in the provisions of the Criminal Code, or can be established by the authority of some reported case as an offence known to the law. I think that if any course of conduct is now to be declared criminal, which has not up to the present time been so regarded, such declaration should be made by Parliament and not by the Courts.”

Since 1955 (see Section 9 of the Criminal Code) common law isn’t a source of criminal offenses, except contempt of court. There is a worry of the state having too much power to punish the individual.

Statutory Interpretation

The Modern Principle of Statutory Interpretation, taken from Rizzo & Rizzo,  states that “… the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

Constitutional Limits

The purposive approach (from Hunter v Southam Inc.). “The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for government action.”

The “double threshold” asks two questions: is it within the scope of power, and is it consistent with the charter?

R v Malmo-Levine suggested a new principle of justice: the harm principle. This caused a criteria for the principles of justice: it has to be a legal principle, there needs to be a consensus (and not contentious), and it must have sufficient precision to yield a manageable standard.

The current principles of justice for section 7 of the Charter are as follows: vagueness, overbreadth, arbitrariness, and gross disproportionality.

We can look at two examples of this: section 43 of the Criminal Code and

Bedford v Canada.

Presumption of Innocence and Burdens of Proof

In Woolmington v DPP, there was a clarification that in “the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoners’ guilt […] If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given be either the prosecution or the prisoner […] the prosecution has not made out the case and the prisoner is entitled to an acquittal.

In Canada, section 11 (d) of the charter made this concrete:

“Any person charged with an offence has the right […] to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”

In R v Oakes, there was a case of a charge of an intention to traffic. Once the prosecution proved the possession of narcotics, then the onus was on the defendant to prove they weren’t trafficking. The judge assessed the violation of section 11 (d) and this reverse onus was struck down because it failed to meet section 1.

R v Lifchus established that reasonable doubt is not “an imaginary or frivolous doubt” or “based upon sympathy or prejudice”. It is based on “reason and common sense” and it is logically “derived from evidence or absence of evidence”. In R v Starr, it was established that reasonable doubt is “something less than absolute certainty” but “something more than probable guilt”.

We see the W.(D.) formula in R v S.(J.H.):

“First, if you believe the [exculpatory] evidence of the accused, obviously you must acquit.

Second, if you do not believe [all of] the testimony of the accused but you are left in reasonable doubt by [any part of the accused’s testimony], you must acquit.

Third, even if you are not left in [reasonable] doubt by [any part of the accused’s testimony], you must [consider all] of the evidence which you do accept, [and ask yourself whether that evidence proves] the guilt of the accused [beyond a reasonable doubt].”