An opinion on reform changes with respect to the principles and purposes of sentencing
Denunciation and Deterrence Principles
Denunciation and deterrence principles should remain within the scheme of the sentencing process. There are however, some criticisms worth discussing. Crimes against children under s. 718.01, crimes against peace officers under s. 718.02 and “other additional factors” under s. 718.21 should remain the same. Section 718.2(a) sets out guidelines within the Code which also set out effective principles deeming certain factors as aggravating, and should also remain within the section but there could be some modifications as I will discuss throughout the paper. The criteria listed in sections 718.2(a)(i)-(v) are effective guidelines for judges when sentencing offenders, and should be left unchanged.
One of the questions that should always be at the heart of the principles of sentencing, is whether denunciation and deterrence actually work for both an offender and satisfy public concerns about crime. Examining statistics in Saskatchewan (and nationally) Footnote 2 with the types of crimes committed essentially challenges whether general or specific deterrence is effective. Footnote 3 Many of the crimes that were reported, that resulted in Saskatchewan’s increase are of a violent nature including homicide, robbery, firearm offences and sexual assaults. Crimes of this nature often attract jail sentences. Looking nationally, the CSI index reported that there are increases in fraud, break and entering, robbery and homicide. Footnote 4 This would suggest where violent crimes are committed, principles of denunciation and deterrence are not very effective. The question then becomes whether denunciation and deterrence have much of an effect on offenders for crimes where these two principles are primary considerations. Furthermore, what is the reaction from the public about how deterrence and denunciation are applied?
Crimes such as child pornography or sex offences against children are an easy example of how deterrence and denunciation are ineffective. Police in general have placed a lot of resources into investigating these types of crimes and once the offender is caught and sentenced it appears as though the deterrence factor means nothing to other offenders who are still committing similar crimes. Footnote 5
RCMP have reported the following:
“Canadian children and youth are over-represented among the category of victims of sexual abuse. Research by Brzozowski (2004) Footnote 6 suggests that children under the age of 18 accounted for 23% of the Canadian population yet they represented 61% of sexual assault victims.” Footnote 7
In some cases, offenders automatically receive mandatory minimums for various types of crimes against children. In many child pornography cases judges will discuss the procedure of how police “caught” the offender. The case information is often broadcast on the news and yet offenders still commit crimes of this nature, again challenging whether the deterrence or denunciation goal has any effect on an offender and the public who are hearing about the cases.
One prime example is the case of R v Pattison. Footnote 8 Pattison was one of the most aggravating cases the Saskatchewan courts had before them, whereby Mr. Pattison was sentenced to 5 years for possessing over 4500 images and videos of very young children including infants. Footnote 9 It was described by Madam Justice Douvall as:
... [the images and videos] are vile in nature to the point of being "life changing" in their effect upon one's psyche. At points when being shown these images, the Court was numbed by their depravity. Footnote 10
Mr. Pattison was just recently charged again for offences while he was out on statutory release. The charges were from January 25 - March 22, 2016 for possessing child pornography and with sharing child pornography between January 25 and January 27, 2016.
In another case, R v Gryba, Footnote 11 Mr. Gryba was charged and sentenced for child pornography offences. During the search of the Gryba’s home, as part of the investigation into the charges, a hard drive was found but encrypted. Police were unable to break the encryption at the time of him being sentenced, however at a later date, the police were able to obtain the contents of the material which included child pornography. The accused was then charged and sentenced again, even though these items resulted out of the first set of circumstances. Although Mr. Gryba was under no obligation to disclose what was on the disk, he chose to remain silent as it is his right.
Both cases of Pattison and Gryba are good examples of where denunciation and deterrence seemed to be of little effect to these particular offenders, and in fact, to any offenders who had been charged with offences after these cases were reported in the media. Pattison’s case was more obvious that the deterring principle clearly had no effect on him as he began committing the same offences that he was initially sentenced for. Similarly, Gryba was clearly not deterred by not disclosing to police, even after being sentenced, that the encrypted files contained child pornography.
Crimes such as drinking and driving carry less of a penalty for first time offences yet the results from this crime can be devastating. Again, the purpose of sentencing within the mandatory minimum scheme is meant to denounce the unlawful conduct and to deter the offender by fines and prohibition, yet we continually see drinking and driving being one of the highest crimes committed across Canada. Footnote 12
More recently, Saskatchewan has seen its own devastating cases where entire families have lost love ones. In R v Peeteetuce, Footnote 13 a sentence was delivered of 6 years global for 2 counts of criminal negligence causing death, criminal negligence causing bodily harm, flight from a police officer and impaired driving. Ms. Peeteetuce was intoxicated and fled from police in a stolen vehicle whereby she ran a stop sign and hit a car with three teenagers. Two died and one survived. Blaine Taypotat was sentenced to 9 ½ years for impaired driving causing death of a conservation officer on the same day Ms. Peeteetuce was sentenced. Footnote 14 More recently in R v McKay, Footnote 15 Ms. McKay was convicted of four counts of impaired driving causing death being three times over the legal limit. The victims were two parents and their two young children. McKay received a sentence of 10 years. Based on all these cases it calls into question whether denunciation and deterrence work because we continually see people drinking and driving.
Denunciation and deterrence are applied theoretically and practically by judges in sentences, however it does not seem that the public truly has an understanding of what this principle means. There seems to be some underlying perception in the public’s mind that “the eye for an eye model” should be sought for certain crimes although the Supreme Court of Canada has made it very clear in R v MCA Footnote 16 that vengeance is not an acceptable approach. This concept has also been studied by academics Roberts, Crutcher and Verbrugge. Their study revealed that “the public tends to support a harm-based analysis of sentencing Footnote 17 in which the seriousness of the consequences far outweighs considerations of offender culpability” Footnote 18 using the example of drinking and driving causing death and drinking and driving simpliciter, where culpability is the exactly the same. Footnote 19
I am not sure how this section can be reformed to instill in the public what these principle of denunciation and deterrence really represent. I am however, of the opinion that something needs to change to reflect the importance of these principles and to maintain confidence in the administration of justice, balanced with the protection of the public and public interest. I do not think the answer is through mandatory minimums as I will discuss below in the application of other principles and purposes.
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