An opinion on reform changes with respect to the principles and purposes of sentencing

Separation

Separating offenders from the community is sometimes necessary where the protection of the public is concerned, for example, in violent crimes or crimes against children. Based on my observations, the issue arises in repeated non-violent crimes, for example, thefts. In cases where the parity principle is applied, the offender may be subject to a lengthy sentence based on the principle being applied or based on purpose of separation. Thefts in particular can be problematic as many cases coming through the court system are petty thefts whereby an offender is stealing for hunger or there may be some mental health issues. The person, with the repeated crime, may at some point start serving custodial sentences for the petty crime and each time that period of incarceration increases due to their record and the parity principle being applied. Too often many offenders are incarcerated for these types of crimes, or crimes of a non-violent nature. The term within the separation principle of “separating offenders from society, where necessary” (with emphasis) seems to be overlooked. It may be more effective to change the term to “when necessary, separating offenders from society.” A small change like this sends a strong message that judges need to consider whether incarceration is appropriate in the first instance then move to determine if the person should be separated based on the type of crime.

In my opinion, the restraint principle under s. 718.2(d) could be changed in the same manner as I have suggested with the purpose of separation. The restraint principle currently states:

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. Footnote 20

One of the goals in sentencing for judges is to balance and analyze the crime that was committed, the circumstances of the offence, and circumstances of the offender in order to determine the appropriate sentence. It is no surprise that Canadian jails are over populated and incarceration rates are high (especially amongst the Aboriginal population). Footnote 21 The exceptionally high incarceration rate has even been recognized through many cases and inquires. Footnote 22 Changing the wording in the restraint clause represents a strong intention from Parliament, that judges must look elsewhere besides jail and hopefully avoid the unnecessary use of over incarceration for various types of crimes (i.e. thefts, common assault, and mischief) that may not require jail. I would suggest the following change:

“If less restrictive sanctions are appropriate in the circumstances, an offender should not be deprived of liberty.”

The minor change offers judges to first consider whether there are less restrictive sanctions that are appropriate. If so, then an offender should not be deprived of liberty. It essentially changes the test in the section to offer liberty to the offender first, before incarceration.

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