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

718.1 –Proportionality

The Proportionality principle has been an effective principle in terms of allowing a judge to review that the “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” In theory, this is an exceptional principle however, practically it does suffer challenges. One of the challenges was recognized in 1995 when Bill C-41 was in the process of being submitted. Academics Julian Roberts and Andrew von Hirsch stated the following about the issue when proportionality was being drafted:

The challenge to drafters of a statement of sentencing purpose and principle is to reconcile diverse and frequently conflicting sentencing aims. The task is not impossible, nor does it necessarily mean promoting a single sentencing purpose at the expense of all others. Footnote 37

And although this statement is true, we would have to look back and ask judges directly of the difficulty they endure when trying to make this complicated theorized application when sentencing an offender.

One of the concerns Roberts and von Hirsh noted over twenty years ago, was that this principle would be “circumvented by the utilitarian objectives” Footnote 38 and suggested that to avoid this from happening, promoting any of the “10 objectives” of sentencing (although there are more now), could be applied within the proportionality principle. The concern was that proportionality would be outweighed by the utilitarian objectives. Footnote 39 So far we see many of the purposes already fall within the utilitarian theory such as incapacitation (separation), deterrence and denunciation. Restorative justice in some capacity could also fit in the utilitarian model (for example the use or purpose of the CSO). Overall, Roberts and von Hirsh do make a valid point in that the principle of proportionality was somewhat contradictory and convoluted when applied to the fundamental purpose under 718. Their suggested way of wording the proportionality clause was “the sanction must be proportionate in its severity to the seriousness of the offence and that offence serious is determined by the harmfulness of the conduct and the actor’s degree of culpability.” I agree, that this is a more descriptive way to word the section and perhaps of more assistance to judges in applying the principle than is presently worded.

One of the other major problems in the application of the principle of proportionality often arises when mandatory minimums are in effect. Crimes that carry mandatory minimums disallow judges to apply the principle of proportionality (and as outlined above some of the other principles and purposes of sentencing). For example, in a factual simple case where an individual is a single-mother who desperately needs money and offered to be a driver to individuals who happen to rob a store with an imitation firearm, would be potentially subjected to an automatic jail sentence. A conditional sentence order is not available to the single mother, considering she was at a very low end of moral culpability and had limited information about the crime itself. Even if she is sentenced as a party to the offence, she is still subject to a jail sentence as it is quite clear robbery offences with weapons carry mandatory minimums and would be subjected to jail.

Research from a study on public perceptions does suggest that there is “support for individualized sentencing within the mandatory minimum sentencing regimes.” Footnote 40 As noted from the example above, mandatory minimums do have the potential to create injustices when trying to apply the gravity, degree and moral culpability when judges are forced into a mandatory sentence. In order to fully achieve and allow judges to apply proportionality, there should be some kind of judicial discretionary allowance within the sentencing process for judges to sentence below the mandatory minimums. As noted in the Roberts article, South Africa does allow for judicial discretion under “exceptional circumstances.” Footnote 41 Other wording that was suggested for this allowance was “…the court shall impose an appropriate custodial sentence for a term of X except where the court is of the opinion that there are particular circumstances which a) relate to any of the offences or to the offender; and b) would make it unjust to do so in all circumstances.Footnote 42 I would suggest that in order for the principle to be maintained effectively, some allowances must be made to give judges their discretion and to be able to apply the principle in a manner of fair justice considering all circumstances.

Well over 50+ offences now are subject to mandatory minimums. The problem with the mandatory minimums is that the principle of proportionality is only of limited application even for prosecutors and defence counsel. It takes away any opportunity to plea bargain. I recognize that it is not counsel’s job to apply the principle like the judge, however when taking into consideration a plea proposal, proportionality allows prosecutors to look at all circumstances and level of responsibility of the offender to make a plea proposal. Mandatory minimums limit the ability of counsel to plea bargain which results in the court system being bogged down.

Mandatory minimums also call in question whether Parliament really trusts justice “front line workers.” Maximum sentences listed in each offence clearly provide for judges, prosecutors and defence counsel what Parliament has intended or deemed as an appropriate sentence for offences that are of a serious nature. The statutory scheme already provided guidelines as to what judges are to consider as aggravating or mitigating circumstances. In addition to that, courts have provided “ranges” on sentences even when the crimes are of a serious nature, effectively applying the principle of proportionality. For example, in Saskatchewan, “range cases” for home invasions are anywhere from 4-7 years depending on the circumstances. Footnote 43 In major sexual assaults, the starting range in Saskatchewan begins at 3 years and up. Footnote 44 Repeat drunk drivers with over four offences, the range starts from 18 months and up. Footnote 45

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