“Moving Towards a Minimalist and Transformative Criminal Justice System”: Essay on the Reform of the Objectives and Principles of Sentencing
In the desire to curb crime, it has to be understood at all levels, from the legislative chamber to the street, that the coercive power of the criminal law and its agents and processes have to be used with restraint or they may further injure the social fabric. What is designed to create order may in fact create disorder. What is at heart an expression of responsibility may in fact become an inducement to irresponsibility when rules are used not as guides to resolve problems honestly but as shields against an understanding of the problems that confront us.
Law Reform Commission of Canada A Report on Dispositions and Sentences in the Criminal Process – Guidelines 1976
This essay is the result of over 15 years of research and reflections on criminal law and the criminal justice system, and particularly on the devastating and disproportionate effects that our system has on poor and marginalized people, including the homeless, alcohol and drug users, persons living with mental health issues, racial and ethnic minorities and Aboriginal people. My research is based on field studies involving stakeholders who work within the justice system and individuals affected by criminalization: over a period of 10 years, I conducted roughly a hundred interviews with poor people who have a criminal record as well as with police officers, judges, prosecutors and lawyers, in addition to offering close to 60 hours of training for the above groups in five Canadian cities (Montréal, Québec, Ottawa, Toronto and Vancouver). This not only allowed me to collect some extremely valuable information, but also gave me an opportunity to be directly involved in various processes seeking solutions to these pressing problems.
I am proposing that criminal law be applied with extreme moderation and with due regard for fundamental rights and human dignity. The purposes and principles of sentencing should be substantially amended in order to prioritize the following values: conflict resolution, pardon and reconciliation, reparations for harm caused, individual and collective responsibility and the transformation of communities. These objectives require us to completely rethink our conception of crime, punishment and responsibility and how justice is served.
This essay is divided into three parts. Based on the premise that any reform exercise must be conducted in a meaningful way, we believed it would first be necessary to take a critical look at the underlying principles of the criminal justice system and how the system works. Part One led us to conclude that it is essential to reconsider some of the core principles of the system and that the reform exercise should remain mindful of the realities and practices of the administration of justice (Jodouin and Sylvestre, 2009). We then proposed a certain number of recommendations for modifying the objectives and principles of sentencing and concluded with a list of legislative amendments required to implement this project.
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