“Moving Towards a Minimalist and Transformative Criminal Justice System”: Essay on the Reform of the Objectives and Principles of Sentencing
Proposals for reforming the principles and objectives of sentencing
Several individuals, organizations and commissions have examined sentencing and its guidelines over the past few decades. In particular, we should mention the work of the Canadian Committee on Corrections (the Ouimet Report, 1969), the Law Reform Commission of Canada (1971–1989) and the Canadian Sentencing Commission (Archambault Commission, 1987), which offer a wealth of information. We are most notably relying on some of the recommendations of the Law Reform Commission and particularly its report on sentencing and dispositions (1976) in order to formulate the following proposals for reform. We believe that the proposed reforms require a profound change in mentality vis-à-vis crime and ways to intervene.
In Part Two, we will first examine how the founding principles should be reviewed in light of the statements made in Part One (a); we will then formulate a certain number of proposals directly related to the review of the objectives and principles that should serve to guide sentencing (b and c). Lastly, we will emphasize the need for transversal application of these proposals to ensure that they leave a mark at all stages of the criminal justice process.
Review of founding principles
Crime and State. Crime should be conceived of as a manifestation of social problems and situations of conflict, and we should start to question the systematic recourse to the State’s criminal justice system in the vast majority of cases. It is important to note that the notion of “conflict” differs from the notion of “abuse”: conflicts within a society are not in and of themselves unhealthy and should not automatically be repressed or criminalized in the absence of abuse (Schulman, 2016). According to Christie (1977) and contrary to what one might think, there are not too many conflicts in our society. In fact, there are not enough and we all too often try to avoid them, circumvent them or neutralize them by resorting to the criminal justice system. Our society must allow for democratic spaces for debate where differences can be expressed and even encouraged in some cases, without the need to resort to criminal law.
Individual responsibility. Individual responsibility should be challenged while also encouraging offender accountability. Each crime must present an opportunity for us, as a society, to reflect on different levels and degrees of responsibility and ways to prevent these conflicts collectively.
Sentencing and modern penal rationality. The concept of modern penal rationality should be reconsidered, which means (1) re-evaluating the punitive nature of sentences; (2) reconsidering from a moral point of view the need or obligation to punish in all circumstances, and not just in the context of assessing whether or not to prosecute based on a calculation of costs and benefits; (3) excluding punitive theories on sentencing and ensuring that they do not contaminate efforts to explore alternative measures, as has been the case to date (for example: probation and conditional sentencing); (4) exploring alternative measures to criminal law in order to encourage conflict resolution by relying on positive theories of sentencing.
Interestingly, these measures are already accepted within our current system in two situations: first, when judicial stakeholders can self-identify with the offender, i.e., when the social proximity between the judge and/or prosecutor, on the one hand, and the offender, on the other hand, is such that the stakeholders can identify with the offenders or express feelings of empathy towards them, or even when they have sufficient context regarding the offender and the offence to understand the offender’s experience and who the offender is. As a result, the stakeholders can give greater weight to situational factors (context) as well as personal factors concerning the gravity of the offence. Footnote 31 Second, the positive values of sentencing are taken into consideration when the system of justice benefits, for example, in the case of an informer. These positive values should be extended.
General and specific objectives
Criminal justice should be used with moderation, as an alternative and as a last resort, with respect for human dignity, human rights and the intrinsic value of each member of society. Its objective should be to support and encourage conflict resolution structures and mechanisms within Canadian society and do so in order to encourage pardoning, reconciliation and reparation of harm caused to the victims, and to encourage offender accountability and the transformation of communities. In some exceptional cases, it should also be used to isolate and neutralize certain individuals who pose a real danger to the public and to victims.
Transversal nature of objectives
In order to achieve this objective, it is essential that the values of moderation, reparation, reconciliation, accountability and transformation which lie at the heart of the proposed reform be implemented both upstream and downstream from intake into the criminal justice system and the sentencing process. First and foremost, they should guide the actions of Parliament, which should not yield to penal populism and the temptation to tag on offences or increase maximum and minimum sentences following the slightest increase in the crime rate or the occurrence of some new fact. Criminal justice should not be structured around extreme cases which make the headlines, since rules set out in the context of indignation always end up having a direct impact on the regular clientele of the criminal justice system.
The values set out above should then serve to guide the exercise of discretion by police and prosecutors prior to intervention by the criminal justice system. Minor and non-violent offences related to survival strategies or cohabitation in public spaces and offences against the administration of justice, such as theft and subsistence fraud, breach of conditions and undertakings, possession of and trafficking in drugs, prostitution, obstructing a police officer, mischief and simple assault should only be prosecuted in certain specific cases. Minor deviance, marginalization, poverty, mental health problems and addiction should not be perceived as threats to the State or the established order. In certain cases, these situations could quite simply be decriminalized and, in others, could be the focus of diversion measures which allow for conflict resolution, referrals to social services including community and health organizations (physical and mental) and families (insofar as they are supported) and prevention of recidivism by the transformation of communities.
That said, the gravity of the offence should not present an obstacle to the application of principles related to moderation and reparation. On the contrary, these principles truly make sense in such situations because violence is often symptomatic of situations which should be defused. However, we note that most of the time, violent offences, sexual offences and offences which pose a real threat to the safety and integrity of victims and communities should first be subjected to police and judicial intervention intended to neutralize an actual threat while encouraging conflict resolution and implementation of community prevention measures whenever possible, in order to avoid recidivism and facilitate the transformation of communities. This is particularly true when the parties concerned are of Aboriginal descent, since members of this group are more likely to be accused of serious or violent offences (please refer to information on 718.2 (e) of the Criminal Code provided further below). In some cases, we should be able to contemplate the idea of not intervening, even when violent acts are committed, when the situation does not involve an abusive relationship: for example, fights on high school grounds, fights outside a bar or isolated displays of anger towards children or spouses resulting from a particular incident or circumstance rather than a history of violence, domination or intimidation, by referring these types of situations to other regulatory systems such as the extended family, the school or communities. Clearly, the police and prosecutors already exercise their discretion in this way, even if this is not done systematically. Footnote 32
Therefore, any decision by justice system players—a decision concerning whether to subject an offence to the criminal justice system, to resort to community-based conflict resolution systems (for example, mediation in criminal cases) or alternative measures, or to impose coercive measures—should take the following elements into consideration:
- events following the offence and particularly the reparation, rehabilitation and reconciliation measures put in place;
- ties between the parties;
- the true nature of the threat which the offender poses to the victims, regardless of the gravity of the offence—consequently, a serious offence should not prevent recourse to diversion measures, while a minor offence could also prompt an intervention;
- the possibility of managing the conflict or resolving the problem through community conflict resolution mechanisms or other dispositions and by implementing prevention measures to avoid recidivism for this type of conflict; and
- the costs as well as the destructive and counterproductive effects which repressive criminal justice intervention could have on victims, offenders, their families and their communities.
Lastly, these values must be respected on completion of the judicial process, most notably by eliminating the criminal record and reviewing prohibitions. According to recent estimates, over 4 million individuals have a criminal record in Canada. Footnote 33 The consequences of having a criminal record are numerous and insidious for offenders as well as for their families and communities. They include severe restrictions with respect to employment and employability, volunteer work (including at schools their children attend but also at certain organizations), cross-border travel, housing (including for the offender’s family) and insurance. Prohibitions also involve significant restrictions concerning mobility and the ability to communicate with various individuals. For example, this is the case when the offender is prohibited from going to places known to be frequented by children, when such locations are extremely common, most notably in certain urban centres.
Definition of specific objectives: moderation, pardon, reparation, reconciliation, accountability and transformation
Even though they are not fundamentally repressive from an ontological point of view, Footnote 34 the sentencing objectives set out in paragraphs (a) to (f) of section 718 and in sections 718.01 and 718.02 of the Criminal Code have been interpreted as reflecting negative values of affliction and punishment. Moreover, they are presented in no particular order of priority and in a non-hierarchical manner, such that they are invoked to neutralize and contradict each other, making interventions a lot less effective. Consequently, even the objectives that are more likely to express positive values, namely, paragraphs (d), (e) and (f) of section 718 (social integration, responsibility and reparation) become secondary to the first three (i.e., paragraphs (a), (b) and (c): denunciation, deterrence and isolation), are marginalized or have been interpreted in the context of an afflictive and punitive logic (for example, to incarcerate or inflict a heavy fine in order to hold the offender accountable).
Moreover, the objectives set out in sections 718, 718.01, 718.02 and 718.1 of the Criminal Code as well as the aggravating circumstances in section 718.2 of the Criminal Code focus primarily on punishment of the offence and the need to reflect its gravity (objective and subjective, related to the harm caused) or the threat that it represents (related to the anticipated harm caused), rather than on the offender and the social or family conflict at the root of the crime. Every time that a value advocating moderation is introduced in these sections (e.g., the notion of degree of responsibility based on the principle of proportionality and paragraphs 718.2 (d) and (e) of the Criminal Code), it is counterbalanced by a punitive and afflictive value. Moreover, the objectives do not make any distinctions based on whether the offender is rich or poor, Aboriginal or non-Aboriginal, male or female, the level of danger presented by the offender or mental health conditions.
The same is true for the aggravating circumstances and other sentencing principles provided in section 718.2 of the Criminal Code, which we will return to a little later. Subparagraphs (a)(i) to (v) contain a list of offences which appear to prevail over the objectives and principles of sentencing and neutralize any attempt to resolve the conflicts or underlying problems related to the offence.
The purposes and principles should be reformulated and presented in a hierarchical and specific manner by distinguishing between two situations: first, regular situations of conflict which involve implementing principles of conflict resolution, regardless of whether they are addressed outside the justice system (through diversion measures) or subject to the supervision of the justice system (in court); and second, more exceptional situations where it is necessary to use security measures and, in some cases, a sentence in order to neutralize and isolate offenders and ensure the safety of victims and communities.
What do we mean by moderation, pardon, reconciliation, reparation, accountability and transformation?
Moderation: It is important to resort to criminal justice carefully and conservatively. This means re-evaluating the principle of subsidiarity as it applies to criminal law and its minimalistic aspect. This principle should be expressed by the decriminalization of a wide variety of conduct, through clear directives to federal and provincial prosecutors, requiring them to encourage diversion measures as well as support for alternative measures and community conflict resolution mechanisms. As mentioned earlier, the gravity of the offence should not constitute the decisive factor used to justify decisions.
At present, alternative and diversion measures for adults are unusual within the justice system, particularly in regular courts. There are a growing number of specialized courts in Canada (for example, to deal with homelessness, addiction, mental health issues, Aboriginal issues and domestic violence) which offer more or less innovative measures depending on the case. One particularly innovative program deserves to be highlighted: the Programme d’accompagnement justice – itinérance à la cour, a legal support program for homeless people at the Municipal Court in Montréal. Footnote 35 Under this program, homeless individuals with a criminal record can have all criminal charges and convictions withdrawn in exchange for participating in an integration process supervised by a community organization and the Municipal Court. Even though, in our opinion, many of the offences for which homeless individuals are convicted should simply be decriminalized, this program is reflective of a truly diversionary approach. Indeed, unlike other programs such as the Downtown Community Court in Vancouver or the courts which handle treatment of addiction and mental health issues in Montréal, Toronto or Ottawa, for example, this does not mean releasing an individual subject to various conditions or sentencing the individual to probation with conditions for reintegration or treatment when the risk of failure to comply is high and contributes directly to the issue of revolving doors (the stick). It instead means offering services in collaboration with the community sector and a reward for the action undertaken upstream by withdrawing the file once this process is successfully completed (the carrot). We believe that this type of initiative could be encouraged in other sectors by an amendment to subsection 720(2) of the Criminal Code.
Apart from the specialized courts which focus on problem resolution, alternative measures for adults all too often boil down to issuing a warning advising the offender that the prosecutor chose not to present the matter in court. In practice, this type of warning is only issued once, but there is no reason to indicate that this will in fact be the case. Moreover, it would be appropriate to provide mechanisms for more complex diversion measures.
Furthermore, the system should also reflect the fact that many conflicts are resolved between the parties after the fact, and that we are all better served by these conflict resolution mechanisms as long as the parties concerned are satisfied and the destructive and counterproductive effects of criminalization and sentencing are avoided.
Reconciliation and reparation: Mediation and conflict resolution processes should be supported and funded. In many cases, community and other government organizations associated with health and social services may work alongside one another, independently of the justice system, in order to address problematic situations. These initiatives and services must be adequately funded. Footnote 36 In other cases, the justice system may wish to supervise processes involving alternative measures and entrench and supervise the application of a range of dispositions and remedial measures which would be approved. A range of these measures should be proposed and should encourage acknowledgement of responsibility, reconciliation and reparation for harm caused to victims and communities. In the case of property crimes and crimes against persons, they should include restitution, work intended to provide reimbursement, or reparation based on the needs of the victims and the abilities of the offenders.
Pardon: Our criminal justice system should also include the option of not prosecuting or imposing any sanction at all. The Code of Canon Law applicable to the Catholic Church also provides for such a possibility. Footnote 37 In the context of processes concerning alternative measures or court-related proceedings, the parties and the system should be able to choose not to sanction a specific behaviour and to pardon it following a process which encourages acknowledgement of responsibility. Moreover, this value should guide the measures taken on completion of the judicial process when an individual has participated in a conflict resolution process or has served the sentence imposed.
Individual and collective accountability: The criminal justice system must encourage acknowledgement of wrongdoing and accountability rather than blame on the one hand and denial of responsibility in order to self-protect against the affliction of suffering and protect personal rights on the other hand. This principle includes integrating various degrees of responsibility into criminal theory, not only at the guilt determination phase but also when establishing other different types of verdicts, rather than maintaining the guilty versus not-guilty dichotomy. We will return to this point in the section on the principle of proportionality below. It is also essential to consider that acknowledgement of responsibility could be the culmination of a process and should not necessarily be a condition of eligibility for conflict resolution programs.
Transformation: Each crime, conceived of as a conflict, must present an opportunity for us, as a society, to reflect on the proportion of responsibility that we should have to bear collectively for the crime committed and on ways to prevent these conflicts and problematic situations collectively. An interesting parallel can be drawn with investigations conducted by coroners or medical examiners at the provincial level. Most provincial laws provide the coroner with the option of conducting an investigation which not only examines the causes and circumstances of the death, but also proposes recommendations to ensure better protection of human life and prevent similar deaths from occurring, without making any findings concerning the civil liability or criminal responsibility of the parties involved (e.g., the Act respecting the determination of the causes and circumstances of death, R.S.Q., ss. 2 and 3, and the Coroners Act, R.S.O., ss. 15, 18 and 31). In the context of informal conflict resolution or court-related processes, community organizations, prosecution services and courts should therefore have the option of issuing a series of recommendations intended to prevent crime in the community and transform communities on a structural level. These recommendations could include simple, low-cost measures as well as more structuring and structural measures, such as awareness-raising campaigns against discrimination and in favour of equality, and anti-poverty programs.
Let us look at just one example among many others: several years ago, a child was killed by a school bus when getting off the school bus. The child had slipped under the bus, and the driver did not see the child. A coroner’s inquest followed and made a series of recommendations which completely changed school transportation in Quebec. These include requiring vehicles driving in all directions to stop at flashing lights or risk being assessed nine demerit points; having a barrier installed in front of the bus to prevent children from slipping under the bus; and assigning a responsible person to accompany the children to a safe location after getting off the bus. Not only did these practices help reduce the likelihood of incidents which could result in charges of criminal negligence, but they also helped save lives. This example involves simple measures, but other more complex measures could be contemplated in order to explore systemic causes and structural measures that could be put in place.
The principle of proportionality: section. 718.1
As a fundamental sentencing principle, this principle can have both a moderating effect, by imposing a ceiling for sentences and requiring the degree of responsibility to be taken into consideration, as well as a repressive effect, by imposing a minimum sentence and therefore an obligation to punish and consider the gravity of the offence and the degree of moral blameworthiness of the offender. In fact, this ambivalence has resulted in the gravity of the offence being prioritized over the degree of responsibility. In other cases, consideration of the degree of responsibility served as an aggravating factor, was mitigated by the principle of parity in sentencing, Footnote 38 or was limited to consideration of the degree of participation in a crime committed by a group under the rules of criminal participation (Sylvestre, 2013).
We suggest incorporating the possibility of giving full weight to the idea of degrees of responsibility in the context of conflict resolution processes and during sentencing. To achieve this goal, we could establish responsibility on the basis of a scale or spectrum by drawing inspiration from civil law and the award of damages amongst the parties, or even from the common law principles of contributory negligence and apportionment of damages. Proportions may or may not be established (25%, 33%, 50%, 75%) considering the fact that it is highly unusual for anyone to be found 100% responsible. The idea of decompartmentalizing and expanding the concept of responsibility should not be viewed as an opportunity to blame victims or, even worse, to expand the criminal net in order to hold certain individuals criminally responsible when they would not currently be found to be criminally responsible due to issues relating to admissibility or evidence. Shared responsibility would simply act as a principle of moderation applicable to the offender him- or herself.
The notion of the degree of shared responsibility should be expanded to include the State. In Ipeelee, Footnote 39 the judges subscribing to the majority opinion and the dissenting judges recognized that there was a link between the reprehensible conduct of representatives of the State and the concept of degree of responsibility. Footnote 40 However, Justice LeBel went even further. He indicated that the courts must consider the historical, social and political context when determining the proportionality of the sentence. In this case, this means expanding this reasoning even further so that the State assumes its share of blame and responsibility for creating conditions which generate situations of conflict, if applicable. If the State has a clear responsibility with respect to Aboriginal peoples, then it also has a clear responsibility in other contexts, most notably for failing to offer a decent income to all citizens, for failing to recognize the right to housing or, owing to its actions and policies, for contributing to racism and gender inequality, rooted in part in violence against these groups.
This fragmented notion of responsibility should also facilitate recognition of collective responsibility. In a complex society such as ours, certain risks must be assumed collectively. Therefore, regardless of the share of responsibility that the State may assume for past actions, there are certain situations in which collective choices have been made (for example, with respect to driving a vehicle and firearms) and for which we should all bear partial responsibility for the consequences.
Lastly, we note that the measures and sentences imposed should also be proportional to human dignity. This means asking yourself how you would want to be treated in a similar situation. In a society based on the rule of law, punishment and sanctions should not only refrain from being “cruel and unusual” within the meaning of the Canadian Charter, but should also respect the rights and dignity of individuals targeted by measures restricting their freedom. This addition to the analysis of the principle of proportionality would also ensure a moderate and restorative dimension.
Paragraph 718.2(e) of the Criminal Code and criminal justice in the Aboriginal context
Paragraph 718.2(e) of the Criminal Code proposes a principle of penal moderation as a counter to modern penal rationality. It also constitutes a form of resistance to legal monism and the Canadian State’s monopoly over resolving conflicts involving Aboriginal peoples, most notably due to the second part of the analysis of 718.2(e) of the Criminal Code proposed by the Supreme Court in Gladue, Footnote 41 that is, the possibility of incorporating certain types of procedures and sanctions which take Aboriginal heritage into account. However, as the Supreme Court noted in Ipeelee in 2012, this section has not succeeded in reducing incarceration rates among Aboriginal peoples, which only continue to rise.
A comprehensive review of 635 decisions rendered after Ipeelee demonstrates that trial and appellate court judges continue to resist the innovations proposed in this section: over 40% of the compiled decisions (252) do not mention paragraph 718.2(e) of the Criminal Code; 65% of decisions do not mention the preparation of any kind of Gladue-type report; and judges conducted an in-depth examination of the background and systemic factors in just one in five decisions (20%), because in most cases, they were content to set aside these factors due to the “gravity of the crimes”. In addition, we were only able to identify 30 decisions which applied the principles of restorative justice and 7 decisions in which the judge tried to adapt the type of sanction and procedure to the Aboriginal heritage of the accused. Footnote 42
Although several legal constraints have not made it possible to give full weight to this section over the last decade (e.g., minimum sentences, restrictions on conditional sentencing), it is now obvious that justice system players hesitate to challenge the universalism of the criminal justice system and the Canadian State’s monopoly on punishment. However, this resistance must be overcome by supporting the efforts of a number of creative judges, as well as the efforts of Aboriginal communities involved in revitalizing their legal systems, by allowing these communities to assume a greater responsibility for conflicts which afflict such communities and ensuring better co-ordination of these efforts with the justice system. This starts with recognition of legal pluralism and the direct consequences that colonization and the residential school policy had on the destruction and neutralization of Aboriginal legal systems.
This is consistent with recommendation 50 of the Truth and Reconciliation Committee, which states as follows:
In keeping with the United Nations Declaration on the Rights of Indigenous Peoples, we call upon the federal government, in collaboration with Aboriginal organizations, to fund the establishment of Indigenous law institutes for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada. Footnote 43
The various prosecution services should make a meaningful commitment to concluding co-ordination agreement with Aboriginal Nations without automatically excluding cases of “serious crimes”, most notably domestic and sexual violence, which lie at the heart of problems experienced by Aboriginal communities.
Since 2013, we have conducted a research project in partnership with the Atikamekw Nation. Footnote 44 We recently attended sentencing submissions in Neashish, Footnote 45 the case of the former chief of police of the Wemotaci community and chief negotiator of the Atikamekw Nation, found guilty of committing sexual assault against five victims, including children. For many, these convictions were just the tip of the iceberg, as he was not formally charged in connection with several other allegations. In this case, the prosecution requested seven years in prison due to the numerous aggravating circumstances (children, position of authority, recidivism, etc.), while the defence suggested a provincial sentence. Mr. Neashish continues to deny the facts and his responsibility.
Among the Atikamekw people, Neashish did not leave anyone indifferent, as his actions affected a large number of people directly or indirectly. Although opinions are divided on the need to be able to resort to the legal system of the State in order to deal with cases of violence, many people recognize that there is a significant difference between imposing a sentence, especially a sentence of imprisonment on completion of the State legal process, and Atikamekw law. Many questioned the rationale of imposing a seven year sentence in La Tuque in a foreign language and in compliance with legal principles which are also foreign and even imposed. Would it not be preferable for the victims, who demand that the offender acknowledge his responsibility and, in so doing, also acknowledge the suffering and prejudice that they suffered, that Mr. Neashish be subjected to a community process in the context of which he would be confronted by his actions, on the territory of the reserve, in his language and in compliance with its legal rules, thereby allowing the community to take charge of the situation, to discuss respective proportions of responsibility (the accused, the State, families who sometimes turn a blind eye out of fear or despair, etc.), to impose appropriate sanctions, to break the silence surrounding systemic acts of violence and demand changes at different levels?
Recourse to imprisonment
There is widespread consensus in the literature and among legal practitioners that imprisonment is an expensive, ineffective and counterproductive system with devastating and disproportionate effects. Like many commissions and organizations, we believe that it is necessary to radically limit recourse to imprisonment. A first step in this direction would be to practically eliminate detention in custody, except in cases when the individual’s detention is necessary to ensure attendance in court or when the individual presents a real risk to the safety of victims and the public. It would subsequently be necessary to completely eliminate the possibility of resorting to imprisonment for crimes with no victims. Footnote 46
We would maintain imprisonment in closed custody in just two situations:
- For purposes of neutralization: when it becomes necessary to detain an individual in order to protect the victims and the public from a real and imminent threat and the available dispositions and conflict resolution processes are not deemed to be sufficient or appropriate. Imprisonment in closed custody would therefore serve primarily as a safety measure rather than an actual punishment imposed to inflict suffering per se.
- As a measure of compulsion: in order to enforce measures imposed on completion of the conflict-resolution process or court-related proceedings, when it is clear that the offender is refusing to comply with these measures and does not have any good reason, whether material or physical, to justify the refusal to do so.
The issue of fundamental rights upon sentencing and respect for human dignity
At this point, we would reiterate that the processes and measures imposed should always give due regard to human dignity and fundamental rights, in compliance with Charter-protected rights. The right to a fair and proportional sentence (and not just protection against cruel and unusual punishment) should be assured and serve to limit to use of the State power to punish and intervene in the lives of citizens. The tenets of restorative justice have often emphasized the fact that measures taken should take the needs of victims and offenders into account. In our opinion, however, we should not substitute the notion of rights for the notion of needs and allow them to take precedence throughout the conflict-resolution process, whether or not the case concerned is brought before the courts. The notion of rights should also include social and economic rights related to the transformation of communities.
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