“Moving Towards a Minimalist and Transformative Criminal Justice System”: Essay on the Reform of the Objectives and Principles of Sentencing
Legislative constraints on implementing these principles and objectives of sentencing and the necessary reforms
In this final section, we are proposing a series of substantive legislative changes required to implement the proposal presented in this essay.
- Amendment of founding principles. In the absence of a general section or an amendment to section 2 of the Criminal Code, section 716 of Part XXIII should be amended in order to redefine the following notions for sentencing purposes:
- “criminal offence”: conceived of as reflecting a problematic situation or a situation of conflict;
- “degrees of responsibility”: in order to provide for the possibility of integrating shared responsibility (contributory liability) and collective responsibility (collective liability);
- “sanction”: the notion of a sentence should be distinguished from the notion of a sanction, which could include both measures involving deprivation of liberty (sentences) and dispositions for conflict resolution.
- Criminalization. Several offences under the Criminal Code could be eliminated or revised in order to limit their scope of application and the discretionary power of peace officers and prosecutors, with the goal of decriminalizing and applying diversion measures to certain social problems. In this context, we are thinking of the following offences: offences against public order and against the administration of justice (illegal assembly, breach of undertaking, obstruction and offences related to peace officers), offences contrary to public morals and concerning disorderly houses (vagrancy, nuisance, disturbing the peace, gaming and betting, prostitution), offences related to drugs, offences against the person (assault) and property-related offences (theft, fraud, mischief).
- Directives for prosecution services in the context of exercising their discretion. With respect to the Public Prosecution Service of Canada (PPSC), this would not only mean amending Directive 6.2 on the application of minimum sentences, but creating new directives for diverting criminal files and resorting to alternative measures.
- Situation-specific categories. Add a section in order to identify problematic situations which should trigger conflict resolution processes and distinguish those that will need to be subject to judicial supervision from those that will not, and to identify more unusual situations which require a sentence to be imposed and the application of security measures.
- Intervention criteria. Add a section in order to identify the criteria which should guide the exercise of discretion by prosecutors and judges in the context of choosing to resort to supervised or unsupervised conflict resolution measures or to litigate a situation of conflict. As mentioned earlier, these criteria should include due consideration of events which followed the offence and, in particular, measures related to reparation, rehabilitation and reconciliation that were put in place; the ties between the parties; the nature of the threat which the offender actually poses to victims and the public; and the possibility of managing or resolving the problem through community conflict resolution mechanisms or other dispositions and through implementation of prevention measures to avoid recidivism for this type of conflict. Consideration should also be given to costs and to the destructive and counter-productive effects that repressive criminal justice intervention can have on victims, offenders, their families and communities. This assessment should not take the gravity of the offence into consideration.
- Alternative measures. Amend section 717 to facilitate the use of alternative measures without the restrictions provided in paragraph 717(2)(a) requiring prior acknowledgement of responsibility, as this can be obtained on completion of a process or procedure.
- Objectives. Amend section 718 as suggested earlier in order to promote the principles of moderation, pardon, reconciliation, reparation, accountability and transformation of communities.
- Aggravating Circumstances – objectives. Repeal sections 718.01 and 718.02, which focus on afflictive and negative theories of sentencing regardless of the circumstances.
- Principle of proportionality. Amend section 718.1 to include all sanctions imposed or decisions made in the context of the conflict resolution process; include the possibility of shared responsibility and include the responsibility of the State and collective responsibility; also mention the fact that sentences and other measures should be imposed proportionally and with respect for each person’s right to human dignity.
- Aboriginal context. Amend paragraph 718.2(e) to entrench the court’s obligation to conduct a two-part analysis in compliance with the guidelines provided by the Supreme Court in Gladue. Offer additional provisions to allow Aboriginal communities to assume responsibility for conflicts which concern them, with respect for their own legal systems and based on agreements signed with the provinces and the federal government, in compliance with areas of jurisdiction.
- Aggravating circumstances – principles. Abolish all aggravating circumstances provided in paragraph (a) of section 718 in order to allow for full implementation of the proposed principles advocating moderation and reparation, based on context rather than on the type of offence in question.
- Sentencing process. Amend subsection 720(1) to allow the court to make recommendations on the structural causes and circumstances surrounding the perpetration of offences, with the goal of preventing a recurrence of these conflicts, helping to make communities safer and transforming these communities.
- Adjournment. Amend subsection 720(2) to enable the court to delay sentencing in order to allow the parties to participate in a community conflict resolution process or a social program.
Other legislatives constraints
- Interim release. Amend subsection 515(10) to limit detention in custody to cases where detention is necessary to ensure attendance in court and where the accused presents a real threat to public safety and to victims. This means abolishing paragraph (c) and the reference to the idea of a repeat offence in paragraph (b). Moreover, the release should be unconditional in the vast majority of cases, except if there is the possibility that the accused would flee the jurisdiction or poses a real safety threat. This will reduce the number of breaches of undertaking and offences against the administration of justice. Detention in custody and release conditions should not be considered as punishment prior to judgement. This is consistent with subsections 515(1) and (2) of the Criminal Code and paragraph 11(e) of the Canadian Charter, which provides for the right to reasonable bail.
- Minimum sentences. Abolish all minimum sentences, including those for murder and the victim surcharge, and particularly those included in federal legislation (most notably fines), including the Controlled Drugs and Substances Act. In two recent judgements, the Supreme Court opened the door to allow lawmakers to maintain certain minimum sentences in order to serve as benchmarks for judges, while affirming the residual discretionary power of judges under justifiable circumstances. Footnote 47 However, we believe that the idea of a minimum sentence is incompatible with the idea of proportionality proposed in this essay.
- Life imprisonment. Abolish life imprisonment as a radical sentence Footnote 48 that is contrary to human dignity and provide for maximum periods of detention for purposes of neutralization or compulsion. For comparison purposes, we should mention that countries can generally be placed in one of four categories. First, certain countries have actual sentences of life imprisonment without any possibility of release (for example the United States). Others, like Canada, have compressible sentences of life imprisonment with the possibility of release after a short or long period of time. Canada is among those countries with a lengthy minimum term of imprisonment as opposed to Germany, Belgium, Finland, Denmark and Sweden with shorter minimum terms of imprisonment, ranging between 10 and 15 years. Footnote 49 Lastly, several countries do not have any life sentence, but instead have maximum sentences, which vary from 40 years in Spain (even though in reality, a longer sentence is generally imposed symbolically), 30 years in Brazil and Columbia and 21 years in Norway, one of the least repressive countries in the world. In 1976, the Law Reform Commission recommended a maximum sentence of 20 years in cases of imprisonment as a means of neutralization and six months in the case of imprisonment as a way to compel the enforcement of certain measures. Footnote 50 Consequently, section 745 would need to be amended.
- Pardon. Amend the Criminal Code and the Criminal Records Act to allow for the actual pardoning and reintegration of individuals rather than just classification of their files. Before 1955, section 1089 of the Criminal Code provided that a sentence served was equivalent to a pardon under the great seal. This provision mysteriously disappeared during the review conducted in 1955. We believe that this provision should be reintegrated and that the Criminal Records Act should be amended in order to protect the rights of individuals who have served their sentence or participated in other dispositions required to obtain a true pardon.
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