Reform of the Purposes and Principles of Sentencing: A Think Piece

Introduction

This short paper reflects on the following question posed to me by the Department of Justice: “In the context of a criminal justice system review, if sections 718 to 718.21 of the Criminal Code (Purpose and Principles of Sentencing) were to be reformed, how would you reform them, what would you include/exclude, and why?” I have been asked to write this piece based on my experience and perspective as a legal academic who writes and teaches in the area of criminal justice, including criminal law, sentencing, criminal procedure, and constitutional issues. I understand that the Department of Justice is not, at this point, asking for a detailed academic research paper, though I will provide references where appropriate and would be pleased to follow up with further information and citations should that prove helpful.

I begin with a few preliminary matters relating to the scope and reach of this reflection piece (A). In part (B) I discuss three larger social and legal issues facing sentencing in Canada that serve as orienting points or touchstones for the reforms that I suggest. I argue that any appealing reforms to the purposes and principles of sentencing would have to be directed at reducing the use of incarceration in Canada, remedying the over-incarceration of Indigenous peoples, and addressing the treatment of the mentally ill in the criminal justice system.

Anchored by those orienting justice issues I turn in part (C) to the heart of the piece: a discussion of specific suggested reforms and amendments. I argue that reforms to the purposes and objectives of sentencing should jettison the listing of multiple objectives in favour of a single overarching objective: “to contribute, along with crime prevention initiatives, to the maintenance of a just, peaceful and safe society by imposing just sanctions.” In terms of an underlying vision of what will best nourish this objective, I suggest that a priority on restoration, rehabilitation, and reintegration is most conducive to addressing the foundational justice issues discussed in part (B) and advancing the safety and justice of our society. By contrast, I discuss the problematic status of deterrence and denunciation as sentencing objectives and suggest that reform to the sentencing provisions should seek to de-emphasize these objectives in our practices of sentencing.

A central theme in this paper is that the focus of a reformed scheme should be the principles of sentencing that are best suited to giving effect to an underlying policy vision of what sentencing is intended to achieve and what is most likely to meaningfully contribute to a truly just, peaceful, and safe society. To that end, and guided by the goals and issues discussed in (B), I argue that the principles of restraint and individualization should join proportionality in a revised statement of the fundamental principles of sentencing. I offer comments on the other sentencing considerations listed in the Criminal Code and suggest certain new considerations that should be taken into account in sentencing, considerations that flow from the fundamental principles of individualization and restraint, as well as a commitment to the role of substantive equality in crafting sentences that contribute to a just society. Finally, I suggest two “special regard” provisions: one that emphasizes the special regard that a sentencing judge must give to the status of Indigenous peoples in our criminal justice system, and one that draws a sentencing judge’s attention to issues of mental illness.

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