Reform of the Purposes and Principles of Sentencing: A Think Piece
A. Scope of this Paper
The question that has been posed to me implicates a range of issues affecting our criminal justice system and aspects of the Criminal Code well beyond the sections that I have been asked to consider. In particular, I note that there are a set of Criminal Code provisions and judicial practices that have practical and highly consequential effects on sentencing in Canada. I have in mind, for example, the conduct of sentencing hearings, mandatory minima, and appellate review of sentences (including sentencing guidelines and starting points). Each of these topics has generated significant jurisprudence and academic debate and they, too, require examination and possible reform. That is especially so if Parliament wishes to adopt a new approach to the purpose and principles of sentencing — the success of such a reform will depend heavily on the judicial practices and other Code provisions that shape sentencing in Canada. I have views on these matters but given that they fall outside of the question posed to me, I will only be discussing them tangentially and by necessary implication. Given space constraints, please also note that I will not be considering s. 718.21, the provision governing the sentencing of organizations.
Finally, some of what I will discuss below presumes that part of the review of the criminal sentencing regime in Canada will consider the Federal Government’s financial investment in restorative and rehabilitative programs. As you will see, an orienting assumption of this paper is that Canadians will be safer, and our sentencing practices will be more rational and just, if rehabilitation, restoration, and reintegration are foregrounded as guiding ideals. No reforms that pursue that vision can be effective without meaningful investment in programs — within and outside of prisons — focused on rehabilitation and reintegration. Reforms to the sentencing purposes and principles of the Code will rightly be critiqued if unaccompanied by this kind of institutional and financial investment.
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