A Review of the Principles and Purposes of Sentencing in Sections 718-718.21 of the Criminal Code
C. Preliminary Questions
1. Is a Statement of Purposes and Principles Valuable?
In a word, my answer to the above question is Yes.Footnote 1 First, sentencing is a public process. It is society’s response to a proven breach of our criminal laws, laws which are supposed to reflect the protection of society’s fundamental values. In a democratic society, these fundamental values and our response to their breach should be articulated by and be within the overriding control of our elected officials. In that context, a legislative statement of purposes and principles of sentencing is a significant component in a well-functioning democratic society based on the rule of law. And since sentencing responses normally interfere with or infringe on a convicted citizen’s freedoms and liberties, it is important in the pursuit of an orderly and fair society for Parliament to be clear in indicating to its citizens and its offenders what the purposes of imposing a sentence are and what principles guide a court’s determination of a fair and just sentence.
Second, a statement of purposes and principles provides the first layer of guidance to those entrusted with imposing sanctions on individual offenders on behalf of the rest of society. In that respect, a statement of purposes and principles supports a fair and equitable process in sentencing by giving all judges the same starting point and a sense of direction in arriving at a fit sentence. This in turn provides an opportunity for greater coherence in sentencing and lessens opportunities for individual judges to introduce their own irrelevant or conflicting sentencing ideas. Thus, a statement of purposes and principles contributes to greater consistency and less unjustified disparity in sentences; consistency and parity are important goals in establishing public legitimacy in the sentencing process. However, I want to emphasize now, and will elaborate later, that a statement of purpose and principles is only the starting point for a fair and just sentencing scheme.
2. Form and Essential Requirements of a Statement of Purposes and Principles
As a Parliamentary enactment designed to serve both as an educative device for the public and offenders and as a basic, first level instrument of guidance for sentencing judges, I suggest that Parliament’s statement of purposes and principles needs:
- to be written in clear and accessible language
- to navigate between being too general and too specific
- to provide the rationale and justifications for sentencing and identify the objectives and methods for pursuing that rationale
- to provide guidance which does not constitute virtually unfettered judicial discretion nor virtual elimination of judicial discretion (as occurs with mandatory minimum sentences), and
- to set out a starting point and a set of general directions to assist judges in arriving at a fit sentence
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