A Values and Evidence Approach to Sentencing Purposes and Principles

Attempting to Change Canadian Values on Sentencing: The Harper Decade

No matter what one’s political orientation, there is little doubt that the consensus that might have existed in the early 1990s, which largely carried over until the mid-2000s, was challenged by the Harper “tough on crime” agenda, 2006-2015. As Cheryl Webster and I have written elsewhereFootnote 19, symbolically, the Harper Decade was a dramatic break with our past as far as sentencing policy, and the values inherent in sentencing, are concerned. Other than the fact that the Harper government promoted, as a result of either ignorance or dishonesty, the notion that harsh policies were an effective way of reducing crimeFootnote 20, the Harper crime policies appear to have had relatively little effect overall in one index of Canada’s punitiveness: imprisonment rates. Canada has (thus far) continued to have a moderate imprisonment rate – one that is in keeping, as of now, with our traditional imprisonment rate of 100 adult prisoners (plus or minus about 20) per hundred thousand total residents.Footnote 21 This is not terribly surprising: a careful examination of most (but not all) of the Harper government’s many crime bills that became law would suggests that few, in fact, were likely on the surface, to have much impact on the size of Canada’s prison population. Although many crime bills would appear to be likely to have small effects, some could reasonably be expected to have no effect on imprisonment rates. For example, adding to the list of ‘aggravating factor’ in sentencing the fact that the “offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situationFootnote 22 is unlikely to have had much effect just as raising the maximum sentence and adding a mandatory minimum sentence to the offence of bestiality in the presence of a child would affect very few cases.

The more important question, in this context, is whether the Harper government was successful in changing Canadians’ views about how best to respond to crime. I don’t know of any direct evidence of this, but research in Canada starting in the early 1980s (sponsored by the Department of Justice, Canada) up to the present suggests that Canadian views on sentencing are more complex than they would appear to be on the basis of answers to questions which ask whether Canadians would prefer harsher sentences.

Simply put, when people have more detailed information about cases and alternatives – or they are asked questions about cases they actually know something about – they tend to be more content with the sentences that are actually handed down by the courts. The answers to the simple public opinion question – “In general, would you say that sentences handed down by the courts are too severe, about right or not severe enough?” have to be interpreted carefully. People aren’t evaluating a representative sample of sentences and answering this question. What questions such as these might tell us is whether there is a broad shift toward what less-than-well-informed members of the public think about sentences. But questions such as these tell us little more. At best, they tell us what people feel; they don’t tell us what people ‘know’.

Nevertheless, we do have data from reliable surveys carried out by Statistics Canada. These data suggests that at least until 2009, there had been no clear shift toward punitiveness in the Canadian public. The percent of a large (typically over 10,000) sample of Canadian adults in the 10 provinces shows no evidence that Canadians are getting more punitive. Indeed, between 1993 and 2009, the proportion of Canadians who report that they believe that sentences are not severe enough dropped substantially.Footnote 23

Year Proportion of Canadians who Say that Sentences Are Not Severe Enough

1988

65.3%

1993

71.5%

2004

62.5%

2009

60.3%

One of the most dramatic illustrations of the conclusion that the public opinion questions related to ‘wanting’ harsh sentences in the abstract do not translate into wanting harsher sentences in practice comes from a study in Australia. Jurors in actual criminal cases were asked, after having convicted the accused, what they thought the proper sentence would be. In addition, after hearing the sentence handed down by the judge in ‘their’ case, they were asked whether they thought that sentences in general were too lenient, about right, or too harsh. Overall 52% chose a sentence that was more lenient than the sentence actually imposed by the judge, 44% chose a more severe sentence, and 4% gave exactly the same sentence as the judge. There was some variation across offence types but in all 138 cases in which jurors participated in the study, about half or more of the jurors recommended the same or a more lenient sentence than did the judge.

When asked about sentences, generally, the majority thought that sentences were too lenient even though they had seen that they were more lenient than the judge.Footnote 24

A similar illustration of this comes from the United States. Even though sentences in the US are notorious for being harsh, about half of Americans think that sentences are too lenient.Footnote 25 In federal courts operating under the United States Sentencing Commission’s guidelines, this study collected systematic data on jurors’ recommended sentences in 22 criminal trials. 88% of the jurors’ recommendations were lower than the minimum allowable sentence under the guidelines.Footnote 26

Returning to Canada, we should remember that the one area of the criminal law in which jurors have a very real impact on punishment are those cases in which a person is sentenced to life imprisonment with a parole ineligibility period of more than 15 years. In those cases (until the provision was abolished) a person could apply under the so-called “faint hope” clause to have parole ineligibility reduced. Since 1998 the jury that heard the “faint hope” application has to be unanimous to reduce the parole ineligibility period. In other words, a single person on the 12 person jury can stop the applicant from having the parole ineligibility period reduced. Overall there have been 213 court hearings since these hearings began in the late 1980s. In 77% of these hearings before a jury (163 of the 213) the prisoner was successful in getting the parole ineligibility reduced. What is, perhaps, more remarkable is the fact that since the requirement that the jury be unanimous was imposed, 74% of the hearings have resulted in reduced parole ineligibility periods. To the extent that jurors in these cases represent an informed public (i.e., they hear about offence and the prisoner), these data suggest that the Canadian public wants some of its most serious offenders to have a chance of leaving prison and returning to society.Footnote 27

As everyone is fully aware, the Harper government put in place numerous mandatory minimum sentences. In addition, they raised other mandatory minimums. One can, once again, find Canadian data to support the view that Canadians like mandatory minimums. In one national poll, 58% of the respondents in the national poll indicated that they thought mandatory minimum sentences were a ‘good idea.’ However, they were then asked whether they “agree or disagree that there should be some flexibility for a judge to impose less than the mandatory minimum sentence under special circumstances.” The results show that 74% supported the idea that there should be judicial discretion in imposing ‘mandatory’ minimums. 72% agreed with the idea that a court should be allowed to impose a lesser sentence if the judge had to provide a written justification for a decision in which he or she goes below the mandatory minimum sentence. 68% agreed with the idea that judges should be able to sentence below the mandatory minimum term if Parliament had outlined clear guidelines for the exercise of discretion.Footnote 28

Date modified: