A Review of the Principles and Purposes of Sentencing in Sections 718-718.21 of the Criminal Code

F. Other Problematic Sentencing Issues

Since this paper is already well over the 10 page/5000 word suggested limit, I will identify, but not analyze, a few other important problems in Canada’s sentencing scheme.

  1. The Problem of Over-imprisonment

    Section 718.2(e) directs courts to impose “all available sanctions other than imprisonment that are reasonable in the circumstances”. But this provision is not being followed.

    • Canada has had, both before and after the 1996 sentencing amendments, a very high rate of imprisonment when compared to other Western countries (except the United States)Footnote 71
    • Canada’s already high rate of imprisonment has increased dramatically in the past ten years (in spite of drops in reported crime). That increase is due to a concerted effort on the part of the Conservative government to enact legislation that is intended to send more offenders to prison.Footnote 72

      Note: The federal penitentiary population in 2004 was approximately 12,000 and in 2014 it was over 15,000; total Canadian prison population in 2001 was 35,500 and in 2013, it was over 41,000. The rate of imprisonment of Aboriginals and Blacks during these time periods increased more rapidly than non-Aboriginal and non-Black offenders.

    • To reverse this trend many steps need to be taken, including
      1. re-asserting the fundamental objective of reducing rates of imprisonment for all offenders
      2. giving more prominence in s. 718-718.2 to the principle of restraint in the use of imprisonment.
      3. providing judges with more sentencing options other than imprisonment; this means abolishing the restrictions on conditional sentences introduced by the Conservative government;

      Note: Conditional sentences are currently not available for any offence with a mandatory minimum term of imprisonment. By increasing the number of offences that carry mandatory minimums, the government has automatically excluded conditional sentences for all these offences. Thus most mandatory minimums need to be abolished, or the provision excluding conditional sentences for offences with mandatory minimums needs to be abolished.

  2. Significant unwarranted disparity in sentencing. See a brief discussion of this point at pages 11-12 in the context of the need for a permanent sentencing commission.
  3. Absence of Adequate Appellate Review of Sentences and the Infrequency of the Appellate Guideline Judgments
  4. Absence of Any Direction by Parliament or the Courts as to the Appropriate Amount of Increase or Decrease for Specific Aggravating and Mitigating Factors
  5. Consideration of the role of victims in the sentencing process, and in particular, whether victims should be granted a full participatory role in the ordinary sentencing process, as they are in a restorative justice proceedings.
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