A Values and Evidence Approach to Sentencing Purposes and Principles

Canadian Values on Sentencing: An Uncontroversial Topic

Until 1996, Canada’s Criminal Code gave very little guidance to judges on sentencing. Each offence had a maximum sentence; a few offences had minimum sentences associated with them. With one major exceptionFootnote 3, the power to determine the sentence was – at least in theory - in the hands of trial and appeal judges.

With few exceptions – at least one of them notableFootnote 4 – when the new Part XXIII of the Criminal Code (C-41, 35th Parliament 1st session) was introduced into Parliament on 13 June 1994 – it was seen as being nothing new. Indeed the next day, “Canada’s [self-styled] National Newspaper,” the Globe and Mail, described the new sentencing bill on its front page under the headline. “Ottawa wants crackdown on violent offenders.”

Though that story was on the front page (“below the fold”), the top centre story had the headline “Violence not up, Statscan finds” and reported on a recently released report on the results of Canada’s second victimization survey. Below the story about the Statistics Canada report was a picture of Princess Ann and her husband. And below that was the story on the sentencing bill.

Saying that the sentencing package that had been introduced into Parliament represents “a slight improvement in the right direction but certainly falls short in key areas” the Reform Party spokesperson interviewed by the Globe and Mail said that the “package has to be examined closely to see if it is window dressing or serious reform.

Later, the Opposition would criticize the government’s section listing the groups included in the “hate motivated crime” section (718.1(a)(i)). Their concern was simple: they didn’t like the fact that if a victim was targeted because of that victim’s “sexual orientation,” that was an aggravating factor at sentencing. Reviewing the debates in the House of Commons, one gets the definite feeling that the Bill itself was not controversial given that so much time was spent by the opposition criticizing the Minister for his decision to suggest in legislation that a crime was more serious if it targeted someone for reasons of that person’s sexual orientation.

As the then Minister of Justice, Allan Rock, noted in an interview much later,

It’s an irony that when we tabled [the sentencing bill] – 75 pages of proposed legislation … [that] the one thing that preoccupied the House of Commons and the public for six months before it got passed was the appearance of two words… “sexual orientation” in the hate crimes provision. Those boneheads didn’t spend a moment talking about the policy of conditional sentences, didn’t talk even about the [Aboriginal] provisions for recognizing the particular circumstances of Aboriginal punishment, which I thought was daring at the time. I expected to have the roof fall in on me over that. They focused on those two words. ….It was wild.Footnote 5

Especially in retrospect, it is perhaps not so wild. There certainly were some aspects of the bill that would later become controversial. The Minister mentioned two in this quote – the phrase relating to Aboriginal people in S. 718.2(e) and conditional sentences which were brought in as part of this bill. But the framework for the Bill – the principles and purposes of sentencing – were, generally, not controversial.

As an aside, S. 718.2(e) – stating that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders” in itself reflects Canadian values. Parliament, in passing the bill with this section was, in effect, acknowledging the need to address Aboriginal over-representation in Canada’s prisons.Footnote 6

It is notable – but not surprising - that in 1994 the Reform opposition did not to attack the Government on the fundamental aspects of the sentencing bill. I say this for a very simple reason: most of the values implicit in this bill reflected Canadian values.

Twelve years earlier, the Liberal Justice Minister, Jean Chrétien, had released his statement of government policy on criminal justice matters – a booklet titled Criminal Law in Canadian Society. Its release received almost no publicity whatsoever even though it was described in its preface as being Canada’s first statement of policy on criminal law. Indeed, it got no mention in “Canada’s National Newspaper” until 8 days later when a Globe and Mail columnist described it as being “a discussion of only very broad notions about crime and society and a set of principles which fall into the region of motherhood.Footnote 7 Four days later, an editorial appeared in the same newspaper gently chiding the government for not being more specific in its policy development. Other than that, the report seems to have been ignored by the Globe and Mail and all other Canadian newspapers.Footnote 8 The reason that this statement of policy was seen as little more than ‘motherhood’ statements is that it probably was: there was some consensus that the criminal law should be used with restraintFootnote 9 and that heavy use of prison sentences was not in the public interest. It seems unlikely that the statement about proportionalityFootnote 10 or restraint in the use of imprisonmentFootnote 11 were terribly controversial.

Most of the basic principles of sentencing enunciated in a 1984 sentencing bill (that died on the order paper when the 1984 election was called) and in statement of government policy on sentencing (Sentencing, released in February 1984) probably still aren’t controversial.Footnote 12 The booklet Sentencing seems to have been ignored.

Each of these policy documents – and perhaps most of two other very important documents on sentencing that were released later in the 1980s – might be seen as simultaneously reflecting a Canadian consensus and helping to build or strengthen a consensus on sentencing. Indeed, the Deputy Minister responsible for the development of Criminal Law in Canadian Society saw the project as a way of consolidating a consensus that could later be a starting point for the development of future policies. Or, as Jean Chrétien said in a press release dated 25 August 1982, “I believe that this statement offers the foundation for a credible and effective criminal law, reflecting the needs and values of Canadian Society.

That same day Chrétien wrote to all other Ministers (and his Deputy wrote to all other deputies) reminding them of a cabinet commitment to review all federal statutes that create criminal offences with the goal of bringing them in line with the new policy.

That document, however, did not take a firm stand on an important issue: whether crime could be controlled with harsh sentences. The 1982 document included somewhat contradictory statements about sentencing that did not seem to be controversial.

[T]the criminal law should provide sanctions for criminal conduct that are related to the gravity of the offence and the degree of responsibility of the offender, and that reflect the need for protection of the public against further offences by the offender and for adequate deterrence against similar offences by others. (page 5)

In awarding sentences, preference should be given to the least restrictive alternative adequate and appropriate in the circumstances. (page 6).

There was no discussion about how to resolve possible inconsistencies between a proportionate sentence and deterrence, or between the “least restrictive alternative” and deterrence. Nor was what was ‘appropriate in the circumstances’ discussed. Nevertheless, the consensus view was clear: the Government of Canada had created a policy of restraint in the use of the criminal law and of imprisonment.

There were two other reports issued during the 1980s that also related to sentencing – the report of the Canadian Sentencing CommissionFootnote 13 and the report of the House of Commons CommitteeFootnote 14 that examined sentencing and conditional release for about 9 months in 1987- 1988. These groups also suggested restraint in the use of imprisonment.

More important, perhaps, is the fact that the Canadian Sentencing Commission placed the utilitarian goals of sentencing – deterrence and incapacitation most notably – as goals that were subservient to the principle that sentences should be (largely) proportionate to the gravity of the harm inflicted on the victim or society and the offender’s responsibility for that harm.Footnote 15

The 1988 House of Commons committee expressed its skepticism about imprisonment in another way by recommending that:

A term of imprisonment should not be imposed, nor its duration determined, solely for the purpose of rehabilitation” (page 247).

By 1990, when the Conservative government released a set of three policy papers (and, in early 1992 a sentencing bill), the consensus on such matters as restraint in the use of imprisonment were well established. The 1990 policy paper Directions for Reform: Sentencing was described by the then Minister of Justice, Kim Campbell, as “the thinking of the federal government about this very complex issue [sentencing].Footnote 16 As if to emphasize the agreement on certain fundamental issues, this (Conservative) Minister went out of her way to quote, and cite with approval, statements from the 1982 “policy of the Government of Canada with respect to the purpose and principles of the criminal law” (Criminal Law in Canadian Society) as released by (Liberal) Jean Chrétien.Footnote 17 She said that it “was necessary for us to endorse some specific principles that would guide our efforts” (page 5). Among these, she noted that:

Restraint and balance are vital:

Restraint should be used in employing the criminal law because the basic nature of criminal law sanctions is punitive and coercive, and, since freedom and humanity are valued so highly, the use of other, non-coercive, less formal, and more positive approaches is to be preferred whenever possible and appropriate. It is also necessary because, if the criminal law is used indiscriminately to deal with a vast range of social problems of widely varying seriousness in the eyes of the public, then the authority, credibility and legitimacy of the criminal law is eroded and depreciated. (p. 42)

What had been established? Clearly restraint in the use of imprisonment was important as were proportional sentences. There was less clarity on the importance of the utilitarian purposes of sentencing such as deterrence and incapacitation. But nobody in power was arguing that prisons were effective in reducing crime. There was a good deal of agreement about criminal justice policies. This is illustrated by the “sameness” of the quotations in a “quiz” contained in Appendix 1.Footnote 18

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