A Values and Evidence Approach to Sentencing Purposes and Principles

The central purpose of sentencing

A necessary starting point for thinking about the purpose of sentences might be to accept two basic premises. First, the purpose needs to resonate with Canadians. Said differently, it must make sense to people. In other words, it needs to resonate with Canadians’ values related to those who commit offences. Second, it needs to be honest. It cannot promise to do things that can’t be delivered.

Sentencing is about punishment. Our criminal justice history would suggest that we have been content with the idea that the amount of punishment should be the minimum amount necessary to reflect the act which is being punished. But there should be no mistake: sentences are punishments. Hence a justification for sentencing is useful in that it can help guide the imposition of an appropriate sentence and can provide a framework for everyone when thinking about sentences in individual cases.

In Appendix 2, I have reproduced nine statements of the purpose of sentencing. These come from the Criminal Code (before and after July 2015), the Youth Criminal Justice Act, two Criminal Code amendment bills that were not passed, and four other Canadian documents that are important in understanding issues around sentencing in Canada. They all obviously vary somewhat.

One of the most important differences in these statements lies in the centrality of what might be called “protecting the public through sentencing.” This is, perhaps, most clear if one looks at the two (recent) versions of the Criminal Code. The Code currently states that the “purpose of sentencing is to protect society….” The earlier version was less ambitious. It stated that the purpose was to “contribute… to respect for the law and the maintenance of a just, peaceful and safe society….

The most clear statement that appears to suggest that sentencing is central to issues other than crime control is contained in the Youth Criminal Justice Act which states that “the purpose of sentencing… is to hold a young person accountable for an offence through the imposition of just sanctions….” Requiring judges to be responsible for the amount of youth crime in a community is not part of the Youth Criminal Justice Act.

Turning to other formulations of the purpose of sentences, the Canadian Sentencing CommissionFootnote 29 in 1987 suggested that the purpose of the criminal law was “to contribute to the maintenance of a just, peaceful and safe society.” Sentencing, on the other hand, was supposed “to preserve the authority of and promote respect for the law through the imposition of just sanctions.

This is not the place to examine, in detail, the evidence about the ability of the criminal justice system, through variation in sentencing, to control crime. There is an enormous amount of research on the various mechanisms by which crime might be affected by sentences. These mechanisms include general and individual deterrence, incapacitation, and rehabilitation programs (typically in prison facilities). The most popular mechanisms are probably general and individual deterrence in part because they are so simple. These two mechanisms would suggest that, at least theoretically, longer sentences will both deter other people from committing crime, but will also reduce the likelihood that the person being sentenced will reoffend. The only problem with this view of crime control is that the evidence does not support it. Although there are occasional papers suggesting that crime can be reduced by imposing harsh sentencing practices, such conclusions usually take a selective view of the data or the studies themselves are flawed.Footnote 30 In a more detailed and recent review of current findings, my colleagues and I found little evidence to support the idea that crime could be deterrence through harsh sentences.Footnote 31

But there are other practical concerns about imprisonment. There is substantial evidence, now, that harsh sentences do not reduce the likelihood of reoffending by the person being sentenced. Furthermore, aside from costs to society, it appears that there are negative collateral effects of imprisonment to others and perhaps the community. Canada, throughout its history, has never endorsed the idea that prisons are an effective weapon against crime. It turns out, we have almost certainly been empirically correct.Footnote 32

If the Criminal Code’s statement of purpose were to be modified to simply require judges to hold people accountable by imposing sentences that were proportional to the harm that they created and their responsibility for it, we would be making a clear statement – as we did in sentencing for youths – about what we were likely to accomplish.

If judges were required to hold those who offend accountable for their actions by imposing proportional sentences, then sentencing would no longer be held up as an effective way of reducing the likelihood of offending. If this were done, then it would also make sense to eliminate specific sectionsFootnote 33 which justified sentences by their deterrent effects. Though there is not the quantity of data on the impact of sentences on the denunciationFootnote 34 of the behaviour involved in an offence, given that it is well accepted that sentences should be proportionate to offence seriousness, it does not appear that basing sentences on denunciation makes much sense.

One point that needs to be made, however, is that for the offences that matter to most members of the public – serious violent offences, most particularly – proportional sentences almost certainly deal with what might be called the ‘incapacitation problem.’ It seems to me to be almost certain that the offenders whom people want to incapacitate are those who have committed very serious offences.

Looking at all of this, then, the first question for the government to consider if they are interested in changing the purpose of sentencing is whether it wants to be honest with Canadians about the relationship between sentencing and crime. Clearly it is not difficult to be honest: In 2002, when Parliament finally passed the Youth Criminal Justice Act, it decided that it was reasonable to focus sentencing on holding people responsible for their criminal acts rather than saddling judges with the task of controlling crime.

I would recommend, therefore, that something analogous to the Youth Criminal Justice Act’s goal of holding those who are being sentenced accountable for their actions would be a good start.

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