Proportionality and restraint in the use of imprisonment
On its own, a statement of purpose of sentencing doesn’t get one very far, though, if effective, it limits the justifications (and perhaps also the sanctions) that could be imposed in certain cases.
More is obviously needed. One aspect of sentencing that has appeared throughout the period surveyed in this paper is the idea that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender (for the offence). This was contained in the Liberal 1984 sentencing bill as well as the Conservative 1992 sentencing bill.
It was finally written into the current law in 1996 and made part of the Youth Criminal Justice Act when that became law in 2003.Footnote 36
Proportionality – between the offence and the sentence – is part of our sentencing culture. It is almost certainly part of Canadian values about sentencing. Obviously it needs to remain.Footnote 37
But another part of our sentencing culture – that also needs to remain and be strengthened – is restraint in the use of imprisonment. This is now stated in three obvious ways in the Criminal Code.Footnote 38 It is also a central concern in the general principles in Youth Criminal Justice Act in various ways.Footnote 39 More importantly, perhaps, the Youth Criminal Justice Act specifies that there are only four ways in which a young person can be sentenced to prisonFootnote 40 but even when one of those paragraphs could justify custody, the judges is still required to consider other alternatives.Footnote 41
As noted elsewhere, Canada has had a stable rate of imprisonment for over 50 years.Footnote 42 It would appear that it is important to maintain the kind of restraint language that currently exists and, perhaps, to strengthen it. One way to strengthen it would be to use language such as that contained in the Youth Criminal Justice Act which specifies the circumstances in which imprisonment can be used. Such explicit language would move restraint in the use of imprisonment from its status as a suggestion to being closer to being a rule.