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Solomon Friedman: Restraint and proportionality the overarching principles in sentencing

(2012-10-05)

For as long as people have been governed by recognized norms and rules, decision-makers have struggled with a vexing question: what is to be done with those who flout these norms and refuse to obey the laws of society?

This is the question which animates any discussion of the penalties for violating the criminal law — the process known as “sentencing”. From the harsh retributive justice of the Old Testament (“an eye for an eye, a tooth for a tooth”) to the softer approach preached in the New (“if anyone slaps you on the right cheek, turn to him the other also”), legal systems have infused their approaches to sentencing with unique perspectives on the principles and purposes of punishment.

Even in the seemingly severe Biblical dictate, proportionality is the order of the day: an eye for an eye, not two eyes for an eye. This principle carries through to our modern approach and is even codified in the sentencing provisions of the Criminal Code.

Aside from the nature of the punishment itself, legal scholars and philosophers have all wrestled with a more fundamental concern: what do we hope to accomplish by punishing lawbreakers?

As our common law has evolved, succeeding courts have articulated various principles and purposes behind the sentencing of offenders. In 1996, certain predominant values were selected and entrenched in the Criminal Code. Parliament articulated numerous overarching principles to guide courts in crafting appropriate punishments.

One such principle is the notion of “restraint”. This means that imprisonment is a punishment of last resort. The Criminal Code states that where less restrictive sanctions are appropriate, an offender should not be deprived of liberty.

Another guiding rule is proportionality. Sentences should be proportional to the harm caused and the degree of responsibility borne by the offender. In seeking a proportional sentence, courts attempt to assess the “moral blameworthiness” of the wrongdoer.

For example, while two individuals may be legally responsible for the same offence, one who assists or merely encourages (the proverbial “aider or abettor”) bears less moral responsibility than the offender who physically committed the crime.Reckless actions are less morally blameworthy than planned, deliberate ones and are therefore somewhat less deserving of criminal sanction.

Also included among the 1996 amendments was a list of the factors — commonly referred to as “sentencing objectives” that a court must balance when imposing sentence: denunciation, deterrence, separation from society, rehabilitation, reparations and the promotion of a sense of responsibility.

A just sentence should serve to denounce illegal conduct. and deter other would-be lawbreakers. This is known as “general” deterrence. At the same time, the impact of the sentence on the offender serves as “specific” deterrent to the individual being sentenced and hopefully prevent future offences by that person.

In some cases, the circumstances of the offence and the nature of the offender require that the individual be separated from society for some period of time, or in exceptional circumstances, indefinitely. Where an offender poses an unmitigated threat to public safety, there is often no alternative but to restrict the freedom of such a person, often by imprisonment.

Another objective is rehabilitation to reform wrongdoers, to correct their behaviour and to provide them with the opportunity to lead pro-social and productive lives.

Sentencing can also serve a restorative end. This is often accomplished through the use of restitution orders, where the court imposes an obligation on the offender to repay a victim for losses suffered.

Finally, an appropriate sentence should acknowledge the harm done to both victims and the wider community. Like a pebble cast into a pond, the impacts of crime ripple out far beyond the easily identifiable victims. Courts often speak of how crime can tear at the fabric of society, making people feel vulnerable and unprotected. A proper sentence seeks to address those concerns.

Reconciling the sentencing objectives is one of the most difficult tasks faced by a judge.

Even in extreme circumstances, however, our legal system must not lose sight of the fact that criminal sanctions are not based on vengeance or retribution but on restraint and proportionality.

Solomon Friedman is a criminal defence lawyer with Edelson Clifford D’Angelo LLP. He can be reached at solomon@edelsonlaw.ca or 613-237-2290. Follow Solomon on Twitter at twitter.com/firearmslaw or at his website, www.firearmslaw.ca.

(In the next column, we will explore the process of the “sentencing hearing” and the elements that are considered by a judge when imposing the appropriate sentence.)

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