Sentencing Theory - Backgrounder

Sentencing Theory
Backgrounder By: Kristin Gardner and Owen James

1. INTRODUCTION
The Criminal Code [1] in Canada covers an extremely wide range of offences, and the individuals who are convicted of committing these crimes are equally diverse.  It follows that judges should consider many factors when they impose a sentence, whether the sentence is a fine, probation, jail time, or any other sentence that the Criminal Code authorizes a judge to make. [2]

There are various theories behind how to come up with an appropriate sentence.  Some of the theories still relevant today were formulated by philosophers several centuries ago, and there are even theories with roots dating as far back as the Bible (note: “an eye for an eye”).  Section 718 of the Criminal Code sets out the purpose of sentencing and objectives for a judge to consider when sentencing offenders convicted of crimes in Canada.  In addition, there are other sentencing principles in ss. 718.1 and 718.2 that must be considered with the general purpose.  These principles and purposes illustrate the different theories behind sentencing, and one of the roles of a judge is to balance these competing theories to come up with an appropriate sentence.

2.  SECTION 718
Section 718 of the Criminal Code states the general purpose of sentencing, and the theories behind sentencing are represented in the objectives that are listed for a judge to consider when applying this purpose.  This section states the purpose of sentencing as follows: 

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community. 

So the purpose of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” and to do this, a judge should consider several objectives.  The theory behind each of these objectives will now be discussed. 

A. Denunciation
The theory behind denunciation as an objective of sentencing is to express society’s disapproval of the crime that was committed.  The crimes in the Criminal Code reflect the behaviours that our society disapproves of and that society has deemed do not accord with our value system.  As such, the theory is less about placing blame on the particular offender and more about defining the values and moral code that we expect people in society to adhere to.  This theory is likely the basis of having mandatory minimum sentences for certain offences.  For example, the mandatory sentence for murder is life imprisonment, and there is no regard for the individual, such as Robert Latimer, for whom the minimum sentence might not be appropriate.

B. Deterrence
The underlying assumption with deterrence is that the threat or example of punishment will discourage people from committing crime.  Generally the principle is thought to be that if you increase the severity of the punishment, you will reduce the crime rate.  However, there is now considerable research that disputes this idea, especially in regards to jail sentences.  The Sentencing Commission found that there is no evidence of a deterrent effect from increasing the severity of the sentence, but instead accepted that any deterrent effect comes from the entire process rather than a particular sentence imposed. [3] The efficacy of this objective in sentencing is therefore questionable.

There are two levels of deterrence to consider: general deterrence and specific deterrence.  General deterrence refers to the attempt to discourage society at large (potential offenders) from committing criminal offences, by using examples of heavy sentences to show the consequences of committing a particular crime.  The theory of general deterrence is that people are afraid of being punished, and the greater the punishment, the less likely a person will commit a crime, due to that fear.  However, a person is unlikely to decide to engage in criminal activity based solely on the punishment that could result.  It ignores a person’s upbringing, morals, and education.  In fact, it is more likely that the certainty of being convicted will have an impact on deterring crime, rather than the severity of the sentence.  If a person is sure that he or she will be caught and punished for the crime, the person is less likely to do it regardless of how severe the punishment is.

Specific deterrence refers to the attempt to discourage a particular offender from repeating a crime.  The theory is that people convicted of a crime will balance the pros and cons of committing that crime, and the more severe the punishment, the more the balance will shift toward obeying the law.  One of the problems with this theory is that the punishment is strongly connected to the particular offence, so a heavier punishment for one crime will not necessarily be successful in deterring a person from committing a different type of crime.  This theory is strongly focused on the individual offender and attempting to predict his future behaviour by looking at factors such as past criminal record, attitude, motivation, and the likelihood of reformation and rehabilitation. 

C. Separation from Society
This theory is based on the simple idea that a person who is in jail is incapable of committing crime in the community for as long as he or she is locked away from the community.  This measure should only be taken with people who cannot be deterred or reformed in the community, since the wording of the provision is that it should be applied only “where necessary.”  This theory is reflected in the provisions of the Criminal Code, which allow some offenders to be designated as Dangerous Offenders and to be sentenced to indeterminate periods of incarceration. [4] The death penalty is the ultimate in separation from society, though that sentence was abolished from the Criminal Code in Canada in 1976.  However, it might be interesting to know that the homicide rates in Canada have steadily decreased since the abolition of this sentence.  What does it say about the theory of general deterrence when the most severe punishment possible does not seem to have affected the rate of that crime? 

These first three objectives are what judges traditionally have relied upon when imposing a sentence that includes jail time.  However, in the 1990s the government began to recognize that Canada had a problem with over-incarcerating people who committed crime and it was more noticeable in certain populations such as Aboriginal Canadians.  In response, the following three objectives were added to the considerations a judge should make when applying the purpose of sentencing.  The objectives of rehabilitation, reparation, and promoting a sense of responsibility are aimed at reducing the use of prison as a sanction and bringing aspects of restorative justice to sentencing.   

D. Rehabilitation
This objective of sentencing has been subject to waves of popularity over the years.  Essentially, rehabilitation is the ideal goal of sentencing because all offenders cannot be incarcerated indeterminately.  So successful rehabilitation to make sure an offender does not commit crimes in the future is the best option to protect the public.  It is interesting that rehabilitation used to be seen as a goal that could be best achieved through measures such as educational or vocational programs in prison.  However, there is no evidence to support the notion that imprisonment itself will successfully rehabilitate an offender.  In fact, in the case of R. v. Gladue, [5] the Supreme Court of Canada reviewed the literature and agreed that incarceration is generally ineffective at rehabilitating or deterring offenders.  Instead, the courts have concluded that a conditional sentence, which is a jail sentence that is actually served in the community, will be more effective than sending a person to jail, when considering the objective of rehabilitation. [6]

So, while programming in jail is still seen as valuable, it is now recognized that incarceration itself is more likely to impede rehabilitation, and keeping people out of prison is more conducive to achieving the goal of rehabilitation.  The focus of this theory, like specific deterrence, is the individual offender.  This could explain why this theory has experienced periods of unpopularity – what works for one offender might not work for another, which makes it difficult for judges to know what sentence to impose.  Now that the tendency is to fashion a sentence promoting rehabilitation in the community, there is a great deal of discretion on the part of judges, and the ability to be more creative in crafting these sentences.

E. Reparation
The idea behind reparation is to put the victim and the community back in the position they were in before the offence was committed.  While this concept was prevalent in ancient times, and is certainly seen in many Aboriginal cultures, it is a relatively recent addition to the purposes of sentencing in modern Canadian criminal law.  Given that it is so new, there are some constraints on judges who are considering this option in crafting a sentence.  However, one can see this principle at work in the restitution provisions of the Criminal Code.[7]

 F. Promoting a Sense of Responsibility
The theory behind this objective of sentencing is that encouraging an offender to acknowledge the harms done to the victims and to the community will reduce the likelihood of the offender committing crimes in the future.  A sentence that includes community service, or speaking publicly about the unfortunate consequences of the offender’s conduct, would take this objective into account.

So with the addition of these last three objectives, the focus has moved away from locking criminals in jail and throwing away the key, and toward trying to find a balance between protecting the community and working with the individual offender to craft a sentence that will help prevent him from committing future crimes.  This balancing act is continued with the other principles of sentencing that judges are obliged to consider, and that will be discussed below.

 3. SECTION 718.1
Section 718.1 of the Criminal Code states the fundamental principle of sentencing as follows:

718.1  A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

This principle is a retributive concept and unlike the objectives considered in the purpose of sentencing that focus on the prospects of future behaviour, this principle focuses on the offender’s past actions.  Retribution considers what the offender actually physically did and is based on the notion that a sanction should be imposed only when the offender committed the offence with a morally culpable state of mind.  So when conduct is an accident or has an excuse such that you cannot find the offender at fault, punishment is limited or unnecessary. 

Essentially, the idea behind this principle is that the sentence must be in proportion both to the crime committed and the circumstances (moral culpability) of the offender.  This goes back to the Biblical suggestion of punishment being “an eye for an eye”, keeping in mind that it is not only the conduct that is considered, but also the state of mind of the individual offender: he or she had to mean what he or she did.

While the idea of “just desserts” is often connected to this principle, it is important to distinguish retribution from revenge or vengeance.  It is one thing to assert that a particular conduct is deserving of punishment, but the purpose behind retribution is to restrain the punishment to ensure it is just and appropriate, rather than arbitrary or excessive.  In fact, a sentence that is grossly disproportionate to the offence may violate the right against cruel and unusual punishment in s. 12 of the Charter of Rights and Freedoms. [8]

To assist the judge in determining a just and appropriate sentence that is in proportion to the offence committed, the Criminal Code also outlines other factors to consider in sentencing.  These factors are contained in s. 718.2 and some of them will be discussed in the following sections.

4.  SPECIAL CONSIDERATIONS

Canadian sentencing laws recognize that some categories of people in society are different than others.  This section considers how the Criminal Code and Youth Criminal Justice Act [9] tailor sentencing principles to meet the needs of Aboriginals and youth respectively. 

A. Aboriginal Sentencing
Section 718.2(e) of the Criminal Code addresses Aboriginal sentencing.  The section requires a sentencing judge to pay particular attention to the circumstances of Aboriginal offenders and to consider all available sanctions other than imprisonment that are reasonable in the circumstances.  An individual’s Aboriginal status is considered in determining a sentence because his or her circumstances are different from non-Aboriginal offenders.[10]

One reason why the Criminal Code treats Aboriginal people uniquely is because Aboriginal people are overrepresented in Canadian prisons. [11] For example, in 1997, Aboriginal people constituted close to 3 percent of the population of Canada, yet amounted to 12 percent of all federal inmates.[12]

To deal with the overrepresentation of Aboriginal people in prison, s. 718.2(e) directs judges to undertake the sentencing of Aboriginal offenders differently.  First, the sentencing judge should consider “the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts”.[13]  Some of these background factors include the low incomes, high unemployment, lack of opportunities, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation that lead Aboriginals to have a higher incidence of crime and incarceration.[14]  Systemic factors include the widespread discrimination that Aboriginals experience both in, and outside, penal institutions.[15]

Second, the sentencing judge should consider “the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection”.[16]  This is because the traditional sentencing ideals of deterrence, separation, and denunciation do not accord with the understanding of sentencing held by Aboriginal offenders and their community.  Most traditional Aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice.  Restorative justice is an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to a crime’s occurrence.  Restorative justice determines a particular sanction by considering the needs of the victims, and the community, as well as the offender.  An example of this can be seen in circle sentencing.

In a circle sentencing, the judge, crown counsel, defence lawyer, victim, offender, police and community members discuss the crime.[17]  In this sense, the community participates in resolving the conflict.  Those involved sit in a circle to break down the formality that can characterize a courtroom sentencing hearing.  An emphasis is placed on healing and consensus building among all who are affected by the crime.

B. Youth Sentencing
The Youth Criminal Justice Act provides the legislative framework for Canada’s youth justice system.  It includes a separate sentencing regime because the needs and situations of youth are different from those of adults.

Section 38 states the principles and purposes of youth sentencing:

38. (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

 (2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

 Some of the principles of sentencing that have already been discussed are more evident in s. 38(2) that others.  For example, many of the principles listed in s. 38(2) deal with proportionality and rehabilitation.  On the other hand, separation from society is discouraged, as is seen in s. 38(2)(d).  The Youth Criminal Justice Act strives to rehabilitate youth because, as young offenders, they are often coming into contact with the criminal justice system for the first time.  It is important to intervene and address the issues that caused these individuals to break the law to ensure that they do not commit other crimes in the future.

[1] R.S.C. 1985, c. C-46.

[2] Provisions relating to Sentencing are found in Part XXIII of the Criminal Code.

[3] Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Ottawa: Supply and Services Canada, 1987).

[4] Provisions relating to Dangerous Offenders are found in Part XXIV of the Criminal Code.

[5] [1999] 1 S.C.R. 688 at.

[6] R. v. Proulx, [2000] 1 S.C.R. 61.

[7] Provisions relating to Restitution are found in s. 738 of the Criminal Code.

[8] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[9] S.C. 2002, c. 1

[10] R. v. Gladue, [1999] 1 S.C.R. 688, at para 37

[11] Ibid. at para 50

[12] Ibid. at para 58

[13] Ibid. at para 66

[14] Ibid. at para 67

[15] Ibid. at para 68

[16] Ibid. at para 66

[17] Curt T. Griffiths and Simon N. Verdun-Jones, Canadian Criminal Justice 2^nd ed., (Toronto: Harcourt Brace and Company, 1994)