II. SETTING THE STAGE2017-03-03T18:35:01+00:00

A. Purposes and Principles of Sentencing for Criminal Offences
 

1. Introduction 

The approach employed by the Criminal Code with respect to sentencing purposes and principles affords a potential model for regulatory offences sentencing purposes and principles. After all, criminal courts have had more than 100 years of sentencing experience in Canada. Additionally, there is a rich body of academic commentary and literature on the issue of sentencing purposes and principles for criminal offences in Canada, including numerous Parliamentary reports and Law Reform Commission of Canada studies in the area, as well as the debate surrounding the amendments to the Criminal Code in 1996 wherein a statement of sentencing purposes and principles was enacted for the first time. The approach taken to identifying sentencing purposes and principles for criminal offences is informative. It is not only the courts, but experts and sentencing scholars, who share the concern about the proper basis for imposing punishment, and providing sentencing practices aimed at promoting uniformity of approach and eliminating inconsistencies.  

 

2. History of Sentencing Reform prior to the Criminal Code of Canada Statement of Sentencing Purposes and Principles 

In Gilbert and Sullivan’s opera, The Mikado, the Judge, the Lord High Executioner, sets out the clear terms of reference which guide his task:

My object all sublime

I shall achieve in time –

To let the punishment fit the crime,

The punishment fit the crime….[155]  

According to the Canadian Sentencing Handbook,[156] a publication prepared for Provincial Court Judges across Canada, there is a “half truth” captured in this lyrical statement, since the exercise of sentencing calls for a “proper balancing” of the principles of sentencing in order to arrive at a punishment that meets the public interest in protection, while respecting the individual rights of the offender.[157] It is in this sense, according to the Handbook, that the appropriate sentence must “fit” the crime and not be excessive: the accused has a right to a “fit” and “proper” sentence, that is, one that it is not excessive having regard to the circumstances. 

The Lord High Executor’s stated purpose in meting out punishment in The Mikado is no mere whimsical matter. It has been said that the imposition of sentence “is one of the more important mechanisms through which society attempts to achieve its social goals.”[158] A “unity of purpose and philosophy” has been described by the Canadian Committee on Corrections as being essential to any system of criminal justice which purports to deal in a meaningful way with an offender against the criminal law.[159] Indeed, the Ouimet Report issued in 1969 by the Canadian Committee on Corrections expressed the view that there should be a “consistency in philosophy” from the time that the offender has his/her first contact with the police until the time of the offender’s final discharge.[160] A “common principle”, in other words, was necessary respecting the legislative policy in the creation of offences, the extent of police powers in crime prevention and investigation, the operation of courts and lawyers, judicial policy in the disposition of offenders, and finally the construction and operation of correctional services.[161]

The Ouimet Report began its chapter on sentencing with this observation: 

The greatest obstacles to the development of a unified system of criminal law and corrections have been the absence, to date, of any clearly articulated sentencing policy and the inadequacy of the services and facilities available to a judge responsible for the key operation in the entire process.[162]

Accordingly, the Committee’s Report was not confined to only post-sentence issues, but also included a host of matters touching on the loss of liberty throughout the criminal process, as well as parole and imprisonment.[163] The Committee itself acknowledged that it was making “far reaching recommendations” with respect to both “sentencing policy” and “the necessity for increasing the range of dispositions” available to sentencers.[164] 

A number of working papers and studies were subsequently published by the Law Reform Commission of Canada, dealing with sentencing and imprisonment issues. In a 1976 report entitled, Dispositions and Sentences in the Criminal Process, the need for a broader range of available sentences was explored, so as to provide options that could be applied with “restraint and justification” in order to promote “a sense of responsibility on the part of the offender and enable him to understand his actions in relation to the victim and society.”[165]  Imprisonment was described as being an “exceptional sanction” that was to be limited to cases where it was required to protect society by separating offenders who posed a “serious threat” to the lives and personal security of members of the community; or to denounce behaviour that was “highly reprehensible” or a “serious violation of basic values”; or to coerce offenders who willfully refused to submit to other sanctions.[166]  It was also stated that a court ought not to impose imprisonment unless it was certain that a less severe sanction could not achieve “the objective set out by the legislator.”[167] 

Other Law Reform Commission reports concerned principles of sentencing and dispositions,[168] and imprisonment and release.[169]  In The Principles of Sentencing and Dispositions, rather than defining the concept of “punishment”, the term “sanction” was used, so as to denote a penalty which might be imposed for “purposes of punishment, protection, restitution or treatment.”[170] This report went on to note that the purposes of the criminal law, on one hand, and of sentencing and dispositions, on the other, are “closely tied together”, and unless one knows what the purposes of the criminal law are or should be, it cannot be determined “how to formulate a consistent and rational sentencing policy.”[171] A legislative statement of “basic policy setting forth the philosophy, the purposes, standards and criteria to be used in sentencing and dispositions” was put forward as a means of promoting uniformity through structuring and channeling discretion in the sentencing process.[172] Such a mechanism was preferable than “taking all discretion away” from prosecutors, judges or parole officials.[173] Another recommendation called for the drafting of a “sentencing guide” so as to assist courts in determining whether to impose a custodial or non-custodial sentence: it was contemplated that this guide would contain a statement of priorities and criteria to be considered in reaching such a decision.[174] As a general rule, non-custodial dispositions were to be given priority, unless factors such as the gravity of the offence, the offender’s previous convictions and risk of recidivism dictated otherwise. [175] 

In Imprisonment and Release, the Law Reform Commission echoed the importance of sentencing guidelines, as a device to “provide explicit principles and criteria to facilitate rational sentencing.”[176] Imprisonment was, once again, regarded as an “exceptional sanction”, to be used only when other sanctions appeared to be ineffective. According to this report, courts may have no alternative but to consider the use of imprisonment as a “last resort” against offenders who “willfully default in carrying out obligations imposed under other sanctions.”[177] Imprisonment was also to be used rarely in cases of non-violent crimes against property or the public order. 

The Government of Canada released two policy papers of its own, recognizing the need to articulate “clear policies or principles of sentencing”. In The Criminal Law in Canadian Society,[178] it was acknowledged that one of the most significant concerns in sentencing was the “apparent disparity” in sentences imposed for “similar crimes committed by similar offenders in similar circumstances”, a problem compounded by the lack of guidelines as to the manner in which general principles ought to govern the choice of sentence, or the weight to be given to the different objectives or principles of sentencing.[179] Indeed, a “statement of purpose and principles” was required for the criminal law generally, and not just sentencing. A subsequent publication, entitled Sentencing,[180] termed it a “striking omission” that the Criminal Code, since its inception in 1892, had failed to provide any “formal Parliamentary guidance” respecting a statement of purposes and principles which underlie the criminal law generally, and sentencing in particular.[181] Given that such standards or principles are issues of “public policy which are of fundamental importance,” Parliament was stated to be “the most appropriate forum for their articulation.”[182] 

Subsequently, the Government of Canada announced the establishment of the Canadian Sentencing Commission in 1984. Its terms of reference directed that the Commission should be guided by the statement of purpose and principles set out in The Criminal Law in Canadian Society,[183] as well as sentencing and release practices. The Commission’s Report, Sentencing Reform: A Canadian Approach, was released in 1987.[184] A research report commissioned by the Canadian Sentencing Commission noted that the “major danger” in Canada appeared to be the “tendency not to make hard choices on sentencing reform,” given that previous sentencing reform “has been extremely incremental and hesitant”.[185]  The Commission’s report itself stated that the “primary difficulty” with existing sentencing practices in Canada was that “there is no consensus on how sentencing should be approached.” [186] This, in turn, was exacerbated by the “almost complete absence of policy from Parliament on the principles that should govern the determination of sentences.”[187] In Chapter 6, entitled “A Rationale for Sentencing”, the “goals” of sentencing were described as being: deterrence, rehabilitation, incapacitation, retribution, denunciation and “just deserts”. The paramount goal was identified as protection of the public, although this was stated to be not so much the “overall goal of sentencing, but of the entire penal system.”[188] The “fundamental purpose” of sentencing was said to be to preserve authority of and promote respect for the law through the imposition of “just sanctions”;[189] the “paramount principle” governing the determination of a sentence is that the sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender for the offence.”[190]  

In response to the Sentencing Commission’s Report, the Standing Committee on Justice and Solicitor General conducted a review of sentencing and conditional release, holding public hearings across the country and visiting various institutions. The Report that it released in August, 1988, entitled Taking Responsibility, endorsed the proposal that the Criminal Code should set out a statement of the purpose of sentencing, as well as the applicable principles which should guide discretion, such as proportionality.[191] Noting that there was general consensus that “unwarranted disparity should be eradicated”, the point was made:  

Research on sentencing disparity demonstrates that the most frequently alleged cause for unwarranted variation is confusion about the purposes of sentencing. No sentencing goals are now set out in legislation. Conflicts and inconsistencies in case law appear to arise from the fact that it is often impossible to blend the elements of public protection, punishment, denunciation and deterrence; frequently, they are contradictory and inconsistent. It is important, therefore, to achieve consensus on a sentencing rationale for the guidance of the judiciary and the enlightenment of the general public.[192]  

The Government of Canada responded to the Standing Committee’s Report with a 1990 Green Paper, Sentencing: Directions for Reform[193], where the recommendation put forward in Taking Responsibility for a legislated statement of sentencing principles was endorsed. It was observed in the Green Paper that a rationale for sentencing “should clearly explain the basis for the imposition of legal sanctions.”[194] Another point that was addressed was that while a body of case law on sentencing had been developing since the 1921 amendments to the Criminal Code which permitted appellate review of “fitness of sentence”, such decisions were not generally accessible to the general public. As a result, “one of the basic tenets of our law, that it should be available and understood by the population, is not well met in respect of sentencing law.”[195]  The Minister of Justice and Attorney General of Canada, Kim Campbell, echoed these statements, noting that the lack of a “clear, national set of objectives” to be applied in the sentencing process was incompatible with a system of sentencing which must be “understandable, accessible, and predictable – to judges, the public, correctional officials, and the offender.”[196] 

It is thus apparent that a central theme in the calls for reform leading to the introduction of a statement of principles for sentencing in the Criminal Code through the 1996 amendments has been the need to “structure sentencing discretion”.[197] All of the major groups involved, the Law Reform Commission of Canada, the Canadian Sentencing Commission, Parliamentary Standing Committees and the Government of Canada itself, recognized the “necessity for a legislated statement of sentencing purpose.”[198]  Through this means, a “matrix of principles” is codified in order to “direct the sentencer’s mind to factors which should be given appropriate play in deciding the kind of sentence and its extent.”[199] 

 

3. The Enactment of a Statement of Sentencing Purposes and Principles for Criminal Offences  

Bill C-41 was introduced into Parliament as legislation that, for the first time, provided “comprehensive sentencing reform”.[200] It became law in September, 1996.[201] Stated simply, it was no longer possible for the legislature to “passively sit back and avoid involvement” in the sentencing reform movement. [202] Passage of legislation setting out the statement of purposes of sentencing also meant, as Roberts observed, “the debate over punishment has been particularly public.”[203] As it turned out, it was the conditional sentencing provisions of the legislation that ultimately proved better known, and certainly far more controversial, than the statement of sentencing principles.  Indeed, the former has already been substantially restricted in scope through subsequent amendments, such that conditional sentences are no longer available for many criminal offences.[204] 

According to Manson, Bill C-41 succeeds, at least, by organizing the new sentencing provisions in a “coherent” and “systematic manner”.[205] Beginning with alternative measures,[206] which would remove a case from the criminal system entirely, the legislation moves next to the purpose[207] and principles of sentencing.[208] A series of provisions follow, dealing with procedural and evidentiary matters,[209] after which are the sentencing options themselves, in ascending order of seriousness, starting with discharges[210] and probation,[211] moving next to fines and forfeiture,[212] restitution,[213] and culminating with conditional sentences[214] and, finally, imprisonment.[215] 

The purpose of sentencing, as set out in s.718, is cast in these terms: 

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 acknowledgment of the harm done to victims and to the community. 

The fundamental principle of sentencing is contained in s.718.1. It is that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Other sentencing principles follow in s.718.2, including those factors that constitute aggravating circumstances.[216] Additional sentencing principles are: a sentence should be similar to sentences imposed on similar offenders for similar offenders committed in similar circumstances;[217] where consecutive sentences are imposed, the combined or total sentence should not be unduly long or harsh;[218] an offender should not be deprived of his/her liberty, if less restrictive sanctions may be appropriate in the circumstances;[219] and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.[220] 

There has been much scholarly debate both as to the impact and merits of the statement of purpose and principles of sentencing added to the Criminal Code in 1996. Given the consensus in the sentencing reform movement advocating for the inclusion of such a sentencing statement, some have argued that the impact of the legislation may ultimately turn on issues such as the content of the statement, how it is structured, and the wording and qualification of the principles themselves.[221] While it has been acknowledged that “it must be better for an institution to be purposeful than purposeless”, and that there can be nothing wrong with including a statement of purpose as opposed to failing to articulate one, there remains the concern whether s.718 will achieve its goals, or merely constitute “a self-justificatory and empty platitude.”[222] 

That the sentencing landscape has been indubitably altered by these new Criminal Code provisions is obvious, at least in the view of the Supreme Court of Canada. In one of its first decisions concerning the sentencing principles enacted by Bill C-41, R. v. Gladue,[223] a case where s.718.2(e) with respect to aboriginal offenders was in issue, the Supreme Court observed that the passing into law of the new Part XXIII of the Criminal Code, where these sentencing sections are grouped, constituted “a watershed, marking the first codification and significant reform of sentencing principles in the history of Canadian criminal law.”[224]  The following year, in its seminal judgment on conditional sentences, R. v. Proulx,[225] the Supreme Court returned to this theme, noting that Bill C-41 “substantially reformed” Part XXIII of the Criminal Code by introducing, “inter alia, an express statement of the purposes and principles of sentencing, provisions for alternative measures for adult offenders and a new type of sanction, the conditional sentence of imprisonment.”[226] 

However, it is no small task to devise a fit sentence for an offender, even with the guidance provided by the new Criminal Code sections. Sentencing remains a very “human process”.[227] The imposition of a fit and proper sentence has been described as being “as difficult a task as any faced by a trial judge.”[228] It is essentially the product of “the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender.”[229] The term “individualized sentencing” has been used to describe this process.[230] This case by case nature of sentencing proceedings is said to be reflected in the principle of proportionality, which is described as being the fundamental principle of sentencing under s.718.1 of the Criminal Code. And in addition to complying with the principles of sentencing, the sentence imposed by the court must promote one or more of the objectives set out under s.718.  

The importance and relevance of each of the objectives identified in s.718 must vary, though, having regard to the circumstances of the offender and the nature of the offence. Thus, as one commentator notes, while the new sentencing provisions which came into force in Canada included for the first time an explicit statement of the purposes and principles of sentencing, the Criminal Code “provides no guidance” on how a judge is to implement and give effect to these principles.[231] In short, the sentencing sections constitute “a confusing mix of purposes, objectives and principles that are to be used in sentencing individual offenders.”[232] A “smorgasbord of justifications for punishment” remain available to the court in its determination of what constitutes a fit sentence, without providing direction to judges as to how to match “punishment purposes” with offenders;[233] the form and structure of the statement of sentencing “provides no hierarchy within the principles to direct decision-making in a forceful and principled way.”[234] In order to cover a large number of conflicting aims, “rather indecisive formulae” are set out in the legislation.[235] It is not made clear, for example, under which conditions certain of the aims are to be favoured over others.[236] The Criminal Code, according to another author, “remains silent on what ought to be done when conflicts arise between the various sentencing objectives.”[237] In such cases, judges are left to decide which of the enumerated principles of sentencing should apply to the particular offender. As a result, discretion “continues to be the hallmark of sentencing in Canada.”[238] 

Still, it is the legislature that sets out the sanction for breaching its statutes. The legislature’s “attitude” cannot but help guide the courts in sentencing within those limits, as Decore observed in an article on Canadian sentencing practices more than forty-five years ago.[239] That is, an analysis of the purposes underlying criminal sanctions assists one in attempting to answer the question, “Why do we punish?” It allows the court to move on to the next question: “How is the defendant to be punished?”[240] The statement of sentencing principles in the Criminal Code, when viewed through this prism, serves the important task of providing “standard fundamental principles” and the framework within which courts may exercise their discretion in determining what is a fit and proper sentence, having regard to the particular facts in the case.[241] Having a sentencing policy means, in the words of Mannheim, “not merely using one’s discretion but using it in a specific and consistent manner, with some ultimate object in view.”[242] Creating sentencing standards requires a “coherent conception of purposes.”[243] Whereas the absence of agreement on “a philosophy of sentencing” is an invitation for “chaotic criminal sentencing” practices,[244] a statement of sentencing purposes, even an imperfect one, brings order to the process. The “legislation of sentencing objectives” lessens the potential for disagreement among judges as to the legal objectives that govern in a particular case.[245] In summary, the importance of a statutory statement of sentencing purpose and principle “cannot be over-stated.” [246]

 

4. Conclusion 

It is clear that there is a shared recognition among experts and sentencing scholars as to the desirability of uniformity in sentencing practices with respect to criminal offences, and the importance of identifying sentencing purposes and principles. It is equally clear, though, that there is no unanimity as to how to best achieve these aims. On one thing there is agreement, however. The court imposing sentence, like The Mikado, must be guided in its task, whatever that might be, and in whatever form that might take. Otherwise, on what principles is the sentence to be based? For what purposes is punishment to be imposed? And it is not only the court, but all the participants in the sentencing process, that have a keen interest in knowing the answers to these questions. Stated shortly, the public has the right to an intelligible sentencing system.  

However, the sentencing system governing criminal offences appears to have limited utility as a model for courts imposing sentences for regulatory offences. This is because the latter do more than simply impose punishment for morally wrongful behaviour, that is, criminal conduct, but instead craft sentences for regulated parties who fail to meet the regulatory standard, and are likely to return to participate in the regulated activity following sentencing.  In the criminal offences sentencing model, “individualized sentencing” mandates focus on the party before the court; in the regulatory offences sentencing system, broader societal concerns are engaged. While there are aspects of criminal offences sentencing practices that may be modified for use by regulatory offences courts, such as addressing sentencing purposes and principles through legislation, consideration of these issues for regulatory offences must occur within the particular context that such conduct takes place.  Consequently, before one may devise a system which is best suited to reflect regulatory offences sentencing purposes and principles, the relevant sentencing factors for such offences must first be identified and examined. It is this issue which is addressed in Part III.  

 

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