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