No aspect of criminal law gets as little attention as sentencing. And no aspect is as important. After all, almost 90% of all criminal cases end with a sentencing. Yet it’s the verdict that everyone usually focuses on. But this year may be different. The Conservative Government’s Bill C-10 has drawn a lot of attention to this area. With minimum sentences for some crimes and mandatory jail time for others, it brings a failed American philosophy into Canada, amidst much controversy.
The goals of sentencing are inherently contradictory and always involve a balancing of competing goals. These three goals are deterrence, denunciation, and rehabilitation. By fining or jailing someone we try to show everyone what this sort of conduct leads to, and we try to show this particular accused the too-high price he (and with increasing frequency, she) must pay for having done this act. So, there are two processes at work here: general deterrence to the public, and specific deterrence to the criminal. The underlying philosophy is that, before committing a crime, a criminal does a mental cost-benefit analysis and decides if the act is worth the punishment: “If I will only go to jail for a year then I’ll do it, but if I am going to have to serve two years, that’s too steep a price to pay, so I’ll refrain.” This credits criminals with a degree of foresight and logic that few possess. The many with fetal alcohol syndrome rarely foresee a consequence that is more than five minutes distant.
The second goal of sentencing is denunciation: that the judge speaks for all of us and proclaims our common values when punishing criminals and thereby denounces their conduct. It reminds the public of values we all hold dear, as expressed in the various prohibitions of the Criminal Code.
The third goal of sentencing is supposed to be rehabilitation, giving criminals a “time-out” to realize the error of their ways. The original idea was that this rehabilitation would occur within the criminals’ own minds as they silently reflected in their lonely cells on the error of their ways and where it has now brought them.
Of late, this has been altered to reform of their conduct and values through the intervention and assistance of the various helping professions who will counsel offenders via various “programs” and one-on-one lectures, presumably of the Socratic type, so they come to realize how shallow and wrong their values are. Often this helps just by babysitting a younger offender as his mind and body complete the inevitable maturing process.
Revenge for the victim or the victim’s family is not supposed to be a goal of sentencing but some say it has now become a fourth principle, and even the dominant one. Along with these competing goals, the tension between sentencing the crime and sentencing the criminal permeates every case.
What is certain is that more people are going to jail and more people will be going to jail. What they will be like when they get out, and who will pay for the prisons and guards to imprison them, has yet to dominate the debate. But some people are already pointing out that, younger people being powerfully influenced by their peer groups and most criminals being under 30, “tough on crime” really means “tough on criminals” as well as “producing more future crime.” And some provincial premiers are complaining that it means the federal government gets the headlines and plays to the crowd, but they get the bill. That a disproportionate number of jail inmates are Aboriginal (30%) as compared to their representation in the Canadian population (3%) has not escaped the notice of critics of Bill C-10. Nor has the failure of this approach in the U.S.A. and the essential bankruptcy of “tough” states like California burdened by tough laws and consequent large jail populations.
These competing values have starkly manifested themselves in Alberta courts in a pair of high profile (at least amongst the legal profession) recent judgments. Justices Jack Watson and Ron Berger of the Alberta Court of Appeal have written strong dissents in R v Arcand (2010 ABCA 363) and R v Lee (2010 ABCA 1), where each vigorously (to put it mildly) attacked each other’s reasoning and values.
Underlying this is the thrust to remove the discretion of trial judges to individually craft a fair sentence in favour of (a) Parliament (Bill C-10) or (b) court of appeal precedents (R v Arcand). And, this is happening in a system that has, to some extent, abdicated its reviewing or appellate function due to deference to the wisdom of our trial judges.
Where this will end up, given that we now have a majority government, seems easy to predict. But we can hope that the controversy surrounding Bill C-10 brings some much-deserved attention to the issue of sentencing and creates greater awareness that the judicial process doesn’t always end with the verdict.
About Phil Lister, Q.C.
