Making Sense of Sentencing

Making Sense of Sentencing

JULIAN V. ROBERTS
DAVID P. COLE
Copyright Date: 1999
Pages: 432
https://www.jstor.org/stable/10.3138/9781442676923
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  • Book Info
    Making Sense of Sentencing
    Book Description:

    On 3 September 1996, Bill C-41 was proclaimed in force, initiating one significant step in the reform of sentencing and parole in Canada. This is the first book to provide an overview of the law.

    eISBN: 978-1-4426-7692-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Foreword
    (pp. vii-viii)
    CLAYTON C. RUBY

    The very existence of the volume you hold in your hands is evidence of audacity, of real courage on the part of those who conceived and executed it. Their task - making sense of sentencing - is daunting. Given the shifting, ambiguous, and contradictory purposes and objects of our sentencing system, it must be conceded that it is unlikely to be fully achieved, at least in our life-time. But the dread importance of sentencing and the amount of human endeavour put into this painful and capricious exercise makes it important to comprehend what we can and to do what we...

  4. Acknowledgments
    (pp. ix-2)
    JULIAN V. ROBERTS and DAVID P. COLE
  5. 1 Introduction to Sentencing and Parole
    (pp. 3-30)
    JULIAN V. ROBERTS and DAVID P. COLE

    What is the appropriate sentencing response to such an atrocious crime? Should the accused be punished severely, despite their age, on account of the seriousness of the offence? Or, given the fact that they are first-time offenders, should the judge impose a sentence that will promote their rehabilitation? What kinds of mitigating and aggravating factors should be considered? Must a severe sentence be imposed in order to send a message to other offenders? What role should the family of the victim play in determining the sentence imposed? Is imprisonment necessary, and if so, for how long? If the offenders are...

  6. 2 An Overview of Bill C-41 (The Sentencing Reform Act)
    (pp. 31-47)
    DAVID DAUBNEY and GORDON PARRY

    In 1979 the federal government and the provinces unanimously agreed to a comprehensive review of the Criminal Code. This exercise, known as the Criminal Law Review, led to two publications dealing with different aspects of the criminal justice system. In 1982, the Government of Canada publishedThe Criminal Law in Canadian Society, which provided a basic framework of principles within which the more specific issues of criminal law could be addressed. In 1984,Sentencing, a White Paper, was published as a result of the work of the Sentencing Project within the overall Criminal Law Review. Early in 1984, the Trudeau...

  7. 3 Legislating the Purpose and Principles of Sentencing
    (pp. 48-62)
    JULIAN V. ROBERTS and ANDREW VON HIRSCH

    As noted in Chapter 1, sentencing is designed to serve many purposes. How is a judge to know which purpose is appropriate in which kind of case? One of the aims of the federal government’s sentencing reform initiative was to help develop a uniform approach to sentencing. One of the most important changes in the sentencing process introduced by Bill C-41 was the addition of the statement of the purpose and principles of sentencing to the Criminal Code of Canada (sections 718-718.2). An effective statement could have far-reaching symbolic and practical effects upon the sentencing system. This is particularly true...

  8. 4 Conditional Sentences
    (pp. 63-76)
    JACK GEMMELL

    The new sentencing provisions contained in Bill C-41 ushered in an important addition to Canadian sentencing law and practice: the conditional sentence. Designed as an alternative to imprisonment and subject to surprisingly few limitations as to its availability, the conditional sentencing provisions allow a judge to permit an offender to serve a sentence of up to two years less a day in the community, subject to a conditional sentence order.

    Conditional sentences do not fit comfortably either with prior Canadian sentencing practices or the purpose and principles of sentencing now (somewhat incompletely) codified by sections 718 to 718.2 of the...

  9. 5 Conditional Sentencing: Issues and Problems
    (pp. 77-97)
    JULIAN V. ROBERTS

    Conditional sentencing is a powerful new weapon in the struggle to contain the use of incarceration as a sanction. However, like any weapon, in the wrong hands it can produce as much harm as good. The courts have grappled with the conditional sentence since it was introduced, and it is clear that no consensus has yet emerged as to the most appropriate manner in which to use the disposition (see the subsequent chapter by David Cole for an update on appellate reaction to the conditional sentencing regime). Moreover, conditional sentencing has generated controversy beyond the judiciary; there have already been...

  10. 6 Conditional Sentencing: Recent Developments
    (pp. 98-111)
    DAVID P. COLE

    This metaphor [Sword of Damocles] exaggerates the severity of a conditional sentence. Even if a conditional sentence could be equated to a sword, it does not hang by a thread, but by a rope. And the only way that this rope can break is if the offender himself cuts it. And with each passing day of the sentence, the ‘sword’ shrinks until it finally becomes a butter knife.¹

    During its short life span, the concept of conditional sentencing has been both vilified as being ‘soft on criminals’ and praised as one of the most enlightened sentencing revisions ever enacted. Whatever...

  11. 7 Sentencing Options in Canada
    (pp. 112-136)
    ALLEN EDGAR

    A person facing the unpleasant situation of being sentenced is often quite aware of what the judge can do and is almost always intensely interested in what the judge will do. So is the victim and the victim’s family. Much less interesting to those immediately involved is what goes into the judge’s decision- making process. Once the stage has been set by the nature of the offence, the nature of the offender, and the advocacy skills of the lawyers involved, three key components are integral to the process: (a) direction given in the statutes (generally the Criminal Code) in relation...

  12. 8 Sentencing Trends and Sentencing Disparity
    (pp. 137-159)
    JULIAN V. ROBERTS

    Ask the average Canadian what he or she thinks about sentencing, and the response will be negative. Nationwide surveys over the past twenty years have repeatedly shown that most Canadians believe that sentences should be more severe, particularly for violent offenders (Doob and Roberts 1983; Roberts 1994a). As well, almost half the population believes that excessive leniency is the main reason for a perceived increase in violent crime rates (Maclean’s1995). However, few individuals have an accurate idea of sentencing patterns. One reason for this is that systematic sentencing statistics have not been available until fairly recently. Accordingly, the public’s...

  13. 9 Sentencing Mentally III Offenders
    (pp. 160-172)
    RICHARD D. SCHNEIDER

    As we have seen in earlier chapters, the variety of sentencing options, alternatives, objectives, and principles allow a court considerable flexibility in sentencing an individual accused to ensure that the sentence is the best possible ‘fit,’ not only for the offence but for the accused. Prior to considering the ways in which sentencing principles are modified when applied to the mentally disordered accused, it is important to examine briefly the legal notion of criminal responsibility, generally, as it is applied to the determination of guilt or innocence - the verdict.

    A mentally disordered accused is one who, according to the...

  14. 10 Sentencing Aboriginal Offenders: Some Critical Issues
    (pp. 173-185)
    CAROL LA PRAIRIE

    Why are aboriginal and racial minorities overrepresented in prison statistics? The criminology literature in the United States, Britain, Australia, New Zealand, and Canada contains many references to the role that race plays in the overrepresentation of certain minority groups in the courts and correctional systems. In the United States and Great Britain, most references are to African Americans, but aboriginal peoples are the focus of attention in Canada and Australia. In some provinces in Canada, however, attention is shifting to include the black population as well (Roberts and Doob 1997; Wortley and Brownfield 1996). As Smith (1994) argues, it is...

  15. 11 Punishing Female Offenders and Perpetuating Gender Stereotypes
    (pp. 186-199)
    DIANNE L. MARTIN

    Tracy Watson, aged twenty-two, has two children: Josh (fourteen months old), and Helena (four years old). Tracy has been receiving social assistance as a single parent since Josh was born. Their father, Kevin Anderson, gives her money when he is around and living with her (which he does off and on). He has been her boyfriend since she ran away from home when she was fifteen.

    Kevin is also a runaway. He has trouble keeping a job and has been drinking heavily since Josh was born. He says that he loves Tracy and the kids and wants them to be...

  16. 12 Sentencing Black Offenders in the Ontario Criminal Justice System
    (pp. 200-216)
    TONI WILLIAMS

    Over the last twenty-five years, several studies in the United States and United Kingdom have documented a disturbing problem: the dramatic and rapidly increasing overrepresentation of black people among persons who receive the harshest sentences. In the United States, which is the only Western industrialized nation to execute people, most persons on ‘death row’ are black men (Wolfgang and Riedel 1973). Black men and women are also overrepresented in American prisons (Tonry 1994, 1995a; Miller 1995), as they are in British prisons (Hood 1992; Cook and Hudson 1993). These studies raise important questions about racial discrimination in the criminal justice...

  17. 13 The Role of Victims in the Sentencing Process
    (pp. 217-229)
    SANDRA BACCHUS

    It has often been said that a victim of crime is doubly victimized by his or her experience with the criminal justice system. This chapter examines the role of the victim in the sentencing process and the ways in which recent legislative changes seek to alleviate revictimization. How has the role of the victim evolved as a result of recent legislative changes? What rights, if any, does the victim now have during the sentencing process? To what extent should the victim’s need for restitution affect whether an accused is incarcerated?

    Historically, the victim has been viewed as somewhat of an...

  18. 14 Appellate Review of Sentencing Decisions
    (pp. 230-241)
    GARY T. TROTTER

    After a sentencing judge sorts through the innumerable sentencing provisions in the Criminal Code (described in previous chapters) and imposes a sentence that he or she feels is appropriate, the offender or the prosecutor may seek to have this decision reviewed by a higher court. This chapter examines the manner in which sentencing decisions are reviewed by the provincial and territorial courts of appeal. It also explores the role of the Supreme Court of Canada in the sentencing process.

    Traditionally, the appellate courts (particularly the provincial courts of appeal), have played a very important role in the Canadian sentencing process....

  19. 15 Sentencing and Conditional Release
    (pp. 242-258)
    MARY E. CAMPBELL

    Each year in Canada approximately 6,000 offenders are released from federal penitentiaries and more than twice that number are released from provincial correctional facilities. The vast majority are released prior to the expiration of their custodial sentence, subject to what is known as ‘conditional release.’ As the next chapter outlines, this is a generic term encompassing temporary absence, day parole, full parole, statutory release, and remission-based release. While the specific nature of each varies somewhat, what is common to almost all is that the offender serves a portion of the sentence in the community, subject to various conditions and restraints....

  20. 16 Conditional Release from Imprisonment
    (pp. 259-276)
    SANDRA G. LEONARD

    In 1867, the British North America Act divided federal power over ‘criminal law’ and ‘penitentiaries’ from provincial power over ‘the administration of criminal justice’ and ‘prisons and reformatories.’ As a result of the constitutional power over criminal law, the federal government was given the power to control the length and character of the sentence. Thus the federal legislation provides most of the guidance with respect to corrections and conditional release. The Criminal Code of Canada, however, also codified the historical division between the federal penitentiary and provincial reformatory by requiring those serving sentences of two years or more to be...

  21. 17 Sentencing and Early Release Arrangements for Offenders Convicted of Murder
    (pp. 277-294)
    JULIAN V. ROBERTS and DAVID P. COLE

    There are many misperceptions about what actually happens to persons convicted of murder in Canada. Members of the public are under the impression that murderers can only be kept in jail for a few years, that release from jail cannot be prevented, and that once released these presumably dangerous animals are free of any further restrictions on their liberty. Such perceptions are inaccurate.

    First, it is frequently overlooked that Parliament decided in 1976 that all adults convicted of murder are to be automatically ‘sentenced to imprisonment for life.’² That means that the parole authorities have control over the convicted person...

  22. 18 Sentencing Alternatives
    (pp. 295-316)
    JONATHAN RUDIN

    Since the late 1980s and early 1990s, increased interest has been expressed in sentencing alternatives. This interest has come from a variety of sources and is motivated by a number of different factors. In this chapter, some of the major reasons for the current interest in sentencing alternatives will be described. The chapter concludes with an examination of two alternative sentencing projects that appear to fall outside of the theoretical constructs advanced: sentencing circles and family group conferencing.

    The term ‘sentencing alternatives’ describes a wide variety of approaches, which are often based on very different philosophical grounds and meant to...

  23. 19 Federal Sentencing in America
    (pp. 317-331)
    SHEREEN H. BENZVY MILLER

    The principal difference between Canada and the United States with regard to sentencing concerns the degree of guidance provided to judges. In Canada, judges rely upon precedents from case law and appellate decisions to guide them in their sentencing decisions. In the United States, judges in many states² and at the federal level are bound by a two-dimensional sentencing table, the format of which resembles a mileage grid.

    Sentencing grids emerged in the 1970s as a result of a search for explicit rules for sentencing when the problem of unwarranted disparity became too obvious to ignore. Standards and guidelines of...

  24. 20 Sentencing Reform: Ten Years after the Canadian Sentencing Commission
    (pp. 332-348)
    JEAN-PAUL BRODEUR

    Ten years have passed since the report of the Canadian Sentencing Commission (CSC) was published in 1987. This is accordingly a good time to assess developments in sentencing since the publication of that report, which recommended a comprehensive reform of the sentencing process in Canada. I will begin by reviewing the relevant legislation enacted over the past decade and then discuss the principal consequences of this legislation on corrections. The chapter concludes by examining the extent to which these legislative initiatives are consistent with the recommendations of the CSC and those of other bodies, such as the Daubney Committee, which...

  25. 21 Sentencing Reform: Where Are We Now?
    (pp. 349-364)
    ANTHONY N. DOOB

    Sentencing policy in Canada during the last two decades of the twentieth century can be described in two quite different ways. It was a period in which fundamental and irreversible changes were made to the structure of sentencing. At the same time, it can be described as a time in which there was a lot of discussion and legislative activity, although little of substance changed. In this chapter, I will outline why I believe that both of these perspectives are correct. The preceding chapters have accomplished two important tasks: they have provided a picture of the various components of the...

  26. References
    (pp. 365-381)