Lecture 4- May 16, 2013
Principles and Rules of Sentencing
Cost of Harper’s Tough on Crime Agenda
25 march 2011- non-confidence vote, government falls
For the first time in Canadian history, prime minister in contempt of parliament
o Failed to provide required financial documents to legislature
Refused to provide financial projections for crime legislation
Ignatieff- when the government spends money, the people have a right to know what it is to be
Appears omnibus crime bill cost about billion dollars in Ontario alone
o Adds 1500 prisoners in correctional system- more prisons, more staff
o Cost of building new prison about 900 million dollars
o Costs about 60 million dollars/year it is open (for a single institution)
Where will this money come from?
Editorial Quotes- Doob and Greenspan
The government is wrapping its crime legislation in the cloak of public safety. As in other areas
of criminal justice policy, the Harper government appears to be a bunch of amateurs with blunt
o Not impressed with shifts in policy
It appears that for people such as Mr. Newark, Statistics Canada is never wrong as long as it
reports that crime rates are increasing. If it says crime is decreasing, then it‟s never right. The
fact of the matter is that crime rates have nothing to do with tougher laws or harsher sentencing.
The fact is that crime rates go up and down. In recent years, they‟ve gone down.
o Crime rate now at where it was in 1973
These proposals are not sensible responses either to the fear or the reality of crime. This act is
one of the clearest examples of using “crime policy” solely for political purposes.
It‟s ironic that, while the Harper government wants to seriously increase the use of imprisonment
on the false justification that it‟s the most effective way to increase public safety, other countries
are trying to seriously decrease its use. The United States, for instance, is considering moves
toward sanctions such as house arrest. Canada and the U.S. are like ships passing in the night,
but Canadians are the unfortunate passengers on the ship of fools.
**Challenges in terms of the logic
Public opinion that sentences are too lenient
Undermine principles of proportionality and restraint
Their opinion tends to shift when they are given more information
Public supports idea of MMS- uncomfortable with „mandatory‟ nature
o Given context, they change their mind (i.e. considering the context of the offence)
o Want it to be mandatory, but not mandatory all the time; this is why we use discretion of
o Prefer presumptive guidelines- room for judges to articulate reason and they can move
outside the guidelines if it is reasonable given the circumstances
MMS have no effect on public Over state level of public support for MMS
Appeal in principle, uncomfortable with in practice
Support proportional sentences that consider individual factors, culpability
Canadian Sentencing Commission
Advocate abolition of MMS
Establish presumptive sentencing guidelines
o Removes incentive to plead, increases trial rates
o Prosecutorial manipulation of charging and plea bargaining
o Excessively harsh sentences
o Prevent judicial consideration of special circumstances
Existed in 1980s examining our sentencing system and structure
o Also put in recommendations for sentencing policy in the future
MMS- advocated abolishing them completely and moving to idea of presumptive sentencing
o Structure discretion of judges
Argued that MMS removed incentive to plead
o Lead to prosecutorial manipulation of charging and plea bargaining
o End up with excessively harsh sentences- no discretion below bottom basis when there is
Allow judges to deviate from presumption, giving their reasons
More of a principled approach
Goal is to reduce disparity and promote rational sentencing policy, developed and monitored by
o To address jurisdictional variations in sentencing
o Commission to oversee the whole process
Emphasize uniformity and „just deserts‟, more rational policy
Structure discretion without eliminating it
o So that not everything can be considered, not everything I possible
Predictability without rigidity
o Have idea what type of a sentence you would be looking at
o Allows for some flexibility and individualization of sentences
Things to Consider
Are guidelines a way to reassert legislative control over sentencing process?
Shifting power from judge to prosecutors (who argue in favour of state; harsher punishments)?
Do MMS result in more certainty and parity?
Where will this money come from? What will have to be sacrificed? Education? Health? Social
Role of politics in creation of crime, manufacturing prison population, and role of criminal
justice processes in challenging economic crimes
Things to Consider What are the implications of transferring discretionary power from judges to prosecutors?
Guidelines as a way to re-assert legislative control over sentencing. What are the implications of
Do MMS result in more certainty and parity?
Where will the money come from? What will be sacrificed in order to pay the prison tab?
Education? Health? Social Programs?
Politics is making crime and creating prison populations. What is the role of prisons and
increased CJS intervention in challenging economic times?
o Sentence must effect gravity of offence and moral blameworthiness of offender
Parity- similar offenders getting similar sentences for similar crimes
Restraint- least restrictive way that accomplishes objective and holds them responsible
Objectives- rehabilitation, incapacitation, deterrence, denunciation, …
How do you plead?
Public opinion- grown rapidly as our courts face logjam of cases
Canadian Sentencing Commission 1988
Potentially undermines relationship between seriousness of criminal behavoiur and its reflection
in criminal offence or disposition
Problem from beginning is potential of distorting relationship between criminal behaviour and its
reflection in a criminal offence or disposition
Get reduced sentence if you plead guilty- what does this do to proportionality?
o Considerable potential to undermined proportionality, equity, and certainty
o Does pleading change seriousness of offence or guilt of a person?
Backroom deals- plea bargaining as informal justice system
o Usually for less serious offences
Offender isolation, reliance on counsel
o Offender not involved in plea negotiation, the defence counsel does it for them
o Suggests dependence on counsel and belief that they are advocating in your best interests
Accused were found guilty is 2/3 (64%) of cases disposed in adult criminal court in 2010-2011
o How many people plead guilty that weren‟t guilty? No record of how often this actually
Likely to get a lesser sentence if plead guilty
Concerns about costs of trial
Simply getting it over with
Three out of every 10 cases (32%) were resolved by being stayed, withdrawn or dismissed
o Legal important differences- basically prosecution has just stopped
Three percent of the cases resulted in acquittal of accused and 1% had other decisions
o Formally not guilty after trial o Fitness for trial or not criminally responsible (1%)
This tells us that most people are guilty
o Should there be concern about the 30% who are let go? Problems with investigation,
matter was minor so offender is diverted out of system, not enough evidence
Percentage of Guilty Decisions
Criminal code traffic offence (83%)
Administration of justice (71%)
Crimes against property (60%)
Crimes against person (52%)
o Acts of violence
o Considerable differences within this category
o 22% for attempted murder to 72% for sexual offences
Attempted murder- intention to kill but you didn‟t… difficult to prove;
differentiating between attempted murder and aggravated assault
o 54% of violent cases convicted
Quite low rate overall of findings of guilt- 54%
How might we t