The desire for mandatory minimum penalties in Canada that are very popular seems to be
misunderstand as people like mandatory minimums but they would like judges to be able to
escape from mandatory minimum if there is a good reason to do so. On of the concerns about
community sanctions and about penalties that are handed down in the community - again, people
do not understand what the real consequences are. They hear that the person might have a large
umber of conditions put on them or that they are ordered to put in 200 hours of community
service, and the perception is that those things are not going to be enforced.
Where or not they are going to be enforced is another question– there are some states that publish
on their web site what proportion of people complete their community sanctions and people that
are ordered to compete community service and states make themselves accountable in that way
and ensure these sanctions are enforced quite regularly and when there are consequences for non-
compliance people who do not complete these sanctions people are more accepting of these
sanctions. Part of the belief that people should be going to prison is an understandable belief that
are held by many people that prison will actually happen but other things wont. If one is
concerned about handing down sentences, then look at these concerns and say lets meet the
concerns rather than changing the sanctions that are handed down.
What the public wants is something more complex and something with much more nuances rather
than simply the issue of harshness or leniency. What people seem to want is a proportional
sentence and that it is carried out and that they want some predictability of it.
Five Sentencing Truths: Court of Appeal of Alberta,
R. v. Arcand, 2 December 2010
“We must face of up to five sentencing truths.
•“First, it is notorious amongst judges that one of the most controversial subjects, both in theory
and practical application, is sentencing.
•...The proposition that if judges knew the facts of a given case, they would all agree, or
substantially agree on the result, is simply not so.
•... Judges are not the only ones that know truths 1 & 2, and thus judge shopping is alive and well
•...Without reasonable uniformity of approach to sentencing... many of the sentencing objectives
and principles prescribed in the Code are not attainable. This makes the search for just sanctions
at best a lottery and at worst a myth.
•... If courts do not act... and public confidence diminishes, then Parliament will.”
In December a very interesting case in the Court of Appeal of Alberta – starts off more or less I
paraphrased it and what they saw as 5 sentencing truths:
Think about these things as to what they saw is truths and think about them when we go through
what sentencing looks like in Canada:
First: - they are saying that is controversial – goes without saying.
Second: - if judges knew the facts they would agreed on sentences and they are saying this is
NOT the case – they are saying that 2 or 5 judges looking at the same set of facts will come out
with 2 or 5 different sentences and hugely important problem and the research data would say
that the Court of Appeal of Alberta is correct – research would say when facts of cases given to
groups of judges on a case and they are given a written description of facts and told to come down