WDW101Y1 Lecture Notes - Court Of Appeal Of Alberta, Victim Impact Statement, Forum Shopping

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5 Feb 2013
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SENTENCING
- 2 separate “sentencing structures”
o Legal (legalisation and court decisions)
o Sentences as it is handed down
o Sentences as seen and understood by the public (what the public is know is very limited)
- Current structure of sentencing legislation
- Empirical issues
o Purposes of sentencing
o Factors to be considered
o Impact of sentences on crime
SEPARATING SIMPLE PUBLIC OPINION FROM SENSTIVIE MEASURE OF PUBLIC SENTIMENTS
In addition to the material from earlier in the course
- View of sentences: as reported in media vs. handed down; newspaper clipping of sentence hearing vs. the court
documents, find that people are more content with what the court documents w/ the judge’s decision
- Get people thinking in a more “complex” fashion, they are capable of intergrating more information (costs, anticipating
release) ; tend to accept sentences that are handed down, so when people are asked to think about the costs, etc., or
some aspect of the case is that it seems they are more likely to agree with the sentences that are handed down by
Canadian judges and are capable of integrating the info
- Multiple alternatives change the overall pictures (there are more possibilities than just “harsh” or nothing); people are
willing to accept alternatives in specific situations
- Desire for guidance (mandatory minimums) does not necessarily mean desire for complete ridgiditypeople want
excecptions
- Desire for there to be some “real” consequences; people don’t really understand, perception is that these alternatives
might not actually be enforced (e.g. community service), part of the belief that people should go to prison is because
that prison will actually happen but other things won’t, by meeting these concerns you don’t need to change the
sanctions
o Close monitoring
o Consequences for non-compliance
o Real cases rather than general statements more likely to tolerate alternatives
- Conclusion: in assessing “what the public wants”, ask whether the view of the public might be affected by “knowledge
of the impact of certain policies; what the public want is more complex than just based on harshness and leniency, they
want a proportional sentence that is carried out and some predictability of it
FIVE SENTENCING TRUTHS; COURT OF APPEAL OF ALBERTA, R. V. ARCAND 2 DECEMBER 2010
“we must face up to 5 sentencing truths”
- “first it is notorious amongst judges that one of the most controversial subjects, both in the theory and practical
application, in sentencing”;
- ...the proposition that if judges knew the facts of a given case, they would all agree, or substantially agree oneht results,
it is simply not so ; two judges or 5 judges looking at exactly same set of facts will come up with a number of different
sentences, this is hugely important problem, research data supports this, judges don’t agree, there’s no “proper’’
sentence as described by judges, because judges justify sentencing using different principles
- Judges are not the only ones that know truths 1 & 2, and thus judge shopping is alive and well in Canada... ; everyone
knows this and there’s judge shopping, the defense looks at who the judge will be and tries to find a reason to avoid a
certain judge, judge shopping can be easy/difficult/impossible depending on the court , even if you prevent judge
shopping it doesn’t solve the motivation for judge shopping
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- ...without reasonable uniformity of approach to sentencing..many of sentencing gobjectives and principles perscrived in
the code are not attainable. This makes the search for just sanction at best a lottery and at worst a myth
- If courts do not act..and public confidence diminishes, then parliament will ; better for court to sentencing than
parliament, means that they will loose control of sentencing
STRUCUTRE OF SENTENCING
- Prior to 1996; legislation gave very little guidance
o Maximums
o Few mandatory minimums
o Few legislative restrictions
o “judge made law” –few principles, in terms of practices
General guidance from courts of appeal
- Sentencing “culture
- 1996: “legislated common law purposes and principles of sentencing,
CULTURE OF RESTRAINT (PRIOR TO 1990S)
- Canadian (historical) scepticism about the usefulness of imprisonments; political issue last 5 years or issue,
- Not a very political issue until relatively recently
- Concern about COPY FROM LECTURE
CRIMINAL LAW IN CANADIAN SOCIETY 1992
- Approach calls for restraint in criminal law,
- Preference should be given to the least restrictive
DIFFICULTY
- Sentencing seen as “finding the right number”/outcome;
- Sentencing severity gets all the attention
- What about “why we are doing it in the first place?”
- What principles guide determination of the sentence; principles aren’t just academic about sentencing, it is important
in terms of thinking about how you hand down sentences
CRIMINAL CODE PROVISIONS
- It seems on the surface you can’t go against any of the them
- S. 718 “just sanctions” “one or more”
- Think about it for an ordinary crime, and give responsibility for judges to choose amongst this list what it is that will
happen, it doesn’t give the judge a lot of guidance, but in general it doesn’t give any guidance at all...
WHAT SHOULD BE CONSIDERED?
See state of Missouri recent practice on costs.
- It is saying to judges that their decisions incur costs by taxpayers
- Implication is that the judge should be thinking about it
- Doesn’t say what the appropriate sentence is, added a level of complexity to it
- Crude, saying to individual judges and cases that they should take into account, but possibly make things more
incoherent but may not be in terms of policy
- Here is the expected sentence with this sort of record, but as policy makers they are suppose to take into account of
prison capacity, want there to be no change to Minnesota prison pop., but this was done on a policy basis not incd
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