WDW101Y1 Lecture Notes - Maay Language, Criminal Record, Initiative
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February 28th, 2011
Average of questions plus 3 points
Essay assignment – includes a description of the assignment, bring in material covered elsewhere
in the course – think about the readings in addition the lecture 2 weeks from today will also be
relevant. It is a short routine case and read it thoroughly. Also questions related to the last lecture
are on the web site.
Next week John Reeves will be speaking and former U of T student and he was invited to speak to
this class. He was convicted of 2nd degree murder and now on parole and he will be giving you an
interesting view of corrections from the perspective – particularly about corrections - of someone
who has been through it. Been on parole after serving 10 years and on parole for life and needs
special permission to visit from Kingston. He is very open and would be happy to answer
questions about the federal correctional system which he has a fair amount of experience. His job
is helping lifers integrate into society as they are released from prison.
Sentencing - Principles and Purposes
•Three separate “sentencing structures”
–Legal (Legislation & court decisions)
–The sentence as it is handed down
–Sentences as seen and understood by the public.
•Current structure of sentencing in legislation
–Purposes of sentencing
–Factors to be considered
–Impact of sentences on crime
Will be focusing on principles and purposes of sentencing and thing about the possibility that you
should be things about 3 different ways of thinking about it:
First there is the legal structure – from law class and criminology, then look at the legislation
and court decisions and look at the laws written by parliament interpreted by courts.
Second - Somewhat independent of that are the sentences that are handed down. And
independent of that you will see that the Legislations and court decision are not terribly
determinant of what actually happens
Third the sentences as seen an understood by the public – I talked about this before. Realize that
what we all know about sentencing is limited and what we know about a particular sentence is
even more limited.
Media person that wanted me to comment on a particular sentence and I could not comment about
it without knowing about it. The point in not answering the question; I could not interpret that
sentencing decision without knowing about the case and the reasons the judge gave for handing
down the sentence.
Remember – these are different things - what happens in court and what is reported to us is often
Current structure and legislation – I want you to see the difficulties in understanding sentencing
And then talking about empirical issues on sentencing and effects of sentencing and looking at
different sets of principles and what factors being considered and what judges are talking about.
Separating “simple public opinion” from more sensitive measures of public sentiment
In addition to the material from earlier in the course -
•View of sentences: as reported in media vs. as handed down
•Get people thinking in a more ‘complex’ fashion, they are capable of integrating more
information (Costs, Anticipating release)
•Multiple alternatives change the overall picture (There are more possibilities than just “harsh” or
•Desire for guidance (mandatory minimums) does not necessarily mean desire for complete
rigidity – people want exceptions
•Desire for there to be some ‘real’ consequences
–Consequences for non-compliance
–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.
Looking at public opinion issues - I think it is important to remember some of the material I
talked about earlier. The use of sentences that we get from the media as compared to the and the
sentences that are handed down are very different and fair amount of research done in Canada and
other countries which compare peoples view of sentences as they are reported in the media
newspapers, radio and television and as reported in court – take groups of people and given them
either a newspaper clipping of a sentencing hearing or make them read through what the judge
was saying and what is interesting, people more content with the longer version of that which is
what the judge actually said he handed down a particular sentence and what the reasons behind
what the judge was trying to accomplish.
So yy example of the media - I knew that what was expected was a comment on a controversial
topic and could be easily seen as a lenient sentence. I had no idea what was actually handed down
and I was not willing to do it.
As Researchers have encouraged people to think of sentencing in a more complex way. They are
tending to accept more of the sentences that are handed down. If people are asked to think about
the costs or if the person was going to be released or if they are asked to think about some aspect
of the case, people are capable of integrating that information and more likely to agree to the
sentences being handed down by the Canadian Judges. We have talked about the issue of multiple
alternatives – all you really have a non-custodial sentence or probation sentence or a prison
sentence when people are given other alternatives between probation and a prison sentence in
terms of perceived punitiveness people are more willing to accept that.
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