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SOC346H5 (14)
Chapter 5

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Nicole Myers

Chapter 5: Substantive Principles of Sentencing THE ROLE OF PRINCIPLES  Section 718 to 718.2 of CC intended to provide framework for exercise of discretion  Some factors considered when imposing a sentenced included in the CC while others remain within arena of common law  Different between set of ideas which provide justifications for punishment in general, and relevant principles which justify an individual sentence imposed on specific offender for a particular offence  Judges consider combination of justificatory objectives to determine which one, or combination, deserves priority in given case (the 6 objectives of sentencing) o Process of choosing correct objective difficult depending on seriousness of offence, harm caused, and history of offender  **Principles of sentencing are the analytical concepts which refine and shape the process of choosing objectives  Primary substantive principles: proportionality, parity, and restraint  **These principles and rules provide structure for assessing gravity, and for determining which options are reasonable in circumstances and whether the case falls at low or high end of important purposes PROPORTIONALITY  Section 718.1 Fundamental Principle: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender  Beccaria argued in 18 C that punishments “should be chosen in due proportions to the crime so as to make the most efficacious and lasting impression on the minds of men, and the least painful impressions on the body of the criminal”  Role of proportionality promoted by interest in “just deserts” models of sentencing o Von Hirsch: “it is because the principle embodies, or seems to embody, notions of justice. People have a sense that punishments scaled to the gravity of the offences are fairer than punishments that are not. Departures from proportionality- though perhaps eventually justifiable-at least stand in need of defense” Gravity of the Offence  Sentence for an offence must properly reflect the relation in terms of gravity that the offence generally bears to other offences  I.e. some crimes more blameworthy that others  Individual sentence can be placed on scale of punishments at a point where it is in close proximity to offences of similar blameworthiness but perceptibly distant from that that are distinctly more or less blameworthy  Sentence must reflect various degrees of seriousness which might apply to range of conduct covered by offense o Includes importance of harm caused or potentially caused, and degree of participation  Concept of gravity encompasses three vague concepts: harm, potential harm, and blameworthiness Proportionality and Blameworthiness  Proportionality must be a central feature of constitutional sentencing system  At the individual level, proportionality must be present but will take form of complicated calculus Proportionality and Harm  Harm caused/risked factor encompassed by gravity  Question is whether all harm actually done can be attributed to offender for sentencing purposes, or whether there are limits on consequences which can be fairly taken into consideration  Provisions in CC contemplate including all harm, without qualification; terms “harm done” or “loss suffered” appear in multiple sections of the CC o Allows victims to explain for themselves what harm they suffered; used without any modifier beyond the fact that they must arise or result from commission of offence  Moral culpability in the offender’s conducts; determined by the state of mind which accompanies the offender’s unlawful act (Wood J.A.)- “ Consequences of an unlawful act when either intended, or foreseen and recklessly disregarded, aggravate its moral culpability. But consequences, which are neither intended nor foreseen and recklessly ignored, cannot aggravate the moral culpability of an unlawful act, except and to the extend that Parliament so decrees.” (Pg. 88)  Culpability reduced as prospect of death diminishes in relation to violence which produced it- less violent the act, the less culpable the offender  Where a death has resulted from an offence, a careful understanding of intersection of culpability and harm prevents taking into account actual consequence which does not meet reasonably foreseeable test Actual and Potential Harm  Issue of potential harm depends on nature of offence and relevant culpability standard  **In cases where conduct without consequences is in issue, (i.e. dangerous driving or impaired driving that did not lead to any injuries), punishment should be determined by nature of conduct in relation to potential for reasonably foreseeable consequences (pg. 90) o Absence of consequences less important that quality of driving or degree of intoxication, etc.  When offence involves a threat, culpability function of threatened consequences including physical and psychological harm that would likely occur if threat was carried out o I.e. in case of threatened sexual assault, offence is automatically one of sexual assault causing bo
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