Textbook Notes (368,035)
Canada (161,583)
Sociology (1,513)
SOC346H5 (14)
Chapter 4


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Nicole Myers

Ch.4 Readings Judicial Discretion and The Methodology of Sentencing  Before the 19 century, most felonies were capital offences. The move away from the pervasive use of capital punishment relied originally on transportation, and then on imprisonment The Current Framework for Discretion  Murder carries with it a mandatory penalty of life imprisonment, the most common mandatory minimum sentence applies to subsequent convictions for impaired driving; and in the 1996 firearms legislation resulted in minimum punishments of four years imprisonment for stipulated offences committed with firearms.  This is the challenge which the Criminal Code presents: maintaining discretion, encouraging creativity and still ensuring consistency and fairness. The Exercise of Sentencing Discretion 1) The Traditional Approach  “The circumstances surrounding the commission of an offence differ in each case so that even for the same offence sentences may justifiably show a wide variation.”  These comments reflect the acceptance of a sentencing methodology which is guided by the choice of objective, or objectives, which suit the circumstances of the case.  Sentences are closely related to the individual judge’s experience and sentencing philosophy 2) Range, Tariffs, and Individualization  1982 Canadian Sentencing Handbook prepared by the Canadian Association of Provincial Court Judges advocated the “blending imperative” from Willaert  This approach suggests that judges must consider the relevant purposes of sentencing to craft the sanction which reflects the most appropriate purpose or combination of purposes for the offence.  In the same section, however, the Handbook says that a sentence will likely not go wrong by imposing the “usual” sentence in the “run-of-the-mill case” 3) Starting Points  The Criminal Code gives appellate courts a broad authority to set sentencing standards within their territorial jurisdiction through the sentence appeal process, which requires a consideration of the “fitness of the sentence.”  Sentencing discretion has continued to cover a wise area. This encourages individualization but also may permit disparity. Appeals are expensive and time- consuming; it is not realistic to assume that all errors, or even a large portion of them, will reach the appellate level. One way in which appellate courts have attempted to structure trail-level discretion is the “starting point” approach.  First offences were categorized into “archetypical cases described with as much precision as possible  Then a starting sentence would be attached to the category  Lastly, the sentencing court would apply the relevant mitigating and aggravating factors to vary the sentence up or down from the starting point  Applying this methodology, the court defined the category of “major sexual assault” as being cases where “a person, by violence or threat of violence, forces an adult victim to submit to sexual activity of a sort or intensity such that a reasonable person would know beforehand that the victim likely would suffer lasting emotional or psychological injury, whether or not physical injury occurs.  Over the next decade, the starting point approach was extended to a large number of offences  Manslaughter presented an obstacle for the new regime –the court concluded that the offence description covered so many routes to culpability that it was not amenable to the starting point approach. Codified Principles of Sentencing  The legislative responsibility to determine the nature of criminal culpability and the
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