Textbook Notes (363,452)
Canada (158,372)
Sociology (1,471)
SOC346H5 (14)


4 Pages
Unlock Document

University of Toronto Mississauga
Nicole Myers

Ch.5 Readings Substantive Principles of Sentencing The Role of Principles  Canadian judges continue to consider the amalgam of justificatory objectives in an attempt to determine which one, or combination, deserves priority in a given case. The process of choosing the right objective may be difficult depending on the gravity of the offence, the harm caused, and the antecedents of the offender, but it is a misnomer to refer to the objectives in section 718 as “principles.” Proportionality  Under the heading “fundamental principle,” section 718.1 provides: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender  The idea of proportionality is now a central element in Canadian sentencing but its origins are far from recent  In the 18 century, Beccaria argued that punishments “should be chosen in due proportion 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.”  Recently, from a philosophical perspective, the role of proportionality has been promoted by the interest in “just deserts” models of sentencing.  Von Hirsch, the prominent “just deserts” theorist, has explained the reason for the current focus on proportionality.  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 offenses are fairer than punishments that are not. Departures from proportionality –though perhaps eventually justifiable –at least stand need of defence. Gravity of the Offence  Proportionality is a relative concept which consists of two dimensions, both of which are measures of gravity  First, the sentence for an offence must properly reflect the relation in terms of gravity that the offence generally bears to other offences  An individual sentence can be placed on a scale of punishments at a point where it is in close proximity to offences of similar blameworthiness but perceptibly distant from those that are distinctly more or less blameworthy  The sentence must reflect the various degrees of seriousness which might apply to the range of conduct covered by the offence. This includes the quantum of harm caused or potentially caused, and the degree of participation.  Gravity is a common word that masks some difficult sentencing problems. It is a compendious description that encompasses three elusive concepts: harm, potential harm, and blameworthiness. For sentencing purposes each generates its own problems of proof, theoretical justification, and conceptual coherence. Proportionality and Blameworthiness  Proportionality was at the centre of the discussion of the role of retribution in sentencing by Lamer CJC in RvM. He argued that retribution provides the “conceptual link” between criminal liability and the eventual sanction, and that proportionality determines its measure. Distinguishing retribution from vengeance, he stated: Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more.  First, proportionality must be a central feature of a constitutional sentencing system. Second, at the individual level, proportionality must be present but will take the form of a complicated calculus. Proportionality and Harm  Given the importance of harm to gravity, and the centrality of gravity to proportionality, a preferable view would be to use the simpler approach of restricting harm to intended, foreseen, or reasonably foreseeable consequences for all offences. This position reflected in the recent Youth Criminal Justice Act.  The relationship between blameworthiness and harm must be a function of the relevant culpability standard. Using manslaughter as an example, death will, with the exception of provocation cases have been unintended.  Culpability is reduced as the prospect of death diminishes in relation to the violence which produced it –the less violent the act, the less culpable the offender.  When the prospect of harm falls below the level of reasonably foreseeable bodily harm, the offence is no longer manslaughter  If proportionality is a constitutional obligation, the gravity of an offence for punishment purposes must be linked to culpability and the kinds of consequences which may reasonably be expected. Actual Harm and Potential Harm  The issue of potential harm also depends on the nature of the offender and the relevant culpability standard  In cases where conduct without consequences is in issue, as is the case with dangerous driving or impair drivi
More Less

Related notes for SOC346H5

Log In


Don't have an account?

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.