Sentencing is the most important and visible aspect of the criminal law. The 1996 amendments to the Criminal Code have created a statutory framework for the exercise of sentencing discretion, but much discretion remains. The fundamental principle is that the sentence must be proportionate to the gravity of the offence and the offender’s degree of responsibility. The offender’s crime and responsibility, however, do not determine punishment, and judges are instructed to be concerned about a wide range of other factors including specific and general deterrence, rehabilitation, reparation, and promoting a sense of responsibility. The last three purposes, combined with other instructions to consider alternatives to imprisonment, suggest that restorative justice is a legitimate and important approach to sentencing, especially, but not exclusively, with respect to Aboriginal offenders. There are a wide variety of alternatives to actual imprisonment including pre-trial diversion, probation, restitution, and conditional sentences that allow offenders to be punished and held accountable while remaining in the community.
Courts will strike down grossly disproportionate sentences as cruel and unusual punishment, but in recent years they have been more willing to uphold mandatory minimum sentences that by definition apply to the most sympathetic offenders and least blameworthy crimes that are caught under often broad definitions of crime. Parliament has also moved in a more punitive direction by enacting more mandatory minimum sentences, restricting credit for "dead time" served in pre-trial custody and placing more restrictions on the use of conditional sentences of imprisonment.
ARCHIBALD, B., & J. LLEWELLYN, "The Challenges of Institutionalizing Restorative Justice" (2006) 29 Dal. L.J. 297
BROCKMAN, J., "An Offer You Can’t Refuse: Pleading Guilty When Innocent" (2010) 56 Crim. L.Q. 116
CANADIAN SENTENCING COMMISSION, Sentencing Reform: A Canadian Approach (Ottawa: Queen’s Printer, 1987)
Cayley, D., The Expanding Prison (Toronto: Anansi, 1998)
Cole, D., & J. ROBERTS, Making Sense of Sentencing (Toronto: University of Toronto Press, 1999)
FITZGERALD, o., The Guilty Plea...