Foreword

• Author: Patrick Healy
• Profession: Quebec Court of Appeal
• Pages: 25-26

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Foreword

Everyone concerned with the administration of Canadian criminal justice will be

grateful to the skilled practitioners who prepared the second edition of this guide to

the principles and practice of sentencing. In keeping with Emond’s Criminal Law

Series, this is a thoughtful and timely handbook in a dynamic area of the law that

presents stark challenges.

Sentencing demands of all involved that justice be seen. This is not easy.

Among the many dichotomies and paradoxes in sentencing, the most prominent is

the tension between extremes of disparity in undisciplined and individualized discre-

tion and uniformity in fixed outcomes that treat the superficial similarities as fungible

identities. This dichotomy is conspicuous in every culture.

In the Straits of Messina every storm is unique, never to be repeated, and every

mariner faces catastrophe between Scylla to the east and Charybdis to the west. The

principle of proportionality is the pole star that sets an ideal equally apart from extremes

of injustice that lie in random disparity and rigid uniformity. The ideal of proportional-

ity imposes an imperative to avoid excess or deficiency by the exercise of moderation

and restraint. But that imperative remains irreducibly distant because it is only a guide

to navigation and never a destination. This is the challenge in a model of individualized

sentencing.

The elements of this challenge are infinite and ultimately irreducible. A vivid illus-

tration of this is compressed in a statement that is frequently cited:

Put simply, absent an error in principle, failure to consider a relevant factor, or an over-

emphasis of the appropriate factors, a court of appeal should only intervene to vary a

sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly

vested sentencing judges with adiscretionto determine the appropriate degree and kind

of punishment under the Criminal Code.1

This statement is laden with import for appellate courts and everyone concerned

with sentencing. There is nothing simple about it. Every one of its moving parts cries

for meaning. What is an error of principle? What is a failure or an overemphasis in the

consideration of relevant factors? What is an appropriate factor? What is an unfit

sentence, and what is a sentence that is demonstrably unfit?

1 R v M(CA), [1996] 1 SCR 500, 1996 CanLII 230 (SCC).

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