Proportionality and the Experience of Punishment

• Author: Benjamin L Berger
• Pages: 368-389

368

CHAPTER EIGHTEEN

Proportionality and the Experience

of Punishment

Benjamin L Berger*

Who are courts sentencing if not the oender standing in front of them?

A. INDIVIDUALIZED PROPORTIONALITY, INTRODUCED

Drawn from a case in which the Supreme Court of Canada grappled

with the signal societal trauma wrought by the operation of the crim-

inal justice system — the travesty of Indigenous overrepresentation in

Canadian prisons — the epigraph to this chapter points to the ethical

heart of a distinctive and important development in Canadian sen-

tencing law. It involves an approach that has already disrupted certain

elements of contemporary sentencing practice and, depending on how

sentencing judges embrace it, may open up new futures in Canadian

sentencing. is development is the emergence of individualized pro-

portionality as the fundamental principle of sentencing in Canada.

* I wish to thank Kate Glover Berger, Lisa Kerr, David Cole, and Julian Roberts for their

helpful comments, and Ramna Safeer for her superb research assistance.

 R v Ipeelee,  SCC  at para  [Ipeelee].

Proportionality and the Experience of Punishment | 369

e claim for the emergence of this new fundamental principle

may seem incongruous for several reasons. First, there is nothing much

new about the idea that some such version of proportionality ought to

govern the legal practice of sentencing. Proportionality’s core require-

ment, that the severity of a sanction should reect the seriousness of the

criminal conduct, anchors sentencing practices in jurisdictions around

the world and has long occupied a central place in the philosophical

literature on punishment, though that core requirement has been

underpinned by various justications. e commitment to calibrating

punishment to the degree of blameworthiness of conduct is the heart

of contemporary retributive theories of sentencing, much discussed

and explored in the literature, even as others have critiqued appeal to

the principle as “chimerical as a basis for limiting punishment.”

In Canada, a version of this retributively derived principle of pro-

portionality has been absorbed into the Criminal Code. Section .

articulates a “fundamental principle” of sentencing, namely, that “[a]

sentence must be proportionate to the gravity of the oence and the

degree of responsibility of the oender.” And even prior to the 

amendments to the Criminal Code that introduced this provision, pro-

portionality had “long been a central tenet of the sentencing process.”

Moreover, there is, to be sure, already a species of “individualization”

 As Lacey and Pickard note, “proportionality stands as the key concept in a much longer

history of eorts to modernize and temper punishment, occupying as it does a central

place in the work of Enlightenment thinkers or reformers across many nations: Beccaria,

Bentham, Jeerson, and Montesquieu” (Nicola Lacey & Hanna Pickard, “The Chimera

of Proportionality: Institutionalizing Limits on Punishment in Contemporary Social and

Political Systems” ()  Modern Law Review  at ).

 See, for example, Andrew von Hirsch & Andrew Ashworth, Proportionate Sentencing:

Exploring the Principles (Oxford: Oxford University Press, ), for a review of certain

of those various justif‌ications.

 Von Hirsch and Ashworth explain that “[w]hat is distinctive about contemporary desert

theory is that it moves the notion of proportionality from its peripheral role to a central

one in determining sanctions” (ibid at ). Consider, for example, von Hirsch’s “censure”

theory, which von Hirsch and Ashworth restate and summarize in chapter , ibid. See

also Andrew von Hirsch, Censure and Sanctions (Oxford: Clarendon Press, ).

 Lacey & Pickard, above note  at .

 RSC , c C-, s . [Criminal Code].

 Ipeelee, above note  at para .