Most accused plead guilty to some charge and proceed directly to sentencing without a criminal trial. A majority of those who do go to trial are convicted of some offence and are subject to sentencing. In Canada, judges have traditionally had significant sentencing discretion guided only by general principles in the Criminal Code and high maximum penalties. Robbery, for example, is subject only to a maximum punishment of life imprisonment, with no minimum sentence. Committing a robbery with a firearm, however, does have a mandatory minimum sentence of four years’ imprisonment. Mandatory penalties can be challenged as violating the right against cruel and unusual punishment, but most mandatory penalties have been upheld from such challenges and judges cannot craft exemptions under the Charter from mandatory sentences.
The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is an important principle, given the various types of conduct that can be caught under broad legislative definitions of the prohibited act, and the provisions that make parties to an offence guilty of the same offence as those who actually pull the trigger. This principle also suggests that the punishment should fit the crime and that an offender should not be treated more harshly than the crime warrants, in order to deter others or to incapacitate or even rehabilitate the offender.
Despite the fundamental principle that a sentence must fit the crime, there are other legitimate purposes...