Author:Kent Roach
Profession:Faculty of Law and Centre of Criminology. University of Toronto

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The Supreme Court has recognized that "sentencing is, in respect of most offenders, the only significant decision the criminal justice system is called upon to make."1Sentencing in Canada has traditionally been a matter of judicial discretion because Parliament frequently defines offences broadly to cover behaviour of varying degrees of culpability and has generally only set high and infrequently used maximum penalties to limit the judge’s sentencing discretion. In contrast, many American jurisdictions rely more on statutory gradations of crimes and minimum sentences attached to each degree of any particular crime. Such attempts to limit sentencing discretion may transfer discretion from the sentencing judge to the prosecutor, when he or she accepts a guilty plea to a particular charge. There is a recent trend in Canada towards the use of more mandatory sentences.

Sentencing is a discretionary process because a judge can emphasize multiple purposes or justifications for punishment. The basic purposes and principles of sentencing were first outlined in the Criminal Code in 1996. The fundamental principle of sentencing, as defined in section 718.1 of the Code, is that the sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." This is an important first principle, owing to the wide variety of conduct that may be caught by some crimes. For example, a person who planned and executed a robbery should receive a more severe

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sentence than a person who reluctantly assisted the robbery in some manner. The fundamental principle of proportionality also counters the danger that a judge might punish an offender more than the crime deserves because of concerns about deterrence and future danger. It directs the judge to look backwards at the seriousness of the crime and the offender’s role in it.

Nevertheless, the Criminal Code recognizes other concerns as legitimate purposes in sentencing. Section 718 provides:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide...

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