Sentencing

• Author: Judith Daylen, Wendy van Tongeren Harvey, and Dennis O'Toole
• Pages: 335-376

335

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Sentencing

Vignette Nine

The judge sentences a female high school teacher to a nine-month jail

sentence for sexual abuse that happened ve years prev iously. At the

sentencing hearing are two of her former students, Elizabeth, aged nine-

teen and Mary, aged twenty- one, both of whom had been victimized by

the teacher. Neither of them is happy with the sentence. At the trial, Mary

testied that the teacher had touched her genitals o n three occasions.

Mary subsequently gave a victim impact statement (VIS) during the sen-

tencing hearing. In her VIS, Mary said the sexual assault made her feel “dif-

ferent” and alienated from her scho olmates, and said she had lost interest

in sex. When contacted by police during the investigation, Elizabeth gave

a statement in which she said the teacher had touched her genitals four

times and had taken nude pictures of her. The police laid charges against

the teacher for these oences but when the Crown counsel cont acted

Elizabeth to prepare for the trial, Elizabeth said she w as too humiliated

to testify, refused to come forward, and said that her police statement

should be enough. When arrested, the teacher admitted that she had

touched the two girls, but she denied tak ing nude photos of Elizabeth.

Without Elizabeth’s testimony, the Crown did not feel there was sucient

evidence to advance the aggravated factor s of the case related to taking

photos, so after Mary’s testimony it negotiated a plea agreement in which

the teacher agreed to plead guilty to two counts of sexual exploitation

but without any reference to taking photos.

  ,  an oender found guilty of a crime is

not an act of revenge. Above all, sentencing should promote respect for the

336 ,  ,   

law and contribute to the maintenance of a civil society. is chapter dis-

cusses the principles a judge uses to balance the needs of society, the victim,

and the oender. We outline the various sentencing options and focus on

the role a victim impact statement can play in sentencing hearings. e

chapter ends with some practical advice on writing a statement and dealing

with the emotional backdrop of the sentencing process.

When accused people are found guilty following a tria l, their status

changes in the eyes of the court; they then become oenders. e rights of

an oender are dierent from those of an accused and, in fact, the oender

may forfeit some rights, such as the right to freedom. Once convicted, the

oender is accountable for the crime committed and will receive some con-

sequence or punish ment.

SENTENCING IS NOT REVENGE

    for punishment’s sake does not exist in

Canadian law, and revenge is not the reason why judges impose sentences.

e fundamental purpose of sentencing is specically set out in the Can-

adian Criminal Code: it should contribute to respect for the law and main-

tenance of a just, peaceful, and safe society. e court does not sentence

those convicted of a criminal oence solely to satisfy the understandable,

human emotional need to see oenders suer in some way for their actions;

sentencing is done with the greater good of society in mind. ere is a rec-

ognition that physically or emotionally traumatizing the oender does not

contribute, in the end, to a healthy society.

When deciding on a sentence, the law makes a distinction between

retribution and vengeance. Retribution is a repayment or recompense that

reects the moral responsibility of the oender, while vengeance is the in-

icting of an extreme, hurtfu l punishment on the oender. In a  rul-

ing, the Supreme Court of Canada outlined the need to apply the principle

of restraint in determining a just and appropriate sentence.

Retribution in a criminal context , by contrast, represents an objective,

reasoned and me asured determi nation of an appropriate pu nishment that

properly reects the moral culpabilit y of the oender, having regard to

the intentional risk-taking of the oender, the consequential harm cause d

by the oender, and the nor mative charac ter of the oender’s conduct.

Furthermore, unlike vengeance, re tribution incorporates a princ iple of

Chapter 9: Sentencin g 337

restraint; ret ribution requi res the imposition of a just and appropri ate

punishment, a nd nothing more.

When the judge passes a sentence that revokes an oender’s freedom

or imposes conditions, it is done with certain objectives in mind, all meant

to achieve a fundamental and positive purpose for society as a whole. e

objectives include the following:

Making a statement through the sentence that the actions of the of-

fender in committing a specic crime will not be tolerated

Showing both the oender and others that if crimes of this nature

are committed, meaningfu l consequences will follow

Separating the oender from society by court orders or imprison-

ment, if necessary

Assisting the oender to rehabilitate in order to prevent further

criminality

Making reparation to the victim and the community for the crimes

committed

Promoting a sense of social responsibility and acknowledgment by the

oender of the harm done to both the victims and the community

e court does not attempt to match the physical characteristics of the

punishment with those of the crime. ose who steal may be imprisoned

but the court does not steal the thief’s rightful property (although stolen

property and proceeds of crime will be seized and the oender may be or-

dered to compensate the victim). ose who assault others may be impris-

oned, but the court will not order a physical punishment. In Canada, those

who murder will be subject to imprisonment, but not to death by the state.

The justice system reects the values of the community

    a sexual oence against a member of our

community has inicted damage, not just to that individual, but also to the

community as a whole. Such an act threatens the sense of security, safety, and

well-being of all of us. Sexual cri mes can change the perspective of an entire

community, which may become less open, less trusting, less nurturing, and less

secure. A conviction tells oenders they have committed an oence against

society, and must therefore pay a debt, and be responsible to their community.

ese are our national values. We are an interdependent society and each of us

has a responsibility to all other members of our community.

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