The unfinished work of the Canadian Sentencing Commission.

• Author: Doob, Anthony N.

For many criminologists, Jean-Paul Brodeur is best known for his work on policing. His enormously impressive and final contribution to criminology--his 2010 book The Policing Web, published shortly after his untimely death--will almost certainly become one of those few "must read" books for anyone interested in understanding what we mean by policing. But Jean-Paul had other important influences on the field and the profession. His contribution to sentencing in Canada may be less well known only because successive governments, in the past quarter century, have been unwilling or unable to try to understand sentencing and to address the serious problems that exist in sentencing. The neglect of serious attention to sentencing, in contrast with the political attention that sentencing has received in recent years, occurs even though, for many people, sentencing is the primary way in which they evaluate the manner in which the criminal justice system is operating.

In 1984, Jean-Paul Brodeur was appointed research director for the Canadian Sentencing Commission (the "Commission"). He was an obvious choice from many perspectives. The two-and-a-half years that he spent ensuring that the Commission's report would serve as a model for policy development demonstrated the wisdom of the Commission's choice. And, rereading the Canadian Sentencing Commission report (1987) 23 years after its release in the context of a flurry of federal bills on crime and punishment serves as a reminder of the fact that problems that were identified by that Commission in the mid-1980s still exist today in much the same way that they existed then.

Overview

In this paper, I will argue that many of the difficulties--political and practical--with sentencing exist because sentencing (broadly defined) has been neglected as a serious policy area. Sentencing has, instead, simply been used as a political resource with little, if any, concern about its overall coherence. The report of the Canadian Sentencing Commission (1987) outlines a set of problems with sentencing that existed in the mid-1980s, none of which have been addressed in any coherent way.

This paper will begin by reviewing the problems with sentencing that were identified by the Commission. The Commission made specific recommendations about how to approach the incoherent state of sentencing. I will then examine the extent to which, if at all, these problems have been addressed in the intervening years, suggesting that it is the seemingly eternal incoherence of the Canadian sentencing system that bas made possible the flurry of incoherent legislation recently introduced into Parliament by an opportunistic government. I will then briefly review what might loosely be termed "Canadian criminal justice culture" with respect to sentencing, arguing that, in fact, there is (at least, until recently) an implicit understanding of the limited value, to Canada, of high-imprisonment policies. Finally, on an optimistic note, I will suggest that the unprincipled manner in which sentencing matters have been addressed recently, together with the acknowledgement by a highly respected Court of Appeal that sentencing is an unprincipled and unpredictable mess at present, may give us the opportunity to move forward in a manner that allows us to revisit the issues raised by Jean-Paul and others in the 1980s.

A review of sentencing in the 1980s

The Canadian Sentencing Commission (1987) concluded that "[w]hat is remarkable about our criminal law is how little direction is given in our legislation on the determination of sentences" (52). Those reading this sentence in the years immediately following the election of a Conservative minority government in 2006 might suggest that such is no longer the case. The flurry of bills that government introduced into Parliament would hardly be described as "giving little direction." I will argue later in this paper that the words of the Commission appear to be almost as accurate a description as they were 25 years ago, especially if one were to insert the word "principled" between "little" and "direction" in the quotation just given.

A review of the specific problems that were identified by the Commission sounds as if it were describing sentencing as it currently exists, rather than sentencing as it existed in the mid-1980s. The explanation is simple: The problems are the same. They include the following.

Sentencing problems identified by the Commission

"Lack of systematic information about sentencing" (Commission Report 1987: 60)

The Commission noted in 1987 that

[p]ublished in 1978, the 1973 data on sentences in criminal cases were the last reasonably comprehensive sentencing data to be released by Statistics Canada. It had been hoped that the re-organization of the justice statistics section of Statistics Canada into the Canadian Centre for Justice Statistics would have improved matters in the area of court-based data. It has not. (60) Even now, things have improved only marginally. If you want, for example, to get an idea of what specific kinds of sentences have been handed down for a specific offence (e.g., aggravated sexual assault) in Ontario, where the offender was sentenced by a superior court after a jury trial, had a criminal record, and had not been held in pre-trial custody (and, therefore, would not have received any "credit" for time served), you cannot find any such information. (1) Whether this is a problem that falls at the feet of the Canadian Centre for Justice Statistics or whether it is a problem that is the responsibility of the provinces and the territories doesn't really matter. An interested, intelligent member of the public or an interested, intelligent judge (3) cannot, apparently, get systematic information about what is happening in Canada's courts. It should be remembered that these data come from open court hearings. Hence, they should not be subject to concerns about privacy. It seems that detailed information was more available before the collection of this information was made more "efficient" with the use of computers.

The irony, of course, is that every five years or so, Statistics Canada asks members of the public (in its victimization survey), "In general, would you say that sentences handed down by the courts are too severe, about right or not severe enough?" (Statistics Canada 2005: 91) Unfortunately, one of the alternative responses that is not offered or recorded is the quite reasonable, "How the [expletive deleted] am I supposed to know? You folks don't make these data available to anyone." Canadians, instead, are compliant with the Statistics Canada interviewer and generally offer an opinion on something for which publicly available systematic information does not exist. Only about 9% of Canadians in the 2004 survey refused to venture an opinion on an issue--sentence severity--that is essentially unknowable by any Canadian.

"The absence of an adequate penalty structure: Maximum penalties" (Commission Report 1987: 63)

The Commission notes that maximum penalties give no guidance to judges and probably serve to misinform members of the public about what to expect. One of the standard examples--life in prison as the maximum available sentence for offences as varied as breaking into a house, armed robbery, and manslaughter--still holds true. Similarly, given that they all have the same maximum sentence of 14 years, a reasonable member of the public would have to assume that the following offences were equally serious: sexual assault with a weapon (or causing bodily harm), possession of counterfeit money, and living on the avails of a person under 18 (an offence that now also carries a minimum sentence of 2 years). I doubt that anyone has ever considered the relative seriousness of these three offences since late 1984, when Jean-Paul required the Sentencing Commissioners to place each of about 350 offences into one of six groupings, with maximum sentences of 6 months to 12 years, and to suggest for each offence whether a prison sentence should be presumed (see Commission Report 1987: Appendix E, 493-515).

Mandatory minimum sentences

The Commission's recommendation on this issue was simple: it recommended that mandatory minimum sentences be abolished for all offences except murder and high treason. The Commission noted that the Government of Canada's own statement in 1984, Sentencing had stated that "Mandatory minimum...