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Tom Rees | Criminal Defence Lawyer Winnipeg
18
May

The Fundamental Principle of Sentencing

 

The sentencing regime of the Criminal Code is set out in section 718. The Criminal Code outlines the factors the Judge should consider when deciding what the punishment should be for any given offence. The Judge looks at the circumstances of the offence, the circumstances of the offender, and the relevant sentencing principles, and then imposes a sentence they believe to be fit.

According to the Criminal Code of Canada, the most fundamental principle of sentencing in Canada is called Proportionality:

Fundamental principle

 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The idea behind proportionality is that the punishment should fit the crime. For instance, a person should not get the death penalty for stealing a chocolate bar. In extreme cases it is very obvious how the principle should be applied. A life sentence for breaking a person’s window is obviously too harsh a sentence. However, it can become much more difficult to apply this concept when the circumstances are not so extreme.

A good example is a case where the accused is being sentenced for 10 theft under convictions. He has a record for serving jail sentences for thefts in the past. He is stealing razor blades and other items in order to sell them for profit. The cost of the items being stolen is approximately $300 per theft, totalling approximately $3000. What would be the proportionate sentence for this offender?

Another example is a person who is continuously breaching their court order for being somewhere they shouldn’t, failing to return home for their curfew, or failing to check-in with their probation officer when they were supposed to. How many months in jail is fair in these circumstances?

In both of the cases above, the individual being sentenced could receive more than six months in jail. People are sentenced to six months for thefts and breaches regularly in Manitoba. The question I pose is whether six months in jail is a punishment that is proportionate to the crime of failing to report to probation officer, or stealing razor blades.

The Judges who give out these sentences are limited in their powers to punish people. They can put people on probation, fine them, jail them, or give them some combination of jail, fines and probation. The problem arises when the crime is on the lower end of the spectrum, but has been repeated many times in the past. In these cases, the Courts tend to look at deterrence and denunciation as the primary sentencing factors, and not proportionality.

In my view, rather than being a fundamental principle of sentencing, proportionality is a concept that is rarely used or argued in criminal cases. If a person has stolen enough chocolate bars or breached enough court orders in their past, they can get a punishment that is disproportionate to the specific crime for which they are being sentenced. Six months in jail is not proportionate to the crime of stealing a $1 chocolate bar, but sentences tend to go up for repeat offenders.

The Criminal Code of Canada designates proportionality as the fundamental principle of sentencing in Canada. However, in practice, deterrence, denunciation and separating offenders from society are the fundamental principles of sentencing. Judges have limited options for sentencing people, usually giving them no choice but to ignore proportionality and send repeat offenders to jail for longer and longer periods.

A greater investment in social services for people with addictions and mental health issues would greatly reduce the number of offences and property crimes committed in our cities. Without resources for people in the community, Courts are left with few tools to have an impact on crime rates and instead must turn to lengthy jail sentences.

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