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Principled sentencing, politics, and restraint in the use of imprisonment: Canada’s break with its history

Anthony N. Doob
Traduction(s) :
Principes de détermination de la peine, politiques publiques et modération en matière de recours à l’incarcération : la rupture du Canada avec son histoire

Résumés

Bien que le Canada n’ait jamais réussi à atteindre une grande cohérence en matière de détermination de la peine, pendant plus d’un siècle, les taux d’incarcérations y sont demeurés constants, alors que d’autres pays, notamment les États-Unis, ont vu leurs niveaux d’emprisonnement augmenter considérablement. Une explication partielle de cette stabilité réside dans la tradition canadienne de scepticisme à l’égard des bénéfices de l’emprisonnement – une position qui fut jusqu’en 2006 partagée par les gouvernements fédéraux libéraux et conservateurs. Toutefois, les juges chargés de prononcer les peines n’ont jamais reçu de directives claires du Parlement sur les objectifs qui devraient être concrètement associés aux décisions portant sur les sentences. Les politiques de détermination de la peine basées sur des principes clairs ont connu un rapide déclin à partir de 2006 avec l’introduction par les Conservateurs de nombreux projets de lois pénales modifiant l’économie de la punition. Dans son ensemble, cette activité législative représente l’antithèse d’une réforme de la justice pénale réfléchie et fondée sur des principes. En 1999, Jean-Paul Brodeur décrivait les valeurs qui sous-tendaient les politiques de détermination de la peine comme « rien de moins qu’une catastrophe morale ». Il ne fait aucun doute sur la manière dont il aurait qualifié la période qui s’est amorcée en 2006.

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Notes de l’auteur

Preparation of this paper was supported by a grant from the Social Sciences and Humanities Research Council of Canada to A. N. Doob and C. M. Webster.

Texte intégral

1In December 2010, the Court of Appeal of Alberta made the following observation:

We must face up to five sentencing truths. First, it is notorious amongst judges, of whom there are now approximately 2,100 in this country at three court levels, that one of the most controversial subjects, both in theory and practical application, is sentencing. That takes us to the second truth. The proposition that if judges knew the facts of a given case, they would all agree, or substantially agree on the result, is simply not so. The third truth. Judges are not the only ones who know truths one and two, and thus judge shopping is alive and well in Canada – and fighting hard to stay that way. All lead inescapably to the fourth truth. Without reasonable uniformity of approach to sentencing amongst trial and appellate judges in Canada, many of the sentencing objectives and principles prescribed in the Code are not attainable. This makes the search for just sanctions at best a lottery and at worst a myth. Pretending otherwise obscures the need for Canadian courts to do what Parliament has asked: minimize unjustified disparity in sentencing while maintaining flexibility. The final truth. If the courts do not act to vindicate the promises of the law, and public confidence diminishes, then Parliament will (R. v. Arcand, para. 8).

2I suspect that Jean-Paul Brodeur, as Director of Research for the Canadian Sentencing Commission from 1984 until its report was released in March 1987, would have agreed with everything in that paragraph except the last sentence. The Alberta Court of Appeal appears to be concerned with the possibility that Canada’s Parliament might decide that it should make sentencing policy. The Canadian Sentencing Commission, under Jean-Paul’s guidance wrestled for a long time with the issue of how sentencing policy should be made. In the end, it decided that sentencing policy was public policy and Parliament should have the final say.

3The story of Canada’s unwillingness to address sentencing policy head-on is an interesting one, in part because it has been an issue for so long, and in part because the direct impact of sentencing policy or the lack of it has been rather interesting.

The context: Canada’s imprisonment rate

4As described elsewhere in detail (Doob and Webster, 2006, Webster and Doob, 2007, 2012), Canada’s overall imprisonment rate has been fairly stable for more than a century. This is most easily shown in Figure 1, which describes adult imprisonment rates from 1950 onwards, and for a few earlier years for which data were available from the report Criminal Law in Canadian Society (1982).

Figure 1: Total Canadian imprisonment rate per hundred thousand residents

Figure 1: Total Canadian imprisonment rate per hundred thousand residents

Source: Criminal Law in Canadian Society (1982).

5Canada’s stability in imprisonment rates is particularly notable in light of developments in two countries that, arguably, are most likely to act as comparators for Canada: the US, and England & Wales. Total US imprisonment data (state prisons, federal prisons, and county jails) are only available from about 1980 onwards. For that reason, Figure 2 includes the prison data (for all years) and the ‘total’ data (including jail populations) only from 1980 onwards.

Figure 2: Total imprisonment (rate per hundred thousand residents): Canada, England & Wales, U.S.A.

Figure 2: Total imprisonment (rate per hundred thousand residents): Canada, England & Wales, U.S.A.

Criminal Law in Canadian Society (1982).

6The growth of US imprisonment data is obvious in this figure. US state and federal imprisonment rates went from about 117 prisoners per hundred thousand US residents in 1960 to about 501 prisoners per hundred thousand residents in 2008. Total imprisonment in the US in 2009 is reported to be about 748 prisoners per hundred thousand residents. But the increase in imprisonment in England & Wales was not trivial. In 1960 England & Wales had about 59 prisoners for every 100,000 residents (in contrast with Canada’s rate of 97). In 2009 this had increased to 153. Canada’s had increased to about 110.

7The failure that I will describe, in Canada, to bring in adequate legislative controls on sentencing should not, therefore, be interpreted as meaning that Canada’s imprisonment was not controlled. As described elsewhere, the controls on Canada’s imprisonment rate exist, but are more subtle (see Doob and Webster, 2006, Webster and Doob, 2007, 2012).

8But these figures provide an important context for understanding the recommendations of the Canadian Sentencing Commission (1987). When the Commission began its work in 1984, the imprisonment rate was 108 prisoners per hundred thousand residents. Ten years earlier it had been 83. In fact, when I met with provincial officials in the summer of 1987 to discuss the Sentencing Commission’s recommendations (and in particular, the proposals to ‘fix’ more rigidly the timing of release from prison) they were very concerned about their ability to cope with the growth in imprisonment that they had experienced. Essentially what officials from a number of provinces told me was that they were quietly letting prisoners out the back door when too many came in the front door.

The 1980s: Much talk, little action

9The Canadian Sentencing Commission’s report was released in March 1987. It recommended a comprehensive, and integrated, approach to sentencing arguing that there was a number of serious problems with the structure of sentencing. Like other reports that had been produced in the previous few decades, and a small number of reports that were released by the federal government in the years that followed, the Commission clearly did not believe that the problems of sentencing could be fixed by way of a few politically motivated amendments dealing with specific problems. What was needed was a complete overhaul of sentencing principles, purposes, and penalty structure in a manner that would be, and would be seen to be, fair and just.

  • 1  It could be argued that one of the reasons that the recommendations of the Canadian Sentencing Com (...)

10Because one of its provisions was that discretionary parole – based on assessment of, among other things, whether the offender was likely to reoffend – be abolished, the Commission was adamant that its report should not be considered to be a menu from which individual items could be ordered. It was very concerned that politicians would decide, for example, to abolish discretionary parole release but not consider the necessity to adjust sentences to take this change into account.1

  • 2  The most notable exception to this was, interestingly, the psychologists, who read the recommendat (...)

11The Report of the Canadian Sentencing Commission was, I would suggest, well received by many academic observers.2 However, politically it faced an insurmountable challenge: federally appointed judges, I have been led to understand, made it known to the Government of Canada, that they did not like the Commission’s recommendation that there be a form of presumptive guidelines. That apparently killed any serious consideration of the recommendations of the Commission.

12What is interesting, in this context, is that the Report of the Standing Committee on Justice and Solicitor General – the Daubney Committee – in its 1988 review of the Canadian Sentencing Commission Report, recommended that there be advisory guidelines created by a permanent sentencing commission. It was clearly a ‘soft’ recommendation. What is important, in retrospect, was that the actual recommendation was a provisional one. It stated that,

 “While opposing the introduction of presumptive or mandatory sentencing guidelines at this time, the Committee favours the development of offence rankings…. “(p. 75).

13Then, in a formal recommendation it stated that

“The Committee recommends that only advisory guidelines be developed at this time and that priority be given to developing first those which would be applied to the most serious offences” (p. 75).

14One suspects that the words “at this time” were included to reflect some concerns that these solutions might not be sufficient. In an interesting ‘near contradiction’ to the notion that ‘only advisory guidelines be developed’ the report continues by saying that

“The Committee recommends implementation of the following recommendations of the Sentencing Commission as to the development of such guidelines and the operation of a permanent sentencing commission:

(a) that four presumptions be used to provide guidance for the imposition of custodial and non-custodial sentence

(i) unqualified presumptive disposition of custody;

(ii) unqualified presumptive disposition of non-custody;

  • 3  These “qualified” presumptions combined the seriousness of the instance of the offence being sente (...)

(iii) qualified3 presumptive disposition of custody; or

(iv) qualified presumptive disposition of non-custody…

15In other words, the 1988 Parliamentary Committee recommended that there should be some presumptive guidance to judges on whether a person should or should not be imprisoned. The details of the recommendations are not, 25 years later, very important. But what is important is that there was agreement, in the House of Commons committee responsible for sentencing matters, that there was some value in having an integrated set of provisions to guide the imposition of sentences.

16To understand the report of the Canadian Sentencing Commission, one has to look at it in the context in which it was released – a context that, I would argue, no longer exists in Canada. This was a period of Canadian history when principles mattered. Details were important, but the idea was that the details of changes to the criminal law should fit into an over-riding framework. It is not surprising, in this context, that the 1969 Report of the Canadian Committee on Corrections – normally referred to as the Ouimet Committee Report – was entitled Toward Unity: Criminal Justice and Corrections.

  • 4  I was one of the nine commissioners.

17Jean-Paul Brodeur, the philosopher, knew this and ensured, as the Commission’s research director, that the commissioners on the Canadian Sentencing Commission4 learned this. The Commission was formed in the spring of 1984 and Jean-Paul started as research director a few months later. Predictably, the first serious task that the Commission addressed was that of the principles that would guide its deliberations. Also predictably, this was not easy and took a substantial amount of time.

  • 5  These include denunciation, general and specific deterrence, incapacitation, rehabilitation, repar (...)

18To understand the challenge that the Commission faced, one has to remember that then – and perhaps now – judges and others believed that sentencing could be a little bit of everything to almost everyone. The idea was ripe that judges could magically choose among the various purposes now listed in S. 718 of the Criminal Code of Canada.5 How was this to be done? One often heard that ‘sentencing was an art’ not a science. I think that the purpose of the belief in ‘sentencing as art’ is to convince people that it was inevitable that different people would have different views – but that somehow the ‘judge as artist’ was most likely to be right, since he or she was a professional artist. Educating his Commission was a necessary first step for Jean-Paul. One anecdote that I have mentioned before in another context (Doob, 2011) describes the problem very well.

19Once, in the very early days of the Commission, Jean-Paul and I were asked by a then very important judge what was the evidence for unwarranted disparity in sentencing. We gave, as an example, evidence from sentencing exercises that were then quite popular for judges (and the results of which were occasionally published; see e.g., Palys and Divorski 1984). These exercises typically give a group of judges identical written descriptions of ordinary cases and ask them to hand down the sentence that they think is most appropriate. At meetings of judges, there would often be a spirited discussion of the sometimes very different sentences they would recommend. Usually, these different sentences were the result of quite different approaches to, and perhaps different notions of, what the average sentence for offences of a particular type should be. What was interesting about the sessions that I have attended is that there was almost never an attempt to decide which sentences were “right” and which were “wrong.”

20At the end of our description of these findings to this senior judge, one of us suggested that, if one judge were to recommend a relatively straightforward short term of probation and another judge were to suggest that a moderately long prison sentence was appropriate for the identical case, that might qualify as unwarranted disparity and it might qualify as a problem that should be addressed. The judge looked at us patiently – understanding that he was a judge and we weren’t – and offered an alternative conclusion: “Maybe both judges are right,” he suggested. I don’t think either of us knew where to go from there. What the judge meant, of course, was that, if both sentences could be logically justified and individually tailored to the person being sentenced, then perhaps both were right or, at least, one couldn’t tell whether one or both were wrong. The Court of Appeal of Alberta, quoted at the beginning of this essay, would not have been pleased with this judge’s reply.

21Looking back at the problem of coming up with a statement of purpose and principles of sentencing from the perspective of what has happened in the past 25 years, I am struck by the fact that the Commission had two enormous advantages over what would be the case if it had been deliberating in the 21st century rather than in the last part of the 20th century. First, it was generally believed that there was a need for an integrated approach to criminal justice that looked broadly at the criminal justice system. Second, there was broad consensus on certain of the principles – or values – that should be followed in looking at sentencing.

A Statement of Criminal Justice Policy

22In 1982, the Government of Canada issued what it described as the first ever statement of the policy that should guide criminal law policy. It was published and widely distributed under the title Criminal Law in Canadian Society. But it was hardly, at that time, a revolutionary document. Its purpose was simple: to “articulate a statement of the appropriate scope, purpose, and principles of criminal law” (p. 1). It noted that

 “Criminal sanctions, whether justified in terms of utilitarian or retributive aims, are primarily punitive in nature, and are understood as such both by society and by those on whom they are imposed” (p. 3).

23It suggested that

“The criminal law should be employed to deal only with that conduct for which other means of social control are inadequate or inappropriate, and in a manner which interferes with individual rights and freedoms only to the extent necessary for the attainment of its purpose” (p. 5).

24On the issue of sentencing, the policy statement was not so clear. In a statement of “principles to be applied in achieving [the purpose of the criminal law]” it stated that

(f) The criminal law should provide sanctions for criminal conduct that are related to the gravity of the offence and the degree of responsibility of the offender, and that reflect the need for protection of the public against further offences by the offender and for adequate deterrence against similar offences by others;

(g) wherever possible and appropriate, the criminal law and the criminal justice system should also promote and provide for:

(i) opportunities for the reconciliation of the victim, community, and offender;

(ii) redress or recompense for the harm done to the victim of the offence;

(iii) opportunities aimed at the personal reformation of the offender and his reintegration into the community;

(h) persons found guilty of similar offences should receive similar sentences where the relevant circumstances are similar;

(i) in awarding sentences, preference should be given to the least restrictive alternatives adequate and appropriate in the circumstances;

(j) in order to ensure equality of treatment and accountability, discretion at critical points of the criminal justice process should be governed by appropriate controls…. (pp. 5-6).

  • 6  Bill C-19, introduced in early 1984, proposed that “(f) A term of imprisonment should be imposed o (...)

25Three important principles might be derived from these statements. First, the criminal law should be used with restraint. Second, “less is better” in sentencing. This might be operationalized, as it was in a bill introduced in 1984, that imprisonment should not be used unless necessary.6 Third, unwarranted disparity in sentencing is a problem.

26The report Criminal Law in Canadian Society received very little criticism when it was released. It also received very little praise. In fact, it received very little notice of any kind. Canada’s self-proclaimed national newspaper, the Globe and Mail did not appear to cover its release. In fact, the first story I could find about it, on 3 September 1982, refers to Criminal Law in Canadian Society as “an unusual document made public eight days ago” saying that “A layman reading it would be baffled by its purpose” in large part because there is a “discussion of only very broad notions about crime and society and a set of principles which fall into the region of motherhood” (Valpy, 1982). The Globe and Mail followed up, four days later in an editorial, saying that “the policy paper merely recycles the findings of past reports without providing new grist for argument.” And it accepted the government’s assessment that “The criminal law needs pruning and its penalties need to be adjusted to reflect the seriousness of each offence” but it concluded that “We are left waiting, as we have waited for the past decade, for specific proposals” (Globe and Mail, 7 September 1982).

27The Globe and Mail writers were obviously referring to the broad and long standing consensus that existed at the time, and probably existed for more than a decade afterwards, concerning criminal justice policy in Canada. In Table 1, I have reproduced what is almost certainly a partial list of government reports for a more than 30 year period that preached restraint in the use of the criminal law.

Table 1: Selective List of Integrative Reports on Criminal Justice, 1956-1998, Released by the Government of Canada or Commissions, Agencies, or Committees established by the Government.

  • Report of a committee appointed to inquire into the principles and procedures followed in the remission service of the Department of Justice of Canada… (“Fauteaux Report”), 1956

  • Department of Justice, Canada: Report on Juvenile Justice, 1965

  • Toward Unity: Report of the Canadian Committee on Corrections (Ouimet Report), 1969

  • Law Reform Commission of Canada: Our Criminal Law (1976) and various other reports issued by the Law Reform Commission of Canada

  • Sub-Committee on the Penitentiary System in Canada (the “MacGuigan Report”) 1977

  • Criminal Law in Canadian Society, 1982

  • Sentencing, 1984

  • The Justice System: Task Force on Program Review (“Neilson Task Force”) 1985

  • Report of the Canadian Sentencing Commission, 1987

  • House of Commons Justice Committee – “Taking Responsibility” (The Daubney Report), 1988

  • Directions for Reform (Three separate reports: A Framework for Sentencing, Corrections, and Conditional Release; Sentencing; Corrections & Conditional Release). 1990

  • House of Commons Committee Report on Crime Prevention, 1993

  • Federal-Provincial-Territorial Working Group on Corrections Population Growth (1996, 1997, 1998. 2000)

  • Strategy for Youth Justice , 1998

28A close look at Table 1 demonstrates an important phenomenon of Canadian criminal justice policy during this period: The reports advocating restraint in the use of imprisonment did not stop when the Liberal Government was replaced by a Conservative government in 1984. In fact, not only did they keep coming, they are not very different from the reports released in Liberal periods. As political scientist Stephen Clarkson has observed,

The first three post-war decades were not notable for a centre mainly presided over by the Liberal Party. More significant was its moving consensus about what this centrism comprised. When Diefenbaker overturned King’s chosen successor, Louis St. Laurent, in the 1957 election, he did not overturn the Liberals’ legacy. He built on it. Some of his measures were progressive: a bill of rights. Others were conservative: setting up a private television network to compete with the CBC. Some were nationalist: his “roads to resources” to develop the North. Others were continentalist: his national oil policy.

Even when Brian Mulroney wiped out John Turner in 1984, he maintained the Liberals’ previously much-contested bilingualism and continued federal support for medicare. His own signature achievement, a bilateral free trade agreement signed with Ronald Reagan, polarized the country in the bitterly fought 1988 federal election, but Jean Chrétien, breaking his promises made when leader of the Opposition, entrenched the Conservatives’ shift to continentalism by signing the North American Free Trade Agreement as soon as he won power back in 1993. Just as significant for my argument, Paul Martin as Chrétien’s minister of finance consolidated the Mulroney government’s Margaret Thatcher–inspired shift to neoconservatism by sharply cutting those same social programs that had been the Liberal Party’s proudest achievement.

So the Liberals may have straddled the partisan centre in the late 20th century, but more important for this reflection on their future prospects and those of Canada’s centrist politics is the way that they—as well as the Progressive Conservatives—typically worked within the evolving consensus by accepting the main positions they inherited from their just-defeated opponents as they proceeded to move the country toward their own redefined goals (Clarkson, 2011, p. 4).

29Said differently, the main parties during this period may have fought over details and focused on differences, but in reality they were very similar.

30This might be demonstrated quite convincingly by looking at the three policy papers released by the Conservatives on 6 July 1990. In these papers, the Conservative government explicitly agreed with much of the framework put forth by the Liberals eight years earlier. In the paper on sentencing, they indicated that they were proposing a Statement of Purpose and Principles of Sentencing that looked remarkably similar to that tabled by the Liberal government in Parliament (as Bill C-19) in early 1984.  Specifically, they agreed that a sentence should be “the least onerous alternative appropriate in the circumstances” and, like the Liberals in their 1984 bill, the Conservative proposal specified a limited number of conditions that could justify a prison sentence.

31In a similar vein, the then Minister of Justice, Kim Campbell gave notice, in her paper on Sentencing, of the fact that it was her intention to reform the use of fines. Essentially, the automatic default of a period of imprisonment for offenders who did not pay their fines would be changed. She noted that

These measures will remove a socio-economic bias from the system of penalties and will assist the economically disadvantaged in society, including aboriginal people and women. The process should better ensure that the non-incarcerative intent of the judge in imposing a fine is, in fact, the sanction that the offender receives, rather than the much more debilitating sanction of incarceration (p. 14).

32When talking about imprisonment, the Conservative Minister of Justice, and future Prime Minister (June – October 1993) stated in this 1990 report that

Although Canada does not imprison as large a portion of its population as does the United States, we nevertheless imprison more people that most other western democracies. Imprisonment is expensive and it accomplishes very little, apart from separating offenders from society for a period of time. During the last decade, federally appointed commissions that have studied aspects of the criminal justice system have urged that imprisonment should be used as a last resort and reserved only for those convicted of the most serious offences…

Concern has been expressed about the appropriateness of using incarceration for property and non-violent offenders. Crowded prisoners are not schools of citizenship. Advocates of intermediate sanctions have suggested expanding the range of options available to provide for effective, tough, non-incarcerative penalties that would require offenders to take responsibility for their actions. Proponents argue that it is better that offenders should learn to exercise self-control than have controls imposed upon them… (p. 17).

33The “proponents” referred to in this last quoted statement - relating to encouraging offenders to learn self control – were the members of Prime Minister Margaret Thatcher’s government. In fact the Canadian policy paper explicitly refers to the (British) Home Office’s green paper entitled “Punishment, Custody and the Community” which was tabled in the Westminster parliament in July 1988. Prime Minister Margaret Thatcher thought that prison was a waste of resources as did Minister of Justice and future Prime Minister Kim Campbell. It is unlikely that Stephen Harper, as Prime Minister of Canada in 2012 would agree.

The legislated sentencing provisions of 1996

  • 7  The Conservative party was reduced to two seats in the 1993 election. The far right-of-centre Refo (...)

34In a bizarre quirk of politics, homophobia, and spectacular stupidity, the principles of sentencing got almost no public attention when Bill C-41 (1st session, 35th Parliament), a bill that provided a comprehensive structure for sentencing of all criminal offenders, was introduced into the House of Commons on 13 June 1994. The bill created an overall structure of sentencing that largely codified what had been discussed in the past or which had been developed by appeals courts over the decades. Codifying sentencing was, of course important. But what was more important to Reform Party members7 was the requirement that courts consider the principle that “hate motivated” offences were more serious than similar looking offences motivated by ordinary factors. The government originally proposed that

s. 718.2 (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offender, and, without limiting the generality of the foregoing

(i) evidence that the offence was motivated by bias, prejudice or hate based on the race, nationality, colour, religion, sex, age, mental or physical disability or sexual orientation of the victim…

35shall be deemed to be aggravating circumstances…

36Perhaps because the list of factors forming the basis of ‘bias, prejudice, or hate’ was exhaustive, or perhaps simply because the Minister of Justice had included these words in the list, placing the words ‘sexual orientation’ in the context of hate motivation drove the right wing opposition into hysteria. Indeed, at one point, I was telephoned by a news reporter who wanted my comments on the “gay rights” law. Until he elaborated, I had no idea he was talking about the sentencing law. But the Liberals had difficulty with some of their own party.

37One back bench Liberal was quoted, on the day that the bill was introduced as saying that “If sexual orientation is recognized, it could open the door to courts to legislate gay rights into other matters -- for example, changing immigration sponsorship rules to allow for same-sex couples, or even, allowing pedophiles to legitimize their actions” (Tu Thanh Ha, Globe and Mail, 17 November 1994, A4).

38If the government had wanted its sentencing bill to get through Parliament without serious public examination, it could not have been more successful. One letter writer to the Edmonton Journal wrote, with respect to this sentencing bill, that

 “To legitimize a lifestyle which undermines core family values and challenges the very definition of the term family is an utter abomination to most Canadians (not to mention God who created families.) As all our laws are based on Judeo-Christian principles, I wonder if some of our politicians have ever seen the inside of a church” (Steinhauer, Edmonton Journal, 16 May 1995, A11).

39The Minister of Justice even felt that it was necessary to tell the Parliamentary committee that was examining the bill that

To say that including sexual orientation in C-41 is encouraging a lifestyle is like saying that because we’re including religion [in the list of dimensions on which hate could be based] we’re encouraging people to become Catholic” (Tu Than Ha, Globe and Mail, 18 November 1994).

40Later the Minister felt it necessary to remind reporters that

 “This bill does not deal with same-sex benefits. This bill does not deal with marriage or family or spouses. This bill deals with crime. (Tu Than Ha, Globe and Mail, 18 November 1994)

41In the end, the government changed its proposal in an important way. It removed the prioritizing of ‘sexual orientation’ over other targets of hatred by adding to it the words “or any similar factor” to the end of this clause. This ended the idea that “sexual orientation” was privileged as a basis of hate over hate crimes based on, for example, political orientation or occupation. But the damage had been done: public attention was focused on the two words “sexual orientation” and not on the other 63 pages of the bill. Sentencing law slipped into the Criminal Code without much public notice.

42Symbolically, the most important sentencing provisions of this amendment to the Criminal Code may be those that explicitly endorse restraint in the use of imprisonment:

718.2 A court that imposes a sentence shall… take into consideration the following principles….

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

43The difficulty with these sentencing provisions does not lie in the principles that are enunciated. The problem lies in part with the fact that all of the standard purposes of sentencing are listed in S. 718. The judge is required to hand down a sentence proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1) but at the same time is encouraged to invoke one or more of the standard crime-fighting purposes of sentencing (e.g., deterrence and incapacitation) (in S. 718) while keeping the sentence proportional. As Jean-Paul Brodeur himself suggested,

The statement of the purpose of sentencing [in s. 718] is convoluted and ultimately self-defeating. It introduces a spurious distinction between the purpose of sentencing and the objectives of criminal sanctions….. The list of objectives… is an inconsistent collection of the utilitarian goals of sentencing, denunciation, which is central to the just deserts perspective, and the recently popular goals of providing reparation and promoting responsibility.  By providing no hierarchy or priority for these objectives, the sentencing bill falls short of the requirements for a sound sentencing framework….. (Brodeur, 1999, p. 340).

44But as he noted in another context, we have, historically, lurched from one approach to another:

Criminal justice accumulates opinions but seems incapable of increasing its knowledge. As we waste one silver bullet after the other, we keep on forgetting why we’re always missing the target. Thus utilitarians rapidly forget all that classical retributivists have to say; deterrence and incapacitation theory then gave way to rehabilitation programs that mistook jails for hospitals, mental health clinics and schools. As nothing seemed to work for rehabilitation, retribution made a comeback as the “justice model”; it now appears that we are into restorative justice, which is once more promoted as a cure-all.

Criminal justice has never taken stock of the main lesson arising from all those failures: namely that there is no single panacea for all sentencing problems. This conclusion ranks a close second in its frequency to the denunciation of the overuse of incarceration. Yet our craving for magical recipe is as insatiable as our willingness to imprison people. Both tendencies mirror each other and may actually represent two sides of the same coin (Brodeur and Roberts, 2001/2, p. 90).

45The result of these failures is that the sentencing judge, as noted by the Court of Appeal of Alberta at the start of this paper, is given little guidance on the severity of the sentence to be handed down. To say that sentences should be similar to those handed down in similar cases does not make it be so, especially since there were, originally, almost no rules on prioritizing the principles or operationalizing proportionality or determining the dimensions on which “similarity” is to be determined. Though the law now states a presumption in favour of non-custodial sentences, there is no serious test of when those presumptions are overcome.

46More importantly, as if to demonstrate to anyone who cared that the principles contained in the sentencing bill were not important guides to sentencing legislation and that sentencing legislation need not be consistent with these principles, the Liberal government, on 14 February 1995 – eight months after introducing its sentencing bill and before its sentencing bill had become law – introduced another bill, Bill C-68. This introduced a set of about ten mandatory minimum sentences for violent offences carried out with firearms. The bulk of these – those related to serious assaults, sexual assaults, robberies, and manslaughter, for example – involved mandatory minimum sentences of 4 years in prison when a firearm was used in one of these offences. The purpose of these mandatory minimum sentences was simple: they were to demonstrate that ‘bad guys’ were being punished as a balance to the most controversial part of the bill – the requirement that those owning rifles and shotguns register these weapons with the government.

47Webster and Doob (2007) estimated that these new mandatory minimum sentences had very little impact on overall imprisonment rates in large part because most of those offenders carrying out these serious crimes with firearms were already getting fairly serious sentences. Nevertheless, the implementation of mandatory minimum sentences in this context constitutes a rather dramatic and highly visible use of the criminal law for purely political purposes.

48I was told by officials working in the Department of Justice in the 1990s that this bill was put together by the ‘firearms’ officials in the Department of Justice with minimal, if any, serious consultation with the officials responsible for ‘sentencing’ and related matters in that department. The ‘need’ for these mandatory minimum sentences was almost certainly political rather than legal or criminological. No evidence was put forth to suggest that judges were soft on those carrying out serious violent offences with firearms, and the data that were available at that time – as now – would suggest that mandatory minimum sentences would not deter crime and would, if anything, disrupt the court process.

49But the damage had been done. As Jean-Paul Brodeur suggested in a paper published in 1999,

Although it is too early to tell, there are indications that Bill C-68 may start a new trend toward an increased use of minimum penalties. Bill C-27, which amends the Criminal Code with respect to child prostitution and related offences, created an offence of aggravated procuring, with a minimum penalty….” (p. 337)

  • 8  These were the three “Directions for Reform” papers – a framework paper, a paper on sentencing, an (...)

50It would appear that the last serious attempt to plan for an integrated, thoughtful, broad reform to the adult criminal law largely occurred when the three policy papers on sentencing and corrections were released by the Conservatives in July 1990.8 Five years later – in 1995 – the government seemed to have forgotten the existence of both the 1982 Criminal Law in Canadian Society and the 1990 reports. But the use of mandatory minimum sentences for political purposes in the mid-1990s provided a good model of how federal governments could make simple amendments to the criminal law on the pretense of increasing public safety. Little did any of us know at the time how prevalent such actions would become a decade or so later.

51When the Liberals formed a minority government in 2004, they were forced to accept other mandatory minimum sentences by the opposition even though the then Minister of Justice, Irwin Cotler, made it clear in the Senate hearings (Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, June 22, 2005) that he believed the evidence that they did not work. Principles such as those in Criminal Law in Canadian Society and the 1990 Framework documents had been forgotten.

The death of principled sentencing policy

  • 9  Essentially the conditional sentence of imprisonment allowed people who would otherwise have been (...)

52Principled sentencing began a steep decline toward death on 4 May 2006 when the (minority) Conservative government introduced two bills (39th Parliament, 1st session) – C-9 designed to restrict the use of conditional sentences of imprisonment9 and C-10 which increased mandatory minimum sentences for a number of serious violent crimes carried out with certain (but not all) firearms.

53The Minister’s press release on the ‘mandatory minimum’ bill that day was remarkable for what it did not say. The key elements of it were as follows:

 “We will not tolerate gun and gang-related crimes in our communities,” added Minister Toews. “By ensuring that tougher mandatory minimum sentences are imposed for serious and repeat firearms crime, we will restore confidence in the justice system, and make our streets safer. There will be clear consequences for gun crime – prison sentences that are in keeping with the gravity of the offence. Serious crime will mean serious time.”

“With this initiative the Government will deliver on its promise to get tough on crime and make communities safer.”

54Under the proposed legislation, the use of a firearm in committing a serious offence will be subject to a significant sentence. If, for example, an offence is gang-related, or if a restricted or prohibited firearm such as a handgun is used, the minimum penalty will be:

  • five years on a first offence

  • seven years if the accused has one prior conviction involving the use of a firearm to commit an offence

  • ten years if the accused has more than one prior conviction for using a firearm to commit an offence

55What the press release failed to say is that the mandatory minimum penalty had been four years for these offences, and even if the bill had been passed without amendment, the mandatory minimum punishment would remain at four years for offences carried out with rifles or shotguns. One has to wonder whether anyone could find a single offender who would be deterred by a five year prison sentence, but would not be deterred by four years in prison, or who would decide to carry a 12 gauge shotgun rather than a .22 caliber revolver to a robbery because, if apprehended and convicted, he would face one year less as a mandatory minimum sentence for the offence with the shotgun than with the small handgun.

56Clearly, once again, the purpose of this change was political, not criminological or legal. This was, again, a sign of what was to come.

57In Table 2, I have summarized the Conservative party’s legislative activities for its ‘minority’ period (2006-2011).

Table 2: Legislative Success during Conservative Minority Period: Government Bills only: April 2006 through March 2011

Parliamentary Session

“Crime” Bills

All Other Bills

Total Introduced

Received Royal Assent

% Receiving Royal Assent

Total Introduced

Received Royal Assent

% Receiving Royal Assent

39-1

13

6

46%

50

30

60%

39-2

7

2

29%

55

27

49%

40-1

0

-

-

4

0

0%

40-2

17

2

6%

46

28

61%

40-3

17

6

35%

44

22

50%

Total House of Commons Government Bills

53

16

30%

199

107

54%

Total Senate Government Bills

8

4

50%

20

9

45%

Total Government Bills

61

20

33%

219

116

53%

  • 10 There is a small amount of ‘double counting’ in the table above. In a number of instances, the gove (...)

58Clearly, the government was more interested in showing activity than in actually getting its bills passed.10 In a five year period 61 crime bills were introduced, but only twenty of them were made law. This ‘success’ rate is lower than for other bills. But in addition, when one looks at the content of these bills, what is interesting about them is that they are, for the most part, single issue bills. There was seldom even a hint of thoughtful comprehensive legislation.

59It should be remembered, of course, that all of the bills that became law received explicit – and sometimes vocal – support from one or both national political parties (the Liberal Party and/or the New Democratic Party). Both parties seemed to believe either that politics is more important than good policy in the criminal justice arena, or that ‘one off’ increases of punishment make good policy.

Conclusion

60It would appear that we have left one era of criminal justice policy and have entered another. For over 30 years, Canada talked about revising its Criminal Code and attempting to create a criminal law, and a framework for punishment, that was coherent and principled. The notion that imprisonment was a necessary evil and was, therefore, to be used sparingly – or only when necessary – was well established in Ottawa until the early to mid-1990s. “Restraint in the use of imprisonment” was a position that was not challenged by any of the three national political parties until the 1990s. Brodeur (1999) suggests, however, that by the end of the 20th century, substantial deterioration in what might be described as ‘criminal justice values’ had already occurred:

In 1986, at the time of the writing of the report [of the Canadian Sentencing Commission], there was still public acknowledgement of the social bond uniting convicted offenders and the community. Notwithstanding the actions of organizations like the Church Council and similar groups, this bond appears to have been thoroughly ruptured. Both serious offenders and persistent petty offenders are now considered as social waste by the community at large. Such a development is nothing short of a moral catastrophe (Brodeur, 1999, p. 346).

  • 11  Former Minister of Public Safety, and subsequently Treasury Board Secretary Stockwell Day, made th (...)

61Writing in early 2012, it is difficult to know how the Conservative government’s changed view of criminal justice policy - or moral catastrophe as Brodeur might have described it – will play out in the future. The Government of Canada between 2006 and 2011 appeared to want to sell Canadians on the view that crime was increasing11 and out of control. Such a policy, they seem to think, would justify simplistic ad hoc changes to the criminal law – most of which were described as being tough on crime. Many bills were better than a few comprehensive bills because each time a bill was introduced the government could point to it and show action. The legislative process, and whether or not the bill became law, got little attention.

62Whether Canadians will be lured into thinking that ‘tough punishments’ will save them from crime is, at this point, difficult to tell. In the long run, however, what may have been lost between the mid-1990s and 2012 are two parts of Canadian criminal justice culture: the view that there is a need for a coherent policy and the view that prison should be used sparingly.

63In that sense, of course, perhaps the Court of Appeal of Alberta was sensible in suggesting that Courts of Appeal, not the Parliament of Canada, should take control of Sentencing. The legislature, in recent years, has seemingly been incapable of principled thinking about criminal justice. However, as baseball philosopher Yogi Berra reminds us, ‘It’s tough to make predictions, especially about the future.

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Bibliographie

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Brodeur J.-P., 1999, Sentencing Reform: Ten Years after the Canadian Sentencing Commission, in Roberts J. V., Cole D. P. (Eds), Making Sense of Sentencing, Toronto, University of Toronto Press.

Brodeur J.-P., Roberts J. V., 2001-2002, Taking Justice Seriously, Canadian Criminal Law Review, 7, 1, 77-92.

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Clarkson S., 2011, Has the Centre Vanished? The past and future of the middle ground in Canadian politics. Literary Review of Canada, octobre. Downloaded on this page 21 November 2011.

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Doob A. N., 2011, The Unfinished Work of the Commission canadienne sur la détermination de la peine, Canadian Journal of Criminology and Criminal Justice, 53, 3, 279-297.

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Doob A. N., Webster C. M., 2006, Countering punitiveness: Understanding stability in Canada’s imprisonment rate, Law and Society,40, 325-367.
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Notes

1  It could be argued that one of the reasons that the recommendations of the Canadian Sentencing Commission were not considered more carefully is that the Commission (in the report and in statements afterwards by individual commissioners) focused on the integrated nature of the recommendations. In retrospect, it may have been seen as an “all or nothing” proposition, whereas it might better have been seen as a set of recommendations which would need modification if only some of them were implemented.

2  The most notable exception to this was, interestingly, the psychologists, who read the recommendations of the Canadian Sentencing Commission as being ‘anti-treatment’ since the severity of the sentence was not to be determined by treatment considerations. For an interesting set of essays on this, see the Canadian Journal of Criminology, 1990, Special Issue on Sentencing, 32(3).

3  These “qualified” presumptions combined the seriousness of the instance of the offence being sentenced with information about the offender’s criminal record. The details are available at Appendix G of the Report of the Canadian Sentencing Commission.

4  I was one of the nine commissioners.

5  These include denunciation, general and specific deterrence, incapacitation, rehabilitation, reparations to victims and the community, and promoting a sense of responsibility to offenders and acknowledgement of the harm done to victims.

6  Bill C-19, introduced in early 1984, proposed that “(f) A term of imprisonment should be imposed only (i) to protect the public from a violent or dangerous offender, (ii) where a less restrictive alternative would not adequately protect the public or the integrity of the administration of justice or sufficiently reflect the gravity of the offence or the repetitive nature of the criminal conduct of an offender, or (iii) to penalize an offender for willful non-compliance with the terms of any other sentence that has been imposed on the offender; and (g) a term of imprisonment should not be imposed, or its duration determined solely for the purpose of rehabilitation.” See Canadian Sentencing Commission, p. 491.

7  The Conservative party was reduced to two seats in the 1993 election. The far right-of-centre Reform Party became the right wing opposition to the Liberal party.

8  These were the three “Directions for Reform” papers – a framework paper, a paper on sentencing, and a paper on Corrections. The last of these would develop, subsequently, into the Corrections and Conditional Release Act. As noted in Table 1, after the release of these documents, the (Conservative dominated) House of Commons Justice committee released a report in 1993 advocating restraint. In the last few years of the century, a federal-provincial-territorial committee worked on ways of reducing imprisonment, and the Government of Canada released a broadly based framework document on youth justice which formed the basis of the Youth Criminal Justice Act, first introduced into Parliament in March 1999.

9  Essentially the conditional sentence of imprisonment allowed people who would otherwise have been sent to prison for a period of less than 2 years to receive a non-custodial penalty (similar to a suspended sentence).

10 There is a small amount of ‘double counting’ in the table above. In a number of instances, the government introduced a bill and then allowed it to die on the order paper, only to re-introduce it in a subsequent session. In some instances, such bills were bundled together to form a single new bill. These counts also exclude private members bills, a small number of which, sponsored by Conservative Members of Parliament, were passed by the two houses of Parliament and received Royal Assent. In addition, in some instances, there may be some minor disagreement as to whether a bill is ‘criminal’ in its focus.

11  Former Minister of Public Safety, and subsequently Treasury Board Secretary Stockwell Day, made the most incomprehensible statement I was able to find on this matter. He indicated that Canada needs more prisons because the numbers of unreported crimes “are alarming and it shows that we can’t take a liberal view to crime or suggest that it’s barely happening at all” (Whittington, 2010). Essentially, his point seemed to be that since victimization surveys show that many crimes are not reported, we should build more prisons to house the offenders for these crimes that never came to the attention of the criminal justice system. Vic Toews, the Minister of Public Safety, felt no need to cite evidence when he proclaimed that “Unfortunately, our safe streets and healthy communities are increasingly under threat of gun, gang and drug violence” (Toews, 2012). Prime Minister Stephen Harper, on the other hand, citing Statistics Canada, stated that “Let us not delude ourselves, between 2000 and 2008, the number of homicides attributed to gangs doubled from 1 in 8 to 1 in 4” (Harper, 15 March 2011). What the Prime Minister’s statement failed to note is that when they increased from 13.2% of all homicides to 22.6% of all homicides, that change included a change in the measurement of ‘gang related.’ Prior to 2005, Statistics Canada notes that police were asked, on the homicide report, to indicate whether the homicide was ‘gang related.’ After 2005, it would appear that there were two categories included in this ‘gang related’ category: confirmed as gang related and suspected as being gang related. No data are apparently publicly available that allows these categories to be divided into two. However, if one were to look at the change from 2005 (when the new measure had been incorporated) and 2010, the number of homicides described by the police as being gang related decreased from 105 to 94 (Beattie and Cotter, Statistics Canada, 2011, Table 6, page 26).

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Table des illustrations

Titre Figure 1: Total Canadian imprisonment rate per hundred thousand residents
Légende Source: Criminal Law in Canadian Society (1982).
URL http://champpenal.revues.org/docannexe/image/8335/img-1.png
Fichier image/png, 14k
Titre Figure 2: Total imprisonment (rate per hundred thousand residents): Canada, England & Wales, U.S.A.
Légende Criminal Law in Canadian Society (1982).
URL http://champpenal.revues.org/docannexe/image/8335/img-2.png
Fichier image/png, 17k
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Référence électronique

Anthony N. Doob, « Principled sentencing, politics, and restraint in the use of imprisonment: Canada’s break with its history », Champ pénal/Penal field [En ligne], Vol. IX | 2012, mis en ligne le 30 janvier 2012, consulté le 31 octobre 2014. URL : http://champpenal.revues.org/8335 ; DOI : 10.4000/champpenal.8335

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Auteur

Anthony N. Doob

Centre for Criminology and Sociolegal Studies, University of Toronto (Canada). Contact: anthony.doob@utoronto.ca

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