 So welcome. It's with great pleasure that I welcome you here this evening to the law school And it's fitting. I'm Kim Brooks the dean here at the school. It's fitting that we start our series of public lectures with Archie and Archie came into my office very early on in my Deanship and in his characteristic way very casually suggested that it would be a good idea for us to contemplate doing a lecture series about law for The public in an effort to make the law more accessible and to bring people into the law building and to get a chance to engage a Little more actively in the community indeed not only did we have Was it a good idea that we might do this? But in fact we might conceive of it as an obligation of the law school in terms of giving back to the community And it was immediately apparent to me that this was a good idea But we were not so sure whether our colleagues would be similarly persuaded and within about an hour of sending out an email canvassing Suggestions we had more than 20 offers from our colleagues to provide similar lectures So the plan is that there will be another five lectures Following tonight's as part of this series in this winter term and then we'll do a similar series next year that will feature other of our colleagues Tonight's lecture dilemmas and Canadian sentencing law is sure to be engaging I'm sure the other lectures will be similarly engaging for those of you who may have caught Archie on and any number of the Radio shows he did this week to talk about this issue. You'll have seen that it is one that That provokes a wide range of responses And so we hope that you'll be able to engage actively with him at the conclusion of the lecture The I might just say a few things about Archie before turning over the floor to him Archie is an extraordinary human being one of the most Remarkable things about him is at his core he is committed to a quality and social justice and the pursuit of a balanced life in a way that is Astonishing moving and inspiring for those of us who have the opportunity to work with him here at the law school Certainly, I've learned a great deal from him already in my first couple of months in office He takes very seriously the well-being of others and that fits nicely in some ways into the topic that he's chosen to address tonight We have a tradition here at the law school that we call the Weldon tradition of unselfish public service named after our first dean Richard Weldon and if there is someone who embodies that spirit It would be Archie and so in some ways again, it's kind of fitting that he Opens this series about law for the public. I hope that you enjoy this evening or delighted that you've come again There are an additional five lectures on Wednesday of Thursday evenings through the course of the term There are also some comment sheets to get people's feedback about how this format has worked and whether or there you have other Suggestions and if you leave them on the table before you leave tonight, that would be terrific This is coffee and cookies for people here So should you feel the need to just get a bit of refreshment? Please feel free to do so enjoy Well, good evening after the dean's very kind introduction, I'm afraid it's all downhill for me from here So perhaps I ought not to open my mouth at this point but I Do have quite a bit to say actually and I first of all want to thank you most sincerely for coming out on the inaugural Lecture in our series and tend it for the public We appreciate your interest We hope that you'll bring in some of your friends and family And we hope that we'll be able to offer Something more to the public than we usually do by way of lectures and opportunities for engagement and I I chose tonight's topic of the many I might have thought about lecturing about simply because it's one that many people fasten on Quite readily, you know, they hear about issues surrounding the sentencing of persons convicted of criminal offenses they often develop opinions quickly and Sometimes those opinions are singularly misguided in terms of basic principles and in terms of desired outcomes So I know it's a controversial area But I thought it would be worthwhile to try to provide an Overview of sentencing within the criminal justice system And to give you some sense of how you might make an informed judgment about the kinds of cases you hear of daily in the news Media, so that was my intention This first slide actually encapsulates not only my talk, but you know my outlook on many sentencing issues This is not a topic where you know very easily. There's you know a right way That is pointed to and a wrong way and they tell you how long it's going to take You know the idea that's involved in criminal sentencing is trying to find a fit sentence for any social activity Which is deeply harmed an individual or society or both And it's not easy to find your way through it. That's why opinions vary so widely that's why some people managed to Miss the mark completely in terms of understanding criminal sentencing and others perhaps are a bit closer to The contemporary legal reality in Canada. I'm going to try to present the latter to you the contemporary legal reality I make every possible mistake when I do PowerPoint I put too much text and it's too busy But I make up for it because I have copies for everyone to take home right so so that you know You will have a little take-home piece. You don't have to read this religiously I'll cover the topic and then you can read later on at your leisure But you know I do mean to identify here some of the things that I'm going to cover tonight dilemmas do about in Canadian criminal sentencing And we've responded in varying ways over our history. So first talk a little bit about the history of criminal sentencing in general and in Canada Then I'm going to try to engage with the theme of what we think causes crime and how our sentencing policies and practices Relate to theories on the causation of crime. It's sometimes a difficult connection to make but it's a necessary one I'll then speak about the prospects for change in societal behavior through a criminal sentencing and the elusiveness of that connection I'll talk about Canada currently, you know And I'll ask and answer the question of whether we're experiencing a crisis in the rate of criminal offenses that requires a dramatic change in Sentencing policy I'll discuss what institutions control Canadian sentencing law. Where does sentencing law come from it doesn't come from the heavens? What are the justifications for sentencing and what theory does our justice system rely? I'll talk about what Parliament and the judiciary say are the purposes of sentencing and the kinds of factors that aggravate or Mitigates a sentence because all sentencing has to be individualized I'll talk about sentencing tools that the criminal code makes available to judges and in the final analysis I'll you know ask us all to think about this Canadian sentencing law policy and practice Attain a high level of legitimacy among the Canadian public and also if Canadians had a better understanding of the law with their outlook on Sentencing change. I'm really trying to contribute to the last point there There are lots of themes that I'm not going to address tonight, which are you know certainly Sheltered under the general subject of judicial or tribunal based Dispositions or sentencing of persons. I'm not going to be dealing with sentencing under the use of criminal justice act I'm not going to be dealing with the special Dispositional regime that obtains following verdicts if not criminal responsible on a kind of mental disorder or unfit to stand trial I'm not going to be dealing with post judicial sentencing issues involving corrections and community supervision I'm not going to be dealing with resolution discussions and outcomes or plea bargaining Although that's extremely important in the justice system and I'm not going to be dealing with restorative justice procedure and programs Those are all significant topics that you really should try to get a grasp of if you want to you know, appreciate the wider contours of The justice system with respect to criminal matters, but I can't cover them all so that's a subject for another lecture If I don't bomb out completely and the dean permits me to do this again, perhaps. I'll take that on the next time So next I'm going to talk briefly about the history of Criminal sentencing and the first image is quite jarring and intentionally so because our history both internationally and within Canada has been a punitive one one that we ought not to be Proud of in any manner whatsoever Canada, you know has used the same kinds of Sentencing techniques that are exemplified by this graphic image Looked at more broadly the historical range of punishment has Comprehended a whole range of awful things to do to our fellow human beings when they're convicted of criminal offenses We know over the centuries and this is with respect to sentencing in Canada the US Western Europe particularly Addressing we've imposed management or exile or transportation harsh physical punishment Mutilation branding flogging whipping torture death of course by burning hanging bearing alive or drowning Forfeiture of land and property forced labor orders for compensation denial of the status of citizen Imprisonment and fines which we still have and many other intrusions upon liberty this actually is a graphic depiction of You know physical forms of punishing here in Canada and this nicely or awfully You know combines both the pillory at the top and the whipping post at the bottom You know that's part of our Canadian tradition as well So we can't disassociate ourselves, you know from this kind of cruelty towards others Canada's history of sentencing well before our first criminal code of 1892 There was widespread use of capital punishment many forms of corporal punishment including here as well as I mentioned whipping branding and the Pillory fines transportation Imprisonment when confederation came in 1867 we concentrated the criminal law power in the federal government And we split responsibility for jails between the levels of government as a major change at that point our criminal code only existed from 1892 and it was a partial codification of the common law with respect to criminal justice issues It still had a focus on capital punishment But for a smaller range of offenses and it also used imprisonment heavily it vested discretionary powers to impose sentences in the judiciary and it imposed varying maxima sometimes quite unpredictably You know if you look at the old code it removes some common law penalties such as forfeiture But it retained whipping as a possible punishment permitted fines for some offenses it allowed some conditional forms of release that resemble probation In terms of major changes since 1892 our criminal law and the sentencing domain Has introduced in her indeterminate sentences for a long-term or dangerous offenders in 1947 Which we still retain it abolished the death penalty only in 1976 and substituted mandatory life sentences for murder as that kind of partial exchange within Parliament There was an incremental growth of probation started in 1921. We didn't end whipping until 1972 you know ripping whipping was imposed up to 1972 for the crime of rape and perhaps other offenses in 1972 we also introduced conditional and absolute discharges and Intermittent jail sentences of up to 90 days accompanied by probation in the 1970s we introduced community service orders as a condition of probation and The created the creation of the Charter of Rights and Freedoms had a significant but not fundamental influence on our sentencing law The major change in Canadian sentencing has actually occurred in 1996 You know 104 years, you know after the promulgation of our criminal code in 1892 and this was actually the first attempt by Parliament to codify major sentencing principles and procedures before that it was a mishmass of mainly judge made law so the 1996 reforms authorized adult diversion and encouraged restorative justice principles it created the conditional sentence of imprisonment Which I'll be explaining to you later on but which has been hugely controversial although well-intentioned and I think largely successful It proclaimed the purpose and objectives of sentencing for the first time by Parliament before that You had to meander through the cases to figure out why we were actually sentencing people and what we expected to accomplish These reforms were intended to reduce reliance on imprisonment within Canada So that's a sort of broad spectrum outlook on the history of criminal penalties in general and in Canada I'm next going to turn and look briefly at the causation of crime and its relevance to Sentencing because there ought to be a connection between what we think causes crime and how we're responding to it within criminal sentencing There are many outlooks on causation if you read the textbooks in criminology, and if you you know kind of can extract You know the threads of insight from the cases on what causes crime the classical criminological school says people make rational choices They're they're accountable They show a lack of self-control they reject authority and it results in crime and offenders are morally defective And we can deter them by coercive penalties This is still the most influential explanation and the most frequently referred to in sentencing Particularly connected to the retributive or moral justification for sentencing There are other theories as to why people commit crimes the biological explanation Well, it's a matter of you know, what's within you in a physiological sense the psychological explanation a whole range of theories which relate to personality traits that are said to influence criminal behavior a group of sociological and social process Perspectives perhaps more apt, you know for a criminology class today, but overall, you know what they cover are Reasons for crime that relate to social disorganizations subcultural norms conflicts between valued goals and diminished opportunities for some groups antisocial values From a social process perspective labeling for crime as seen as the key societal choice And Some at-risk individuals might be contained by positive influences But weak social bonds cause resort to criminality crimes against women are a function of gender inequality and society is inherently Conflictual and structural inequalities make the poor into criminals So that's a whole cluster of social process and sociological explanations Which do I think explain in part the nature of crime But which the system seldom acknowledges because if you took on these kinds of explanations You'd be more interested in crime prevention rather than reaction to persons who are found guilty of offenses and then punishing them I next want to look at what's happening in crime in Canada now You know, what are the current trends in Canadian criminal justice statistics? Well, it's positive on the whole although you wouldn't think that when you listen to the politicized debate at the federal level with respect to criminal justice issues the volume and severity of police reported crime has continued to decline over at least the last decade as It has for about the last 20 years. So that's from the most recent You know report from Statistics Canada the number and seriousness of youth crimes has been declining since 2001 Although some youth violent crimes are rates are higher now than they were 10 years ago Adult violent crime is also generally down although for select offenses the the rates of offenses are slightly higher Such as for example attempted murder and firearms offenses break-ins and vehicle thefts have been steadily decreasing And impaired driving on the other hand has gone up for three years in a row Which is more a function of detection. I think than incidents of the behavior So the overall statistics that you'll see if you look at jurist data online, you know with respect to Canadian criminal justice statistics are quite productive and encouraging, you know They tell us that this is a less dangerous society to live in in terms of the likelihood of being subjected to criminal offenses Then it has been for about two and a half decades But on the other hand federal penitentiaries are beginning an expansion process the government is spending $2.1 billion to add 2,700 beds beds they call them. It's quite a peculiar notion, isn't it? You know cells for in for Prisoners over the next five years as CBC says to accommodate and expect it growth in the prison population from tougher sentencing provisions So notwithstanding, you know the statistics, you know for crime, which are positive, you know We are expanding on the other hand the punitive state So we'll see more institutions like this, which is a Quebec penitentiary with you know, it's classical axes you know around the central part of The prison so huge institutions with enormous capacity to Incarcerate people and we'll see more of this double bunking in uncomfortable cells and more of this tears of cells where people are housed like animals in cages So in the midst of all this you might think well, why are we doing this and the answer? I don't have not from an evidentiary perspective Not from a good public policy perspective not from a criminological perspective not from the perspective of a lawyer or a scholar in criminal law It's for reasons outside all those domains that we're doing this Indeed the research with respect to the relationship between the severity of offenses and influencing the Incidents of offenses is quite conclusive and what it tells us is that the presumed linearity Between increasing sentences and reducing crime in some criminological schools is simply unsupported by the evidence this influential article by the Ontario criminologist Dubin and Webster Says basically this it's on a meta Analysis that they concluded it but basically they say variation in sentence severity does not cause variation in Crime rates indeed if harsher sentences were to cause people to offend less there'd have to be a number of intermediate steps That simply don't occur in most situations of criminality Individuals have to believe it's likely they'll be caught and punished Individuals have to know the punishment right they'd have to be people like me who read the criminal code in the cases Individuals have to consider the consequences of their crime and they'd have to weigh the levels of punishment available and deciding whether to Offend they'd have to do a kind of cost accountant cost benefit analysis should I offend if I offend? What's the tariff going to be and so on we know people don't do that The only offenders who are likely to do that would be frankly people like me if I were a lawyer Who was going to steal from my clients then I might do a calculation about the likelihood of getting caught What the kind of punishment I would Get in the final analysis would be and how much money I could get away with but I'm not a typical offender And I don't have any trust monies anyway, so you don't need to worry But the typical offender therefore doesn't do this kind of cost-benefit analysis the correctional service of Canada itself That runs the prisons of this country says it's a myth that increasing the severity of sentences will deter criminals from offending The reality is that certainty of punishment may exert a greater deterrent effect than does severity of punishment So and this next image is a contemporary one from California You know where this State you know has had a burgeoning criminal justice system particularly on the imprisonment side for decades And you have situations like this, you know where people are I don't know whether you this is well beyond double bunking You know this is an institution where people are crowded in at levels, which we should all be ashamed of But we're now even California despite its penchant for incarcerated people says we can't afford this anymore We've got to stop incarcerating people. We've got to release them Maybe we should legalize the production and distribution of marijuana as a way of cutting down the number of persons in institutions and dealing with our Californian deficit but If we turn in this direction, I can assure you we'll have you know no real offsetting public benefit Next I'm going to look at some sources of Canadian sentencing law so you'll understand better You know what are the the parents as it were of Canadian sentencing law? First of all, there's the federal Parliament that you know that has exclusive authority over criminal law and procedure as I mentioned from the What we used to call the British North America Act 1867 you which allocated authority over Criminal law and procedure to the Parliament Parliament sets maximum penalties for true criminal offenses subject to the sentencing judge's discretion to choose The mode and extent of section of sanction There has been emerging from our federal Parliament as part of this new wave this new punitive wave a recent tendency to stipulate More minimum mandatory sentences for more offenses rather than leaving it in the judge's discretion So Parliament is one of the major sources of Our law on sentencing so too is the judiciary the judiciary through its trial judges principally have the discretion to Decide what punishments should be imposed with some exceptions and the criminal code provides direction in principle by stating the purpose of sentencing and judges interpret its provisions the common law or judge made Laws we call it clarifies the purposes of sentencing and it also examines aggravating and mitigating factors in order to determine the final sentence for an individual Provincial appellate courts set the usual range of sentences. They can interfere for reasons that are You're rarely used but the appellate courts usually defer to trial judges as they impose a sentence unless the trial judge has given an Unfit sentence or makes a significant error in principle and the Supreme Court of Canada itself has considered several sentencing appeals since the 1990s amendments of the criminal code the Charter of Rights and Freedoms is another Quasi source let's say of sentencing law in Canada It's been more important for its declaration of procedural rights Such as the right to counsel and the principles of fundamental justice. It does have one Provision section 12 which specifically forbids cool and unusual punishment or treatment and it's in only in circumstances where the The gravity of the offense the circumstances the offender and the offense are considered and the court determined that all the punishment here is grossly disproportionate This happens rarely, you know usually if there's an error in sentencing principle of principle of provincial appellate court Or more rarely the Supreme Court of Canada will intervene without referring to the Charter of Rights and Freedoms Next I'm going to look at some of the basic justifications That are spoken to in the cases and the scholarly literature for sentencing. Why do we actually sentence? I talked before about the causation of crime, you know, I'm now going to look at what are the specific Justifications that are offered in the cases and the scholarly literature for the sentencing process Well, first of all, you know, there is the retributive or moral justification, you know Where so the so-called evil choice theory offenders have made free choices to do evil Therefore they deserve to be hated because they're morally accountable individuals and in a civilized society This repudiation is expressed through punishment that's imposed by the state on the individual State punishment is thought to annul the wrong to Reassert community values and restore societal equilibrium. So that's the retributive or moral justification or evil choice theory Next so this is very influential in in our justice system Similarly, you know the range of justifications that shelter under the utilitarian or consequentialist justifications, you know are also important in this Vane what we do is we sentence offenders in a manner which will maximize the utility or benefit of society The idea is we sentence people to further broad social goals And the offenders interests are not primary concerns. Indeed the offenders interests and the interests of society may be, you know, quite conflicted and There you know is often an argument about what's best to do for the individual compared to what's best to do for society. I should tell you that When I tried to find images, you know, that would help to liven up, you know My overtextualization of my PowerPoint. I did it a typical Google search of images and it's hard to find images for Abstract concepts. It's easy for prisons, but hard to find them for abstract concepts So I just innocently typed in evil choice because I thought well that would provide, you know an image perhaps That might illustrate my talk In a suitable manner. The next image is honest to God You know, this is what came up and I just passed along. I don't explain it. I don't justify it So I don't know whether there was a gremlin in my computer Or whether it's the devil that's made me share this with you tonight But that is what happened when I googled evil choice images Jordy, we may have to edit this from the from the evening's presentation in terms of other theories of Punishment, you know, there is also the communicative theory Now this is the notion that where we say punishment emerges from our culture and it influences culture So what we're talking was punishment as an institution through which society defines and expresses itself And this this is how we define ourselves in a way, you know, it seems strange But sometimes we do it through punishment criminal justice policy discussions Therefore according to Manson engaged deeply held and broadly influential attitudes that are only partly about crime And maybe that explains, you know, at least in some measure the current federal political debate about crime and Punishment, but there are also about ideology morality religion class and rule If you face this openly, you know, then maybe it's still possible to have a productive debate But you can understand that these kinds of communicative theories can be both positive and negative in their effects Usually people don't separate out, you know The moral or reprimandive and the consequentialist or utilitarian and the communicative theories when they're actually engaged in sentencing Usually it's a mixed approach that the courts use rather implicitly as ruby says It's difficult to separate the views of punishment except on a theoretical level and the courts acknowledged at the bottom of this slide the courts acknowledge that all Considerations in sentencing, you know should of those none of them can be excluded from the legitimate purview of legislative or judicial decisions So sentencing sort of borrows from, you know, utilitarianism from moral or attributivism, you know From communication theory in some kind of rough melange I'm just going to mention briefly in the next slide something. I said I wouldn't but it perhaps is the new One of the new waves of sentencing, although it's a long way from taking over Our criminal code as I mentioned in 1996 was altered to provide for alternative measures And there's a whole range of criminal code provisions that provide the legislative framework for diverting accused away from the usual Processes of the justice system and we're in courts are empowered to dismiss charges for accused who are complete or partially complete Alternative measures and these programs are established by the provinces. So people can be diverted using our criminal code since 1996 If the Disposition is still consistent with the protection of society and it's appropriate having regard to the needs of the person and the interests of society and the victim You know, so, you know, there is the stage has been set for alternative measures But I'm not covering that tonight because I'm dealing with conventional criminal sentencing You know that a judge has to impose when somebody is convicted either after a trial or he or she pleads guilty So I'm going to skip over then to the overall approach To sentencing, how is it that a judge gets to? Impose a sentence. What's the methodology that's used in addition to the principles? Well, a judge has to consider all sentencing principles and balance them You know, he or she has to take into account in a sense the whole world Although in some cases one factor may be dominant and it may be obvious that it's dominant from the outset But theoretically at least a judge should open his or her eyes to the full range of sentencing principles and decide What's the right balance to reach? We also have to understand sentencing as an inherently individualized process We're not sentencing and somebody in the abstract We're sentencing an actual human being for having done an actual crime in a certain situation, you know with a certain kind of background Sentences are also governed by the principle of restraint and this is where public understanding and public comment often goes off the rails You know where you know what you may hear in reaction to some sentences Decries the restraint of the justice system You don't want a system largely speaking that imposes the maximum sentence on everyone all the time You want judges to be restrained and that's what they're commanded to be under the law That was proclaimed by the Parliament of Canada and it was previously exemplified by the common law before 1996 So when I talk about the principle of restraint, you know The law says there shall be no deprivation of liberty if less restrictive sanctions may be appropriate and there shall be no incarceration before considering all available available sanctions other than imprisonment, you know So that that's a command for judges to be restrained when they impose intrusions upon liberty as well as another aspect of the restraint that the criminal justice system imposes all Sentences have to be proportionate to the gravity of the offense and the degree of responsibility of the offender how serious is the offense and how responsible is the offender for bringing it about and Finally in terms of the overall approach to sentences sentences have to be comparable with respect to similar crimes and similar offenders Right, you can't have uneven or disparate sentences without justification. There should be rough comparability among sentences Next I'll turn you know to a parliamentary and judicial statements of purposes and principle You know what the Parliament of Canada has said are the governing principles And then to some extent how the judiciary interprets them just so you'll have some idea of what the overall principles are and By the way Just so you'll listen even though you're not going to write an exam I had to think about how to engage you in the sentencing discussion So after I finish talking about the law I have two cases that I want you to deliberate on and think about what you would impose as a sentence So that I'm going to ask you to subdivide into groups and buzz around and you know in your heads You know, what do you think the outcome should be and then share it with us? so that You know, you'll see how difficult it can be you know to reach a fit sentence for an offender Now you're all paying attention Okay, so what are the Parliament and the judiciary say are the purposes of sentencing There are there are several criminal code provisions that since 1996 established the purposes and principles of sentencing And then of course, you know, they govern unless the in every situation the common law unless it's inconsistent You know with parliamentary declarations Still has some real relevance. So the common law fills in the gaps of Parliament but the parliamentary statement in a Country where Parliament is supreme subject to the Constitution parliamentary statement really does Structure judges approaches to sentencing now. It's not radically different than what the judiciary was already imposing anyway So this wasn't a revolutionary thing section 718 of the criminal code says that the overall purpose of sentencing in Canada Is to contribute to respect for the law and the maintenance of a just peaceful and safe society by imposing just sanctions with one or more Objectives now right at the outset the Supreme Court of Canada in the gladu case acknowledged that sentencing It's an adversarial and accusatory process sentencing involves a conflict between the interests of the state as Express through the aims that I'm about to share with you of separation deterrence and denunciation and the interests of the individual offender As expressed through the aim of Rehabilitation so the purposes of sentencing are in conflict with one another when it comes to deciding for an individual You know what he or she shall receive So Parliament says that one major purpose of sentencing then is to denounce unlawful conduct and The cases say what we mean by that while the use of the principle of denunciation is to communicate societies condemnation of the offenders Conduct it's a symbolic collective statement that the offenders conduct should be punished for encroaching on our basic Code of values so we denounce people through sentencing We also and although the mechanism here may be obscure and ineffective We also try to deter both this accused and other people We make it clear to the offender and other persons with similar impulses that if they yield to them, you know These impulses they will meet with severe punishment We're trying to discourage the offender and others from engaging in criminal conduct Although even the courts as well as the criminologists say the deterrent effective incarceration is either uncertain or quite unproven Next we have as an important principle of Sentencing separation from society where necessary. I said it before it's a last resort, but we do incarcerate people That's what they mean by separation. It's a euphemism, but that's what we mean by separation where incarceration leads to the complete separation of offenders and we justify In incapacitation on the basis that the offender who is in who is incarcerated is not likely to be deterred regardless of the sentence otherwise The sentences as I mentioned Are intended to assist in rehabilitation This is where we think about the individual offender and how to bring him or her back into the community Pardon me. I taught him till three in my criminal procedure class. I don't think I have any of my students here, but The voice after a while may give out a bit Excuse me. Anyway, we try to assist in rehabilitation to rehabilitate or heal the offender This is premised on the so-called medical model of punishment where offenders can be treated and cured of their criminal tendencies The aim of the rehabilitation principle is to enable people to come back to become Constructive members of the community rather than violators of its laws and of course the next slide illustrates, you know offenders enthusiasm for this the offender loves rehabilitation because in a rehabilitate sentence that's Dictated principally by the rehabilitative principle. We know what we're concerned about is bringing you back into conformity with society's values We're interested in you and what will benefit you and help you conform again There are other Principles of sentencing the problem that specifies that are still broadly speaking in the rehabilitative domain There's the concept of reparation to victims and the community at requiring the offender to the extent possible to return The victim or society to the position it was in before the offense and also Parliament says we try to promote the sense of Responsibility in offenders and acknowledge the harm done it too is another a restorative Objective seeking to remedy the adverse effects of crime in a manner that illus that addresses the needs of all parties involved by this notion of Encouraging a sense of responsibility We're trying to encourage people to accept their role and injuring the specific victim and the larger society There is also not specified by the criminal code But added on by the Supreme Court of Canada in a group of cases the principle of retribution This is essentially that you know a principle that relates as I mentioned earlier to the morality or the immorality of the offenders Behavior so this is not specified in the code, but it is an accepted principle of sentencing So in addition to advancing utilitarian considerations related to deterrence and rehabilitation Punishment should also be imposed to sanction the moral culpability the offender the Supreme Court said that you know This notion of retribution is an important unifying principle and what it provides as an objective Reasoned and measured determination of an appropriate punishment Which properly reflects the moral culpability of the effect offender having regard to his or her Intentional risk-taking and the consequential harm the general normative character of the offenders conduct What it was that the offender had in mind when he or she caused the crime now This is not intended to be vengeance the Supreme Court has said this bears little relation to vengeance which has no role to play Vengeance represents an uncalibrated act of harm upon another Frequently motivated by emotion or anger as a reprisal And we have to understand that a lot of the reactions we see to sentencing imposed by judges are vengeful You know that they are understandably You know the desire to harm somebody who has harmed somebody else particularly in cases of personal violence But in other instances as well But that's not a principle of sentencing looking at the person's moral culpability is But just trying to harm them in the old eye for an eye and tooth for a tooth Way is not what our law permits There are additional sentencing principles that are part of our criminal law as well through the criminal code and some of these Although now codified within the criminal code You know have always been part of the law that judges imposed for example If you offend against a child or a police officer or a justice system participant with respect to certain offenses at least Denunciation and deterrence are emphasized whenever an offender hears a judge talking about at the start Denunciation and deterrence you brace yourself unless there's something else. You know that will help moderate the judge's sentence In terms of others code specified principles There is a fundamental propence of principle which I mentioned before Proportionality in terms of the gravity the offense and degree of responsibility the offender But other principles sort of in a miscellaneous bunch are stated There are certain instances which are Statutorily recorded as being aggravating circumstances offenses that are motivated by bias prejudice or hatred You know if the crime is simply Intended to hurt somebody else for discriminatory reasons if you abuse your spouse if you abuse a person under 18 If you abuse a position of trust as a doctor a lawyer, you know perhaps a parent somebody You know who has taken advantage of a relationship of dependence it and trust or if you benefit a criminal organization Or if you engage in terrorism Another important principle I mentioned before similarity among offenders offenses and crimes There are some other declaratory provisions that combined sentences should not be too harsh You know if you have 200 criminal sorry 200 criminal convictions, but all for credit card fraud They're not going to sentence you 200 times one year in jail, right? You look at the totality of the sentence and say in combination it still should not be you don't deserve 200 years for 200 criminal Offenses dealing with credit cards. We don't deprive of liberty if less restrictive measures are available We consider sanctions other than jail in every instance offenses and involving organizations require special consideration and overall punishment as I mentioned is in the judges discretion So that brings us to the end of the sort of principles at a broad level that a judge has to consider Before he or she starts individuating a sentence before he or she says okay I now know what I think are the broad principles that Parliament and other judges have said should govern here now I have to look at this specific offender in this specific context. So next we turn to Issues that involve aggravating and mitigating factors in the individual instances now These are very particular to the accused and to the particular offense This is no exhaustive list although I mentioned a couple of statutorily proclaimed aggravating factors This is a typical common law list You know, I would normally discuss them if I were in a class on a longer basis But you can see how some of these factors if present ought to aggravate a person's sentence if you Plan an offense over an extended period of time and you deliberate upon it as opposed to committing it impulsively Or if you use violence cruelty or brutality in the commission of the offense You not only hold up the store, but you pistol whip, you know the The lone clerk at night you use a weapon the prevalence of the offense can aggravate at times Obviously if you have previous convictions that can you know escalate your sentence if you continue the offense for an extended period Or if there are multiple offenses over a shorter period you repeat the offense even though you had the chance to stop your offending If there are multiple victims if the victims are particularly vulnerable If the victim had a role in the justice system and you offended against him or her If your offense involves a criminal organization or a terrorist organization If you commit an offense while you're on bail or parole or probation You know while the courts have already tried to assert control over you you defy the courts essentially We look at the motive of the accused and we saw some bad motives before we look at the extent of harm cause We look at abuse of trust. We mentioned that from the criminal code We look at the character of the accused and whether he or she is disreputable We also look at post-defense conduct as possible aggravating factors Fortunately most accused have something that can mitigate sentence Having been a criminal defense lawyer before it's not always easy to find something that mitigates But usually you can look at the person's circumstances in a sympathetic way and try to get the judge to think about You know how to moderate the penalty that might otherwise obtain So these are some obvious mitigating factors if you are very youthful or a very old defender If you're the first if you're a first offender Or there's been a long gap since your last offense If you're otherwise a good character if you've had you know shown previously social stability if you pleaded guilty You know you you've spared the victim spared the state, you know a protracted trial You get some benefit from that if there's other evidence of acceptance of responsibility You know immediate resignation from an organization, you know where you you use your position You know to benefit you in a criminal way Or immediate offers of compensation, you know through appropriate mechanisms If you had a failed perhaps but relevant defense, you know So it was almost self-defense, but the judge rejected it in the circumstances That might be an instance if you have a background of social deprivation A judge might consider that as being mitigating in some circumstances Although so many offenders have a background of social deprivation that you may not distinguish you particularly If you're intoxicated at the time of the commission of the offense If you cooperate it with the justice system, you've helped recover the stolen property You've assisted the investigators in In finding you know others involved if there are prior examples by you of exemplary conduct You save six people from that burning building That'll stay with you for a while for certain offenses If it's a case of first impression the judges didn't really know what to do because this kind of case hasn't come on before If you had a praiseworthy motive, you know You were guilty of the offense of theft, but you stole the bread for your children in situations of desperation You had poor physical or mental health You experienced other sanctions due to the offense. You're kicked out of the real estate dealers association You no longer can trade on the stock market Simple mercy, you know, which most of us don't have to define What's the effect on your family of the offense and your sentence If you're a person who shows compulsive or addictive behavior If the crown or police misbehave That's a kind of strange way of putting it if the crown or police abuse their powers In you know the course of the investigation or the trial that can help mitigate in certain limited circumstances If the law might change or is in the process of changing, you know, if Prime minister harper says tomorrow he's changed his mind about personal possession of marijuana And he will introduce a bill on april fool's day this year that will decriminalize personal possession of marijuana A judge might well take that into account in imposing sentences on accused between now and april first knowing that the law is in the process of changing But you can see this is not an exhaustive List of mitigating factors nor was the list of aggravating factors It's up to the lawyer's ingenuity the client's individuality, you know to try to You know provide either mitigating factors or from the crown's perspective to identify appropriate aggravating factors The criminal code also includes and we don't need to talk about this here But I would with in criminal law or criminal procedure extensive Statements about how criminal sentencing is to be done. What are the procedural and evidentiary? contours of criminal sentencing So next i'm going to move to the forms of punishment. What kinds of sanctions are available for Judges to impose and in what kinds of circumstances are they available? Parliament has specified a whole range of sanctions that judges can impose in appropriate circumstances In some ways many consider the absolute and conditional discharge the most lenient of the Juditially imposed sentences an absolute or conditional discharge is intended to provide the power to relieve against both the fact and the stigma of A criminal conviction. It's a useful signal to the public the judiciary is effectively saying well We think that you should be discharged absolutely here ultimately It does require a finding of guilt, but the offender is deemed not to have been convicted So there's no record of a criminal conviction although there is technically still a record of the finding and the disposition The the court has the discretion to order conditional or absolute discharges If it's in the best interest of the accused and not contrary to the public interest Um, so that's the conditional or absolute discharge Next we have the possibility of a probation order and intermittent sentences Probation is imposed in several different circumstances It involves a suspension of the sentence or perhaps an additional sanction Or to perhaps provide community controls for offenders who serve intermittent sentences If you're sentenced to up to 90 days of imprisonment you can serve it Intermittently, you know a few days at a time and then you're released and while you're released when you're not in jail You know then you're subject to a probation order So probation can be used in each one of these circumstances If you breach a condition of your probation that may result in an application for variation or a revocation of your sentence in a Resentencing or a new and also a new charge of failure to comply with a probation order There are certain uh probationary conditions that are compulsory They are part of every probation order keep the peace and be of good behavior appear at court Notify if your address changes and then there's a whole range of optional probation order conditions Which the crown and the defense and the judge can tailor to suit the individual's circumstances Maybe to report regularly to remain within the jurisdiction to abstain from intoxicating substances to to support your dependence to engage in community service to Go to a treatment program that you agree to attend and participate in or other reasonable conditions Orders may be changed by the court and if there's a new conviction while you're on probation That can result in a revocation of the probation order and a resentencing and also failure to comply is a new separate offense The next image maybe captures the combination of the intermittent sentence with probation As I say, it's not easy to find images that capture these but I kind of liked it You're in jail on the weekend and then you know, you're into the community and living happily But with probation governing your You're living in the community when you're not serving your time Fines are available That may supplement or take the place of other sanctions They're not supposed to be imposed as like a tax on the poor and persons who can't pay Because if you are poor and a fine is imposed, you know You have to be able to participate in a fine option program or the judge will take into account your penury And provide a reduced fine that you can't afford Clayton ruby says one This is one of the most common means of dealing with crime and the court may find a person in addition to other sanctions The court has to be satisfied of your ability to pay and you may be imprisoned in in default of payment Now as I recall the maximum Current fine for summary conviction or the less serious offenses is five thousand dollars in canada now And it's unlimited for indictable offenses in appropriate circumstances So You know, you could get although littering isn't a criminal offense You could get a thousand dollar fine and maybe it would deter you from littering I don't know what that tells us about criminal sentencing, but again, it's a An image that may help us understand There are also possibilities of providing restitution to victims So it's encouraged by the criminal code the new statement of sentencing principles The judge can order limited compensation through the criminal process He or she can't include pain and suffering or general damages. So it's not, you know, the substitution for a civil action It is still considered a form of punishment in addition to any other measure imposed And it may benefit the victim and demonstrate that the accused is taking responsibility So it can be ordered in addition to other measures for your property loss as a victim your expenses for bodily or psychological harm For relocation of family and the expenses The next sentence which a judge may levy in appropriate circumstances the conditional sentence of imprisonment This is intended to only capture conduct that's serious enough to attract a sentence of incarceration But not so severe as to warrant a penitentiary term If you serve a term in penitentiary, that means you're sentenced to two years or more in a federal penitentiary So it can't be that serious, but it still means that you ought to be put in jail But you can serve your sentence in the community So the conditional sentence of imprisonment was enacted to both reduce reliance on incarceration and to increase the use of principles of restorative justice It has both punitive and rehabilitative aspects And it generally includes punitive conditions house arrest according to the supreme court of canada should be the norm So that's you know, what most people use as a synonym, you know for conditional sentence No offenses are excluded except ones, you know, which parliament has said, you know, can no longer be the subject of conditional sentence So so there has been some encroachment Since the prul case from the supreme court of canada in 2000 by parliament on the range of offenses that can be subject You know to a conditional sentence of imprisonment and and it's been reduced So fewer offenses can be a subject of house arrest But the supreme court says this is better than incarceration at achieving restorative objectives And sentences may be ordered to be served in the community In those circumstances where there's no danger to the community and it's broadly consistent with sentencing principles that I've outlined before There are probation like mandatory and optional conditions that apply when you're serving a sentence in the community And if a breach occurs that can result sometimes in no action If perhaps you've got a good excuse can result in changes of condition can result in a suspension of the order Perhaps a termination of the conditional sentence of imprisonment and jail Now obviously canadian judges and parliament intend that some offenders in some circumstances can be subject to imprisonment The supreme court of canada said in the glidoo case now 11 years ago that this is overused in canada Canada is a world leader in putting people in prison In fact in the glidoo case the supreme court noted that we are second only to the united states and industrial nations in terms of our Rates of the use of the imprisonment Sanction so that compared to western europe New Zealand and australia we put more people in jail for longer periods of time for more offenses The supreme court said over incarceration is a long-standing problem and it's particularly so for aboriginal canadians You know where there's a huge over representation in prisons Ruby says that imposing in terms of imprisonment of the proper length is very difficult No set of rules can do justice to the complexity of the task And basically here to make a long story short parliament says what the maximum penalty is And the judge is able to sentence within the confines of the sentencing principles and options that we talked about up to the maximum sentence So, you know if you serve two years or more, uh, then it's in a federal penitentiary less than two years in a provincial jail The judge may delay your parole eligibility date in certain circumstances This criminal code also defines what a life term may be and it talks about Murderers being able to apply under the so-called faint hope clause for relief from imprisonment after 15 years They're also rarely used but nonetheless still important provisions for dangerous offenders and long-term offenders You know, this is a a departure from some of most of the other sentencing regimes that we've talked about These mechanisms are available where the normal determinant or fixed term sentences Provisions, they're inadequate given the level of threat to the life safety and physical or physical or mental well-being of other persons Or where there's a likelihood of causing injury pain or other evil through failure to control your sexual impulses So the crown can make as if it advises in advance a dangerous offender application where a person has been convicted of a serious personal injury offence and where the person may be a threat to the life or safety or mental well-being Physical or mental well-being of others based on evidence The potential effect of a dangerous offender designation is to impose an indeterminate sentence i.e. You're in jail basically into your no longer dangerous or definite sentence, but one which includes long-term supervision If the crown fails in a dangerous offender application, it can still result in long-term offender status a long-term offender provision or application involves an assessment procedure And the court's being satisfied that a sentence of more than two years is necessary Where there's a substantial risk of reoffending, but the risk may be able to be controlled And the effect is to impose a sentence of at least two years plus up to 10 years of of supervision so that's the basic range of Sentencing options that a judge has to choose from based upon the principles and factors that I mentioned Every kind of sentence can outcome can be appealed including dangerous offender a long-term offender of verdicts All conventional sentences can be appealed summary conviction sentences. That is the offenses that are lesser in nature What where the accused or the crown thinks that the penalty is inappropriate and appellants may be released pending the sentencing appeal So that's the basic outline of sentencing law in canada Now I hasten to say at this moment you may say to your because you may be saying to yourselves This man is just an apologist for the criminal justice system I don't see myself that way Indeed, you know, I have been an active critic of many aspects of the criminal justice system And I still write articles and speak publicly about problems that I see within the justice system and as A friend of mine who is a prof the other day when when he was going over one of my articles said Well, you know, this is both a sad and a good time, you know for law professors It's sad because there's so much to complain about and criticize It's good because there's a lot to complain about and criticize So I don't mean to say by my outlining, you know, the principles and factors and sentencing and so on that we've We have by any means whatsoever reached, you know, the zenith, you know of criminal justice The best practice is standard of criminal justice systems in our country. There is a lot that's wrong But on the other hand, there's so much misunderstanding that I have presented this in a fairly uncritical fashion to help you understand So I'm next going to turn to, you know, and we've got, you know, well, you can go any time you want I have no power to detain you But I'd like to turn now to, you know, the sentencing exercises that I suggest it might be productive for you to think about What you would do, you know, were you a judge? So You are all now commissioned as newly appointed trial judges Congratulations on your appointments. You all richly deserved it and you didn't get it as a result of patronage You got it on merit exclusively So I'd like you to divide yourselves. I said into groups of three, you know, three or whatever seems natural And select one member of your group to be a reporter and I'm going to give you a case summaries I'll give you in hard copy forms. You can look at them, but I'll go over them, you know And basically consider the case summary decide what you believe is a fit sentence compose some very brief reasons And you know, here you're going to have to work fast take no more than five minutes And if chosen we I don't know how many groups we'll be able to hear from But I'd like you to tell the audience about your decision on sentence Discuss your choice of the form and extent of punishment and give the reasons And then and deliver your own decision. So that's what I'd like you to do You don't have to participate. You can be a silent judge You can just say I concur with the other judges on my bench if you wish So You can be this kind of judge You know 60 year old plus You know guy in the british legal system with a a wig, you know, who's presumably, you know In the normal course at least in the past been a small sea, you know conservative Or you can be this kind of judge elegant Thoughtful Perfectly balanced and wholly impartial, you know thinking about only what's right to do in the circumstances Or you can be some other kind of judge. I in the in the middle. I don't know This is the first one r versus jones Ms. Jones pleads guilty that pleads guilty, you know to importing cocaine under section 6 1 of the controlled rugs Substances act. This is a very serious indictable offense for which a person is liable to imprisonment for life The circumstances of this offense She's arrested at the airport after arriving on a flight from jamaica But she's immediately taken to hospital because the customs officer notices physical signs consistent with swallowing narcotics Where the containers had leaked she's treated in critical condition for cocaine intoxication But she recovers fully she had swallowed 93 pedals pellets containing cocaine before leaving jamaica total of 465 grams worth about 75 thousand dollars where her fee was five The offender that i'm depicting here for you is a 28 year old single mother of three children With no prior criminal record a grade 10 education limited employment history few employment skills Or employable skills supporting her family through social social assistance in therapy for emotional trauma trauma for physical abuse by her former spouse She maintained she committed the offense her first involvement in such activity owing to financial hardship and desperation for her children The typical sentence, you know for similar offenses is Rarely a conditional sentence of imprisonment which i've explained so that's possible in exceptional circumstances Far more regular the individual gets two years less a day of imprisonment plus probation Or up to four years of regular incarceration for an offense in the typical range So She is yes, so we're not thinking about deportation, right? You know so because that would be an additional sanction which a judge would consider So collaborate now for you know five minutes and try to reach a sentence and try to You know provide reasons and then share At this rate, none of you are going to get federal judicial appointments Because you got the wrong attitude Well, I I don't know how much time we have I I have a role And we're ready money or whatever it is. I I'm happy to do another exercise. You want to try that just one more? What is the choice? So the statement, you know That is is very often you get right or wrong The truth is for a time like this that it is extremely rare That somebody would receive a conditional sentence of imprisonment Most of the facts in this case were actually taken from a case that you can read online From the ontario courts. It's called board b o r d e versus havelton Where a trial judge gave a conditional sentence of imprisonment The court of appeal said we won't interfere with the sentence in this case because she served most of her time in the community On a conditional sentence, but they said, you know, we would not have permitted this You know, we would have sentenced her to a term of custody in a federal beneficiary So in terms of what's right and what's wrong, you can look at that case and you can think about what's right or wrong The trial judge gave a 115 page decision Deconstructing the drugs follower as a courier And thinking about the issue of deterrence and poverty and sort of a whole range of factors The court of appeal said, no, he went to the party conducted himself as if you were a rolling royal commission And the sentence was too leaking You know, so more typically our courts would be saying, you know, that it would be a term of federal incarceration. Yes That's right. Yes, his name was hill Casey Hill And it was kind of intermittent and very controversial decisions at the time because you know, the usual range of punishment You know was definitely a federal term of incarceration for offenders like this I'm sorry She got a conditional sentence of imprisonment and probation just as all of you you did at the trial level But again, the courts of appeal were far harder than that Let's look at one more case then This one, you know, it's uh, you know at the next one at page 54 of your materials This is a case that that's perhaps more challenging for you Mr. Smith being found guilty at his trial of breaking and entering a dwelling house and committing the offense of theft in it Contrary to the criminal code And section 348 one says it's an aggravating offense where the accused knew the dwelling house was occupied So this is a home invasion break and enter right not a garden variety unoccupied host This is home invasion the circumstance is the offense the accused or the the offender was arrested a random Checked off for impaired drivers just after the commission of the offense when the officer shone a flashlight into the back of the delivery Band and noticed several weapons and ski masks in plain view. They just weren't very good criminals Smith and another as yet an identified person both masks broke into a home at night Tied up the two adult occupants threatened both in order to get the combination of their guns safe and then stole several shotguns and pistols Neither victim was was physically injured although they were both emotionally traumatized for a few weeks The offender is a 35 year old father of two children living with and supporting his family He has two prior offenses one for mischief for damage to property at age 19 So 16 years ago where he got a conditional discharge and another for common assault at age 25 where he got a $500 fine He has one year community college certificate in drywalling And he's described in his pre-sentence report as an excellent parent a dutiful spouse a kind neighbor a hard worker He's been hearing impaired since birth, but he's an excellent health. He's a recovering alcoholic. He's been sober for 10 years He's a survivor of abuse as a youth in the school for the death His exhalation I fell in with a bad crowd and I was influenced by the bad crowd I committed the offense in the hope of reselling the weapons for a quick profit He's extremely remorseful. He's fearful about the implications of the sentence for his family Um, the uh, there's a wide range of punishment for the offense of home invasion The lowest penalties have included an intermittent sentence of 90 days of imprisonment plus two years of probation in quite exceptional circumstances The most severe sentences have been in the 10 to 15 year range. So there's a very wide range of sentencing It is an exacerbating circumstance that it was a home invasion as opposed to a break in into a regular dwelling But on the other hand So Why don't you confer again think about what you believe is the appropriate set, you know for this home invader With a partial explanation Go ahead think about it. Okay. I think it's now time for justice to be done So, um Let me just say a couple of things before I ask you to report your decisions First of all, I'm sure like my students you'll rush out of the classroom when we're finished So first of all, I'd like to thank you most sincerely again, you know for coming out tonight at this inaugural lecture in our series I'd also like to thank the majority who at the back here has provided, you know, the Recording which would be used for prosperity minus the Up and to Elizabeth, you know, who basically is organized this evening any other in the series So, thank you so much for both of you for helping us