Backgrounder:

Fair and Effective Sentencing – A Canadian Approach to Sentencing Policy

Canada ’s criminal justice system is highly effective in meeting the needs of the public for a safe and just society. Canada ’s approach to sentencing and corrections emphasizes fairness, effective protection of public safety, flexible and individualized approaches to sentencing and policy decision-making based on evidence of what works to reduce crime.

The sentencing decision is one of the most complex decisions that a court is required to make. Canada’s system recognizes that offences are committed by a wide variety of persons in widely varying circumstances, and therefore judges are given the discretion to determine individualized sentences.

Understanding the Purpose and Principles of Sentencing

In September 1996, Bill C-41 came into force creating a new part of the Criminal Code on sentencing, which the Supreme Court of Canada called the most comprehensive reform of the law of sentencing in Canadian history. This legislation sets out the purpose and principles of sentencing:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that have one or more of the following objectives:

• to denounce unlawful conduct;
• the deter the offender and other persons from committing offences;
• to separate offenders from society, where necessary;
• to assist in rehabilitating offenders;
• to provide reparations for harm done to victims or the community; and,
• to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

Other key principles from Bill C-41 that guide Canada ’s sentencing approach are:

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

The legislation also established the fundamental principle of sentencing: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is this principle of proportionality and the emphasis on the facts relating to both the offence and the offender that set the Canadian approach apart from that adopted by some other countries. For example, the United States focuses attention chiefly on the offence, and leaves less room for the courts to consider information about the individual offender. By extension, the United States follows harsher and punitive corrections approach, and relies heavily on prison to punish offenders.

Much of the criticism which is directed at Canadian sentencing practices focuses exclusively on the nature of the offence and omits to consider how the courts weigh the aggravating and mitigating factors relevant to the offender, and the circumstances surrounding the offence, in crafting an appropriate sentence.

Parliament has placed a major emphasis on a “least restrictive measures” approach, and has provided a direction to use incarceration only where community sentencing alternatives are not considered feasible. This is consistent with Parliament’s concern to address the overuse of incarceration as a means of addressing crime in Canada and to provide for restorative goals and processes in sentencing.

Collectively, these principles provide a general framework to guide the sentencing courts and to encourage flexibility in the exercise of judicial discretion. Over time, the Courts of Appeal and the Supreme Court of Canada are providing more detailed guidance as to how the various principles should be applied to categories of offences and offenders.

Dispelling Popular Misconceptions

The Government of Canada’s approach to criminal justice, as guided by the sentencing principles developed in Parliament, is a balanced one. It includes tough measures for high-risk, violent offenders, but encourages the appropriate use of community alternatives for offenders convicted of less serious crimes.

The use of a maximum sentence for particular offences is the preferred mechanism to indicate the relative seriousness of a crime and to express denunciation. The maximum penalties in the Criminal Code are designed to deal with the worst-case offender in the worst circumstances. The most severe maximums are 14 years and life imprisonment. Many Canadians are not aware that numerous offences other than murder carry a maximum life sentence. For example, extortion, break and enter of a dwelling house with intent to commit an indictable offence and hostage-taking, among several others, carry a maximum life sentence.

In comparison to most other Western democracies, sentences of imprisonment in Canada are lengthy and have been increasing in recent years. A 1999 international comparison of the average time served in custody by an offender on a life sentence for first degree murder shows that Canada exceeds the average time served in all countries surveyed including the United States , with the exception of U.S. offenders serving life sentences without benefit of parole.

Average Time Spent in Custody

Understanding Crime Rates

Rates of crime have been falling in Canada since the early 1990s. Presently Canada ’s police-reported crime rate is at its lowest since 1978. Since 1994, Canada ’s rate for property crime has dropped by 24.1% and the rate of violent crime by 9.7%.

In 1994 to 2004, the Canadian rate of homicides, robberies and sexual assaults respectively dropped by 5.3%, 14% and 32.6%.

Crime rates are declining in other countries as well. In the United States , the FBI calculated in 2000 that crime rates had declined for the ninth consecutive year. Reported crime in England and Wales has fallen annually since 1992.

Exercising Restraint with Mandatory Sentencing

Canada has historically used mandatory minimum penalties (MMPs) with restraint and has allowed courts the discretion to fashion a sentence that is proportionate to the gravity of the offence and the conduct of the offender.

Mandatory penalties have well-documented negative impacts on the criminal justice system, as reflected in evidence-based research from a variety of sources. Apart from increasing rates of incarceration, MMPs create rigidity in the sentencing process, reduce the courts’ ability to craft individualized sentences which take into account both aggravating and mitigating circumstances, increase racial disparities in inmate populations, remove incentives for guilty pleas, increase the numbers of charges going to trial and cause significant dissatisfaction among judges, defence counsel and prosecutors.

A March 2005 report from criminologist Julian V. Roberts, Mandatory Sentences of Imprisonment in Western Nations Representative Models, found that very few countries have enacted mandatory sentences of imprisonment. Contrary to the Canadian experience, the majority of jurisdictions that do have MMPs (which are mostly for murder) allow courts to not impose them in exceptional circumstances. And countries with some of the most severe laws for MMPs are beginning to repeal them. For example, about 25 U.S. states in the past few years have passed laws eliminating or reducing some of the lengthy MMPs, given the distortion, increased costs, and high rates of incarceration that have resulted from rigid sentencing schemes, such as California’s “Three Strikes” laws. Furthermore, the American Bar Assocation released a 2004 report following lengthy study and recommended an end to MMPs. Other findings included MMPs not having any evident effect on crime rates, and declining public support for these penalties.

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Department of Justice
October 2005