One of our recent blog posts addressed mandatory minimum sentences. Researching that post lead to the discovery of the National Justice Survey 2017: Issues in Canada’s Criminal Justice System. A review of the survey is certainly recommended but a few highlights are worth noting.
Firstly, on the topic of mandatory minimum sentences there was little public support for them. Only one in six Canadians believe that such an approach leads to fair and appropriate sentences.
More broadly, Canadians feel that their knowledge of sentencing in criminal cases is limited. Notably this did not stop survey respondents from having opinions. The survey found that almost all respondents believed that the seriousness of an offence should be an important consideration for judges when it comes to sentencing decisions. A significant majority felt that the level of blameworthiness of an offender should be a consideration in sentencing. Participants further articulated that sentencing should consider the seriousness of the crime and level of harm done. In practice the courts take such matters into account. Sentencing is an inherently individualized process with the guiding principle being that the sentence must be proportionate to the circumstances of the offence and the offender.
While the overwhelming majority of Canadians supported judges having some degree of flexibility in determining sentences there was significant support for sentencing guidelines. This would enable judges to choose within a range based on how each offence happened and why and how the offender did it. In unusual cases, a judge could go outside these choices, and provide their reasons for doing so.
Sentencing guidelines raise alarm bells for many lawyers. Guidelines can end up acting as simply a different form of mandatory minimum sentence. Further, the United States uses sentencing guidelines. There appears to be little reason to emulate the approach to sentencing employed by our neighbours to the south. They continue to incarcerate at a rate much greater than any other country in the world.
The primary motivating factor for support in sentencing guidelines was the desire for consistency in sentences imposed. The difficulty with an emphasis on consistency is that flexibility is essential to the imposition of a proportionate sentence given the many ways in which offences can be committed and the broad range of accused persons who come before the court.
In the end it is encouraging that a level of discretion is supported and that issues are being considered. The hope is that discussions will continue and efforts will be made to equip people with the knowledge they need to make informed decisions in relation to the Criminal Justice System.