Executive Summary – Sentencing in Canada

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(Disponible en français : Résumé – La détermination de la peine au Canada)

The appropriate sentence for a crime is a hotly contested topic. Some people feel that more weight should be given to the objectives of deterrence and punishment, while others want to focus on rehabilitation, for example. While judicial discretion is an essential element of judicial independence in a democracy, how much discretion is appropriate continues to be a big part of the debate. Unlike countries such as the United Kingdom and the United States, Canada does not have sentencing guidelines or a sentencing commission, both of which generally provide additional limits on judicial discretion. The lack of such measures has been criticized by some commentators for creating a situation where the data required to assess disparities in sentencing across the country is not available.

There are a broad range of sentences available to a sentencing judge in Canada, and this Background Paper explores each of them in turn. (Issues relating specifically to the sentencing of Indigenous offenders are addressed in a companion Library of Parliament publication by Graeme McConnell, entitled Indigenous People and Sentencing in Canada.) At the lower end of the sentencing spectrum are alternative measures such as community service, counselling, treatment and mediation where the accused does not end up with a criminal record. Various other sentences are available, up to life imprisonment. The appropriate sentence depends generally on a variety of factors outlined in the Criminal Code and other statutes, although judicial discretion is limited by a maximum sentence for each offence and, for some offences, by a mandatory minimum sentence.

Mandatory minimum sentences are one of the most controversial components of sentencing. Mandatory minimum fines and periods of imprisonment now exist for dozens of offences in Canadian criminal law. Unlike in some countries, such as the United Kingdom, judges in Canada are not granted discretion to provide a lesser sentence in exceptional circumstances if an offence is subject to a mandatory minimum sentence. The only exceptions to this rule are with respect to certain drug- and alcohol-related offences outlined in the Criminal Code and the Controlled Drugs and Substances Act.

Proponents of mandatory minimum sentences say that they act as a deterrent, prevent future crime by removing the offender from society for longer, hold people accountable, promote clarity and reduce disparities in sentencing. Opponents hold that, by limiting judicial discretion, they may prevent just sentences “proportionate to the gravity of the offence and the degree of responsibility of the offender,” as required by section 718.1 of the Criminal Code. In addition, the deterrent effect of mandatory minimums has been questioned, and the increased costs to the criminal justice system have been critiqued. It is also argued that mandatory minimum sentences do not remove discretion but rather transfer it to prosecutors. These critics are concerned that prosecutorial discretion is not reviewable and is conducted behind closed doors instead of in a public courtroom.

When mandatory minimum sentences have been challenged in court, the results have been mixed. The result of each challenge to mandatory minimum sentences based on the Canadian Charter of Rights and Freedoms depends on the specific minimum and offence, as there is no general rule about whether mandatory minimum sentences are constitutional.

Conditional release prior to the end of a sentence of imprisonment is also a topic that causes strong reactions. When an offender is sentenced to a period of imprisonment, they generally do not spend the entire time in a prison or penitentiary. Conditional release for federally incarcerated offenders (imprisonment for two years or more) includes various types of release, such as a temporary absence, day parole, full parole and statutory release. Unlike the sentence, which is determined by a court, conditional release decisions are made by the Correctional Service of Canada (CSC) (for some temporary absences) or the Parole Board of Canada (all other decisions about release). Approximately 7 out of 10 first requests for parole are denied. In contrast, statutory release is generally automatic, although offenders become eligible after having spent a longer period of incarceration than when they are applying for parole. The aim of statutory release is to allow for structured and supportive supervision of the offender upon release, with the objective of increasing their chances of successful reintegration into society. CSC can request that an offender remain imprisoned until the end of their sentence, but this then means that the offender is released into the community without any supervision. The release system is different for offenders in provincial prisons.

The determination of sentencing and release decisions involves weighing many factors and considerations. The appropriate balance of factors and considerations remains a topic of debate and is likely to continue to do so in the future.

Read the full text of the Background Paper: Sentencing in Canada

Author: Julia Nicol, Library of Parliament

Categories: Executive summary, Law, justice and rights

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1 reply

  1. A very good and comprehensive paper by Julia Nicol. Congratulations on pulling together a lot of threads in this important area of criminal law.

    What struck me as I read it was the general incoherence of the sentencing regime in Canada. We start out with a seemingly noble and clear principle in section 718.1 of the Criminal Code that a sentence should be proportionate to the gravity of the offence and degree of responsibility of the offender. We then proceed to ignore this principle at every turn, often for historical reasons. One example is the sentence for murder. This is quite harsh in Canada, relative to most of our relevant comparator countries. The reason it is so harsh and inflexible can be found in the parliamentary debates over capital punishment in 1976. Those debates show the pressure brought to bear on the government of the day by organizations such as police unions to have a very lengthy period of parole ineligibility in return for their agreement to drop their opposition to getting rid of the death penalty. But this was somewhat of a false debate as the last execution in Canada took place in December, 1962 and Cabinets of all political stripes had commuted all death sentences since that time. So we treat all murderers as if they had the same level of responsibility for the offence but this is obviously not true. The courts acknowledged different responsibilities when they struck down the felony murder rule and Parliament has legislated a five-year maximum for infanticide to acknowledge a potential diminished responsibility. But we are left with a very lengthy parole ineligibility period without even a faint hope clause for the exercise of judicial discretion.

    Another incoherence concerns maximum sentences. As the paper points out, a maximum sentence of 14 years or more is used as one of the means to rule out the possibility of imposing a conditional sentence. This presumably equates ‘maximum’ with ‘serious’ but again we need to look to the history of the Criminal Code. The Code is replete with 14 year maximums for offences that today we would say are not nearly as serious as violent offences. Examples include uttering a forged passport (57), trafficking in stolen property (355.2), and coin clipping (455). At one time, these offences had a much higher priority than they do today. It is a similar story with mandatory minimum sentences which used to apply to offences like stealing from the mails. The point being that a maximum sentence is an unreliable guide for denying someone a conditional sentence. Besides, if someone has received a sentence of two years less a day they have already been assessed on the lower end of the sentencing scale so why is the maximum sentence taken into account?

    A further incoherence concerns victim impact statements. I have always wondered what role these are supposed to play, other than a therapeutic one. If a victim is articulate and sympathetic, does this mean the sentence should be harsher? What if there is, in effect, no victim, such as a person who is not articulate and sympathetic and has no friends or family willing or able to speak on their behalf? I don’t see why sentences should vary based upon how attractive a victim there is.

    An issue the paper was not able to delve into was the appropriateness of the conditions attached to such things as probation orders. It is common to see conditions such as “no drinking or drugs” imposed upon alcoholics and drug addicts. It is often these very addictions that led to criminal activity. Without support in the community, these kinds of conditions set up for failure offenders released into the community. It is similar to the ‘deinstitutionalization’ movement in the 1960s and 1970s when the idea was to get people out of institutions such as mental hospitals and into the community. This would only work, however, if we put in place community supports such as subsidized housing, addiction treatments, etc. We did not do that and are left with a homeless population we then criminalize. It is similar with parolees. If we want to reduce the very expensive costs of imprisonment, we can do so if we put community supports in place. If we do not, then a high rate of recidivism is then used to justify restricting parole and other conditional releases.