The Principles Behind the Bench: An Insight into Canada’s Sentencing Laws

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On June 7, 2016 anger spread across the internet when Brock Allen Turner, star swim-team athlete at Stanford University was given a measly six-month jail sentence for raping an unconscious woman. This article isn’t about the fact that rapists, misogynists, and entitled white males are the only ones who aren’t outraged by the slap on the wrist this convicted rapist got. This article isn’t about the fact that most of us are hoping Brock Turner experiences in prison at least a shred of the humiliation and violation his victim felt while and after he raped her. There have been enough discussions about Judge Aaron Persky’s total lack of consideration and empathy for Turner’s victim and the fact that a woman in his eyes has less worth than a white male athlete.

This article is about sentencing.

Unlike Judge Aaron Persky, Protector of the Stanford Rapist, judges in Canada have to follow strict rules when sentencing offenders.

Sentencing is the final part of any criminal trial resulting in a conviction (appeals aside) and is covered in Part 23 of the Canadian Criminal Code. It sets out the rules Canadian judges have to follow when doling out punishments and because judges are appointed and not elected in Canada, they don’t have to worry, for example, about rich people not financing their re-election campaigns if they don’t go easy on their kids.

The purpose of sentencing in Canadian law is not just to punish offenders, prevent crime and maintain peace, it’s also to help ensure laws are respected and that society is safe, peaceful and just.

When deciding on the kind of sentence and its duration, judges are required first and foremost to consider the overall objectives of criminal punishments. In Canada these objectives include reprimanding the illegal behavior and the harm it did to the victim and society and providing reparations therein. Other objectives include forcing offenders to take responsibility for their actions and separating them from society when necessary in order to facilitate their rehabilitation.

Judges sentencing offenders have to obey such principles as proportionality – meaning the punishment should fit the crime, and consistency – the sentence imposed should be similar to other sentences imposed on similar offenders for similar crimes. They have to remember that imprisonment should be considered a last resort penalty and other punishments considered reasonable in a given set of circumstances should be considered FIRST, especially when sentencing aboriginal offenders. A judge charged with sentencing an offender can also take into account a written statement made on behalf of the community affected by the crime describing the harm or loss it suffered.

Since the circumstances of crimes are all different, judges in charge of sentencing must consider certain circumstances that aggravated a crime’s effect on the victim or his/her community. One such aggravating circumstance is if it was proven beyond a reasonable doubt that the crime was motivated by hate or prejudice against a victim based on sex, race, religion, language, ethnic or national origin or sexual orientation. Under the new law proposed by the Trudeau government “gender identity or expression” would be included among the hatreds or prejudices considered an aggravating circumstance.

Other aggravating circumstances include whether the offense was committed against the defendant’s spouse or common law partner, if the victim was a minor, or if the crime had a significant impact on the victim in consideration of the victim’s age, health, or financial situation. That means, for example, that if an offender stole all the money an elderly victim had resulting in her dying of an illness related to malnutrition because she could no longer afford food, the judge will consider all this when doling out a sentence for theft.

Most offenses in the Criminal Code have specific penalties which judges have to apply. In cases where the law offers different kinds of punishments for a given offense, the courts have the discretion to apply what they believe is the most appropriate sentence within the limits of the law.

The Criminal Code even lists what the purpose of sentencing for certain crimes must be or whether sentences should be served at the same time (concurrently) or one after the other (consecutively). When judges are sentencing offenders for multiple sexual assaults against children and are also found guilty of kiddie porn related charges for example, those sentences are to be served consecutively. In cases of resisting arrest or assaulting a peace officer during the performance of his/her duties, judges have to dole out sentences in consideration of deterring and denouncing the crime.

Where a person goes to jail for failure to pay a fine, the time they spend in prison can’t exceed the term of imprisonment described in the law for that particular crime. That means that if the judge had to choose between fining you five thousand dollars or sending you to jail for six months and he chose the fine and you don’t pay it, he can’t send you to jail for more than those six months for nonpayment.

Prison and fines are not the only sentences judges can dole out. They sometimes have the option of sentencing a defendant to alternative measures which can include community service, an apology to the victim, or restitution to the victim. These measures can only be given with the free and informed consent of the defendant and attorney general and cannot be given as a sentence if the defendant denies his/her guilt or prefers to have his case handled by the courts.

Our system of sentencing is far from perfect. Despite all the safeguards and rules judges must obey, aboriginals and blacks are still overrepresented in Canada’s prisons. Whether this is due to inferior socio-economic circumstances or police and institutional judicial racism is difficult to say. It’s probably all of the above, but no matter how imperfect our system is, we can take comfort in the fact that at least Canadian judges are strictly bound by sentencing rules.

* Featured image by Raysonho via Wikimedia Commons

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