A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Criminal Code of Canada, s. 718.2(b)
1. Introduction
Many Canadians severely criticize the sentencing decisions of trial judges. Mostly they find them too lenient. But trial judges must impose sentences by applying confusing sections of Parliament’s Criminal Code and within very rough guidelines set by their provincial appellate courts. It is no easy task.
A description of the process for fixing a sentence at the trial level is set out below. It does not follow that every trial judge uses this procedure all the time.
2. Sentencing evidence and information
When offenders plead not guilty, trial judges apply the facts arising from the trial evidence in support of their sentencing decisions. When offenders plead guilty and do not testify, prosecutors submit the undisputed facts that proved the crime. If offenders have a criminal record, prosecutors put details of that record in evidence at the sentencing hearing.
Offenders rarely testify at a sentencing hearing by taking the witness stand and giving sworn evidence because they would be exposing themselves to cross examination by the prosecutor. Instead, the law allows their lawyers to pass on unsworn "information" they received from their clients. Usually, defence lawyers will use words such as, "My client informs me he is remorseful for his conduct, he has got back together with his wife and children, he has a job waiting for him if he does not have to go to jail, etc."
All of that information may be true, some of it may be true or none of it may be true. It depends on how truthful offenders are with their lawyers. Hence, many sentences have a shaky foundation in fact resulting in overly lenient penalties.
3. Sentencing submissions by prosecutors and offenders
After presenting the evidence and the offender’s information, the lawyers then make their submissions to the judge as to what would be an appropriate sentence. Frequently, they hand up to the judge four or five copies of different previous sentencing decisions given by many different judges over recent years that involve the same crime. Some may be 20 to 30 pages long; others two to three pages. They may all be trial decisions or they may include decisions of their own provincial appellate court. They may or may not contain the age of the offenders, the details of any previous convictions, their work and social history, etc. One sentencing decision of an appellate court that is close to being similar, trumps all other trial court decisions.
Where the Criminal Code sets a maximum statutory penalty of say 10 years for a particular crime, previous legal decisions relied on by prosecutors usually will suggest a high range of sentence of say between 4 to 6 years. Defence decisions usually will suggest a low range of either one year or at most a conditional sentence (no jail time-2 years less a day maximum).
Often, any similarity between the details of these previous decisions and those of the case before the trial judge is that they all committed the same crime.
Failure of trial judges to articulate in lengthy detail the reasons that support their findings is beyond criticism. In a busy Provincial Court, trial judges frequently will hear and pronounce a dozen or more sentences in one day. Provincial governments do not provide administrative resources for them to write lengthy treatises on each sentence. Federal politicians seem unaware of this factor.
4. Sentencing rulings by trial judges
When sentencing an offender, trial judges must consider at least 20 vaguely defined Criminal Code "objectives"or "principles" of sentencing. Statutory objectives require judges to impose sentences that "denounce unlawful conduct" or "assist in rehabilitating" offenders. An example of a principle is that a sentence must be "proportionate to the gravity of the offence and the degree of responsibility of the offender."
What do all those meaningless phrases stand for when trial judges search for an appropriate sentencing number?
To trial judges, they mean what their provincial appellate court says they mean. Using the above example of a statutory 10 year maximum sentence, most trial judges will first consider an appropriate sentence as half way between defence counsel’s suggested minimum of 1 year and the prosecutor’s suggested maximum of 6 years. That works out to around 3.5 years.
Then they may cut back the potential sentence to say 2.5 years. They do so by taking into account the tendency of appellate courts to reduce trial judges’ sentences far more often than they increase them. Sentencing on the low side avoids putting the parties to the expense of an appeal. It is very easy for appellate courts to change sentences by finding the trial judge failed to take into account the objective of offender "rehabilitation," or to not give sufficient consideration to less restrictive "sanctions," etc.
At 2 years less a day, the possibility of a conditional sentence comes into play. If trial judges determine that the evidence and the information indicate the offender is unreliable, they will stay away from conditional sentences. They do so in the belief that the province does not have enough probation officers to properly supervise offenders making offenders a potential threat to the community. When they enacted the conditional sentencing provisions, it is doubtful that federal Parliamentarians had any knowledge of the number of provincial probation officers necessary to supervise offenders while they served their time in the community.
One can see that criminal sentences are not governed by the pious objectives and principles of sentencing. They are governed by appellate court decisions. When fixing a sentence, trial judges and appellate courts first find an appropriate number and then cherry pick the relevant objectives and principles from the Criminal Code that tend to support the number. There is nothing wrong with that exercise since no figure comes easily to mind by just reading the Criminal Code’s objectives and principles of sentencing.
Bottom line:
1. Canada’s sentencing system is bankrupt. It starts with Parliament’s naive belief that offenders will always tell the truth about themselves when they give information to the court at a sentencing hearing.
2. Publishing lofty objectives and principles of sentencing in the Criminal Code does not guarantee public safety.
3. Canada needs to switch from this unworkable system and adopt the American style Sentencing Guideline System. It transfers the authority to set minimum and maximum ranges of sentences for each crime to a Sentencing Commission supervised by legislators: see my posting of 3 January 2009.
4. No system is perfect. Nonetheless, the Sentencing Guideline System is far more certain and has far more public support in America than Canada’s discretionary system has here.
19 September 2009
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