Thank you for all the comments provided in response to our first column. As the focus on the Stanley Cup riot now turns to what the criminal justice system will do with those charged, I would like to use this entry to further discuss the topic of sentencing. Needless to say, this is an area of the criminal law that often garners a great deal of attention in the media.
One of the main complaints regarding sentencing deals with the popular opinion that our criminal justice system is too soft on crime. A recurring theme in news reports is that the system cares too much about offenders and cares too little about victims. What the media fails to acknowledge is the reality that issues are never as black and white as they seem. There are many different elements that lawyers and judges must keep in mind during a sentencing hearing.
First and foremost, an accused is a person with a family, a background, and a unique set of personal circumstances that inform what they do and form a part of the offence itself. There are often a myriad of reasons why someone commits a criminal offence and it is not as simple as saying that they’re a bad person. It is rarely ever a battle between good and evil in a courtroom.
Judges are bound by a number of considerations when they are sentencing an accused. The starting point is the offence itself—is there a minimum or mandatory sentence prescribed in the Criminal Code of Canada? Their decisions must be guided by the principles of sentencing in order to meet one or more of the following objectives: denunciation, general and specific deterrence, rehabilitation, reparation, and/or the promotion of a sense of responsibility in the offender. Judges must also consider what the appropriate range of sentence is, meaning they must ask what similar offenders have received for similar offences and the answer is found in the case law. Because our judges are not elected, they are not subject to the whims of the general public and I, for one, am grateful for that. When a person is facing criminal prosecution, they want a neutral arbiter sitting on the bench hearing their case.
The few sensational cases that make their way into media coverage are used to support unworkable and often unsuccessful “get tough on crime” stances. Of course when one is convicted of a truly heinous crime, their punishment should be proportional. However, the majority of cases that make their way through our courthouses range radically in terms of severity and they do not deserve carte blanche the same heavy-handed responses that are demanded in response to the sensational case.
Our last column generated a bit of controversy with the stated opinion that punishment will not prevent another riot from happening. Our intention was not to disparage the imposition of punishment after an individual has been convicted of a criminal offence. Nor was it our message that punishment is futile. Our criminal justice system exists to hold those who are found guilty of crimes accountable. The point is that often times the fear of punishment will not stop an individual from committing a crime, especially if it’s a crime of need, of passion, or of alcohol-fuelled stupidity.
A lot of people are now wondering what is going to happen to those charged post-riot. Many are calling upon the judiciary to hand down harsh sentences to send a strong message that this behaviour will not be tolerated. Whether or not that happens will depend a lot on what I’ve outlined above as well as the circumstances of each individual accused.
The main message we wanted to get across in today’s column is that nothing in life is simple and most definitely not in sentencing. Not every crime has a victim but every crime has a human being standing in the shoes of the accused.
Reasonable Doubt appears on Straight.com on Fridays. The column’s writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at firstname.lastname@example.org.
A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.