Sentencing and Clemency

The theory and practice of sentencing is an opportunity to explore anew some of the fundamental questions that we examined on the justification of criminal justice, except this time with a focus on the individual who has been convicted. The law of sentencing is obviously an important part of the criminal justice system, although it often gets less attention than the law of guilt. Nonetheless, sentencing can both be a source of considerable injustice and justice. It perhaps most evidently connects issues of the application of the criminal law to the individual to some of the broader societal and distributive justice issues that we have looked at throughout the course. Sentencing is often an issue that attracts strong public reactions and is vulnerable to the pressures of penal populism.

Over punishment may lead to grave social problems, especially in view of what we saw are the declining returns of punishment. Perhaps more importantly, it is fundamentally unfair to the defendant. Under punishment may leave society vulnerable and let victims down. In practice, however, what counts as under and over punishment will be hard to gauge. Note that there are legislative (the broad parameters of punishment), constitutional (the limits of punishment) and judicial (the determination of individual punishment) parameters to this debate which obviously interact.

Canadian judges have the advantage that the Criminal Code actually sets out the logic of sentencing in section 718. As you will notice, however, the goals of sentencing are numerous and potentially in tension with each other. For example, the objectives of denunciation, deterrence, and separation may be at odds with the goals of rehabilitation. Moreover, certain goals are specifically foregrounded when it comes to particularly grave offenses.

One very significant phenomenon over the last decades is an effort to both remedy excessive resort to incarceration, particularly (but not only) as it affects aboriginal offenders. Conditional sentences are a big part of this strategy, leading offenders to serve time but in the community (rather than having a sentence suspended altogether).
Class preparation:

Further Readings: 
  • Jones, Craig and Rankin, Micah B., Justice as a Rounding Error? Evidence of Subconscious Bias in Second-Degree Murder Sentences in Canada (2014). Osgoode Hall Law Journal, 52(1), Forthcoming.; Osgoode Legal Studies Research Paper No. 81/2014. Available at SSRN: https://ssrn.com/abstract=2527128
  • Tanovich, David M, Race, Sentencing and the 'War on Drugs'. (2004) 22 Criminal Reports (6th) 45-56. Available at SSRN: https://ssrn.com/abstract=2741303
  • Parkes, Debra L. and Milward, David, Gladue: Beyond Myth and Towards Implementation in Manitoba (April 11, 2012). Available at SSRN: https://ssrn.com/abstract=203832.
  • “Gladue-Type Sentencing Needed for Blacks in Canada – Slaw.” Accessed March 29, 2017. http://www.slaw.ca/2016/07/10/gladue-type-sentencing-needed-for-blacks-in-canada/.
  • Balfour, Gillian. “Do Law Reforms Matter? Exploring the Victimization- Criminalization Continuum in the Sentencing of Aboriginal Women in Canada.” International Review of Victimology 19, no. 1 (2013): 85–102.
  • Clarkson, Chris, and Rod Morgan. The Politics of Sentencing Reform. Clarendon Press Oxford, 1995.
  • Cormier, Robert B. Restorative Justice: Directions and Principles: Developments in Canada. Solicitor General Canada Ottawa, 2002.
  • Doob, Anthony N. “The Unfinished Work of the Canadian Sentencing Commission.” Canadian Journal of Criminology and Criminal Justice 53, no. 3 (2011): 279–297.
  • ———. “Transforming the Punishment Environment: Understanding Public Views of What Should Be Accomplished at Sentencing.” Canadian J. Criminology 42 (2000): 323.
  • Doob, Anthony N., and Norman W. Park. “Computerized Sentencing Information for Judges: An Aid to the Sentencing Process.” Crim. LQ 30 (1987): 54.
  • Doob, Anthony N., and Julian V. Roberts. Sentencing: An Analysis of the Public’s View of Sentencing: A Report to the Department of Justice, Canada. Department of Justice, 1983.
  • Grosman, Brian A. New Directions in Sentencing. Butterworths Toronto, 1980.
  • Haslip, Susan. “Aboriginal Sentencing Reform in Canada–prospects for Success: Standing Tall with Both Feet Planted Firmly in the Air.” Murdoch University Electronic Journal of Law 7, no. 1 (2000): 1–27.
  • Hogarth, John. Sentencing as a Human Process. University of Toronto Press, 1971.
  • ———. “Towards the Improvement of Sentencing in Canada.” Canadian J. Corrections 9 (1966): 122.
  • ———. “Towards the Improvement of Sentencing in Canada.” Canadian J. Corrections 9 (1966): 122.
  • Izraeli, Dove, and Mark S. Schwartz. “What Can We Learn from the US Federal Sentencing Guidelines for Organizational Ethics.” Journal of Business Ethics 17, no. 9–10 (1998): 1045–1055.
  • Jaffary, Stuart King. Sentencing of Adults in Canada. Toronto University of Toronto Press c1963, 1963.
  • Jeffries, Samantha, and Christine EW Bond. “The Impact of Indigenous Status on Adult Sentencing: A Review of the Statistical Research Literature from the United States, Canada, and Australia.” Journal of Ethnicity in Criminal Justice 10, no. 3 (2012): 223–243.
  • Justice, Canada Parliament House of Commons Standing Committee on, Solicitor General, and David Daubney. Taking Responsibility: Report of the Standing Committee on Justice and Solicitor General on Its Review of Sentencing, Conditional Release and Related Aspects of Corrections. Queen’s Printer for Canada, 1988.
  • La Prairie, Carol, Louis Gliksman, Patricia G. Erickson, Ronald Wall, and Brenda Newton-Taylor. “Drug Treatment Courts—a Viable Option for Canada? Sentencing Issues and Preliminary Findings from the Toronto Court.” Substance Use & Misuse 37, no. 12–13 (2002): 1529–1566.
  • Lilles, Heino. “Circle Sentencing: Part of the Restorative Justice Continuum.” Restorative Justice for Juveniles: Conferencing, Mediation and Circles, 2001, 161–179.
  • Manson, Allan. The Law of Sentencing. Irwin Law, 2001.
  • Mosher, Clayton, and John Hagan. “Constituting Class and Crime in Upper Canada: The Sentencing of Narcotics Offenders, circa 1908–1953.” Social Forces 72, no. 3 (1994): 613–641.
  • Murdocca, Carmela. To Right Historical Wrongs: Race, Gender, and Sentencing in Canada. UBC Press, 2013.
  • Rajekar, Ashutosh, and Ramnarayanan Mathilakath. The Funding Requirement and Impact of the" Truth in Sentencing Act" on the Correctional System in Canada. Office of the Parliamentary Budget Officer, 2010.
  • Research, Canada Dept of Justice, Development Directorate, and Canadian Sentencing Commission. Public Opinion and Sentencing: The Surveys of the Canadian Sentencing Commission. Department of Justice Canada, Research and Development Directorate, Policy, Programs and Research Branch, 1988.
  • Roberts, Julian, and Allen Edgar. “Victim Impact Statements at Sentencing: Perceptions of the Judiciary in Canada.” The International Journal of Victimology 1, no. 4 (2003): 1–11.
  • Roberts, Julian V. “Structuring Sentencing in Canada, England and Wales: A Tale of Two Jurisdictions.” In Criminal Law Forum, 23:319–345. Springer, 2012.
  • Roberts, Julian V., and Andy Birkenmayer. “Sentencing in Canada: Recent Statistical Trends.” Canadian J. Criminology 39 (1997): 459.
  • Roberts, Julian V., and David P. Cole. Making Sense of Sentencing. University of Toronto Press, 1999.
  • Roberts, Julian V., Nicole Crutcher, and Paul Verbrugge. “Public Attitudes to Sentencing in Canada: Exploring Recent Findings.” Canadian Journal of Criminology and Criminal Justice 49, no. 1 (2007): 75–107.
  • Roberts, Julian V., and Anthony N. Doob. “Sentencing and Public Opinion: Taking False Shadows for True Substances.” Osgoode Hall LJ 27 (1989): 491.
  • Roberts, Julian V., and Carol LaPrairie. Conditional Sentencing in Canada, an Overview of Research Findings. Department of Justice Canada, Policy Sector, Research & Statistics Division, 2000.
  • Roberts, Julian V., and Kent Roach. “Restorative Justice in Canada: From Sentencing Circles to Sentencing Principles.” Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms, 2003, 237–256.
  • Roberts, Julian V., and Philip Stenning. “The Sentencing of Aboriginal Offenders in Canada: A Rejoinder.” Sask. L. Rev. 65 (2002): 75.
  • Spiteri, Melanie Leigh. “Sentencing Circles for Aboriginal Offenders in Canada: Furthering the Idea of Aboriginal Justice within a Western Justice Framework.,” 2001.
  • Sprott, Jane B., and Anthony N. Doob. “Fear, Victimization, and Attitudes to Sentencing, the Courts, and the Police.” Canadian J. Criminology 39 (1997): 275.
  • Stuart, Barry. “Circle Sentencing in Canada: A Partnership of the Community and the Criminal Justice System.” International Journal of Comparative and Applied Criminal Justice 20, no. 2 (1996): 291–309.
  • Tonry, Michael. “‘Nothing’ Works: Sentencing ‘Reform’ in Canada and the United States.” Canadian Journal of Criminology and Criminal Justice 55, no. 4 (2013): 465–480.
  • Tufts, Jennifer, and Julian V. Roberts. “Sentencing Juvenile Offenders: Comparing Public Preferences and Judicial Practice.” Criminal Justice Policy Review 13, no. 1 (2002): 46–64.
  • Williams, Toni. “Intersectionality Analysis in the Sentencing of Aboriginal Women in Canada: What Difference Does It Make?” In Intersectionality and Beyond, 95–120. Routledge-Cavendish, 2008.



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