Wrestling with Punishment: The Role of the BC Court of Appeal in the Law of Sentencing

Abstract

Sentencing is often portrayed, in the media, as a postscript to the real stuff of criminal justice: the investigation and trial of crime. To be sure, if one is looking for drama, it is most readily found in the excitement of the investigative process or the stylized thrust and parry of the adversarial criminal trial. Yet, as is the case in so many areas of the law, it is the remedial dimension of the law – its “business end” – that discloses most about its nature. It is in fact the law of sentencing that provides the most direct window into the theories and assumptions animating the criminal justice system as a whole. Equipped with a broad range of forms and durations of punishment, the sentencing judge is asked to craft a just and effective sanction. But any assessment of the justice and efficacy of a sentence presumes an orienting point by reference to which a judge can set his or her sentencing compass. This orienting point depends upon social views about the nature of individual responsibility and just and appropriate collective responses to wrongdoing. As views on these matters shift, so too do the practices of sentencing. With this in mind, it is remarkable that sentencing has been and continues to be a relatively “lawless” practice. Historically, little legislative guidance has been available to the sentencing judge on either the aims and purposes of criminal punishment or the fit form and quantum of punishment for given offences, apart from the comparatively few instances in which Parliament has prescribed a minimum sentence. The 1995 amendments to the Criminal Code appear to speak to this absence of guidance, listing the aims and principles that should guide sentencing; but this list has amounted to just that – a kind of buffet of objectives