In 2016, as part of a general review of criminal justice for the new federal government, the Department of Justice commissioned a set of papers on possible reforms to criminal sentencing in Canada. Five papers were published on the Department’s website. One of the most interesting of these is the paper by Marie-Eve Sylvestre, a law professor at the University of Ottawa. She proposes dramatic changes to sentencing in the interests of ‘a minimalist and transformative’ criminal justice system. She writes:
“The purposes and principles of sentencing should be substantially amended in order to prioritize the following values: conflict resolution, pardon and reconciliation, reparations for harm caused, individual and collective responsibility and the transformation of communities.”
Problems with the current system
One of Sylvestre’s key points is that crimes, or violations of the social order, are often the result of factors in the larger society and not just decisions made by an individual. She points out that “our system of justice constitutes the main system used to deal with and regulate poverty, social problems and conflicts associated with the use of public spaces.” Yet the legal system expresses responsibility for wrong-doing in ‘absolute and binary terms’ – guilty or not guilty. We recognize that crimes are often a result of other factors – for example a mental health problem, or a terrible upbringing, or racism and discrimination, yet we do not have good ways to recognize these factors in sentencing beyond providing discretion, sometimes, to judges. She shows how even in situations where there is official recognition of such circumstances, such as the Gladue decision related to Indigenous people, changes in practice are slow and the system remains focused on the punishment of individuals.
Criminal sentencing also, Sylvestre writes, imposes punishment and suffering on the individual held responsible for a crime, which actually works against the acknowledgment of responsibility and efforts to have something positive come out of wrong actions. Nor does the evidence show that punishment is effective in reducing crime. “Various studies thus demonstrate that the criminal justice response, particularly incarceration, contributes directly to recidivism, criminality and the creation and perpetuation of social inequalities.” The situation is made worse by the tendency to criminalize many minor and non-violent social issues that have disproportionate effects on poor, visible minority and Indigenous people in Canada. More than 75% of all cases resolved by Canadian courts are for minor or non-violent issues. Because the system is complicated and expensive for anyone being charged, many people end up pleading guilty even if they may have had a good defense available to them.
As a result, “The system is being overwhelmed by minor offences, and prisons are overflowing with offenders who do not pose any risk to public safety, while wait times for a trial, most notably a trial by jury, continue to grow and the courts are struggling to focus on files which demand their attention.”
Proposals for Change
Sylvestre summarizes her proposed approach as follows:
“Criminal justice should be used with moderation, as an alternative and as a last resort, with respect for human dignity, human rights and the intrinsic value of each member of society. Its objective should be to support and encourage conflict resolution structures and mechanisms within Canadian society and do so in order to encourage pardoning, reconciliation and reparation of harm caused to the victims, and to encourage offender accountability and the transformation of communities. In some exceptional cases, it should also be used to isolate and neutralize certain individuals who pose a real danger to the public and to victims.”
In this regard, the system is poorly served when unusual, high profile cases become the basis for changes in law, since the changes made in these circumstances often have lasting bad effects for large numbers of cases and people who don’t really fit.
She goes on to provide 17 specific proposals, among which are:
- The criminal system should be able to recognize degrees of responsibility for a crime that are less than 100% because of various mitigating circumstances.
- Many current offenses should be decriminalized or diverted to other systems. (This does not mean that these actions have no consequences, but that the consequences are not handled by the criminal justice system). This category would include public order offenses, bail and probation violations, public morals offenses, drug offenses, and many property offenses.
- Sentencing should be proportionate to human dignity. No matter how upset we are by a particular crime, the sentencing system should recognize the basic humanity of every person. Minimum sentences and life sentences should be abolished.
- Police and prosecutors should be more reluctant to arrest and prosecute for offenses that are minor or non-violent. These situations are best resolved by means other than the criminal justice system. Diversion into other systems or processes should be used much more frequently. Many conflict situations, including violent ones, are best resolved through organized conflict resolution among the parties rather than by criminal punishment.
- There should be a dramatic reduction in holding people in custody on remand, and no remand at all for those who do not represent a clear danger.
- The criminal justice system should make much more effort to support reparation rather than punishment, and to act in ways that reduce, rather than increase, overall harm. Even offenses that seem egregious should be judged and sentenced based on the real threat to society rather than by our degree of revulsion. So restitution rather than imprisonment could be the best outcome in even in some quite extreme cases.
- Imprisonment would be used in only two situations – where a person clearly poses a real danger to the public and there are no other ways of mitigating that danger (i.e. as a safety measure, not as a punishment); and as a last resort as an enforcement measure where a person refuses for no legitimate reason to take part in alternative processes such as conflict resolution or reparation.
- Lasting criminal records should be abolished so that people are able to rebuild their lives. Pardons should be more available when a person acknowledges responsibility for creating harm.
The key concept, in brief:
“Each crime, conceived of as a conflict, must present an opportunity for us, as a society, to reflect on the proportion of responsibility that we should have to bear collectively for the crime committed and on ways to prevent these conflicts and problematic situations collectively.”
This post is a short summary of an extensive, carefully argued and well-documented essay. Interested readers should read the full paper.