EXPLORING

CRIMINAL JUSTICE
IN CANADA

Rick Ruddell

OXFORD
Brief Contents

From the Publisher xii

Preface and Acknowledgements xxi

1 Crime and Justice 1

2 The Nature and Extent of Crime in Canada 29

3 Controlling Crime 55
4 Criminal Law 85

5 Police Organization and Structure 117

Police Activities, Operations, and Challenges 146
Criminal Courts and Court Personnel 174

Sentencing 203
°

9 Institutional Corrections 231

10 Community Corrections: Probation and Parole 259

11 Looking Forward: Criminal Justice in the
Twenty-First Century 285

Glossary 315
References 323

Index 345

Online Chapter: Youth Justice in Canada

Ex-colonel Russell Williams, the former base commander of CFB Trenton, was sentenced to life imprisonment with no

possibility of parole for 25 years for the murders of two women. Do you think harsher sentences discourage potential
criminals?

(Photo by Steve Russell/Toronto Star via Getty Images)

Sentencing
LEARNING OUTLINE
After reading this chapter, you will be able to
Describe different types of sentencing options for "getting tough” on offenders, including indeterminate
sentences, truth in sentencing, and mandatory minimum sentences
Describe different community-based and custodial sentencing options
Provide some possible reasons for the interprovincial variation in sentencing
Explain why aggravating and mitigating factors are considered at sentencing
Explain why pre-sentence reports are completed, and discuss the importance of Gladue reports for
Indigenous offenders
1.Resarch
CASE STUDY

Getting Tough on Young Offenders

Canadian scholars are often critical of the fact that no separate youth facilities existed, juveniles were
in the United States a large number of youth are held in the same cells as adults in police lock-ups,
sentenced to lengthy terms of adult imprisonment. local jails (gaols), and prisons. Conditions in these
After reviewing Correctional Service of Canada facilities were harsh for both adults and youth.
(CSC) data, Ruddell and Gileno (2013) found that Offenders of all ages were fined or whipped as
121 offenders who were admitted prior to their punishment instead of having to serve a custody
eighteenth birthday were serving sentences of life sentence—although even 12- to 15-year-olds were
imprisonment. These offenders will remain under admitted to the Kingston Penitentiary in the 1830s
correctional supervision for the remainder of their (Department of Justice, 2004).
lives for crimes they committed prior to their eigh¬ Our feelings toward youth who commit serious
teenth birthday. Some of these offenders started crimes—such as aggravated assault, robbery, sex¬

serving their sentences in the 1940s, although indi¬ ual assault, or homicide—are mixed. We under¬
viduals who were under the ageof 18 years when stand that youth are developmental^ different than
they committed offences are still being admitted adults, but we still believe that they should be held
to the CSC (such as the case of Jazlyn Radke, who accountable for their actions when individuals are

is profiled in the online chapter on youth justice). harmed. Statistics Canada (2015e) reports that 245
Throughout most of recorded history, youth who youth were convicted of homicide offences between
committed crimes were similarly to
treated very 2005 and 2014, although only slightly more than
adults (Aries, 1962). In Canada until 1984, youth one-half of them (54 per cent) were sentenced to
were often given the same punishments as adults, a custody disposition (for a total of 134). One of
and some were even put to death prior to the the biggest challenges confronting the individuals
abolishment of capital punishment in 1976. The working within youth justice systems is to develop
Department of Justice (2004, p. 6) reports that in responses to youth convicted of these serious and
1813, a 13-year-old boy was hanged in Montreal violent offences. These actions must be just and
for stealing a cow. Because the populations prior fair to the young person, but they must also main¬
to Confederation in 1867 were often sparse and tain the public’s confidence in the justice system.

CRITICAL QUESTIONS
has shown that impulsivity, risk-taking, 2. Should a 17-year-old—who is not mature
and poor decision-making in youth are related enough to legally drink alcohol, use tobacco, or
to brain development and that these attributes vote—be considered mature enough to serve a
contribute to the over-involvement of youth in term of life imprisonment?
crime. These research findings have resulted 3. Although there is a relatively small number of
in the US Supreme Court restricting the sever¬ Canadian youth who kill others, the laws have

ity of punishments of persons who committed been changed several times since 1984 to "get
crimes before their eighteenth birthday. Based tough” on youth offenders. Legal scholars have
on this research, should punishments for long recognized that “hard cases make bad law.”
youth and young adults in Canada be further Can you explain why a limited number of extreme
reduced? cases might result in bad laws being introduced?
 8 | Sentencing 205

INTRODUCTION recent years (Provincial Court of British Columbia,

2014), a defendant still has to wait over five months
Few of us spend much time in courtrooms, so our for a
half-day adult trial, and in some northern
ideas about sentencing are often shaped by what defendants may wait twice as long
courts
(see
happens in television programs or in films: judges Provincial Court of British Columbia, 2015).
impose a sentence on the offender, and the matter In addition to being busy, judges are respon¬

might take only a minute or two. When it comes sible for work that is stressful and carried out in
to what happens in real courtrooms, however, the
public. A judge remarked that “it is the only job
process is more involved and time-consuming. As where everything you do is public. The hearings
the seriousness of the offence increases, so does are
public, the judgment is public [and] the judges
the time it takes to consider an
appropriate sen¬ are
publishing their errors” (Wilson, 2012). Cole
tence. In the case of violent offences, a number of (2016, p. 87) describes the court as “usually intense,
reports and assessments may be ordered, which sometimes tragic, always human, and
endlessly
may take several months to complete. The long fascinating.” The Criminal Code provides judges
wait until a sentence is
imposed can be tough on with considerable discretion at sentencing, and

everybody involved in the process—victims want even offences that are

commonplace such as the
the case resolved so they can go on with their lives, break and enter of a residence can result in a sen¬

whereas offenders could be remanded in custody of life

tence
imprisonment—although sentences
for months until their sentence is imposed. imposed for this crime are seldom very severe.
Like other legal issues that have been described Maxwell (2015, p. 24) reports that of the 6,534
in the previous chapters, sentencing is a complex adults who pled guilty to break-and-enter offences

process that is guided by the Charter and the in 2013-2014, only 3,897 (59
per cent) were sen¬
Criminal Code, and it involves a large number of tenced to custody, and the median sentence length

justice system personnel as well as the victim(s) was 120

days.
and the offender. Why should the act of sentencing
be so complicated? Perhaps the best answer to that

question is that all of us have a stake in ensuring

that sentences for wrongdoing are appropriate and
that they protect public safety, maintain confidence
in the justice system, and provide fair outcomes for

the victims and the offenders. With so many stake¬

holders, however, it is rare that everybody will walk
away happy after a sentence is imposed.
Judges impose sentences, and although over
90 per cent of criminal cases are resolved through

plea bargaining, their workloads are demanding.

In 2010-2011, provincial court judges in British

Columbia were given an average of 1,156 new cases

a
year (Provincial Court of British Columbia, 2010,
p. 16). Over three-quarters (78.4 per cent) of these
cases were for criminal matters (both adult and
youth) while the remainder involved small claims,
child protection, and family matters. Of the criminal

cases, the Provincial Court of British Columbia There is lot at stake when offender is sentenced. The
a an judge must
(2010) reported that judges were dealing with carefully consider the risk to the public as well as the offender's likelihood
increasingly complex and serious criminal matters. of rehabilitation.

While judicial workloads have eased somewhat in

206 Exploring Criminal Justice in Canada

chapter, we take a closer look at sentenc¬

In this being of good behaviour, reporting to the court when
ing and the various options that judges might con¬ required, and advising the probation officer of any
sider. Although Canadians generally want harsh changes in address or job. Judges may also impose
sentences imposed on offenders, appellate court optional conditions of probation that are specific
judges have often resisted those practices, and the to the individuals offence, such as participation in
section on tough sentences describes both the pros addictions treatment. Some probationary conditions
and cons of getting tough on crime. In addition, we are strict, and adults must sometimes abide by cur¬
will examine different factors that are considered at fews and/or residency clauses (where the probation
sentencing, and we will examine the interprovin¬ officer must approve the individual’s living arrange¬
community ments), abstain from using drugs and/or alcohol, as
service work
cial variation in custody sentences and the fact that
A condition of a some provinces do punish more harshly. well as limit contact with certain individuals such
probation order as the offender’s co-accused (Johnson, 2006). Last,
that requires
offender to judges also impose restitution orders, fines, or
can
SENTENCING OPTIONS
an

participate in requirements for community7 service work (where

unpaid work
Canadian judges have a number of sentencing the offender must work in the community in jobs
programs that
benefit the
options, and Maxwell (2015) notes that slightly such as picking up garbage alongside highways) as
community,
such as working
more than one-third of individuals (36 per cent) are part of the probation order. Although judges have
at a library or sentenced to custody although most custodial sen¬ a
great deal of discretion in terms of the conditions
a community

centre.
tences are short. In her analysis of adult offenders they can impose, probationary terms cannot exceed
convicted in Canada in 2013-2014, Maxwell (2015, three years, and the median probationary term in
pre-sentence
p. 10) found that sentences were resolved in a variety 2013-2014 was 365 days (Maxwell, 2015, p. 3).
report |PSR)
A report ordered of manners, which are listed in Table 8.1. The most In cases where custody is a possible sentence,
by judges prior the judge will often order that a pre-sentence
to sentencing
common adult sentences are probation, custody,
to provide a and fines, as well as “other” sentencing options, report (PSR) be completed. This report is prepared
comprehensive
overview of
which will be discussed later in this section. by a probation officer after the individual has been
an offender's convicted. A PSR provides the court with a wealth
Probation
strengths and of information about the offender and his or her
weaknesses,
and whether
Probation is the most commonly imposed sentence role in the offence(s), and in several provinces offi¬
prior justice in Canada, and it refers to the release of the offender cers will make recommendations for sentencing.
system
to the community under the supervision of a proba¬ Pre-sentence reports will be discussed in greater
interventions
were tion officer. There are a number of mandatory condi¬ detail later in this chapter.
successful.
tions in these orders, such as keeping the peace and
conditional Conditional Sentences
sentences
Custodial Conditional sentences allow offenders to serve
TABLE 8.1 | Types of Sentences in Adult Criminal Courts,
sentences their custody sentences in the community if they
of up to two Canada. 2013-2014
follow a number of strict conditions. The British
years that are
Sentence Cases (%)
served in the Columbia Branch of the Canadian Bar Association
community. Probation 42.8
Offenders who (2015) reports that “judges will use a conditional
Custody 36.2
do not meet sentence only if they are satisfied that you won’t be
the conditions Fine
of their release
29.6 a danger to the community and you don’t have a
can be returned
Conditional sentence 4.3
history of failing to obey court orders. A con¬ ...

to court and Restitution 2.4 ditional sentence usually has strict conditions,
ordered to
serve the
Other 55.0 including a curfew. Conditional sentences were
remainder of Note: The total will add to more than 100% as judges often impose a introduced in 1995 to reduce the use of incarcer¬
number of conditions (such as fines and/or restitution) on an offender’s
their sentence
in a correctional
probationary order. ation as they offer an offender a last chance to

centre.
Source: Adapted from Maxwell (2015).
avoid a correctional centre or prison sentence.
 8 | Sentencing 207

These alternatives (where payments made to

to
custody are seldom used and are a victim for the concurrent
sentence
account for about 5 per cent of all adult court cases. losses from the crime) accounts for another 2.4
Multiple
per cent of cases (Maxwell, 2015). Both fines and sentences that
Custodial Sentences are served at the
restitution are often conditions of probation,
same time (e.g.,
Offenders sentenced to a term of incarceration of so offenders must
pay these costs or risk being an offender
less than two years serve their sentences in pro¬ returned to court on a breach of probation offence sentenced to
two 11-month
vincial or territorial correctional centres. Most if they fail to pay the fine or make restitution.
sentences

provincial sentences relatively short, and

are Many probationers find it difficult to abide by to be served

in 2013-2014, the median sentence length was concurrently

their conditions of probation. Failure to
comply would be
about one month (Maxwell, 2015, p. 10). While with a probation order, however, can breach their released after
11 months).
all convicted offenders who are sent to federal probation. These offences are relatively common,
prisons serve two years or longer, about one-half and in 2013-2014, there were 35,516 probationers consecutive
sentence
are sentenced to fewer than five years
and most who pleaded guilty to this offence (Maxwell, 2015,
Multiple
are released to the
community prior to the end p. 19). Courts interpret failure to comply with a sentences that
accumulate
of their sentences (Public Safety Canada, 2016). probation order as showing a lack of respect for (e.g.,
an offender
Individuals sentenced to custody for more than the justice system, and
being convicted of this sentenced to

offence two 11-month

one can be ordered to serve their sentences crime may make it difficult for individuals to
sentences
concurrently or consecutively. For example, an receive a community-based sentence in the future. to be served

offender is found guilty of four counts of break and Flowever, courts can be very forgiving before they consecutively
would be
enter, and the judge sentences her to nine months impose a custodial sentence on probationers for released after
on each count to be served as a concurrent sen¬
breaching the conditions of their orders. Offences 22 months).

tence. Because all of the sentences run at the same such as failure to appear in court or breach of breach of probation
time (concurrently), the offender will be released probation are reported as administration of jus¬ Occurs when an

offender violates
in nine months. If, however, the judge orders her tice offences, but they are commonly known as the conditions of
to serve the four counts as a consecutive sentence, system-generated offences (see Taylor-Butts, 2015, their probation.
then she will be incarcerated for 36 months. for a review). failure to
comply
In order to reduce the harms of Violating the
imposing a cus¬
todial sentence, judges can order that a sentence be Other Options conditions of a

probation order
served intermittently as opposed to continuous cus¬ Table 8.1 also includes “other” category,
an
and is a criminal
offence that
tody. Intermittent sentences allow the offender to this classification can include absolute discharge, can result
serve several
days a week (typically on weekends) on conditional discharge, suspended sentence, com¬ in additional

sentences less than 90 days. During the charges

days when munity service order, and prohibition order. and further
the offender is not incarcerated, he or she is expected According to Coughlan, Yogis, and Cotter (2013), punishments.
to follow the conditions of a probation order. In most an absolute
discharge involves a finding of guilt administration of
jurisdictions, intermittent sentences are managed in but a conviction is not registered and: justice offences
Offences that
low-security community-based correctional facil¬ occur because
ities where residents “come and go” on the honour A person who has either pleaded guilty or an offender
disobeys
system as their movements are only counted a few been found guilty of an offence is deemed a
pretrial condition
times a day, although their sentences can also be not to have been convicted. An absolute dis¬ or the sentence

managed in provincial or territorial correctional charge is only available in situations where imposed, such
as failure to
centres. By allowing individuals to serve their sen¬ (1) there is no minimum penalty for the attend court
tences on weekends, they are able to keep their jobs, offence; (2) the offence is not punishable by or failure to
comply with a
carry out their family commitments, and/or main¬ imprisonment for fourteen years or life; (3) probation order.
tain their education. the Court considers an absolute discharge Also known

imposed in less than one-third of all system-

as
Fines are to be in the best interests of the accused and
generated
adult court cases (29.6 per cent), and restitution not contrary to the public interest, (p. 3) offences.
208 Exploring Criminal Justice in Canada

8.1. In slightly more than one-third

2013-2014,
(36.2 percent) of all Canadian offenders found
guilty were incarcerated. However, Maxwell (2015,
p. 11) reports that Prince Edward Island sends more
than two times as many offenders to correctional
facilities than do neighbouring provinces New
Brunswick or Nova Scotia. Maxwell (2015) points out
that one explanation for this finding is the high rate
of incarceration for impaired driving cases, although
PEI judges also send more offenders to custody for
sexual assault, major assault, being unlawfully at
Prince Edward Island sends more than two times as large, and some drug offences than other provinces.
many offenders to correctional facilities than do other There are two other factors that are distinctive about
Maritime provinces, but PEI also has the lowest average adult criminal the Island. First, although
cases on PEI
sentence length in the country.
uses incarceration at a higher rate than other prov¬
inces or territories, sentences tend to be short. While
ludges are more likely to consider absolute dis¬ the average custody sentence for the entire nation
charges for first-time and younger adult offenders is 113 days, the average sentence length in PEI is 74
who have committed relatively minor offences.
days, which is the lowest in the country (see Figure
Bowal, Callbeck, and Lines (2014) observe how an 8.2). Second, the median case processing time in PEI
absolute absolute discharge is essentially a pardon but that adult courts is 37 days, which is less than one-third of
discharge The this sanction is appropriate “if the offence is minor
least severe
the national average (Maxwell, 2015, p. 18).
sanction that in nature or consequence but the individual would One issue that receives relatively little atten¬
can be imposed lose much with criminal conviction and sentence.” tion is the interprovincial variation in the length
that results
in a finding of A conditional discharge is similar to an abso¬ of custody sentences. Figure 8.2 reveals that the
guilt but no
conviction is
lute discharge, although some conditions are usually median sentence length is about 30 days in most

registered. attached to the discharge such as making restitution provinces but the average sentence length var¬
to a victim. Although both absolute and conditional ies greatly between provinces. The differences
conditional
discharge discharges will appear on an individual’s crimi¬ become more apparent when we look at the total
Requires the
nal record, the absolute discharge remains for only incarceration rate per 100,000 provincial resi¬
offender to
comply with one
year while the conditional discharge remains dents, as shown in Figure 8.3. The incarceration
a number of
for three years. If the offenders do not abide by the rates were even higher in the three territories, in
conditions,
and after conditions of their discharge (e.g., they fail to make part due to the smaller populations.
the offender
restitution ordered by the court), the judge might The reasons for the differences in the use of cus¬
fulfills those
conditions, revoke the discharge and the original conviction tody are often complex, but levels of crime should be
the discharge remains on their criminal history. Individuals who the factor that drives the use of incarceration. As a
becomes
absolute. successfully fulfill all of the court’s conditions and result, provinces with the highest rates of police-re¬
wait the one- or three-year period must request in ported crime, such as Manitoba and Saskatchewan,
also have the highest use of custodial sentences. Yet,
writing that they want the discharge removed.
Sprott and Doob (1998) analyzed the use of custody
and found a weak relationship between the amount of
INTERPROVINCIAL SENTENCING
police-reported crime or people charged and the use
DIFFERENCES of custody. As a result, the differences in the number
There is some
interprovincial variation in the of admissions and the length of sentences across the

proportion of adult offenders sentenced to cus¬ provinces and territories may be the result of factors
such as public support for offender rehabilitation or
tody, and these differences are shown in Figure
 8 | Sentencing 209

70 -i

60 -

c
0
5?

0 °
It o

NU NT YT BC AB SK MB ON QC NB NS PE NL

Province/Territory

FIGURE 8.1 | Percentage of Guilty Adult Offenders Sentenced to Custody. 2013-2014

Source: Adapted from Maxwell (2015).

NU NT YT BC AB SK ON QC NB NS PE NL
® Median
days ■ Average days

Province/Territory

FIGURE 8.2 | Median and Average Custody Sentence Length. 2013-2014

Note: Data are not available on custody sentence length in Manitoba.

Source: Adapted from Maxwell (2015).

210 Exploring Criminal Justice in Canada

Province

FIGURE 8.3 | Provincial Incarceration Rates per 100,000 Residents. 2013-2014

Source: Adapted from Correctional Services Program (2015a).

punishment. Neil and Carmichael (2015) examined Although factors other than certainty, swiftness,
the provincial use of incarceration and found that as and severity of punishment could influence crime
the size of the Aboriginal and visible minority pop¬ rates, this is a subject that warrants a closer look.
ulations increased, so did the use of custody—which There are also differences in the degree of

supports the conflict perspective highlighted in punishment imposed within provinces. Almost
Chapter 3, where populations that are seen as threat¬ all readers have heard that some judges or courts

ening are controlled by the justice system. are stricter than others, and this issue was

justice by
In Chapter 3, the crime control philosophy of addressed in Chapter 7 by looking at differences
geography The deterrence was described, and it was stated that in the going rate. One issue that has received
differences in
case outcomes punishments are more likely to work when they comparatively little attention in Canadian stud¬
that are a result are swift, certain, and severe. A number of prom¬ ies is the issue of justice by geography, where
of where a
inent Canadian scholars have challenged that differences in case outcomes are the result of
court is located

(e.g., some notion by arguing that the severity of punishment court location. US researchers examining this
rural courts
is not as important as its certainty and swiftness issue have generally focused on case outcomes
may be more
punitive than (Doob, Webster, & Gartner, 2014). It is possible in urban and rural juvenile courts: Feld and
urban courts). that Prince Edward Island’s justice system officials Schaefer (2010) found that rural youth received
extralegal factors are
following the latter approach as punishment is harsher punishments than urban youth. There is
Conditions
more certain and swift than in other
that affect
provinces, but a lack of Canadian research
examining whether
it is also less severe. The PEI model
sentencing may be work¬ geography is a factor in case outcomes in either
but
ing, as the crime severity index is slightly less on
not
are
adult or youth courts. Issues such as justice by
related to the
offender or
the Island than the national average (53.9 and 66.7 geography are called extralegal factors as con¬
offence, such
respectively), and the violent crime severity index ditions that are not related to the offence or
as the location
is the lowest in the country (44.3) and much less offender may affect sentencing. Most studies of
of a sentencing
court. than the national average (70.2) (see Boyce, 2015). these extralegal factors have focused on issues of
 8 | Sentencing 211

THE PRINCIPLES OF SENTENCING

In Chapter 3, six crime control philosophies were

described—retribution, deterrence, incapacitation,

Prison Waiting Lists restitution, rehabilitation, and restorative justice.
Elements of these philosophiesbe identified
can
Although crime is present in every nation, the
in section 718 of the Criminal Code
methods that different countries use when (although the
incarcerating offenders are sometimes sur¬ objectives are worded a bit differently; for exam¬
prising. Mohsin (2014) observes that Norway ple, the phrase “separate offenders from society”
does not have enough prison beds for individ¬ is used instead of the term incapacitation). There
uals sentenced to incarceration. As result, are a number of
a
principles of sentencing, includ¬
there about 1,300 offenders living in the ing proportionality, aggravating and mitigating
are

community awaiting a bed to become available factors, totality, and crimes motivated by bias or
before starting their sentences. This is not a
hatred. There are also some special considerations
new problem: Norwegian prison officials have
such as when sentencing youth, persons with
used waiting lists since the 1990s. These wait¬
mental illnesses, or Indigenous people.
ing lists are typically reserved for non-violent
offenders who must often wait a year or longer

before being admitted to prison. Once admit¬ Proportionality

ted, offenders live in conditions that are more
The important principle of sentencing is pro¬
most proportionality
akin to a hotel than a prison: all prisoners get The principle
portionality, as sentences must reflect the serious¬
a single room with individual bathrooms and a that the
ness of the crime and the offender’s responsibility sentence
flat-screen television, and they can wear their
imposed
street clothes while imprisoned. While the pub¬
in committing the crime. We can ask more sim¬ on
offenders is
lic generally supports practices such as waiting ply, “Does the punishment fit the crime?” We do proportionate to
not treat all offenders the at sentencing as a
the seriousness
lists, since September 2015 Norway’s prison same
of their offence
system has been paying the Netherlands to number of individual factors about the offender, and their degree
hold several hundred Norwegian prisoners in the nature of the crime, and the offender’s role in of responsibility.
order to reduce the number of offenders on the the offence (e.g., as a follower or leader) are consid¬
waiting list (News 24, 2015). ered by judges. As a result, there is some variation
Although the idea of waiting to go to prison in the severity of sentences, and there are positive
might seem unusual, Canadian offenders and negative aspects of those differences. Most of
receiving a custodial sentence can be ordered us, for example, would want our good qualities to
by a judge to report to a provincial correctional
be considered by a judge prior to sentencing, such
centre or federal prison at a future date. These
as the volunteer work we do or our
postponed admissions are often for some com¬
good conduct
at school or at work. Yet, whenever there are differ¬
pelling reason, such as finishing an employment
contract or a semester at school. Like what
ences in the severity of punishment for a particular
happens in Norway, these types of creative offence, it might also suggest that bias has occurred.
sentences are often reserved for non-violent In order to shed some light on these differences, we

offenders who have complied with the condi¬ will take a closer look at sentences for homicide.
tions of their bail or other community release. Homicide includesmanslaughter, first-degree
murder, second-degree murder offences.
and
There were 516 homicides reported in Canada
race, gender, or class and on how an individual’s in 2014 (Boyce, 2015), and the police have solved
status as a woman, membership in a marginal¬ about three-quarters of homicide cases since
ized group, or financial situation affects one’s 2003 (Cotter, 2014). Maxwell (2015, p. 24) reports
sentence—but research suggests that these issues that of the 137 homicide cases where the offender
are worthy of further attention. was found guilty in 2013-2014, 98 offenders
2 Exploring Criminal Justice in Canada

(72 cent) were incarcerated and the median

per When it comes to homicide offences, the type
sentence length was about six years (2,190 days). of crime that offenders ultimately convicted of
are

Of the remaining offenders, 11 were required to determines how much time they will spend behind
serve
probationary terms (the median sentence bars, especially for first- and second-degree mur¬

length was 548 days) and 3 were fined (the median der. As a result, prosecutors play a key role in the
case outcomes. If prosecutors
amount was $1,275). Surprisingly, 106 cases were charge a defendant
stayed or withdrawn by the prosecutor, 8 defen¬ with manslaughter, for example, the sentence will
dants were acquitted, and 7 were classified as typically be less severe than if the offence was
“other” (a category that includes cases where prosecuted as a second-degree murder. Yet dif¬
defendants were found not criminally responsible ferences in sentencing can also relate to the dis¬
or the accused was unfit to stand trial) (Maxwell, tinctive characteristics of the offence or offender,
2015, p. 22). including aggravating and mitigating factors.
There was a considerable difference in the

severity of punishments for homicide offenders Aggravating and Mitigating Factors

in 2013-2014, which raises the question of why Section 718.2 of the Criminal Code allows judges
one convicted offender is placed on probation to consider aggravating or mitigating factors
while another the remainder of his her
aggravating
serves or at sentencing. Aggravating factors are offence-
factors Facts life under correctional supervision. Most of those related circumstances that
related to the
judge might take
a

offence that sentencing differences are related to the circum¬ into account when considering a severe sentence.
stances of the offence. Manslaughter, as you will
might lead to Mitigating factors, by contrast, help to explain
a more severe
recall from Chapter 2, involves no intention to the individual’s role in the offence or recognize
sentence,
including if the cause death, whereas
first-degree murder is a the positive characteristics of the individual that
offence involved
planned and deliberate offence (or part of another warrant a less severe sentence.
a particularly
vulnerable crime), and second-degree murder is a deliberate The following aggravating factors
are descri¬
victim such act that was
unplanned. bed in section 718.2(a) the Criminal Code:
as a child or if
As there is no minimum sentence for man¬
the crime was

related to bias,
slaughter, some offenders convicted of this offence (i) evidence that the offence was moti¬
prejudice,
or hate.
are sentenced to
probation. Community-based vated by bias, prejudice hate based
or
sentences for manslaughter are relatively rare and on race, national or ethnic
mitigating
origin, lan¬
factors Facts usually there is some defence that leads to these guage, colour, religion, sex, age, mental
related to lesser charges. The “Closer Look” box in this
the offender
or
physical disability, sexual orienta¬
that might
chapter on battered woman syndrome illustrates tion, or any other similar factor,
encourage a one
type of defence that occurs when women are (ii) evidence that the offender, in commit¬
judge to impose assaulted by an intimate partner.
a less severe ting the offence, abused the offender’s
The sentences for first- and second-degree
sentence, spouse or common-law partner,
such if the
as
murder, however, are prescribed in the Criminal (11.1) evidence that the offender, in
individual is
Code. Every offender convicted of a second-degree
youth, young committing the offence, abused a
adult, or first¬ murder must serve a minimum of 10 years before
time offender. person under the age of eighteen
being eligible for parole, while first-degree mur¬ years,
derers must serve a minimum of 25 years prior to (iii) evidence that the offender, in committing
parole eligibility. We have to remember there are the offence, abused a position of trust or
no
guarantees that offenders will ever be paroled, authority in relation to the victim,
and offenders have to demonstrate to the Parole (111.1) evidence that the offence had a
Board of Canada that they represent a low risk to significant impact on the vic¬
the community as public safety is the main con¬ tim, considering their age and
cern of the Parole Board (see
Chapter 10). other personal circumstances,
 8 | Sentencing 3

including their health and •

provocation, which is an act that provokes
financial situation, the loss of self-control in anordinary per¬
(iv) evidence that the offence was committed son (like impairment of judgment, prov¬
for the benefit of, at the direction of or in ocation can also be used as a defence, as

association with a criminal organization, highlighted in Chapter 4);

(v) evidence that the offence was a terror¬ •
delays in prosecution where no further
ism offence, or offences occurred;
(vi) evidence that the offence was com¬ • a
significant gap in a person’s criminal his¬
mitted while the offender was subject tory (e.g., 10 years between two shoplifting
to a conditional sentence order ... or offences), which shows conformity with
released on
parole, statutory release or legal norms and the offender’s rehabilita¬
unescorted temporary absence. tive potential; and
•
assisting the police, including aiding in an
Judges might also consider a number of miti¬ investigation or the prosecution of others
gating factors at sentencing. Although mitigating (e.g., the offender’s co-accused).
factors are not specified directly in the Criminal
Code, Manson, Healy, Trotter, Roberts, and Ives One factor that will not result in a
lighter pun¬
(2008) identify a number of these factors, includ¬ ishment is cultural values that conflict with

ing the following: the Criminal Code. In 2015, the Ontario Court
of Appeal said that “cultural norms that con¬
• first-time offences, which speaks to the done tolerate conduct contrary to Canadian
or

offender’s potential for rehabilitation (there criminal law must not be considered a mit¬
is the presumption that lenient sentences igating factor on sentencing” (Perkel, 2015).
will deter the offender); Altogether, aggravating factors tend to focus
•
prior good character (e.g., reputation in the on the offence, whereas
mitigating factors tend
community and prior “good works,” which to address the positive aspects of the offend¬

demonstrates that the offence was “out of er’s character including his or her potential for
character”); rehabilitation.
•
guilty plea (especially early in the
proceedings); Totality
remorse demonstrated
•
by the defendant; As noted earlier in this chapter, judges can sen¬
•
impairment of judgment due to alcohol, tence an
guilty of commit¬
offender who is found
medications, mental health conditions, or ting more than one offence to custodial terms to
stress; be served concurrently (at the same time) or con¬
•
positive employment history (demonstrates secutively (where sentences follow each other).
attachment to conventional social and There are some limits to the severity of punish¬

community values); ment that can be meted out using consecutive

totality A
• collateral consequences that the offender sentences, guided by the prin¬
and those limits are
sentencing
would experience such as physical, emo¬ ciple of totality. Totality is described in section principle that
considers the
tional, social, or economic harms that 718.2(c) of the Criminal Code, which states that overall length
would add to the severity of punishment “where consecutive imposed, the
sentences are of a sentence

(e.g., job loss, disruption to education, or combined sentence should not be unduly long or and requires
that a single

stigma); harsh.” The Supreme Court in R v Johnson (2012)

global sentence
.
post-offence rehabilitative efforts, such as explained the importance of totality: “If sentences be imposed
to avoid an
attending an alcohol treatment program if are
unduly harsh and excessive, confidence in the unjustly long
the offence was related to alcohol use; fairness and rationality of the sentencing process sentence.
214 Exploring Criminal Justice in Canada

Battered Woman Syndrome in Homicide Cases: Unanticipated Outcomes

Violence toward women is a serious social prob¬ Canadian murder records found that “36 cases

lem. The Canadian Centre for Justice Statistics resolved during the period 2000-2010 involving
(2015, p. 4) notes that "in 2013, police reported battered women defendants who had killed their
that there were 87,820 victims of family vio¬ and were charged with homicide.”
violent partners

lence,” and more than two-thirds of these vic¬ Of those 36 cases, 1 case did not proceed

tims (68 per cent) were women. Sometimes that to trial, 11 women were acquitted at trial,
violence is lethal. Cotter (2014, p. 13) found that 3 women were convicted of manslaughter, and
intimate partners 56 women were killed in 2013 by intimate part¬ 1 woman was convicted of murder. Twenty
Current
ners, who are defined as "current and former of those women pled guilty to manslaughter
and former
spouses, dating spouses (legal and common-law), current and offences, and one pled guilty to murder (Sheehy
partners, or former dating partners, and other intimate rela¬ et al., 2012, p. 394). Altogether, of the 36 women
other intimate
tionships.” Given that there were 505 homicides initially charged with homicide, only 2 women
relationships.
in Canada in 2013, about one in nine murder vic¬ were found guilty of murder.

battered The number of intimate partner homicides

by an intimate partner.
woman
tims was a woman killed
defence A
defence that
Some women who have suffered abuse has been decreasing since the 1990s.
has been used have used a battered woman defence Between 1993 and 2013, the number of
by some victims after killing their defen¬
abuser. Although men killed by intimate partners decreased by
of domestic
violence who
dants have used this defence with varying 73 per cent, whereas the number of women
argued they degrees of success since the 1911 case of victims dropped by 48 per cent (Cotter, 2014,
had no way of
Angelina Napolitano, the defence was for¬ p. 14). The decreased number of murders has
escaping their
victimization mally recognized by the Supreme Court in the been attributed to providing better access to
and had no R v Lavallee decision in 1990 (MacLean, Verrelli, community-based resources such as domes¬
other choice but
& Chambers, 2016). Despite the fact that the tic violence shelters, and thus victims do not
to attack their
abuser.
battered woman defence has been used in have to resort to violence. US researchers have
Canada for several Sheehy (2014)
decades, also found that there was a greater decrease
reports that these defendants have had varying in the number of males being killed by their
results. Some women who have suffered from female partners after domestic violence shel¬

on-going abuse have argued that they could not ters and services became more prevalent
escape their victimization and were left with no (Reckdenwald & Parker, 2011).
other choice but to attack their abusers. Sheehy, Altogether, efforts to expand the number of
Stubbs, and Tolmie’s (2012) examination of domestic violence shelters, provide additional

is lost.... Where consecutive sentences unduly

are This brings back to the issue of the going rate,
us
harsh and excessive, the overall length of incarcer¬ which was
Chapter 7. Experienced
introduced in
ation may work against the attainment of the vari¬ court observers can often accurately predict an
ous
goals of sentencing” (as cited in Manson, 2013, offender’s sentence based on the individual’s past
p. 488). One issue in considering totality, however, criminal history and the seriousness of the cur¬
is that people do not always agree on what consti¬ rent offence. This does not mean, however, that
harsh excessive sentence. custodial
tutes a or sentences need to be imposed, and
Sentencing in Canada is intended to be just section 718.2(d) of the Criminal Code states that
and fair, and section 718.2(b) of the Criminal “an offender should not be deprived of liberty,
Code states that “a sentence should be similar to if less restrictive sanctions may be appropriate
sentences imposed on similar offenders for simi¬ in the circumstances.” Section 718.2(e) extends
lar offences committed in similar circumstances.” that guideline by directing judges to consider
 8 | Sentencing 215

services to women victims, and increase police in both Canada and the United States. Mays
training about family violence are intended to and Ruddell (2015, p. 156) note that women
save women from
being harmed by their male “are now able to escape intolerable or abusive
partners. One unanticipated outcome of these situations without resorting to violence. This is
policies, however, is that more men have actually another instance of an unforeseen or unantici¬
been saved than women, and this is occurring pated criminal justice outcome."

Efforts to expand the number of domestic violence shelters, provide additional services to women victims, and
increase police training about family violence are intended to save women from being harmed by their male
partners, but these changes have also had the unintended effect of saving their violent male partners.
Images
SRGusvetle/Taoirtnry
Steve

the special circumstances of Indigenous offend¬ government’s “tough on crime” agenda, during
ers whenconsidering custodial sentences (see the following:
which he stated the
“Race, Class, and Gender” box on the challenges And if, God forbid, Canadians are
of sentencing Indigenous offenders).
attacked, or robbed, if they lose someone
they love to a murderer, or if they see their
children driven to suicide by bullying and
GETTING TOUGH ON OFFENDERS
harassment the first thing they want their
A number of legislative changes were introduced government to do is not make excuses
for criminals, but to stick up for victims.
by the former Conservative government since
2006 to increase the severity of sentences for (Canadian Press, 2014)
offenders. In July 2014, former Prime Minister Issues of crime control can attract voters

Harper delivered a speech that supported his because criminals are

generally an unsympathetic
216 Exploring Criminal Justice in Canada

offenders is a
poor criminal justice practice. Doob,
Webster, and Gartner (2014, p. A-3), who are prom¬
inent Canadian scholars, examined studies of

crime control policies and observed that “no repu¬

table criminologist who has looked carefully at the
overall body of research literature believes that
. . .

crime rates will be reduced, through deterrence, by

raising the severity of sentences handed down in

criminal courts.” The Harper crime control agenda
was criticized because it failed to implement
evidence-based practices that were demonstrated
to reduce crime in favour of politically popular
“Getting tough’’ on offenders was one of the pillars of
former Prime Minister Harper’s political agenda. Tough- strategies that were less effective or might have even
on-crime policies are often considered a politically contributed to more crime.

safe issue as criminals are seldom seen as a very Rates of crime in Canada have been drop¬
sympathetic group by the public and few politicians ping since they peaked in the late 1970s, and the
want to be seen as being “soft on crime.” While getting
2014 homicide rate, shown in Figure 8.4, was at
tough is often politically popular, simplistic solutions to
complex problems such as crime are seldom effective.
the lowest point since the 1960s although they
The election of the Liberal government in 2015 has did increase by 15 per cent in 2015 (Allen, 2016).
already resulted in legislative changes to criminal A key question emerges from that finding: If
justice policies implemented by the Harper government, Canada’s crime control strategies are not on the
which shows us the dynamic nature of the law.
right track, then why have serious and violent
crime rates dropped so much? Individuals who

support “tough on crime” policies point out that

group and most Canadians want lengthy prison many US jurisdictions have “three strikes” sen¬
sentences imposed on serious and violent offend¬ tencing laws that enable judges to impose prison
ers. We are not alone in having those opinions, terms in the 25-year range for offenders who have

and a
study of English-speaking common-law committed their third felony offence. Harsh sen¬
nations reveals that Canadians are just as puni¬ tences for repeat Canadian offenders have been

tive as public in Australia, New Zealand,

the authorized for decades, and Public Safety Canada
the United Kingdom, or the United States when (2014) notes the following:
it comes to support for harsh punishments for

young offenders and support for the death penalty Canada introduced its first high-risk offender
(Kornhauser, 2015). laws in 1947, when Parliament amended the
Roberts, Stalans, Indermaur, and Hough (2003) Criminal Code give the courts the author¬
to

explain that simplistic criminal justice practices ity to designate certain repeat offenders as
such as getting tough on crime are popular with the “habitual offenders.” Under those provisions,
public. Some politicians who want to attract voters offenders who had been convicted of three or

promise to put more police officers on the streets more separate indictable offences and who
penal populism
Tough-on- and to take offenders off the streets by imposing were
“persistently leading a criminal life”
crime policies
introduced by
longer prison sentences. This political advocacy for could be found to be habitual offenders and

politicians that punitive criminal justice practices, whether they sentenced to indeterminate imprisonment.
are effective or not, is called
are used to win
penal populism. One
votes rather
of the problems with penal populism is that studies Despite the fact that judges could designate
than serve

justice. have repeatedly shown that getting tough on all repeat criminals as habitual offenders, there was
 8 | Sentencing 217

Year

FIGURE 8.4 | Homicides in Canada. Rate per 100.000 Residents. 1963-2014

Source: Adapted from Boyce (2015) and Cotter (2014).

dissatisfaction with the practice as it was not applied offenders. The offender who killed Alberta RCMP
in a similar manner across the nation. The alter¬ constable David Wynn and wounded auxiliary con¬
native, introduced in 1977, give judges the
was to stable Derek Bond in January 2015 had 98 prior con¬
authority to designate repeat violent individuals as victions and outstanding charges that he accumulated

dangerous offenders, a topic covered in the para¬ between 1999 and 2015, and he had been admitted to

graphs that follow. correctional facilities 16 times. Many of those offences

While those interested in punishing offend¬ were related to violence and the unlawful possession
ers more
severely often desire American crime of restricted prohibited firearms. Despite his long
or

control practices, it is important to note that most criminal history and inability to abide by conditions
states are becoming less
punitive. Almost all state of release—including escaping custody and evading
prison systems had fewer prisoners in 2013 than in the police—he was released from custody after paying
2008, and imprisoning fewer prisoners did not lead $4,500 in bail. Not surprisingly, he failed to appear for
toincreased crime (Pew Charitable Trusts, 2015). his court dates, and his freedom ultimately led to the
Furthermore, the number of executions carried out shooting of the officers.
in 2015 was the lowest in over two decades, and the Supporters of the crime control model main¬
number of offenders sentenced to death in 2015 was tain that violent and repeat offenders should be
the lowest in 40 years (Death Penalty Information incapacitated. They argue that mandatory mini¬
Center, 2015). The US federal government has also mum sentences, truth in
sentencing, designating truth in

restricted the of mandatory minimum sentences sentencing

use violent criminals as dangerous offenders, and the
Limits the
for drug offenders, and some states are making it harsh punishment of homicide offenders are good amount of a
sentence that
more difficult to sentence offenders to decades-long practices. Some supporters of the due process can be granted
prison terms. For example, California voters in approach agree that we need the option to as "time

2012 supported legislation that restricted the use of incapacitate some dangerous criminals, but they
served" when
an offender was
“three strike” sentences for non-violent offenders. also believe that these sanctions should rarely be remanded.
We sometimes need to get tough on individuals used. Moreover, supporters argue that sentencing
who pose a danger to society, and judges are some¬ practices should be rational and guided by research
times reluctant to mete out lengthy sentences for these (e.g„ Are these approaches effective in reducing
218 Exploring Criminal Justice in Canada

crime?), and sentencing should be based on the family paid $10,166 in direct taxes (Palacios, 2015). As
circumstances of the offender and the crime. The a result, as it shows in
Figure 8.5, it would take almost
problem, as highlighted in Chapter 3, is that it is 9 taxpayers to incarcerate 1 provincial inmate for

very difficult to predict who will be dangerous in one

year ($86,870) and almost 11 taxpayers to pay for
the future. The following sections highlight some of the imprisonment of 1 federal inmate ($108,795; see
these approaches to getting tough on crime. Correctional Services Program, 2015a, Table 5). As a
Additional problems with getting tough on crime result, if there are less restrictive options for offenders,
include the fact that imprisoning offenders is an such as supervision in the community, these options

expensive proposition and that incarceration can be might cost less as well—reserving the harshest sanc¬
harmful to both offenders and their families due to tions for serious and violent offenders.

the disruption it has on their community re-entry,

future employment prospects, and efforts to restore Mandatory Minimum Sentences
their lives. In terms of the Canadian costs of impris¬
There are a number of
sentencing options that are
onment, in 2014 the average unattached individual or
intended for “getting tough” on certain types of
offenders or offences. Mandatory minimum sen¬
tences (MMS) remove the discretion from the
judge

CPMaonulidcte
as
anybody found guilty of the offence receives the
minimum sentence regardless of any mitigating

factors (although judges can impose sentences that

are
longer than the minimum). The logic behind
mms is that all offenders are treated the same. As

CRRibtoanrohengpyshfsdantld
a result, this type of sentencing shifts the power in
the court to the Crown prosecutors
who determine
the charge, as judges are obliged to impose the
mandatory sentence on the convicted offenders.
Mandatory minimum sentences in Canada date
back to the 1890s (Caylor & Beaulne, 2014), and man¬

datory sentences for operating a motor vehicle while

impaired were introduced in 1954. Another set of
MMS were introduced in 1976 that imposed life sen¬

tences for first- and second-degree murder and for

high treason, and one-year mandatory sentences were

MQthuaejesny
imposed for individuals using firearms in crimes
(Roberts, 2005, p. 37). Another series of MMS related
to firearms were introduced in 1995. There are also
mms for sexual offences
involving children and repeat
offenders, and there

(H20e7r)
mandatory sentences for
are

offenders with second convictions for illegal gaming,

© operating motor vehicles while impaired, and failing

to provide breath samples (Roberts, 2005,
p. 37).
Constable David Wynn was killed in January 2015 by a career
The number of mandatory minimum sentences
criminal who had 98 convictions or outstanding charges and had
was expanded after the federal
been admitted to correctional facilities 16 times. Some offenders government enacted
the Safe Streets and Communities Act in 2012. MMS
pose a serious challenge to public safety, and our inability to
control these offenders reduces public trust and confidence in were mandated for offences related to the posses¬
the justice system. sion, distribution, andmanufacturing of some illicit
drugs; for offences involving the sexual exploitation
 8 | Sentencing 219

t t ♦

* ♦ Provincial inmate

t t t

H1 ! t 11
Federal inmate

t
Taxpayers

FIGURE 8.5 | Number of Taxpayers Required to Financially Support One Provincial or Federal Offender
Source: Adapted from Correctional Services Program (2015a).

of children; and for some violent and firearms the intent of these policies is to deter offenders
offences. There has been broad opposition to these and treat wrongdoers consistently, there are bar¬
policies, especially from civil libertarians who riers to those goals. First, some offenders may not
believe that mandatory sentences threaten individ¬ be aware of the law, thereby reducing its deterrent individualized

ualized justice, which enables judges to consider effect. Second, as prosecutors lay charges, they justice Enables
judges to
mitigating factors as well as the distinctive charac¬ ultimately decide whether the individuals are consider

teristics of an offence when imposing a sentence. vulnerable to MMS and they can use that power aggravating
and mitigating
In 2013, the Ontario Court of Appeal sided to force defendants into a guilty plea. As a result, factors as

with a judge who found that a three-year manda¬ if we have two offenders who commit the same well as the
offender’s
tory sentence for possessing a loaded prohibited crime (e.g., illegally carrying a loaded prohibited strengths and
firearm was cruel and unusual, and it was there¬ firearm), one offender could receive the man¬ limitations

fore considered unconstitutional

when imposing
an punishment. datory sentence while the other might avoid the a sentence; it
This case was heard by the Supreme Court in 2015, punishment with a guilty plea for an offence that is the opposite
and they agreed with the Ontario court and struck does not carry a mandatory sentence. Because
of mandatory
sentences.
down the mandatory minimum sentence (see R v of those inconsistencies, the Liberal government
Nur). The British Columbia Court of Appeal struck is reviewing whether mandatory minimum sen¬
down a one-year mandatory sentence for drug tences are just and fair (Zilio, 2015).
trafficking in 2014 by calling that sentence cruel
and unusual, and their decision was upheld by the
Truth in Sentencing
Supreme Court in April 2016 (R v Lloyd). The number of arrestees and defendants re¬

MMS are an example of a criminal justice pol¬ manded to custody has been increasing since the
icy that “looksgood on paper” but is difficult to 1990s, and it grew by 44.7 per cent between 2000

implement in a fair and consistent manner. While and 2014 (Statistics Canada, 2014a). One popular
 E Exploring Criminal Justice in Canada

explanation for the increase was that individuals behaviour or as

part of a planned release to the
on remand deliberately delayed their trials and sen¬ community on parole (see Chapter 10).
tencing in order to receive a larger “time served” There is, however, no formal release date for
credit on their term of incarceration when they offenders serving a sentence oflife imprisonment—
were eventually sentenced. Because conditions also known as lifers (their
preferred term)—or
for remanded inmates in provincial correctional for dangerous offenders serving indeterminate
centres are harsher than for sentenced offenders (e.g., sentences. What is distinctive about lifers or dan¬

they reside in crowded, austere, and high-security gerous offenders is that they will remain under
living units that offer little or no rehabilitative pro¬ correctional supervision, whether they are living
gramming), judges typically gave a “two-for-one” in an institution or the community, for the rest of

credit if the individual was sentenced to a term of their lives. About 175 offenders who are sentenced
incarceration. Thus, if an offender served one year to indeterminate sentences are admitted to federal
on remand and was sentenced to three years in cus¬ prisons every year (Public Safety Canada, 2016,
tody, the judge would subtract two years from the p. 57). Since these offenders are under correctional
offender’s sentence as time served. supervision until they die, their numbers keep
Bill C-25, the Truth in Sentencing Act, was growing. As of April 2015, there were 5,321 lifers,
passed in October and that amendment to
2009, or
slightly less than one-quarter of the total CSC
the Criminal Code limits the credits that judges population (Public Safety Canada, 2016, p. 59).
could allow for time defendants spent on remand. Included in that total are several dozen prisoners

According to Porter and Caverley (2011, p. 17), who were

originally sentenced to death, but their
judges could no longer grant credit in excess of sentences were commuted life
imprisonment
to

determinate
one
day in remand against a sentence without aftercapital punishment was abolished in 1976.
sentence
having a justification, and even then they could When compared with prison systems in other
Sentences
that have a
give only 1.5 days of credit for every day served developed nations, Canada’s prison system has the
warrant expiry on remand.
Judges are not, however, obliged to highest proportion of offenders with life or inde¬
date when the
extend any credit for time served on remand. In terminate sentences (Ruddell & Gileno, 2013).
offender will be
released from April 2014, the Supreme Court upheld the ability Life imprisonment sentences mandatory are
correctional of judges to grant 1.5 days for every day served on for individuals convicted of first- second-degree
a
or
centre or
federal prison. remand in the R v Summers decision. The change murder. First-degree murderers are not eligible to
in legislation may have contributed to a reduction apply for parole until they have served 25 years
warrant expiry
date An in remanded inmates from 13,739 in 2009-2010 in prison, while offenders convicted of second-
offender's to 11,493 in 2013-2014, which was a 16 per cent degree murder must serve 10 years before they can
release date
from custody.
reduction (Public Safety Canada, 2016). apply for parole. An amendment to the Criminal
Code and the Serious Time for the Most Serious
indeterminate
sentences Increasing the Severity of Life Crime Act in March 2011 struck down the ability
Sentences and Indeterminate Sentencing of offenders serving a sentence of life imprison¬
imposed on
ment to apply for parole after 15
dangerous and A number of legislative
years (known as
life-sentenced changes made it harder for the “faint hope clause”). In addition, another act to
offenders who offenders serving a life sentence to access
the com¬
do not have
amend the Criminal Code in March 2011 known as
munity on parole and made it possible to extend
a

formal release
the parole eligibility for offenders convicted of
Protecting Canadians by Ending Sentence Discounts
date and
remain under for Multiple Murders Act made it possible for parole
multiple murders. All offenders sentenced to
correctional
determinate of
eligibility to run consecutively. As an example, the
supervision for
a sentence imprisonment are
killer of three Moncton RCMP officers in 2014 must
the rest of their advised of their release date, which is also known
lives, whether in serve three consecutive 25-year terms—a total of
institution
as their warrant expiry date, although most pris¬
or
years—before he is eligible to apply for parole.
an
75
in a community. oners receive some
type of early release for good
 8 | Sentencing 221

Sentence Calculation in Provincial and Territorial Correctional Centres

Sentence calculation is carried out by correctional on remission, their sentence is served and there
officers after the prisoner is admitted to a cus¬ are no more conditions to follow in the commu¬

tody facility. Calculating the length of an offend¬ nity” (John Howard Society of British Columbia,
er’s sentence seems like a relatively 2012, p. 3).
straightforward task, but it can be a complex Given the tasks of accurately interpreting the
undertaking. For example, the release dates of judge’s intentions for an offender’s sentence, cal¬
two offenders might differ if one offender is sen¬ culating the exact release date, and factoring in
tenced to a 30-day term while the second receives earned remission and days away from custody,
a one-month sentence in a 31-day month (leap it is natural that mistakes will occur. Dale (2015)
years must also be considered in these calcula¬ reports that in Ontario provincial correctional insti¬
tions). As noted earlier in this chapter, sentences tutions, “98 prisoners were freed prematurely
can run consecutively or concurrently, and some¬ between 2009 and 2013, mostly because of
times the judge's intentions are not clearly stated clerical errors. Four of these prisoners committed
on the warrants of committal (the documents new offences while they should have been behind warrants of
that authorize offender’s committal
an incarceration) and bars.” This problem is not isolated to Ontario, and
Documents
the correctional officers must verify the sentence. these mistakes are expected given that there
that authorize
The officers calculating sentences must also con¬ were 64,604 admissions of sentenced offenders an offender's
incarceration.
sider any days that the offender did not serve due to provincial or territorial custody in 2013-2014
to an escape or failure to return from a temporary (Alberta's admissions were not counted in that temporary releases
release from custody (e.g., when an inmate is total; see Correctional Services Program, 2015a). A type of release

granted from
sent to the community without being escorted by Not all errors work in the inmate’s favour, however,
a correctional
staff to work, study, or visit with family). and some individuals have been held past their facility
so that
Calculating an offender’s sentence can be further warrant expiry date due to mistakes in the calcula¬ offenders can
participate in
complicated if a youth is serving a custody sen¬ tion of their sentences.
employment,
tence and then is sentenced in an adult court for education,
an offence committed after his or her eighteenth treatment, or
family visits.
birthday. This would result in the custodial sen¬
tence being converted to an adult sentence, and earned remission

the offender would be transferred from A type of early

a youth
release from
facility to a correctional centre or penitentiary. a provincial
Provincial inmates are eligible for earned correctional
centre that has
remission, which is an early release based on the
been earned
inmate's good behaviour. In Ontario, “sentenced by the inmate
offenders can be credited with 15 days earned through good
remission month behaviour.
for each served,” although
they can lose remission for negative behaviour
within the correctional facility (Ontario Ministry
of Community Safety and Correctional Services.
2016). There is some variation between the prov¬
inces in the manner that earned remission is Shortly after an offender is admitted to a provincial
calculated. In British Columbia, remission is cal¬ correctional centre, officers conduct a sentence
culated “at the end of each month. Poor perfor¬ calculation toverify the offender's warrant expiry date.
mance can result in 0 to 7 days earned remission, While officers make every effort to ensure that these
documents correct, clerical errors can occur and
fair performance can result in 8 to 14 days and are

prisoners are sometimes discharged early or kept past

good performance in 15 days earned remission
their actual release dates.
credit,” and “once a provincial offender is released
222 Exploring Criminal Justice in Canada

INDIVIDUALIZED JUSTICE: Criminal Code specifies that these reports should

PRE-SENTENCE REPORTS
contain the following information:

In order to make the best sentencing decisions, a. “the offender’s age, maturity, character,
judges often request that probation officers con¬ behaviour, attitude and willingness to
duct pre-sentence investigations about the offend¬ make amends”;
ers (reports are only authorized for convicted b. the individual’s criminal history (as a
offenders), their circumstances (including the youth and an adult); and
success of prior criminal justice system interven¬ c. “the history of any alternative measures
tions), and their role in the offence. This informa¬ used to deal with the offender, and the
tion iscompiled in a pre-sentence report, which is offender’s response to those measures.”
authorized by section 721 of the Criminal Code.
The chief justice of the Nova Scotia Court of In addition, the probation officer preparing the
Appeal commented in the R v Bartkow (1978) deci¬ report is required to investigate specific issues of
sion that the purpose of the report was “to supply interest to the judge, including the offender’s suit¬
a
picture of the accused as a person in society— ability for community-based treatment such as
his background, family, education, employment participation in a residential treatment program for
record, his physical and mental health, his asso¬ substance abuse. Some provinces allow the proba¬
ciates and social activities, and his potentialities tion officer to include information about risk assess¬

and motivations.” ments and to make formal recommendations about

Although the format and content of a PSR sentencing (Bonta, Bourgon, Jesseman, & Yessine,
may differ among provinces, section 721(3) of the 2005). Altogether, these reports provide judges with

lentsa/Shurock.m Judges order pre-sentence reports to increase their understanding of the offenders and their roles in the offences, which
in turn helps judges make better sentencing decisions. After the offenders are sentenced, the
pre-sentence reports are
also used by correctional and probation officers to develop rehabilitative plans with the offenders.
 8 | Sentencing 223

Victims and Victim Impact Statements

One part of a pre-sentence report that merits 1988 First General Social Survey (GSS) on
special attention is the victim impact statement. Victimization is released.
These statements are authorized by section 1989 Nova Scotia passes the Victims Rights
722(1) of the Criminal Code, which states that and Services Act.
“the court shall consider any statement of a 1990 Supreme Court upholds battered
victim . . .
describing the physical or emotional woman defence (R v Lavallee).
harm, property damage or economic loss suf¬ 2001 Manitoba introduces the Victims Bill of
fered by the victim as the result of the commis¬ Rights.
sion of the offence and the impact of the offence 2004 Canadian Centre for Justice Statistics
on the victim.” Although these statements are releases its first report on victims.
included in the written report, the Criminal Code 2007 Office of the Federal Ombudsman for
also allows victims to read prepared state¬ Victims of Crime is created.
ments to the court. When victims cannot speak 2015 Canadian Victims Bill of Rights is
for themselves—if they are deceased, ill, or enacted.

in-capacitated—a victim’s spouse or relative

can read the statement on the victim’s behalf. So what does a victim impact statement look
In October 1988, legislation was introduced like? These statements will vary in length and
that modified the Criminal Code to formally content according to the nature of the offence
authorize crime victims to describe the harms and the individual who was victimized. On 12

they suffered and the losses they experienced November 2015, Christy Natsis, an Ottawa den¬
from a crime as part of an offender’s sentenc¬ tist, was sentenced to five years in prison for an
ing. This was not a new practice, however, as impaired driving collision that killed 50-year-old
victim impact statements had been considered Bryan Casey—a husband and father of three chil¬
by judges long before this change in the law. The dren.Bryan Casey’s wife, LeeEllen Carroll, wrote a
formal recognition of the victim’s role in sentenc¬ powerful statement about how the crime affected
ing camein response to a growing awareness her family. In the 12-page document, Carroll
that the
plight of these individuals was not given describes the devastation her family has endured
enough attention, and some victims were being since Bryan’s death, providing family stories that
dismissed altogether. The Canadian Resource illustrate the kind of person that Bryan was, and
Centre for Victims of Crime (2015) identifies a painting a heartbreaking image of how she and
number of milestones in the victims’ movement, her children have been impacted by the loss.
and the following list highlights some of these LeeEllen Carroll’s victim impact statement can

key events: be accessed at the following website: https://

www.documentcloud.org/documents/2458666-
1967 Saskatchewan enacts a victim compen¬ widows-victim-impact-statement.html
sation program. In addition, the judge provided a “Reasons
1973 Federal government contributes to pro¬ for Sentence" report, which summarizes the
vincial compensation plans. factual background of the case, the background
1979 Edmonton Police Service founds the of the offender, the victim impact statements,
nation’s first victim service unit. the applicable principles of sentencing, the
1982 National Victim Resource Centre is aggravating and mitigating factors, and the
founded in Ottawa. result. The judge’s report can be accessed on
1986 Manitoba introduces the Justice for the cbc website: http://www.cbc.ca/news/
Victims of Crime Act (a number of prov¬ canada/ottawa/christy-natsis-gets-5-year-
inces follow with similar legislation in sentence-fo r-im paired-da ngerous-drivi ng-in-
the next two years). 2011-crash-l.3315363
Exploring Criminal Justice in Canada

a
comprehensive overview of the offenders, their judge, including psychological or psychiatric reports.
strengths and weaknesses, and the success or failure Psychological reports are commonly ordered for
of their prior criminal justice interventions. sexual offenders to give the judge an assessment of
Probation officers ordered to write a PSR will the offender’s risks to public safety and likelihood of
interview the offender and will sometimes speak rehabilitation. Psychiatric reports, by contrast, are
with the offender’s close relatives such as a parent or often carried out in psychiatric facilities or forensic

spouse. An offender’s employer is sometimes asked units (mental health units in correctional facilities)
about the individual’s functioning on the job. The and can take a longer to complete.
month or

probation officers will also speak to persons work¬ Although a PSR helps judges make sentencing
ing in health, education, or social service agencies decisions based on the strengths and weaknesses
that are involved with the offender, especially if the of the offender, these investigations can be contro¬
individual has mental health problems. In addi¬ versial. PSRs have been criticized because probation
tion, an offender’s co-accused might also be inter¬ officials may develop their recommendations based
viewed in order for the probation officer to better on their
knowledge of a judge’s sentencing expec¬
understand their respective roles in the crime. The tations and practices. Bonta and colleagues (2005,

police officers who carried out the investigation or p. ii) found that judges accepted the recommen¬
arrested the offender are sometimes interviewed to dations for community-based sentences in a high
obtain additional insight into the offence and the percentage (71 per cent) of cases, and a similar US
offender. As noted earlier, victims are also given the study revealed that judges accepted a slightly higher
opportunity to make a statement about the impacts proportion (73 per cent) of probation officer recom¬
that the offence had on their lives. Altogether, these mendations (Norman & Wadman, 2000, p. 48).

reports require a substantial amount of time to Some scholars are critical of PSRs as they

complete, and the length of time increases in cases believe that probation officers may unconsciously

involving multiple victims or serious violence. favour offenders who have middle-class back¬

Judges typically give officers about a month to grounds, beliefs, and values. Canadian researchers
prepare a PSR, and that time is required to track have also raised the issue of whether probation offi¬
down the information and interview the subject, vic¬ cers receive enough training to properly conduct

tims, police officers, and service providers involved their assessments on offenders (Bonta et al„ 2005;
with the offender. Bonta, Bourgon, Jesseman, and Storey, Watt, & Hart, 2015). However, since there
Yessine (2005, p. 21) found that the average PSR in is so little research on officers and the preparation
Canada took about 14.2 hours to complete and the of these reports, we do not know whether these
documents averaged about 11 pages. Because of the claims are accurate. Another controversial factor
time needed to conduct these investigations and pre¬ is that reports in some provinces can include hear¬
pare the reports, some judges will order them only say information that the probation officer cannot
if they are deliberating whether a community-based
verify (e.g., about an offender’s alcohol use or gang
or custodial sentence is the most appropriate sanc¬ involvement). These issues are worthy of research as
tion. Officers preparing these reports must ensure pre-sentence reports may have a significant impact
that the documents are accurate and
comprehensive on an offender’s freedom and
may influence deci¬
as they often form the foundation of an offender’s sions made by correctional officials after sentenc¬
case
plan—for community-based supervision or for ing. Hannah-Moffat and Maurutto (2010) are also
treatment in custody (see Chapter 9). A PSR may also critical of including formal risk assessments in PSRs
be used for release planning, to make parole deci¬ as this practice may contribute to
higher incarcer¬
sions, and to conduct research. Altogether, these ation rates of people from some
marginalized
investigations result in documents that may be used groups. Most risk assessments consider individu¬
by different officials for many years. als to be at higher risk of reoffending if
they have
Additional reports about an offender’s mental arrests at early ages, a lack of formal education, and

health functioning are sometimes requested by the a

long history of prior arrests and convictions.
 8 | Sentencing 225

RACE. CLASS. AND GENDER

The Challenges of Indigenous Sentencing
In Chapter 4, a brief description of the Supreme made the following summary in the case of R v
Court of Canada (see) decision in the Regina v Gladue (1999):
Gladue case was highlighted as a response to
the overrepresentation of Aboriginal
people In sentencing an aboriginal offender, the
inyouth and criminal justice systems. Jamie judge must consider: (a) the unique sys¬
Tanis Gladue, a 19-year-old Aboriginal woman temic or background factors which may
who killed her common-law spouse, was sen¬ have played a part in bringing the particular
tenced to athree-year prison term after being aboriginal offender before the courts; and
convicted of manslaughter. The SCC found that (b) the types of sentencing procedures and
while the three-year sentence was appropriate sanctions which may be appropriate in the
for the seriousness of the offence, the sen¬ circumstances for the offender because
tencing judge should have specifically consid¬ of his or her particular aboriginal heri¬
ered the background factors that may have tage or connection. In order to undertake
led Gladue to commit the offence. The see these considerations the sentencing judge

Pictured are Inuit inmates working on soapstone carvings. Indigenous people are overrepresented in incarcerated

populations. Conflict theorists would argue that incarceration is used as a means of controlling and maintaining
GSBIuml/vtTaeoagritenrtsy
Ron

power over Aboriginal people in Canada. Do you think public support for incarceration of Aboriginal offenders is
higher than public support for incarceration of non-Aboriginal, non-visible minority offenders?

Continued
Exploring Criminal Justice in Canada

will require information pertaining to the Some agencies specialize in the preparation
accused. Judges may take judicial notice of Gladue reports, including those compiled
of the broad systemic and background by workers at the Aboriginal Legal Services
factors affecting aboriginal people, and of of Toronto (alst). alst staff members will pre¬

the priority given in aboriginal cultures to a pare a Gladue report for persons in local com¬
restorative approach to sentencing. munities who have been convicted of an offence
and are in jeopardy of a custodial sentence of
This decision was incorporated into section 90 days or longer. Like a regular PSR, Gladue
718 of the Criminal Code, and it directs judges reports include information about the offender
to recognize how the histories and circum¬ and the offence, but the caseworkers com¬

stances of Indigenous offenders may influence pleting these investigations also place “the
their involvement in crime. One intention of the offender’s situation into the Aboriginal context
see was to keep these offenders in the com¬ by describing the systemic issues affecting
munity unless there were no other alternatives to Aboriginal people, e.g. history of adoption or
incarceration. foster home, impact of residential schools on
Milward and Parkes (2011) argue that the the offender or offender’s family, homeless¬
efforts taken to reduce the overrepresentation ness, [and] factors leading to a separation
ofAboriginal persons in the justice system have from Aboriginal traditions” (Campbell Research
Supreme Court’s expectations.
fallen short of the Associates, 2008, p. 10). The caseworkers
Despite that criticism, courts across Canada also develop plans to meet the offender’s re¬
have developed initiatives to ensure that the dis¬ habilitative needs, including community-based
tinctive circumstances of Aboriginal defendants alternatives to incarceration.
are considered. In a national study conducted Perhaps the most important issue to
for the Department of Justice Canada, April address is the impact of the Gladue decision.
and Orsi (2013, p. 1) found that 19 specialized We know that there is an overrepresentation of
courts for Aboriginal people exist throughout the Indigenous people in correctional systems, but
country. The study also found that Gladue train¬ it is possible that things could be even worse
ing and awareness activities were being pro¬ without sentencing that takes into account the
vided for justice system officials, bail and parole distinctive challenges of Indigenous people.
decision-making decisions were being informed by Amoud (2014, p. 14), a defence attorney in the
Gladue, and community justice programs existed Northwest Territories, reminds us that the pur¬
in most jurisdictions (April & Orsi, 2013). pose of Gladue is not “to provide a ‘discount’ on
A cornerstone in crafting a just and fair sen¬ sentences for Aboriginal offenders. When . . .

tence is for the judge to be aware of the offend¬ discussing Gladue, I have had to explain to my
er’s circumstances. As discussed in this chapter, clients that the more serious the offence or the
judges routinely order probation officials to com¬ offender’s criminal background, the less likely
plete a pre-sentence report. Milward and Parkes the offender will get much of a different sen¬
(2011, p. 88) point out that “probation officers tence from someone who is not Aboriginal.”

employed by Manitoba justice to write pre¬ Amoud (2014) also notes that community-based
sentence reports (psr) will, on the request of services that might help some Aboriginal offend¬
defence counsel, add a ‘Gladue factors’ section ers (e.g., services that provide support for
to a standard PSR.” They are critical, however, people with addictions or mental health prob¬
that officers obliged to write more com¬
are not lems) are not readily available in many remote
prehensive reports that fully address the individ¬ and rural locations, which places people living
ual’s background and how the offender’s actions in these areas at a disadvantage compared with
may have been shaped by systemic factors. city residents.
 8 | Sentencing 227

MYTH OR REALITY
Is Plea Bargaining Really a Pact with the Devil?
Over 90 per cent of criminal cases a plea
end after an offence that carries a mandatory minimum
has been negotiated between the Crown and the sentence. Prosecutors further
are advantaged
defence attorneys (Verdun-Jones, 2016). These since the Supreme Court, in the R v Nixon (2011)
arrangements usually involve the defendant enter¬ case, agreed that Crown prosecutors can break
ing a plea of guilty in return for less severe punish¬ their plea agreements, although court observers
ments, such as the reduction of a charge to a lesser suggest that rarely occurs.
offence, a withdrawal or stay of other charges, an While plea bargaining is widely criticized, the
agreement not to proceed on a charge, or a reduc¬ courts, prosecution units, and legal aid systems
tion in the number of charges to one all-inclusive would collapse if every defendant wanted his or
charge (Piccinato, 2004, pp. 1-2). Pleas of guilt her argued in court. Piccinato (2004, p. 14)
case

are negotiated before a sentencing hearing hap¬ describes the pros and cons of plea bargaining,
pens, and the Crown and defence attorney enter a and they are summarized in Table 8.2. Plea bar¬

joint submission to the judge. Although judges are gaining has benefits for the justice system: police
not obliged to accept those submissions, it is rare officers and prosecutors save time as there is no
that they do not (Verdun-Jones, 2016). need to collect,organize, and present evidence to
Our reliance on plea bargaining is a relatively ajury. The defence counsel does not need to pre¬
new practice, and up until the 1960s most seri¬ pare and present a case (Payne, Oliver, & Marion,
ous cases went to trial and defendants pled guilty 2016). Moreover, judges do not need to preside
to most minor offences. Rakoff (2014) wrote over a trial, and the courts can be reserved for
about plea bargaining in the US and observed other cases. But victims have criticized plea bar¬
that in many other countries the practice “was gains because they have very little input into the
viewed as a kind of ‘devil’s
pact' that allowed decisions thatprosecutors make. Charges, for
guilty defendants to avoid the full force of the example, are routinely stayed by prosecutors,
law.” Yet, plea bargains can also benefit prosecu¬ which can make some victims feel betrayed by the
tors when the defendant has been charged with justice system (Moore, 2015).

TABLE 8.2 | Advantages and Criticisms of Plea Bargaining

Advantages Criticisms
•
Contributes to the efficiency of the justice system •
Leads tomanipulation of the judicial system
•
Reduces costs and workloads •

Encourages abuses of power by prosecutors and judges

•
Provides certainty for all parties •
Creates a situation in which the defence counsel may put
•
Reduces inconvenience on witnesses his or her interests over those of the client
•
Reduces the stress of being a witness •
Results in offenders receiving lenient sentences
•
Allows prosecutors to get a conviction on weak cases •
Increases the risk of wrongful convictions
Source: Adapted from Piccinato (2004).

SUMMARY our
safety. Sentencing in Canada is guided by a
number of principles, but the foremost is pro¬
Although sentencing an offender looks like a rel¬ portionality, as the punishment must be related
atively straightforward process when shown on to the seriousness of the crime. In order to better
television, it is a very important undertaking as understand the impact of an offence on crime vic¬
we all have an interest in ensuring that sentences tims, judges often order a PSR. Despite criticisms
are fair, unbiased, and just, and that they increase about the shortcomings of these reports, they are
228 Exploring Criminal Justice in Canada

a guides sentencing, and they are

useful tool that have accomplished, such as volunteering with a food
used by probation and correctional officials to bank, coaching children in sports, being a good stu¬
develop rehabilitative plans after the sentence is dent, and caring for our family members? Would we
imposed. With respect to Indigenous offenders, want to exactly the same as an individual
be treated

there is a growing interest in ensuring that they who had lengthy criminal history and had never
a

have access to Gladue reports, which are PSRs that volunteered, mentored, or coached youth?
highlight the systemic issues that might have con¬ Additional considerations must be made when
tributed to their involvement in crime. sentencing Indigenous offenders, and judges must
One limitation in knowledge of sentencing
our take into account their distinctive circumstances.
is that our predictions about the offender’s potential Although provincial and territorial justice systems
for rehabilitation or dangerousness lack accuracy. have recognized the 1999 Gladue decision, it has
As a result, we often give offenders a number of not reduced the overrepresentation of Indigenous

chances to reform, realizing that making a signif¬ offenders in provincial, territorial, or federal cor¬
icant change is a challenge for anybody and there rections. Such findings reinforce a theme that

will be some failures. As an example, think back underlies the entire study of criminal justice:
to your success in keeping your New Year’s resolu¬ changes occur slowly and sometimes the interven¬
tions. The hazard of sentencing, of course, is that tions that we have introduced to reduce problems

the courtroom work group will make mistakes, might not have the desired (or any) effect.
and some individuals who received a second chance Another theme addressed in this chapter is that
will go on to commit serious offences. On the other there is variation in the way that justice is carried
hand, keeping offenders incarcerated for longer out throughout the nation. Some provinces are

than necessary does not make us any safer—which more

punitive and incarcerate a higher number of
is a criticism of “tough on crime” punishments. offenders per 100,000 residents. Prior research has

Achieving the goals of public safety and hold¬ shown that incarceration is not directly related to

ing offenders accountable is a difficult undertaking, levels of crime, suggesting that other factors influ¬
and one fundamental tension is how we balance ence the use of punishment (Neil & Carmichael,

the desire to pursue individualized justice against 2015; Sprott & Doob, 1998). Factors such as puni¬
the goal of treating offenders who commit the tive beliefs and values may be used by politicians
same
types of crime in a similar manner. Perhaps to create further support for harsh punishments

the best way to think about this issue is to consider (Webster & Doob, 2015). While almost every¬
what would happen it we were being sentenced for body agrees that we need to be able to incapacitate
a crime: Would we want the judge to recognize that individuals who represent a risk to public safety,
we were a first-time offender? Would we want to there is less agreement on how many of these indi¬
receive recognition for the positive things that we viduals need to be imprisoned.

As noted throughout this chapter, probation officers in the justice system, probation officers can work
working with provincial and federal governments play in variety of roles. One important duty of proba¬
a

an important role prior to an offender’s tion officers is preparing pre-sentence reports, and
sentencing
and by supervising the probation of offenders serv¬ this role might be of interest to students who want
ing a community-based sentence. Like other careers to gain experience in carrying out investigations.
 8 | Sentencing

Pre-sentence reports are prepared for the court and convocation, I also completed an advanced practicum
are by the offender, counsel, and Crown prose¬
read placement at the Crown Prosecutors’ Office in Regina.
cutor, so they require careful attention to detail and In that role, I was able to gain exposure to all of the
excellent writing skills. aspects of the justice system, including court proce¬
Probation officers also work with individuals accused dures, community-based partnerships, corrections and
of offences. Some officers monitor judicial interim policing agencies, and offender services, where I learned
releases or oversee alternative measures programs for how they operate together. This experience fuelled my
first-time and non-violent offenders. Probation officers motivation to become a probation officer. I am very ded¬

can also supervise offenders in a variety of caseloads. icated to promoting public safety by strengthening the
Officers working in small offices
are likely to be general¬ offenders’ ability to contribute to and live positively in
ists who take care of offender, while those
of every type their communities.

working in larger offices may be more likely to super¬ My experiences at both of my practicum place¬
vise specialized caseloads or work in specialized roles ments helped me to learn about the diversity of human
such as an officer assigned to a mental health court. behaviour and to identify and understand factors asso¬
While most probation officers start off working in gen¬ ciated with those at risk.My front-line role working with
eralist caseloads, most can expect to be assigned to offenders has given me the experience to develop the

specialized roles after they have gained several years skills necessary to assess human behaviour and risk
of experience. while implementing intervention strategies to encourage
offenders to be successful in their communities.
Profile In my work as a probation officer, I value the positive
Name: Elizabeth Engel impact I have had in the lives of offenders by helping
Job title: Probation Officer, Regina Adult Community them work toward their rehabilitation and address their
Corrections risk areas with interventions I have recommended. This
Years in current job: Employed since 2013 has had a positive impact on public safety. Although I am
Present location: Regina, Saskatchewan in the first years of my career, I have been required to
Education: Bachelor in Human Justice, Minor in testify in court to explain a risk assessment that I admin¬
Sociology, University of Regina istered, and I have also received positive recognition and
accolades from a judge for a pre-sentence report that I
Background prepared. In my work, I have supervised dangerous, vio¬
Upon entering university, I had few ideas on what type lent, and difficult people who have worked toward their
of career I wanted to pursue. I enrolled in a general arts rehabilitation and success by managing their high-risk
degree program, but I soon realized that I was not inter¬ behaviours; this of course, reduces recidivism, which is
ested in any typical subject as a major, so I transferred the most rewarding part of my job.
into the human justice program and became energized
with the Advice to Students
thought of being able to help people facing
adversities. I am currently a probation officer with the Students who are interested in a career in commu¬

Saskatchewan Ministry of Corrections in Regina, and I nity corrections should never ignore their instincts or
have to admit that this was my career goal even though capabilities. You should try to experience and learn from
I fully aware of what I was working toward during
was not all of the opportunities given to you—good or bad. In addi¬
my time at the University of Regina. It was not until tion, you should ensure that your self-care is a priority as
after I completed my two practicum (internship) place¬ well as supporting your team, and you have to remember
ments that I decided to pursue a career in community that public safety is in your hands. Students interested in
corrections. working with offenders should become engaged in their
communities and should volunteer as often as possible,
Work Experience as these experiences demonstrate humility and kind¬
Ibegan my career at the Ranch Ehrlo Society in Pilot ness. My final piece of advice is to never be afraid to
Butte, Saskatchewan, working with at-risk youth during absorb all experiences and to be confident and listen to
a practicum placement as a student. Prior to my yourself.
Exploring Criminal Justice in Canada

REVIEW QUESTIONS
1. What are the main typesof community and 4. What are the components of a pre-sentence

custodial sentences that a judge can impose? report?

2. Define the principles of proportionality and 5. Why are sentences in some provinces or
totality, and explain why these factors are territories more severe than in others, even

important in the administration of justice. though they may have similar rates of crime?
3. Describe the differences between aggravating
and mitigating factors, and explain how they
are related to individualized justice.

DISCUSSION QUESTIONS
1. Should decisions about the use of not good public policy. What is your opinion on
imprisonment be driven by public opinion, or “getting tough” on offenders?
should we leave these decisions to experts on 4. When imposing a prison sentence on an
offenders? offender, should the cost of that prisoner’s
2. Ideally we would like to treat everybody who care also be publicized?
commits a crime in the same manner. Why is 5. How can our justice system best respond to
this not practical? career criminals?
3. Some people believe that “getting tough” on
offenders when crime rates are dropping is

INTERNET SITE
The victim impact statements, pre-sentence provide readers with a better understanding of the
reports, and
psychological reports for Justin components of these reports.
Bourque—the offender who killed three rcmp www.cbc.ca/news/canada/new-brunswick/
members in 2014—can be found on the Canadian justin-bourque-evidence-posted-with-discretion-
Broadcasting Corporation website. These materials at-cbc-1.2865791

CASES CITED
R v Bartkow (1978) 24 NSR (2d) 518 R v Nixon, 2011 SCC 34
R v Gladue, [1999] 1 SCR 688 R v Nur, 2015 SCC 15
R v Johnson, 2012 ONCA 339 R v Summers, 2014 SCC 26
R v Lavallee, [1990] 1 SCR 852
R v Lloyd, 2016 SCC 13