By: Erin Sheley
PDF Version: Wilful Blindness and the Contradictions of Sentencing
Case Commented On: R v Giroux, 2018 ABCA 56 (CanLII)
Sentencing is a notoriously self-contradictory component of the criminal process. On the one hand, it allows judges freedom from many of the oft-restrictive rules of evidence that govern the trial itself, giving them the flexibility to take into account aspects of the individual accused’s circumstances and history, often in favor of leniency within the very broad statutory ranges where the facts urge it. On the other, the rule of law requires a degree of consistency across sentences, and for particularly serious cases a trial judge’s broad discretion is limited by mandatory minimums created by Parliament. Furthermore, section 718 and related provisions of the Criminal Code, RSC 1985, c C-46, specify principles that must govern sentencing, codifying the various accepted theoretical purposes of criminal punishment, particularly denunciation, deterrence and rehabilitation. Often, these principles directly contradict one another when applied to the facts of a particular case: it is easy to imagine, for example, how the goal of rehabilitating the offender may urge a very different sentence from the goal of denouncing particularly serious conduct. Furthermore, case law construing these statutory sentencing provisions imposes further constraints on lower courts. Due, however, to the difficulties in navigating these choppy legal waters, sentencing judges typically receive a high degree of deference as they have the closest view of the facts before them and the testimony of the accused, victims, and other relevant witnesses. Indeed, a court of appeal may disturb a sentence only where: 1) the sentence reflects an error of principle; or 2) the sentence is demonstrably unfit (see R v Cowan, 2012 ABCA 199 (CanLII) at para 14). Finally, after R v Gladue, [1999] 1 S.C.R. 688, 1999 CanLII 679 (SCC), Parliament amended section 718(e) of the Code to require that sentencing judges take into account the particular circumstances of Aboriginal defendants in considering alternatives to incarceration.