Chapter 9: Sentencing and Parole in Canada Flashcards
roles of the major courts in Canada
- Hearing evidence presented at trial
- Determining the guilt and innocence of defendants
- Rendering sentencing decisions across a wide range of criminal and civil cases
divisions of the Canadian court system
The Canadian court system is made up of numerous types of courts separated by jurisdiction and levels of legal superiority
jurisdiction of Canadian courts
- provincial courts
- federal courts
- military courts
provincial courts
have jurisdiction over most criminal and civil matters
federal courts
focus exclusively on matters specified in federal legislation
military courts
deal with offences committed by members of the Canadian Armed Forces under the National Defence Act
hierarchy of Canadian courts
- courts are bound by the rulings of courts positioned above them in the hierarchy
- administrative tribunals -> inferior provincial/territorial courts -> superior provincial/terriorial courts -> provincial & territorial courts of appeal and the federal court of appeal -> supreme court of Canada
Administrative tribunals
responsible for resolving disputes in Canada over a wide range of administrative issues in both provincial and federal jurisdictions
Inferior provincial/territorial courts
deal with a broad range of cases, including criminal and civil issues
Superior provincial/territorial courts
- Act as the first court of appeal for inferior courts and try the most serious criminal and civil cases
- In the federal jurisdiction, the court at this level is called the Federal Court of Canada
the Tax Court of Canada
deals with tax disputes between the federal government and Canadian taxpayers
what type of court is the Tax Court of Canada?
a federal court of appeal
Provincial & territorial courts of appeal and the Federal Court of Appeal
- Review decisions rendered by the superior-level courts
- They do not normally conduct trials or hear evidence from witnesses
Supreme Court of Canada
- The final court of appeal in Canada
- Consists of 8 judges plus the chief justice
- Lower Canadian courts are bound by its rulings
- It also guides the federal government on law-related matters, such as the interpretation of the Canadian Constitution
Indigenous overrepresentation
the discrepancy between the relatively low proportion of Indigenous people in the Canadian population and the relatively high proportion of Indigenous people involved in the criminal justice system
Indigenous overrepresentation statistics
Indigenous people make up 3% of the Canadian population but 18% of the federal and provincial inmate population
potential causes of Indigenous overrepresentation
- Indigenous people may commit more crime
- The crimes Indigenous people omit may be more likely to result in sentences of incarceration
- Access to adequate legal representation appears to be more problematic for Indigenous people
- Certain criminal justice policies appear to have differential effects on Indigenous offenders because they are, on average, more economically disadvantaged than non-Indigenous people
Bill C-41
- Highlights the need for particular attention to the circumstances of Indigenous people
- Was interpreted in R. v. Gladue (1999) as an attempt to ameliorate the serious problem of Indigenous people in prisons
Gladue reports
- Provide the judge with an analysis of factors in the offender’s background that may serve to mitigate or reduce the culpability of the offender
- Ex. substance abuse, poverty, exposure to abuse, lack of employment, loss of identity, culture, or ancestral knowledge, and attendance at a residential school
Restorative justice
- An approach for dealing with a crime that emphasizes repairing the harm caused by it
- Based on the philosophy that when victims, offenders, and community members meet voluntarily to decide how to achieve this, transformation can result
Goals of restorative justice
- To prevent further damage from occurring (community safety)
- To ensure that the offender is made responsible for the crime and repays the victim or the community (accountability)
- To provide the offender with whatever they need to become a law-abiding citizen in the future (skills development)
efficacy of Indigenous courts
Indigenous courts appear to be having little impact on the overrepresentation problem
problems with Indigenous courts
- They don’t deal with the full range of issues that cause Indigenous people to become involved in the criminal justice system
- Recent legislation may work in opposition to Gladue, making it more difficult for judges to have discretion when sentencing
sentencing process
the judicial determination of a legal sanction upon a person convicted of an offence
characteristics of the sentencing process
it is highly visible and controversial
goals of sentencing
- Specific deterrence
- General deterrence
- Reparations
- To denounce unlawful conduct
- To separate offenders from society
- To assist in rehabilitating offenders
- To promote a sense of responsibility in offenders
specific deterrence
sentencing to reduce the probability that an offender will re-offend in the future
general deterrence
sentencing to reduce the probability that members of the general public will offend in the future
reparations
a sentence where the offender has to make a monetary payment to the victim or the community
judges’ discretion
- Judges often consider more than one goal when handing down a sentence
- The goals a judge considers when handing down a sentence can sometimes be incompatible with one another
- Judges across Canada likely hand down sentences for different reasons, even when dealing with similar offenders and offences
fundamental principle of sentencing
the belief that sentences should be proportionate to the gravity of the offence and the degree of responsibility of the offender
Other principles judges take into account when sentencing
- A sentence should be adjusted to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender
- Sentences should be similar for similar offenders committing similar offences under similar circumstances
- Where consecutive sentences are imposed, the combined sentences should not be unduly harsh
- An offender should not be deprived of liberty if less-restrictive sanctions are appropriate under the circumstances
- If reasonable, sanctions other than imprisonment should be considered for all offenders
sentencing options in Canada
- The Criminal Code provides a general framework for making sentencing decisions
- Judges have a great deal of discretion
what is the most common type of sentence in Canada?
probation
custodial sentences in Canada
When custodial sentences are imposed, the sentence length tends to be very short
main sentencing options in Canada
- absolute discharge
- conditional discharge
- restitution
- fine
- community service
- conditional sentence
- imprisonment
absolute discharge
the defendant is released into the community without restrictions on their behaviour
conditional discharge
the defendant is released, but carries certain conditions that they must meet. Failure to meet the conditions imposed with a conditional discharge may result in the defendant being incarcerated or sent to a psychiatric facility
restitution
a sentence where the offender has to make a monetary payment to the victim or the community
fine
a sentence where the offender has to make a monetary payment to the courts
community service
a sentence that involves the offender performing a duty in the community, often as a way of paying off a fine
conditional sentence
a sentence served in the community
imprisonment
a sentence served in prison
what factors do judges consider when deciding on sentences?
- The seriousness of the offence
- The offender’s degree of responsibility
- Various aggravating and mitigating factors
- The harshness of the sentence
objective vs. subjective factors in sentencing study
found that only about 9% of the variation in sentencing could be explained by objectively defined facts, while more than 50% could be explained by simply knowing information about the judge
extra-legal factors in sentencing study
found that a variety of extra-legal factors influence sentencing, even when relevant legal factors are held constant
gender and sentencing study
found that men receive 63% longer sentences than women do. Women are also significantly likelier to avoid charges and convictions, and twice as likely to avoid incarceration if convicted
sentencing disparity
variations in sentencing severity for similar crimes committed under similar circumstances
unwarranted sentencing disparity
variations in sentencing severity for similar cases committed under similar circumstances that result from reliance by the judge on legally irrelevant factors
2 types of unwarranted sentencing disparity
systematic & unsystematic disparity
systematic disparity
consistent disagreement among judges about sentencing decisions because of factors such as how lenient judges think sentences should be
unsystematic disparity
inconsistencies in a judge’s sentencing decisions over time when judging the same type of offender or crime because of factors such as the judge’s mood
how do researchers study sentencing disparity?
using either laboratory-based simulations or the examination of official sentencing statistics in an attempt to uncover variations in judicial sentencing decisions
simulation studies
present mock judges or rela judges with details of a case and examine if and how sentencing decisions assigned to those cases by the judges vary
Palys & Divorski (1986) sentencing disparity study method
provided 206 Canadian provincial court judges with 5 criminal cases. For each case, they were given a short description of the incident, the circumstances leading up to and surrounding the incident, the offender’s reaction in court, the impact of the incident on the victim, and a detailed presentation of the offender
Palys & Divorski (1986) sentencing disparity study findings
- They found strong evidence of sentencing disparity
- The most important predictor of sentence severity was the differential weighting of legal objectives, followed by the importance placed on various case facets, followed by demographic characteristics and sentencing contexts associated with the judges
sentencing guidelines
- Guidelines that are intended to reduce the degree of discretion that judges have when handing down sentences
- They require judges to make certain decisions unless they have reasons for departing from the guidelines
research on sentencing guidelines in Canada
Research on sentencing guidelines is mixed
sentencing guidelines in Canada
- The Canadian government has been reluctant to implement formal sentencing guidelines
- Some sentencing reforms have taken place in Canada but they aim to make sentencing more severe, not more rational
efficacy of get-tough strategies
Recent research refutes the hypothesis that “get-tough” strategies change the antisocial behaviour of offenders and reduce the likelihood that they will re-offend
are sentencing goals achieved? study
examined the rehabilitative and deterrent effects of prison and various community-based sanctions. They found little evidence that punishment-based sanctions lead to substantial decreases in recidivism rates. Most sanctions resulted in moderate increases in recidivism, except for fines and restitution, which resulted in small decreases. Incarceration led to little impact on recidivism, but longer prison sentences resulted in higher rates of recidivism
risk principle
the principle that correctional interventions should target offenders who are at high risk of reoffending
need principle
the principle that correctional interventions should target known criminogenic needs (factors related to reoffending)
responsivity principle
the principle that correctional interventions should match the general learning style of offenders
3 core principles and recidivism study
conducted a meta-analysis to determine whether interventions consisting of the three core principles led to reductions in recidivism. They found that offenders taking part in appropriate programs exhibited a decrease in recidivism, whereas offenders taking part in inappropriate programs exhibited an increase in recidivism. Offenders taking part in unspecific programs exhibited a decrease in recidivism, though less than those in appropriate programs
parole
the release of offenders from prison into the community before their sentence is complete
key components of parole
- The conditional release of offenders so they can serve the remainder of their sentences outside an institution
- An attempt to rehabilitate offenders so that they can become productive contributors to society
- A high degree of community supervision to ensure the parole is abiding by certain rules
- A clause that, if the conditions of parole are not met, an offender’s parole can be revoked and they can be sent back to prison
parole board of Canada (PBC)
the organization in Canada responsible for making parole decisions
types of parole
- temporary absence
- day parole
- full parole
- statutory release
temporary absence
a form of parole that allows the offender to enter the community temporarily (ex. To attend correctional programs)
day parole
a form of parole that allows the offender to enter the community for up to one day (ex. To hold down a job)
full parole
a form of parole that allows the offender to serve the remainder of their sentence under supervision in the community
statutory release
the release of offenders from prison after they have served ⅔ of their sentence
who is responsible for supervising offenders on parole?
The Correctional Service of Canada
what happens if an offender doesn’t abide by their conditions?
they may be returned to prison
Common parole conditions
- Having the offender report to a parole officer regularly
- Remaining within the country
- Obeying the law
- Informing the authorities of changes in address or employment
- Not possessing any weapons
when does an offender become eligible for parole?
An offender must serve the first ⅓ or first 7 years of their sentence (whichever is less)
making parole decisions
Parole decisions are made after a formal hearing with the offender
Factors that parole board members consider when making their risk-assessment decision
- Statistical measures of an offender’s risk of reoffending
- The offender’s criminal history
- Social problems experienced by the offender, such as drug use and family violence
- Information about the offender’s relationships and employment history
- Psychological or psychiatric reports
- The offender’s institutional behaviour
- Opinions from other professionals, such as police officers
- Information from victims
- Information that indicates evidence of change and insight into the offender’s own behaviour
- Benefits derived from treatment that may reduce the risk posed by the offender
- Performance on earlier releases
- Any other information indicating whether release would pose a risk to society
- The feasibility of the offender’s release plans
Gobeil & Serin, 2009 release decisions study method
used hypothetical offender vignettes to examine the release decisions made by 31 parole board members from Canada and New Zealand and found:
Gobeil & Serin, 2009 release decisions study findings
- The release rate was considerably higher for women offenders and sex offenders
- The release rate was considerably lower for Indigenous and domestic violence offenders
- Variability existed in the amount and type of information accessed by parole board members
Dr. Serin’s framework
Provides a structured procedure for considering the range of factors that do not need to be assessed when making release decisions and facilitates a final decision that should be equitable, transparent, and defensible
efficacy of Dr. Serin’s framework
Research shows that using this framework results in lower rates of decision errors for parole decision-making
what trends should we see if the Parole Board of Canada (PBC) is making effective decisions?
we would expect to see higher rates of success for offenders on day and full parole compared to those who have been granted statutory release
is parole effective?
From 2012-2018, offenders who were granted day or full parole were more successful compared to those granted statutory release
failures of offenders on parole
Most of the failures experienced by offenders on parole (and statutory release) are due to breach of conditions rather than the commission of new offences
