IS PUBLIC SAFETY A CONSIDERATION IN THE SENTENCING PROCESS?

by Hazel Magnussen RN (ret), B ScN, MTS
Advocate for justice reform and author: A Doctor's Calling: A matter of conscience
See website: www.doctorscalling.ca

While the debate regarding the effectiveness of tougher sentences goes on, it may be helpful to examine the principles that guide the sentencing process. The intention here is not to over-simplify a complex legal matter. However, it is to underline the importance of the process as it has far reaching implications not only for the offender but also for crime victims and the public at large. In spite of prolonged proceedings to ensure due process for the defendant in the criminal trial, the sentencing hearing itself is often given disproportionately little time and attention in the criminal justice process.

This discussion focuses specifically on public safety and the need to consider offenders' character, interest and ability to take responsibility for their crime and to benefit from rehabilitation. Such a review needs to begin with a review of the earlier stages of the criminal justice process as it unfolds in the trial and sentencing hearing.

Information regarding the defendant's history and "bad character" is inadmissible in the trial if it is considered prejudicial. Because of the right to remain silent, defendants are not required to account for their actions related to the crime. As a result, juries make their decisions without crucial information. The injustice is compounded when that information is not considered in sentencing.
The defense is allowed to vilify the victim but the victim has no voice or advocate in the trial. Later, in the sentencing hearing, victims are given opportunity to read impact statements. These statements are to be considered by the judge when determining the sentence. However, these statements, written prior to a conviction, focus on the effects of the crime on the victim and are not to include the victim's concerns about the defendant's conduct, character and the likelihood that the offender may offend again. (This is of particular significance when the offender has specifically targeted the victim.)
Legal professionals base their arguments and rulings on reason and interpretation of the law. Given the emphasis on reasoned arguments, one wonders if the court is ready and able to take into account (rather than discount or dismiss) victims' emotional expressions of pain and loss. A sentence that does not take these matters seriously is unlikely to reflect the gravity of the offence.
The Criminal Code defines the purpose and lists the principles of sentencing as follows:
Section 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that have one or more of the following objectives:

a) to denounce unlawful conduct
b) to deter the offender and other persons from committing offences;
c) to separate offenders from society, when necessary;
d) to assist in rehabilitating offenders;
e) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

It defines the fundamental principle of sentencing:

A sentence must be proportionate to the gravity of the offence
and the degree of responsibility of the offender.

The court's discretion in determining the degree of punishment is subject to limitations in the law that prescribes different degrees and kinds of sentences in respect to an offence.

Section 723 addresses the submission of facts at the sentencing hearing. That includes "relevant evidence presented by the prosecutor or the offender"

It elaborates:

(3) The court may, on its own motion, after hearing argument from the prosecutor and the offender, require the production of evidence that would assist in determining the appropriate sentence.

(4) Where it is necessary in the interests of justice, the court may, after consulting the parties, compel the appearance of any person who is a compellable witness to assist the court in determining the appropriate sentence.

That evidence might include a risk/threat assessment of the offender and the testimony of an expert witness. However, such a call is apparently left to the judge's discretion.

Section 724 states:

In determining the sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.

The clause, agreed on by the prosecutor and the offender, suggests that yet again, the offender has the right to overrule the disclosure of relevant history or character information.

Section 726 states that before determining a sentence, the offender must be given an opportunity to speak. The court is to consider any relevant information placed before it and when imposing the sentence, state the terms of the sentence and the reasons for it.
In spite of provisions within the Criminal Code, sentences can be determined without risk assessments and apparently with the assumption that offenders will cooperate and benefit from rehabilitation. Some may believe that restorative justice interventions will assist both the offender and the victim. However, the restorative justice approach works only with persons capable of taking responsibility for their crime.
Our system, it seems, places more emphasis on rights than responsibilities. Some even suggest that the Canadian Charter of Rights and Freedoms should actually be the Charter of rights, Freedoms and Responsibilities.
The subject of responsibility is especially urgent when dealing with persons with a disproportionate sense of entitlement and who predictably will not take responsibility for their criminal acts. These include persons with narcissistic or psychopathic personality disorders. In a speech at an international conference on corrections and prisons, District Court Judge E.C.P. Pratt from Queensland, Australia summarized the sentencing problem this way:
The purposes of sentencing still bring into focus, despite their flaws, the traditional theories of retribution, deterrence and rehabilitation. The basic philosophy of most countries including Australia and Canada is now rehashed as three principles: 'just desserts', proportionality and equality, a philosophy which still pays little attention to the possibility that a prisoner may be suffering from a severe personality disorder that renders him incorrigible….
We still refuse to acknowledge that there exist in each of our communities a hard core of people who can't or won't stop offending.
(Pratt, E.C.P., "The Current Criminal Justice System: How do we measure up?" Inaugural Conference of International Association of Corrections and Prisons, Budapest, Hungary, October 1999. www.courts.qld.gov.au)

Sentencing judges need to understand the dynamics of the personality disorders referred to by Judge Pratt. This knowledge is necessary in order to recognize the need for a formal assessment of the risk posed by the offender. Since judges are given discretion in their rulings, attention to these matters will vary amongst judges. Mandatory minimum sentences will ensure more consistency in some judicial rulings but will not address these other concerns.

Three major concerns become evident in this review of the sentencing process:
(1) The double standard in the criminal justice system that places the rights of the accused/offender above those of the crime victim.
(2) The limited attention and due diligence in the sentencing process. When done in haste and when crucial information is discounted, not allowed or unavailable, matters pertaining to public safety will no doubt be overlooked.
(3) The denial of the reality that some offenders cannot and will not stop offending.