Inequality, Crime and Sentencing: Borde, Hamilton and the Relevance of Social Disadvantage in Canadian Sentencing Law
Description:
Reforms to the sentencing provisions of the Criminal Code in 1996 altered the law's approach to sentencing in Canada. Among these reforms was the requirement that alternatives to imprisonment be considered especially for aboriginal offenders. The Supreme Court of Canada in R. v. Gladue and R. v. Wells held that judges must determine whether the unique systemic and background factors that affect aboriginals, such as poverty, colonialism and substance abuse, have contributed to the actions of the particular offenders' actions. If they have, these factors should generally mitigate the sentences. In addition, the Court confirmed that judges must take into account the fact that traditional aboriginal sentencing practices focus on restorative justice principles and the use of community-based sanctions, rather than on incarceration, denunciation and deterrence. More recently, in R. v. Borde and R. v. Hamilton, the Ontario Court of Appeal took a similar approach to two African-Canadian offenders. Through an analysis of these cases and their impact, the author considers whether such an approach should be taken to offenders from other disadvantaged social groups. The author concludes that it should, and she argues that recognizing social disadvantage as a potential mitigating factor in the sentencing of all offenders will contribute to a fairer and more just sentencing regime. However, she acknowledges that there are mixed opinions on the matter and she identifies the heart of the debate as being over competing conceptions of the purposes of sentencing in Canada. She compares two models of sentencing--the desert model, which emphasizes the principles of proportionality and parity, and the mixed model, which allows these principles to be overridden in some cases by utilitarian concerns. The author acknowledges that there is still work to be done and questions to be answered to ensure the fairness and success of a sentencing approach that takes account of social disadvantage. She concludes by identifying the increased obligations that judges and counsel will have to meet under this approach, and by outlining other unresolved issues that the lower courts will need to address if it is to operate satisfactorily. Reprinted by permission of the publisher.
Type of Resource:
Journal
Publication Date:
2004
Volume:
30
Issue:
1
Pages:
114
Location:
Kingston