Home Free Lab ReportsIn the time of the Confederation’s 150th anniversary and the 35th anniversary of the Canadian Charter of Rights and Freedoms

In the time of the Confederation’s 150th anniversary and the 35th anniversary of the Canadian Charter of Rights and Freedoms

In the time of the Confederation’s 150th anniversary and the 35th anniversary of the Canadian Charter of Rights and Freedoms, the Department of Justice (DoJ) in Canada engaged in public consultation through various communication media. The DoJ solicited public feedback regarding areas of improvement in the Canadian judicial system (Department of Justice Canada, 2017). One of the primary concerns identified by the DoJ was increasing cases in which judges were not able to use their full discretion in appropriating sentences to the crime, being limited by the mandatory minimum sentences (MMP) structure. In violent crimes, there is no significant concern about fairness, as the minimum punishment meets the socially and judicially acceptable standards. In other cases, they impede justice, failing to consider peculiar circumstances for different cases. This alternate view regarding MMPs has been gaining support from the Canadian public over the past few decades in light of growing evidence from academic sources that question the effectiveness of the judicial sentences in achieving its stated purpose in providing safety for Canadians, deterrence of criminals and reintegration of the redeemable into society. This review discusses the potency of the MMPs accorded to violent crimes in the eyes of the Canadian public and provides an overview of research findings that discuss the topic from a procedural, societal, judicial and political point of view to assess its feasibility.
By reviewing recommendations of legal commissions from 1969 to 2000, Doob found it is not so much the appropriateness of sentence that is of concern to many Canadians. Instead, based on informed public consultations and independent polls, Canadians are more reflective and responsive towards the primary concern, flexibility of sentence. Similarly, Roberts (2003) found in similar cultural and political climates, by performing an international review of MMPs in Western nations, a flexible approach, rather than the rigidity of MMPs, allows a tailored approach to each case that takes into account the fundamental judicial principle of proportionality of sentence to crime. The approach is sound but extends similarities between Western nations to an all-encompassing model, which ignores the historical and lengthy development which may range from centuries to 150 years, Europe and Canada. However, international surveys support this methodology showing a divide between the public on this issue. The flexibility in sentencing is not aimed at reducing the sentences for violent crimes; instead, it targets cases in which the MMPs are an obstacle to justice and legal principles.
The flexibility in sentencing also reveals another aspect of the Canadian public towards court sentences, which is the trust in the integrity of the process presided over by a judge, selected based on merit and qualification. In turn, this explains the increasingly favourable attitude in polls towards the justice system (Hart, 2002). It is strongly suggested by studies and poll analytics with regards to leniency, that Canadians prefer a sentencing structure that forms a harmonious combination between statutory guidance and individual discretion (Roberts, Crutcher, ; Verbrugge, 2007). Roberts et al. (2007) selected a random pool from various social and economic backgrounds to provide reliable representation of public opinion. In comparison to other results, the public also realizes the danger of MMPs when special circumstances warrant leniency. Having established what seems to be a contradiction in the same research sample, the research further explains that MMPs are not favoured when the questions are altered to include more realistic representations of the judicial system. It seems the public agrees with academic research, rigid sentencing structures are likely to create unintended injustices.
Political Influence
This trend in public opinion, developed over the past few decades, has been steadily rising and can be hardly modelled as a spike, informed by unbalanced media reporting or mob mentality. Further raising the question about the lack of action to incorporate the findings of the academic research and national crime statistics into an updated criminal code. Roberts et al. (2007) suggest that politicians have not been in sync with the emerging new point of view of Canadians. A more thorough analysis of the role of politics in imposing punitive sentences is explored by Zimring and Johnson (2006), albeit the research was conducted in the United States. The research concludes, after establishing the 1970s as a reference point, due to the peak of crime rates, the rise of punitiveness, both in qualitatively and quantitatively collected data, can be attributed to the pressure exerted on elected officials, among them judges, to project an image of toughness that is politically advantageous. One of the researchers’ conclusions is that harsher sentences did not avert the rise in crime, and the prime motivator for legislation was political image. A motivating factor for the public to support MMPs is to eliminate any political meddling in the judicial system by those who may exert political influence in legal cases. While the research was conducted in the U.S.A, it is eye-opening on a widely ignored influencer on sentences, politics. Its relevance in Canada is to demonstrate that the appointment of judges in Canada, as opposed to their election in the U.S.A, is advantageous as it relieves the judges from political pressure. However, with political motives being similar in both North American countries, it is difficult for politicians to take reformation steps without facing the backlash of being presented as a weakling.
Increasingly, there has been a push from politicians to treat young offenders as adults, challenging the value of having separate justice systems for youths. Whereas the surveys could suggest support to this motion, it seems to be heavily dependent on the way the question is asked. For example, 73% are in favour of a trial as an adult for dangerous crime youth offenders. However, 95% have indicated it is essential to target youth rehabilitation as the prime goal of their sentence (Applegate, Davis, & Cullen, 2009). Applegate et al. hypothesized that expansion in mechanisms to transfer young offenders to adult courts in the 1990s was based on outdated and incomplete data. Several factors were identified in considering treatment of young offenders as adults, such as character, circumstances of offence, maturity and public opinion, utilizing regional samples and survey. In creating data-based correlations, this method is sound, but, could be extended to examine dangers of MMPs imposed once transferred. The importance of this survey is the apparent disconnect as evident from the high percentage of approval in both categories. This rating could be attributed to the public misinformation about the prison institution, and whether it can be used to qualify youth, living among criminal adults, to be rehabilitated. In the case of juvenile sentencing, especially minorities and indigenous youth who are overrepresented in many crime categories, as found in the study, it is evident that MMPs accomplished little.
Emotional Factors
Based on the seemingly inconsistent findings above, if taken in the abstract sense as numbers, further analysis of the underlying reasons for punitive attitude and positions from the public are needed. One reason is the misinformation about specifics of cases and about the nature of penal institutions and their capability in achieving the needed outcome of sentencing, namely deterrence, rehabilitation and requalification to enter society. It is indispensable to identify the predictors of punitiveness to examine their validity and how they measure up against the tenant of the criminal justice system, namely fairness. Exploring the role of emotions in informing public position with regards to punitive measures, data sets generated by random sampling of public opinion were modelled to correlate the punitive attitude to emotions (Hartnagel & Templeton, 2012; Wanner & Caputo, 1987). Hartnagel and Templeton (2012) measured anger by drawing on Canadian government data sets and available societal polls to test the role of anger in informing harshness, the impact of economic insecurity, victimization and internal attributions anger. With anger identified as the most likely emotional factor informing the punitive attitude of some Canadians, it is inevitable to question whether or not anger and its consequential harshness in penalty should play a role in sentencing. It is one of the Western tenants of justice to consider cases and legal situations from a dispassionate point of view, a position that is by definition in contradiction to anger and fear.
The degree of violence of the crime was identified as the dominant factor informing the emotions of those calling for harsher sentencing, as such, exposing the underlying psychological aspects that drive punitive attitude towards certain crimes (Hartnagel & Templeton, 2012; Wanner & Caputo, 1987). However, the perception of violent crimes is further investigated to reveal that it is correlated to the availability of data to the public. Wanner and Caputo’s (1987) research is interesting as it uses a multivariate model to examine emotional influences on punitive actions. The aim was to examine the trend observed about the availability of accurate information, and the public support for leniency. It correlated emotions of fear and anger to responses received and, the method provides more accuracy in assessing emotional roles on public views and accuracy and transparency of information on public opinion.
The above endeavours to correlate emotions to punitive attitudes, as well as the availability of data, questions the validity of the polls. By doing so, it leads to a specific position by asking abstract questions regarding the punishment for violent crimes. Without providing a transparent background of the certain specifics of a crime or the overall situational circumstances of the correction process, leads to skewing of the data. It does explain the findings of reports stating public opinion towards harsher sentences when the background of crime is obscure from a sociological point of view, and stressing the role of transparency and availability of data on the attitudes of Canadians towards crime penalties (Stein, 2001).
Case Studies and Juries
Advocates of harsher sentences cite two specific cases to stress their point that harsher sentences will provide more safety to the ordinary citizens, R. v. Ewanchuk, 2002 and R. v. McDonnell, 1997. These are the proceedings of two famous court cases that were decided by the same court, albeit with a five-year gap, and involved similar sentences to similar crimes of a sexual nature. As court cases, their reality is undisputed. Proponents of harsher sentences argue that the sentences handed out in both cases provide the current state of sentencing in Canadian courts for serious crimes and its incompatibility with public opinion and societal needs. It is true that the sentences in these cases were a disappointment, especially for the repeat, unrepentant offender. An argument to consider is the fact that these are not randomly selected cases to represent the whole judicial system, but the two cases originated from the same court of appeals, which might indicate a prevalent local influence and not the status of the whole Canadian system. With the nature of repeat offenders in both cases, it should also be questioned whether previous sentences did accomplish their goal. The discussion should not steer away from the primary objective of the legal system which aims to provide justice and protect society and whether stereotypes play a role in framing an offender, as suggested by research (Dawson ; Sutton, 2017). By examining many court sentences, disparities in sentencing appeared to be most common for cases that involve murdering an intimate partner, although the nature of the crime would be judged more violent and atrocious than other crimes. By showing this variation, Dawson and Sutton (2017) confirm that stereotyping might affect court sentence. Furthermore, it might explain emerging public attitudes towards violent crimes that seek to minimize the inherent danger of penalty severity by offering alternative paths to carry out justice.
One element that has not been researched enough about the penal system, is the role of the jury and their position with regards to seemingly lenient sentences in trials they were involved. As the jury is comprised of ordinary members of the public, sampled randomly after rigorous vetting to eliminate bias and emotional instability, their agreement or lack of with judges who presided over the trials is valuable (Warner, Davis, Walter, Bradfield, ; Vermey, 2011). The importance of this groundbreaking study cannot be overstated because it pioneered the use of data and feedback from the sector of the public who are most familiar with the judicial system. The large sample used by Warner et al., encompassing 138 trials, provides a better guideline to reformation of sentencing in Canada, based on merit, experience and access to information. A finding of 90% in favor of lenient sentences imposed in their cases, was indicative of the need for flexibility in Canadian courts. Further, when asked, jurors responses to the poll questions was similar to the rest of the public. This, leads to a critical evaluation of the polls based on what and how questions were asked, and whether they yield a proper representation of public opinion. This fundamental finding from members of the public who have access to the same information as the judge, shows that the polls asking for harsher sentences should be considered but also analyzed for bias stemming from lack of information.
When engaging in public discourse regarding public policy, it should be noted that the public opinion is usually informed by high-profile cases and widely publicized instances. The subject of Canadians’ perceptions of crime is an essential subject in society, as the DoJ found. In the judicial system, where many factors from diverse venues contribute to the final sentencing, it is misleading to focus on the outliers rather than taking a holistic approach. While still an influencer of public opinion, the effect of highly publicized court cases has been challenged by access to information for the public to review and form a qualified perspective from various sources. The change in public opinion with regards to the appropriateness of the sentences has occurred in parallel to the increased access and availability of information, which suggest a strong correlation between both. Public consultation is an important process of formulating public policy that is reflective of the societal needs and trends. In-depth analysis of these trends for bias should be considered as well as providing a transparent environment and access to enough information about the judicial system to inform public opinions without tilting it in a direction over the other.
However, the main focus of the research is opinion via surveys and polls rather than actual case analysis, which was surprisingly scarce. To fully understand whether the Canadian sentencing structure is in fact too lenient, further research must be conducted in comparative case studies, which break down offences into categories and sentencing outcomes.