How judicial discretion impacts sentencing in criminal cases

While sentencing can be controversial, most lawyers think judges get it right

How judicial discretion impacts sentencing in criminal cases

For many Canadians, the factors courts use to determine the sentence for a criminal offence can be a bit of mystery. While judges have a degree of discretion in sentencing criminal offenders, they operate with several restrictions. For example, judges must adhere to any written laws that may provide a minimum or maximum sentence for certain offences. Appeal courts can also overturn their decisions in certain circumstances.

While judges should not be swayed by public sentiment in individual cases, a strong reaction from the public can have long-term effects by causing the government of the day to pass more restrictive laws binding judges down the road. Subsequent governments can also find it politically difficult to reverse these laws.

Why is judicial discretion important?

Judges must consider several factors when determining a sentence, and the decision is rarely a simple exercise. However, they are usually best placed to weigh all of the necessary elements.

The judge may increase or decrease a sentence to account for aggravating and mitigating factors relating to the offender or the offence. An aggravating factor is something that increases the penalty, such as the offender's criminal record. A mitigating factor decreases the sentence. For example, if it is the first time an offender has been found guilty of an offence. Judges also consider how a sentence will serve to denounce unlawful conduct, discourage further crimes, separate offenders from society where necessary, assist in rehabilitation, provide reparations to victims and promote a sense of responsibility for offenders.

While judges are trained to weigh these factors fairly, there can be a downside to discretion since judges are human. That means that you can have “essentially identical cases [that] have identical kinds of circumstances, and one gets a more lenient judge than another,” says Anthony Doob, a professor at the Centre for Criminology and Sociolegal Studies at the University of Toronto.

Do judges have unlimited discretion?

While judges can award a wide range of sentences, their discretion is not unlimited.

“It's never been an unlimited discretion to do whatever they want,” says Michael Spratt, a criminal lawyer in Ottawa. “Historically, the common law, the operation of precedent, and the opinions of appeal courts have limited what types of sentences judges can impose and what range of sentences judges can consider.”

Common law refers to previous court decisions where judges have ruled in similar circumstances.

In addition to the common law and the potential of being overturned on appeal, judges are bound by legislation. Laws may provide a minimum or maximum sentence for certain offences.

Where a person is convicted of an offence, and the court imposes a sentence of fewer than two years' imprisonment, the court may order that the sentence be served in the community, with certain conditions, instead of jail. However, a conditional sentence is not available where the offender is sentenced for an offence punishable by a mandatory minimum penalty, for certain crimes punishable by a maximum term of imprisonment of 10 years, and all offences punishable by a maximum term of 14 years imprisonment or life imprisonment.

Are cases decided by discretion often overturned?

“Very few cases are appealed to the court of appeal,” says Doob. “Most of that is because the negotiation is going on between the Crown and defence counsel or somebody representing the defence counsel.”

However, in certain extreme cases, an appellate court may overturn a trial judge’s sentencing decision.

“Historically, it's through the operation of appeal and review that we make sure that there is a uniform, fair, but also effective sentencing process,” says Spratt. However, “our appeal courts recognize that judges who have heard all of the facts, who have seen the offender and who are intimately aware with the specifics of a case [are] in the best position to impose the most appropriate sentence.”

How do Canadians see judicial discretion?

According to a research study conducted in 2018 by the government on discretion in sentencing, 95 per cent of Canadians feel that the best approach for determining fair and appropriate sentences for offenders involves giving judges at least some degree of discretion.

While Canadians respect the importance of judicial discretion, high-profile cases of criminals getting sentences perceived to be short can cause public outrage. This outrage can result in governments enacting laws that restrict judicial discretion for serious offences.

Judges are also bound by maximum sentences, although they rarely give offenders the maximum sentence. However, that can also mean that in high profile cases, the public may see a sentence as lenient because it is far below the maximum sentence, “even though in reality, compared to everybody else, it might be a really harsh sentence,” says Doob.

How do lawyers feel about judicial discretion?

Like all Canadians, lawyers have a wide range of views. However, most lawyers agree that legislative minimums on sentencing — called mandatory minimum sentences — can often be driven more by politics than common sense. In other words, judicial discretion is unnecessarily restricted.

“It's long been known by academics, by researchers and by people who actually practise in the trenches of our criminal justice system that the severity of punishment doesn't stop people from committing crimes, especially when you're dealing with crimes that are driven by addiction or mental health issues,” says Spratt.

“By employing the discretion of a judge to impose the appropriate sentence in the specific case before them, it allows that sentence to better achieve all of the goals of sentencing, including deterrence, rehabilitation, and denunciation.”

The rule of law vs discretionary authority

The rule of law is an important principle that counterbalances the personal preferences of individual judges, but for most lawyers, the vast majority of judges get it right.

“The problem [is] usually not that judges have too much discretion. It's that discretion, especially over the last number of decades, has been unduly constrained,” says Spratt, who supports the reform of mandatory minimum sentences.

The Supreme Court of Canada has overturned several mandatory minimum laws enacted by the Liberals in the 1990s and the Harper government in the 2000s. For example, in the 2015 case of R. v. Nur, the majority of the court found that a mandatory minimum sentence was unconstitutional. In the 2019 case of R. v. Boudreault, the same court provided a “very robust analysis of how minimum sentences can impact certain populations more than others,” says Spratt.

In other words, Canada’s top court has reiterated that giving judges discretion in many cases is not contrary to the rule of law but that unduly restricting judicial discretion is.

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