Court report: Are the principles of sentencing fair?

Posted on August 22, 2024 by Ryan Dahlman

By Cal Braid
Southern Alberta Newspapers
Local Journalism Initiative Reporter

For accused offenders, a day in court is a day on the hot seat while everyone else in the room is considerably cooler. In every court proceeding a judge, a clerk, a duty counsellor, prosecutor, defence lawyer, and court bailiff all run the show. A few other regulars, like a rep from victim services, a court reporter, and a few curious locals spend hours sitting through the sessions as the docket unfolds. Those folks are generally at ease, but for those facing charges, there’s nothing quite like a day in court to make a body squirm.

After spending enough time as a regular onlooker in court, a spectator can begin to have legitimate questions about the process and the sentences imposed on those who are found guilty. A spectator can begin to make their own assessments of the judgements that are handed down, and those assessments are generally assigned to one of three categories: fair, unfair, or highly debatable. Fortunately, here in southern Alberta, many fair men and women occupy the elevated judge’s seat at the head of the room. In July 2024, the Hon. Justice J.N. LeGrandeur took the time during a July sentencing in Taber to explain with absolute clarity why he was dismissing a plea for a lesser sentence from a guilty man’s lawyer, and instead sending the man straight from the courtroom to jail for nine months. The man pleaded guilty to breaking and entering and the theft of a huge sum of cash.

On that day in court, LeGrandeur, a longtime justice in southern Alberta, heard the arguments from the prosecution and the defence and then called for a recess, bringing the hearing to an abrupt halt. From a spectator’s point of view, the recess seemed to reflect the judge’s knowledge that he needed a few minutes to make a crucial decision. When he returned, he said, “My obligation is to consider this individual in terms of this offence, this community, and sentencing principles. Denunciation and deterrence are often the primary factor in sentencing, or are weighed equally with rehabilitation and restraint.”

The court is obliged to consider several factors in sentencing. “In particular, the uniqueness of the individual as well as the circumstances of the offence,” LeGrandeur said, somewhat surprisingly. The uniqueness of the individual?

“Those things translate into the gravity of the offence–what’s the seriousness of the offence? That’s a relative assessment,” he explained.

He explained further, saying, “What’s the moral culpability of the offender and what unique circumstances drive that individual? There is not one fit sentence for any one offence (and) because they’re individually based, it’s difficult to find anything that matches an individual circumstance.”

This explanation was fascinating for a couple of reasons. First, the judge was not simply going by the book, he was making an admission of a dynamic process that required flexible thinking. Second, he was acknowledging that the guilty offender was an individual whose motivations and circumstances warranted consideration.

Justice LeGrandeur and others in his position are bound by the elements of sentencing, which are manifold. Along with crime prevention, the fundamental purpose as set out in the Canadian Criminal Code, Section 718, is “to contribute…to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.”

Six objectives are in play and sentencing can apply to one or more of the six. They are: denunciation, deterrence, separation, rehabilitation, reparation, and offender-victim-community restoration. The Code also states, “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

There are five additional sentencing principles which judges must also take into consideration: increased or reduced sentences due to aggravating and mitigating circumstances; the principles of parity, totality, and the least restrictive sanction; and restraint in the use of imprisonment, with particular attention to the circumstances of Aboriginal offenders.

One thing to keep in mind is the principle of restraint in the use of imprisonment. It’s viewed as almost a last resort, and for good reason. Sentencing an offender to a jail term is basically the equivalent of stripping every shred of autonomy away from them. Anyone who’s visited a friend or family member in a correctional centre knows this. The guilty offender loses his or her right to freedom and is stuck in a steel and concrete unit where their life of confinement is limited to meager food, minimal activities, and restless thoughts in a hostile environment.

On the other side, victims are similarly subjected to feelings of indignation, isolation, violation, or devastation. Lives can be destructively altered as the result of a singular crime. A victim’s worldview can be disrupted and their sense of safety and security can be permanently damaged.

Watching as offenders are escorted out of court into custody can be unpleasant at times. They each display different cues that signal their emotions, be it fear, resignation, defiance, or despair. Family members and friends watch it all unfold and wince, frown, hang their heads, or cry.

However, to many, the rules of sentencing can seem to present an imbalance when weighing the rights of the offender against the rights of the victim. The offender is entitled to the least restrictive sanction under the rule of law, but that very rule can leave the victim feeling doubly harmed, first by the crime and then by a seemingly unjust court ruling.

In the case of the July sentencing, Justice LeGrandeur said, “I’m fully aware of his scenario,” referring to the offender’s personal history and extensive criminal record. “Drug-addicted, drug-driven, I would suspect that the vast, vast majority of his criminality is drug-driven. No matter how the drugs help him, I’m sure that he would prefer not to be using the drugs to help him live his life. The problem is I have these offences and a huge history. I think he will commit more offences. I don’t know whether it’s going to be break and enters or other offences that drive the issue of money for drugs, but that’s where it comes from.”

“Rehabilitation is a factor for consideration, (but) I’m more inclined to think that a period of custody is more rehabilitative for him than not. That’s unusual for me to say, but he needs to be separated to get a start, and if it’s meaningful, it’s meaningful,” the judge said.

Some think the Canadian justice system is soft and cushy and say, ‘Lock ‘em up and throw away the key!’ But it’s a delicate balance, and that’s why justice must be carried out by judges who are impartially fair. Once an offender walks through the door of a detention centre for any kind of lengthy stay, their mentality can undergo a drastic change for the worse, leading to a pattern of recidivism upon release. On the flip side, once an individual has been victimized, the damage can’t be undone, and for that reason harsher penalties are approved of by many as the best form of denunciation.

That leaves the judge on a hot seat of his own as he weighs and measures the fate of lives that are hanging in the balance.