Guilty. Now what?

  • April 23, 2018
  • Lauren Shadley

When it comes to criminal trials, members of the public are often too focused on the issue of whether the accused is innocent or guilty.  As a criminal defence lawyer, I have been more often drawn in by what happens at the end of the trial – the issue of sentencing.

While the factual issues underpinning the accused’s guilt or innocence might be narrow and pointed – and indeed the accused’s guilt is sometimes uncontroversial – the wide array of principles that must be considered and weighed by Crown prosecutors and by the sentencing court can give rise to a virtually limitless range of engrossing debates.

Will the defendant be sentenced to a period of incarceration with questionable opportunities for rehabilitation or will he be given a second chance? When should courts favour denunciation over rehabilitation? How and when should deterrence play a role in the analysis? Should the defendant be allowed the chance to finish school, or hold onto a job, or remain in the community – or, indeed, in the country? How best to prevent recidivism and, more fundamentally, to promote the public good and public order? I would bet that even garden-variety sentencing cases raise fundamental questions about what the law truly values and how best to effect positive change.

Law school, society, and the media at large shape the focus of the criminal trial on proving guilt. The bulk of the material taught in criminal law courses focuses on the constitutive elements of a crime, the classification of offences, the various defences available to an accused, as well as certain procedural aspects, like the basics of the preliminary inquiry and trial. Charter and evidentiary issues may provide the focus of more advanced courses. The topic of sentencing is generally considered towards the end of the typical introductory criminal law course, often leaving little time (if any) to cover the material. Part of this may be due to the fact that sentencing is often dismissed as an issue of mixed fact and law, not a likely subject for theoretical analysis in university classrooms.

Quebec’s École du Barreau, for its part, only considers evidentiary aspects of sentencing hearings, and not the principles of sentencing themselves. How to breathe life into the sentencing principles in light of real human stories is a big part of the extraordinary learning process of being a young lawyer, and this challenging and sensitive work is largely unrepresented in our formal schooling. 

While a trial might be concerned with what actually happened, the sentencing process focuses our professional attention squarely on the individual accused. And while an infraction or crime committed can be classified into a codified article, an individual's life cannot. One’s past experiences, present situation and future plans are inherently theirs alone. What an individual has lived through may explain their actions and suggest a path for rehabilitation or recovery. An individual may be the financial support for their family, or they may be surrounded by a family and community that can support them.

A person may need to work across the border or may be searching for employment that would otherwise be out of reach with a criminal record. These collateral consequences to the individual’s life must be fully appreciated at the sentencing hearing. And since all of this should be considered, a judge must retain a wide discretion to select the sentence that is most appropriate. Mandatory minimum sentences have the unfortunate consequence of limiting judicial discretion at this stage, and removing considerations and attention given to the individual circumstances. 

This focus on the individual ensures that the sentence is just and proportionate. But in order to maintain our focus where it belongs, we (e.g. both lawyers and members of the public) must avoid being tempted by the easy answers. Harper’s Conservatives, for their part, were too swayed by the simple logic of mandatory minimums, the idea that every person who committed a given crime merits a certain sentence, regardless of their individual circumstances. Courts are tempted by the easy answers when they blindly subscribe to the theory that harsher sentences will result in fewer crimes. That may be true for the bank robber or fraudster who plans out his crime well in advance, but it probably won’t be for the driver who mistakenly assumes she is safe to drive, or to the thief who simply assumes that there is no chance of getting caught.

One thing is for sure: while this area may be underrepresented in law school and in media coverage of criminal trials, it is not one that we can afford to under-analyze.

Lauren Shadley is Member-at-Large of the Criminal Justice Section