The Deterrence Dilemma: Is it Time for Canada to Abandon General Deterrence as a Sentencing Objective?

by Caitlin Salvino, JD, MPhil, DPhil, winner of the 2024 Criminal Justice Section's student essay contest.

I. Introduction

Christopher Pretula is a forty-four-year-old man living in Hamilton, Ontario.¹ By all accounts, Mr. Pretula has experienced significant hardship in his lifetime. At the age of 22 he was shot.² In subsequent years he worked towards becoming sober, got married, and had three children. Tragically, his first-born son died from cancer.³ Mr. Pretula also lives with multiple sclerosis and relies on social assistance.⁴

In 2022, Mr. Pretula was recording a livestream video on a Hamilton bus when a mother and her two sons boarded.⁵ Without provocation, Mr. Pretula said to one of the sons: “what is your pronoun dipshit; your pronoun is [disability-related “R” word] … I don’t know what this goofball transformer looking thing is.”⁶ He also says to the mother while gesturing towards one of the sons: “what is this? Your son or daughter? What is it?”⁷ As Mr. Pretula was leaving the bus, one of the son’s feet invertedly touched him and he proceeded to kick him “with considerable force” three times.⁸ He then held his closed fist to the son’s face telling him “do it again…kick me again.”⁹

Two days later, he was arrested and charged with assault and uttering a threat.¹⁰ He subsequently plead guilty to assault and breaching his bail conditions.¹¹ During his sentencing hearing, Justice Amanda Camara of the Ontario Court of Justice (OCJ) sentenced him to 6 months in custody for the assault and 45 days in custody for the breach of the bail conditions – to be served consecutively.¹² This sentence of 7.5 months extended beyond the Crown’s request of 4 to 6 months in custody.¹³

In making her ruling, Justice Camara deemed Mr. Pretula’s behaviour “obnoxious, offensive and disgusting.”¹⁴ Central to her analysis was the sentencing objective of deterrence – both at a general and specific level. She rejected the notion that this incident was a “fluke” or a “one-off” incident because Mr. Pretula has continued to livestream his behaviour and plans to continue to do so upon his release.¹⁵ Further, based on his history bail condition breaches, she determined that “community-based sentences would not and have not had a deterrent effect upon him.”¹⁶ Drawing on the sentencing objective of general deterrence, she also indicated that Mr. Pretula’s heightened sentence was intended to deter other potential future offenders in the community by “send[ing] a message to other like-minded individuals that this type of hate and violence will not be condoned in our community.”¹⁷

While there are many aspects of this decision that warrant deeper analysis – I will focus on the use of general deterrence as a sentencing objective. Mr. Pretula’s case illustrates the application of general deterrence in the contemporary sentencing context. By relying on the sentencing objective of general deterrence, Justice Camara justified her decision to sentence him to a longer period of incarceration on the basis that it would send a message and deter future similar crimes. This article will engage directly with this decision’s use of the sentencing objective of general deterrence and question its use in criminal sentencing.

When Canada first codified its sentencing framework in the Criminal Code, Parliament included deterrence as a sentencing objective.¹⁸ This sentencing objective of deterrence encompasses two aspects: (1) specific deterrence of the individual offender and (2) general deterrence of other potential offenders. While sentencing Mr. Pretula, Justice Camara drew on both specific and general deterrence to inform her ultimate decision to sentence him to 7.5 months in prison.¹⁹

Through this paper, I engage with the concept of general deterrence and its incorporation into Canadian sentencing law. I argue that Parliament should abandon general deterrence as a sentencing objective under the Criminal Code. Since 1996, when general deterrence was first codified as a sentencing objective, there have been empirical, critical theory, and equality-related developments in approaches to sentencing that necessitate a revisiting and ultimately, I argue, a removal of general deterrence as a sentencing objective under the Criminal Code.

The structure of this paper is divided into three-parts. First, I present the concept of general deterrence, including a review of its philosophic foundations and its incorporation within Canada’s sentencing law. Second, I review the jurisprudence on general deterrence. This review will be two-fold. In the first part, I review the jurisprudence on decisions by appellate courts. In the second part, I conduct a systematic review of Ontario sentencing decisions reported on CanLii in the past year (2023-2024) to evaluate the application of general deterrence as a sentencing objective. Third, I present my argument that Parliament should repeal general deterrence as a sentencing objective under section 718(b) of the Criminal Code. My overarching argument is two-fold: (1) research demonstrates that general deterrence is ineffective at reducing crime and (2) the application of general deterrence as a sentencing objective could exacerbate systemic race-based discrimination in sentencing. After presenting my arguments, I conclude by proposing a way forward for Parliament to amend the Criminal Code.

II. The Concept of General Deterrence and its Role as a Sentencing Objective

In the criminal context, deterrence refers to “the omission of a criminal act because of fear of sanctions or punishment.”²⁰ Deterrence theory presumes that all individuals are rational actors with autonomy to balance the potential benefits and consequences of a criminal act. Potential benefits include tangible financial benefits, as well as intangible benefits, such as expressing anger, establishing dominance, or thrill-seeking.²¹ Potential consequences include personal risk of injury, shame or regret, and most relevant to this paper, penal consequences imposed by the State.²²

In the Canadian sentencing context, deterrence refers to “the imposition of a sanction for the purpose of discouraging the offender and others from engaging in criminal conduct.”²³ Within Canadian sentencing law, deterrence consists of two distinct concepts: (1) specific deterrence and (2) general deterrence. Specific deterrence refers to imposing a criminal sanction to deter the specific individual being sentenced from committing another offence after their sentence completes.²⁴ General deterrence refers to imposing a criminal sanction to deter others who are not the individual being sentenced from committing a similar criminal act.²⁵ Both specific and general deterrence are codified as a sentencing objective under section 718(b) of the Criminal Code.²⁶

Although the imposition of sanctions for criminal convictions will naturally deter others from committing prohibited acts, the Supreme Court of Canada (SCC) has distinguished general deterrence as a sentencing objective from the natural deterrent effects of the criminal law. In R v B.W.P., the SCC emphasized this distinction by clarifying that “when general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity.”²⁷

In the remainder of this section, I trace the philosophic underpinnings of deterrence theory. Following this philosophic analysis, I review the incorporation of general deterrence as a criminal sentencing objective.

a. Tracing the Origins of Deterrence as a Sentencing Objective

The concept of deterrence first emerged in the 18^th century. The origins of deterrence theory²⁸ can be traced back to two European theorists: (1) the Italian theorist Cesare Beccaria²⁹ and (2) the English theorist Jeremy Bentham.³⁰

Beginning with Beccaria, he first introduced principles that form the foundation of deterrence theory in his 1764 book “On Crimes and Punishments”.³¹ Beccaria was deeply opposed to the cruelty and retribution that dominated criminal punishment in the 18^th century, such as torture, convictions without trials, and the imposition of cruel and disproportionate punishments.³² To him, these practices were misguided, not only because of their brutality but also because of their irrationality. His theories on criminal punishment arose out of his concerns surrounding irrationality – with the overarching goal of making the imposition of criminal punishment more rational and by extension more effective.³³

Pursuing this goal of a more rational approach to criminal punishment, Beccaria introduced several principles that ultimately formed the foundation of early deterrence theory. At the outset, Beccaria based his analysis on rational choice theory, whereby he presumed that all humans are rational actors who act only in their self-interest, which he refers to as “the despotic spirit…in every man.”³⁴ To him, the motivation to commit crimes was inherently linked to a person’s self-interest because he presumed that if an individual can benefit from the commission of a criminal act, they are likely to commit it.³⁵ As such, he reasoned that to prevent crimes, the State must impose punishments for the commission of crimes to off-set their perceived benefits.³⁶ Through this approach, State punishment becomes a weighty factor to consider in a person’s rational balancing of whether to commit a criminal act.

Beccaria reasoned that there are 3 elements of criminal punishment that contribute to its deterrent effect: (1) certainty, (2) swiftness, and (3) the imposition of a proportionately severe punishment.³⁷ If all three elements of criminal punishment were met, he argued that the risk of State imposed punishment would weigh heavily in an individual’s decision on whether to commit a criminal act. Notably, even at this early stage of the development of deterrence theory, Beccaria theorized that the severity of punishment is the least effective element of achieving criminal deterrence. Instead, he argued that deterrence is better achieved through punishment that is certain and imposed relatively quickly.³⁸

Two decades later, the utilitarian theorist Jeremy Bentham developed a deeper analysis of human behaviour that continues to inform deterrence theory.³⁹ In his book “The Principles of Morals and Legislation”, Bentham theorized that humans make choices by calculating opposing pains (consequences) and pleasures (benefits).⁴⁰ He argues that “nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is to them alone to point out what we ought to do, as well as determine what we shall do.”⁴¹ His approach to human decision-making was significantly more developed than Beccaria’s. He identified four sources of pleasure and pain: physical, political, moral, and religious sources.⁴² Drawing on his overarching utilitarian theory, he argued that all human behaviour is guided by the pursuit of maximizing happiness by achieving pleasures and avoiding pains, as well as ensuring that the former offsets the latter.⁴³

Following the development of its early theoretical foundation in the 18^th century, criminal deterrence theory underwent a 200-year hibernation.⁴⁴ From the 18^th century until the late 1960’s, deterrence theory fell out of favour among criminal theorists. During this period, deterrence theory was overshadowed by theories centered on the biological determinants of crime, such as “pathological deficiencies.”⁴⁵

Deterrence theory experienced a modern revival in the late 1960’s following influential articles by the economist Gary Becker⁴⁶ and the sociologist Jack Gibbs⁴⁷ who questioned claims of biological causes of crime and presented their own research in support of deterrence theory. Becker and Gibbs’ research jumpstarted the revival of deterrence theory in criminological research. In the subsequent 7 decades there has been a proliferation of empirical research evaluating the links between criminal punishment and the reduction of crime.⁴⁸ This increased research interest in deterrence theory has had impacts beyond academic circles to influence sentencing policy. In the following section, I review Canada’s sentencing regime and its incorporation of deterrence theory.

b. Incorporating General Deterrence into Canadian Sentencing Law

Since the inception of Canada’s Criminal Code in 1892, criminal sentencing has always been a highly individualized process with significant discretion accorded to trial judges. From 1892 to 1996, the only legislative guidance provided to sentencing judges was the minimum and maximum sentences listed in each individual offence.⁴⁹

To fill this guidance gap, Canadian judges developed their own common law that identified a set of sentencing purposes whose “respective importance…will vary according to the nature of the crime and the circumstances of the offender.”⁵⁰ Within this common law approach, general deterrence became “a favourite purpose of Canadian trial judges.”⁵¹ The rise of deterrence in Canadian sentencing decisions was influenced by its increased academic popularity.

Ultimately, this common law approach to sentencing led to high incarceration rates – with Canada having the 3^rd highest incarceration rate on a per capita basis in 1990.⁵² In 1996, partially in response to these high incarceration rates, Parliament amended the Criminal Code to codify a sentencing framework. This significant sentencing reform was preceded by a series of reports⁵³ that culminated in the creation of a one-time federal Sentencing Commission tasked with studying and reporting on sentencing guidelines. In 1987, the Commission published its penultimate report “Sentencing Reform: A Canadian Approach” criticizing Canada’s existing approach to sentencing and recommending wide-ranging reforms to Canada’s sentencing regime, including enacting comprehensive legislative guidance on sentencing.⁵⁴

Notably, the Sentencing Commission criticized the use of general deterrence within individualized sentencing. Their report stated that the “evidence does not support the notion that variations in sanctions (within a range that could reasonably be contemplated) affect the deterrent value of sentences. In other words, deterrence cannot be used, with empirical justification, to guide the imposition of sentences.”⁵⁵ Despite, this direct critique of deterrence by the Sentencing Commission, Parliament ultimately incorporated deterrence as a sentencing objective in its newly enacted regime.

In 1996, Parliament amended the Criminal Code⁵⁶ and codified comprehensive sentencing guidance that has largely gone unchanged over the past 28 years.⁵⁷ As of 2024, Canada’s legislative sentencing regime is encapsulated between sections 716 to 751 of the Criminal Code.

As it relates to deterrence, section 718 [and its subsections (a) to (f)] requires judges to “contribute to respect for the law and the maintenance of a just society by imposing sanctions that have one or more” of the 6 listed objectives of denunciation, specific and general deterrence, separation of offenders from society, rehabilitation, reparations, and to promote a sense of responsibility and acknowledgement.⁵⁸ Deterrence is explicitly listed as a sentencing objective under section 718(b), which permits sentencing to fulfill the objective of “deter[ing] the offender and other persons from committing offences.”⁵⁹ The SCC has emphasized that “no one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case.”⁶⁰ However, a series of amendments to the Criminal Code in 2005,⁶¹ 2009,⁶² 2015,⁶³ and 2019⁶⁴ have identified some offences where deterrence and denunciation weigh more heavily.⁶⁵

While considering the relevant sentencing objectives, judges must also consider other provisions including those relating to proportionately as the fundamental principle of sentencing,⁶⁶ aggravating or mitigating circumstances,⁶⁷ the parity principle,⁶⁸ the restraint principle,⁶⁹ and the special provision under section 718.2(e) requiring judges to consider all other reasonable sanctions other than imprisonment for all offenders, with “particular attention to the circumstances of Aboriginal offenders.”⁷⁰ Sentencing judges continue to be accorded significant discretion to fashion an appropriate sentence balancing these provisions.

Notably, when Parliament created a new youth sentencing regime in 2003, they explicitly left out general deterrence as a sentencing objective. In B.W.P., the SCC confirmed that trial judges cannot consider the objective of general deterrence when sentencing young offenders.⁷¹

Beyond its role as a sentencing objective for adult offenders, general deterrence has heavily influenced the adoption of mandatory minimums.⁷² When passing mandatory minimum legislation, deterrence is often identified as a key justification for their imposition.⁷³

In sum, the concept of general deterrence in criminal sentencing has a long history dating back to the 18^th century. After undergoing a 200-year hibernation, the concept of general deterrence re-emerged in the academic literature – with implications on sentencing policy. In Canada, general deterrence has played a central role in criminal sentencing both before and after the 1996 Criminal Code reforms. Now, general deterrence forms one of the legislative sentencing objectives for all offences and weighs more heavily for certain offences.

III. General Deterrence in Canadian Sentencing Jurisprudence

Since the codification of Canada’s sentencing framework, the courts have applied general deterrence as a sentencing objective. In this section I review the appellate and sentencing court jurisprudence on general deterrence. This analysis will be pursued at two levels. First, I review appellate court jurisprudence on general deterrence in sentencing. Second, I conduct a systematic review of sentencing decisions in Ontario to analyse the current application of general deterrence by courts of first instance.

a. Appellate Jurisprudence on General Deterrence

Appellate courts have a contradictory record with general deterrence. While recognizing its weak empirical basis, the SCC and (particularly) provincial/territorial appellate courts have emphasized that trial courts must continue to apply it.

Beginning with the SCC, Canada’s apex court has explained that “when th[e] objective [general deterrence] is being pursued, the offender is punished more harshly in order to send a message to the public or, in other words, to serve as an example.”⁷⁴ The SCC has emphasized throughout its jurisprudence that sentencing is a highly individualized process and appellate courts should accord significant deference to trial judges who have the benefit of witnessing the offender, evidence, and (if applicable) victims directly.⁷⁵ In the context of general deterrence, the SCC has emphasized that sentencing judges retain discretion “to reasonably conclude that [a] particular blend of sentencing goals” is appropriate.⁷⁶

Despite this emphasis on trial judge discretion, the SCC has repeatedly questioned the assumed link between increased criminal punishment and reduced crime at a community level. In R v M. (C.A.), less than a year after the codification of Canada’s sentencing framework, Chief Justice Lamer on behalf of a unanimous SCC cited critiques of deterrence theory by the Sentencing Commission and noted “the existence of some empirical studies which question the general deterrent effect of sentencing.”⁷⁷ In R v Proulx, Chief Justice Lamer again warned that “judges should be wary … of placing too much weight on deterrence when choosing between a conditional sentence and incarceration” because “the empirical evidence suggests that the deterrent effect of incarceration is uncertain.”⁷⁸ In B.W.P., Justice Charron on behalf of the unanimous SCC further recognized that there is “much controversy on whether [general deterrence as a sentencing objective] works or not” but ultimately deemed that “the question [of] whether general deterrence works or not is not the issue before this Court.”⁷⁹ More recently, the SCC acknowledged in R v Nur and R v Bissonnette that the perceived link between higher sentences and reduced crime has been questioned by researchers.⁸⁰

Provincial appellate courts have provided more targeted guidance to trial courts on applying general deterrence. In R v Wismayer, Justice Rosenberg on behalf of a unanimous Court of Appeal for Ontario, found that the application of general deterrence to incarcerate an offender “should be used with great restraint” and be “reserved for those offences that are likely to be affected by a general deterrence effect.”⁸¹ Following Wismayer, provincial/territorial appellate courts (and sometimes the SCC) have increasingly recognized categories of offences where general deterrence should be a primary consideration, including: driving under the influence,⁸² firearms offences,⁸³ large scale fraud,⁸⁴ drug trafficking,⁸⁵ intimate partner violence,⁸⁶ and criminal harassment.⁸⁷

In addition to identifying general deterrence-related offences, appellate courts have also significantly limited a trial judge’s discretion to not apply general deterrence as a sentencing objective because of its weak empirical basis. Appellate courts in Ontario,⁸⁸ Saskatchewan,⁸⁹ and Alberta⁹⁰ have all required trial courts to apply general deterrence in sentencing to reflect the legislature’s will, despite the sentencing judge’s skepticism of its effectiveness.

b. Treatment of General Deterrence by Courts of First Instance

To compliment my analysis of appellate court decisions, I conducted my own empirical analysis of all reported Ontario decisions in the past year. The goal of this systematic review is to identify court of first instance trends in applying general deterrence as a sentencing objective. This empirical review seeks to fill an existing research gap. To date, there have been no comprehensive empirical reviews of the application of general deterrence in Canadian sentencing decisions.

i. Systematic Review Methodology

In my analysis of trial court criminal sentencing, the systematic review focused on all Ontario sentencing decisions in the past year. The systematic review was conducted using the public legal database CanLii⁹¹.

The initial search terms inputted into CanLii were: “‘general* /s deter*’ OR ‘dissua* s/ génér*’”.⁹² The search terms captured all trial court sentencing decisions in the past year where the objective of general deterrence was referenced. The search terms include a combination of English and French words to capture sentencing decisions in both official languages. I also filtered the search to the categories of: (1) sentencing decisions, (2) decisions by the OCJ and the Superior Court of Ontario (ONSC), and (3) decisions between the dates of January 1, 2023 to January 1, 2024.

Overall, there are 308 criminal sentencing decisions reported on CanLii in 2023-2024. The combination of the above general deterrence related search terms resulted in 211 entries to review.

Following this initial search, I created a set of inclusion criteria to review the remaining entries. The inclusion criteria were:

1. The case must be a sentencing decision from a court of first instance. Appeals were excluded.
2. The case concerns an adult offender being sentenced individually under the Criminal Code. Cases concerning non-criminal regulatory offences, youth offenders, co-accused, and dangerous offender or long-term supervision orders were excluded.
3. The case engages the sentencing objective of general deterrence in the context of the individualized sentencing of the offender. A decision that only references general deterrence when summarizing the legislative framework were excluded.

The total 211 CanLii search entries were reviewed in three stages, resulting in a total of 141 cases meeting all inclusion criteria. First, 3 cases were screened out for being an appeal. Second, a further 12 cases were screened out for failing to meet the second set of inclusion criteria. Finally, 55 cases were screened out for not specifically applying general deterrence in the context of the individual offender’s sentencing. For a comprehensive list of the 141 cases reviewed, see Appendix A.

With these remaining 141 cases, the following information was recorded:

1. The date of the court of first instance decision.
2. The convicted offence and sentence imposed.
3. If specific deterrence was referenced in addition to general deterrence in the individualized sentencing of the offender.
4. If the analysis of general deterrence was combined with the sentencing objective of denunciation.
5. If the judgment identified categories of offences where general deterrence was identified as an objective that weighs more heavily.

ii. Systematic Review Limitations

The primary limitation of my systematic review is that it is an incomplete review of all Ontario sentencing decisions in 2023-2024. To conduct my analysis, I used CanLii, which comprises only reported sentencing decisions. As explicitly stated on both the OCJ and the ONSC websites: “the CanLII website is not an exhaustive source of judgments.”⁹³ For example, Justice Camara’s OCJ sentencing decision concerning Mr. Pretula discussed in this paper’s introduction, is not currently reported on CanLii.⁹⁴ Consequently, the CanLii database, and by extension my systematic review, is limited only to the decisions that were publicly reported, as opposed to all sentencing decisions rendered in Ontario.

iii. Systematic Review Results

The systematic review provided important empirical evidence on the recent application of general deterrence by sentencing courts in Ontario. The overall results reveal significant overlap between the sentencing objectives of denunciation and general deterrence, as well as a pattern of automatically attaching general deterrence to categories of offences.

My systematic review results reveal four overarching trends. First, of the total 141 cases that meet the inclusion criteria, over half (74 cases or 52.5%) reference specific deterrence in addition to general deterrence. These results demonstrate that often a sentencing judge’s general deterrence analysis is linked to and/or collapsed with considerations of whether a higher sentence will also deter the individual offender in the future.

Second, there is significant overlap between the sentencing objectives of general deterrence and denunciation. Denunciation is another sentencing objective identified under section 718(a) of the Criminal Code. When applied, this objective is intended to “denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct.”⁹⁵ The systematic review results revealed that general deterrence is often referenced in combination with denunciation. Specifically, of the 141 cases reviewed, 110 (78%) collapsed the application of deterrence and denunciation and did not further analyse general deterrence independently. Of the 31 cases (30%) that do analyze general deterrence independently, 22 cases (71% of the 31 cases or 15.6% of the total 141 cases) also reference the objective of denunciation in the sentencing analysis. Thus, there are only 9 cases of the 141 (6.4%) that rely on the sentencing of objective of general deterrence without reference to denunciation (See Chart 1).

2023-2024 Ontario Sentencing Approaches to General Deterrence and Denunciation Objectives

Chart 1: A chart demonstrating the link between the application of the sentencing objectives of general deterrence and denunciation.

Third, there is a discernible pattern of sentencing judges automatically attaching general deterrence to categories of offences. A review of the 141 cases revealed that 63 of them (44.7%) applied general deterrence automatically because of the category of offence committed. There are 10 categories of offences in the results where general deterrence was weighed more heavily solely because of the type of offence committed (See Table 1).

Finally, although rare, I identified 3 decisions (2.1%) where the judge questioned the effectiveness of general deterrence.⁹⁸ Of particular note, is Justice Fergus ODonnell’s decision in R v Smith where he explicitly questions the effectiveness of general deterrence as a sentencing objective, noting that “having kept an open ear on this issue for decades, I have yet to come across any convincing evidence that general deterrence from the severity of sentences actually works.”⁹⁹ However he goes on to conclude that he “cannot entirely dismiss [the application of general deterrence], logical or illogical, proved or unproved, because the Court of Appeal and the Criminal Code do not allow that option.”¹⁰⁰

In sum, my systematic review suggests that there is significant overlap between the objectives of general deterrence and denunciation, as well as specific deterrence. Further, almost half of the applications of general deterrence were through an automatic attachment to certain categories of offences. These empirical findings will inform my overarching recommendation that general deterrence is repealed as a sentencing objective.

IV. Abandoning General Deterrence as a Criminal Code Sentencing Objective

Turning now to my argument, Parliament should abandon general deterrence as a sentencing objective under section 718(b) of the Criminal Code. Since 1996, when general deterrence was first codified as a sentencing objective, there have been empirical, critical theory, and equality-related developments in approaches to sentencing that necessitate a revisiting and ultimately, I argue, a removal of general deterrence as a sentencing objective.

My argument is two-fold. First, there is no evidence to support the general deterrence assumption that imposing a more severe punishment will deter others from committing crimes. Second, the application of general deterrence as a sentencing objective could exacerbate systemic race-based discrimination in sentencing. I will address each in turn.

At the outset, I emphasize that my argument is founded in a law reform approach. I am proposing that general deterrence be removed from the Criminal Code by way of legislative amendment. This argument is distinct from one based on constitutional arguments. While I recognize that the application of general deterrence as a sentencing objective may unjustifiably infringe sections 7 (on the right to life, liberty, and security of the person), 12 (prohibiting cruel and unusual punishment) and 15 (on equality) of the Canadian Charter of Rights and Freedoms – this analysis is beyond the scope of this paper.

a. A Failed Objective: The Ineffectiveness of General Deterrence in Sentencing

General deterrence as a sentencing objective is ineffective at deterring other potential offenders from committing similar criminal acts in the future. An evidence-based approach to sentencing points against the continued existence of general deterrence as a Criminal Code sentencing objective.

In the sentencing context, general deterrence as a sentencing objective must be distinguished from the natural deterrent effects of the criminal justice system as a whole. As recognized by the Canadian Sentencing Commission in 1987, the penal system has a natural deterrent effect on populations. This natural deterrent effect of the criminal justice system is different from the intended effects of general deterrence as a sentencing objective that punishes an individual more severely to send a message to other potential future offenders.¹⁰¹ For the purposes of this paper, I accept the natural deterrent effects of the imposition of criminal punishments. My analysis instead questions the effectiveness of imposing higher sentences to send a message to other potential offenders.

Modern empirical research shows a tenuous and arguably non-existent link between increased punishment and reduced crime. When deterrence theory was first formulated by Beccaria in 1764, he noted that the severity of the punishment was less likely to deter other offenders compared to the punishment’s certainty and swiftness.¹⁰² Despite these early doubts, when deterrence theory experienced an academic revival in the 1960’s, policymakers latched on punishment severity as a primary vehicle to reduce crime. These general deterrence policy approaches led to increased adoption of the death penalty and three strikes laws in the United States¹⁰³ and in Canada formed the basis of the initial adoption of general deterrence as a sentencing objective, as well as the justification for the passing of mandatory minimums.¹⁰⁴

In spite of the widespread adoption of general deterrence by policymakers, researchers have questioned its effectiveness for decades. Following the initial revival of general deterrence in the 1960’s, researchers quickly sought to empirically study whether the purported benefits of increased sentences had any real-life merit. This academic interest led to a series of studies finding no correlation between differences in crime rates in jurisdictions with and without tough on crime policies and/or the death penalty.¹⁰⁵ These initial crime rate studies were followed with an explosion of more sophisticated studies that examined a broader set of variables evaluating links between criminal punishment and human behaviour. These more sophisticated studies overwhelming disproved the assumption that increased punishment severity has a deterrent effect on other offenders.¹⁰⁶

While a review of the hundreds of empirical studies on general deterrence is beyond the scope of this paper, there are several studies that have already collectively reviewed the available data. For example, while preparing its final report, the Canadian Sentencing Commission undertook a 3-year extensive review of the existing literature on general deterrence. The report ultimately concluded that there is no empirical evidence to support the premise that an increase in punishments will deter other offenders. The report found that “it is extremely doubtful that an exemplary sentence imposed in a particular case can have any perceptible effect in deterring potential offenders.”¹⁰⁷ More recently, in 2012, Anthony Doob and Cheryl Webster conducted a literature review of existing evidence on general deterrence – finding that general deterrence is a “null hypothesis” that should be abandoned.¹⁰⁸ This finding was based on an analysis of the general deterrence literature which consistently and through multiple different forms of research methods has shown no link between punishment severity and general deterrence. Their review led Doob and Webster to conclude that “despite enormous research efforts, no credible and consistent body of evidence has been found to support the conclusion that harsher sentences … achieve marginal deterrent effects on crime.”¹⁰⁹ Consequently academic researchers in North America and Europe have largely coalesced around the consensus that increasing an individual’s sentence does not deter others in the community from engaging in similar criminal acts.

These conclusions on general deterrence drawn by researchers in North America and Europe are also increasingly being recognized in other countries globally that have historically imposed harsh sentences that some would argue have general deterrent effects. For example, in 2015 the India Law Commission released a report calling for the abolition of the death penalty based on doubts surrounding the effectiveness of general deterrence.¹¹⁰ They asserted that deterrence is an ineffective rationale for severe punishment like the death penalty because there is no evidence showing that it has more of a deterrent effect than lengthy prison sentences.¹¹¹ The Law Commission’s call to abolish the death penalty marked a decisive break from the country’s longstanding emphasis on general deterrence in sentencing decisions.

In addition to the existing published evidence, the results of my systematic review also support a finding that it is unlikely general deterrence is effective at achieving its goal of dissuading other potential offenders from committing criminal acts. First, in the modern technological era, the limited diffusion of sentencing decisions online undermines the purported effectiveness of general deterrence as a sentencing objective. The objective of general deterrence is premised on the belief that an offender is punished more harshly to send a message to other potential offenders who will be aware of this higher sentence and rationally decide not to commit a similar offence in the future. This premise assumes that courts have a mechanism to inform other potential offenders of the increased punishment in each individual case. Unfortunately, in reality, the vast majority of sentencing decisions are not being reported to publicly accessible websites. My systematic review identified a total of 308 Ontario sentencing decisions in 2023-2024 reported on CanLii. Although it is difficult to estimate how many sentencing decisions occur within these courts annually, in 2019 there were 189,546 convictions of adults in Canada.¹¹² In 2019, Ontario represented approximately 38% of the Canadian population,¹¹³ which is the equivalent of 72,027 sentencing decisions. Although these numbers are only estimates, undoubtedly the 308 reported Ontario decisions identified through my systematic review represent only a tiny fraction of the total sentencing decisions in the province this past year. This enormous gap between sentencing decisions rendered and those reported on CanLii undermines the presumption that the other potential future offenders will be aware when a judge imposes an increased sentence to send them a message. In this technological era, the extremely limited reporting of sentencing decisions in Ontario reinforces the ineffectiveness of general deterrence as a sentencing objective.

Second, the significant overlap between general deterrence and denunciation demonstrates that even if general deterrence is repealed as a sentencing objective, there will likely be limited impacts on the current practice of sentencing judges. Take for example the case study I examined in this article’s introduction. When Justice Camara of the OCJ sentenced Mr. Pretula to 7.5 months in prison for assault and breaching bail conditions – she seemingly blended the general deterrence and denunciation sentencing objectives.¹¹⁴ While labelling his behaviour targeting a youth as “obnoxious, offensive and disgusting”,¹¹⁵ Justice Camara explained that her heightened sentence was aimed at “send[ing] a message to other like-minded individuals that this type of hate and violence will not be condoned in our community.”¹¹⁶ Her decision to send a message to like-minded individuals who express ableist and transphobic views achieves both the general deterrence and denunciation objectives. This case study demonstrates that my proposed removal of general deterrence as a sentencing objective would likely have limited effects because the objective of denunciation remains available for such cases where it is warranted. In this case, Mr. Pretula’s increased sentence to “send a message” could have been justified under the objective of denunciation alone.

My systematic review also supports my argument that removing general deterrence as a sentencing objective will have limited impacts on sentencing practices because the objective of denunciation remains available. Of the 141 cases where general deterrence was applied in a sentencing decision, 132 cases (93.62%) analyse both general deterrence and denunciation with many of them (110) collapsing the deterrence and denunciation analysis entirely. These results reveal a pattern of combining general deterrence and denunciation when considering factors that point towards increased likelihood and length of incarceration. There is very limited evidence showing that general deterrence is being applied independently with the intent of sending a message to other potential offenders. Therefore, if general deterrence were removed as a sentencing objective because of its ineffectiveness, there will likely be limited impacts on the sentencing practices of trial judges who still can rely on the objective of denunciation when sentencing offenders.

Undoubtedly this argument could benefit from further empirical research examining the relationship between the objectives of general deterrence and denunciation. In this context my systematic review is limited by the small number of reported case available for analysis. Additionally, the content of the sentencing decisions also makes deeper analysis more difficult. Often in the sentencing cases, judges will identify or mention denunciation and deterrence in tandem but will not engage in an analysis explaining each of the objectives role in assisting them at arriving at the appropriate sentence. Further research is needed to identify and analyze when general deterrence and/or denunciation is identified as the operative objective in the decision.

I also will note that I am not arguing that the removal of general deterrence as a sentencing objective will lead to lower rates of incarceration. Indeed, my argument that there is significant overlap between denunciation and general deterrence supports the opposite finding – that the removal of general deterrence as a sentencing objective will have limited impacts on current sentencing practice. My argument is in fact narrower. I argue that general deterrence should be abandoned because it is not effective at achieving its stated objective of reducing future crime. Although reduced incarceration rates is an important objective, I argue that from a legal and policy perspective a person should not be subject to an increased criminal sentence based on a theory with such a weak empirical basis. While removing general deterrence may also have the effect of reduced overall rates of incarceration, I do not make this point to support my argument. Instead, based on my systematic review, I note that the removal of general deterrence may have little to no effect on incarceration rates because it is so frequently drawn upon in combination with denunciation. Even if incarceration rates remain the same, the removal of general deterrence as a sentencing objective addresses the current challenge that individuals are being sentenced to with more severe punishments based on a theory that fails to achieve its fundamental purpose of reducing future crime.

In sum, considering the case study example and the systematic review results, as well as the other empirical analyses, it is clear that general deterrence as a sentencing objective does not in itself reduce crime by deterring other potential offenders. Further, the removal of general deterrence as a sentencing objective likely will not have significant impacts on current sentencing practice because of the continued existence of the objective of denunciation. Consequently, the continued use of general deterrence as a sentencing objective without evidentiary basis should be repealed.

b. The Risk of Discriminatory Application of General Deterrence

The use of general deterrence as a sentencing objective could exacerbate systemic race-based discrimination in sentencing. The general deterrence objective should also be abandoned to reduce the risk of systemic discrimination in sentencing, as well as reduce the overincarceration of BIPOC¹¹⁷ peoples.

Currently there are no studies in Canada demonstrating a link between the application of general deterrence and racial discrimination. Unfortunately, in the Canadian context the data needed to evaluate the existence of this link is very difficult if not impossible to obtain. As already discussed, only a small fraction of all sentencing decisions in Canada are reported. The limited reporting of sentencing decisions on publicly accessible online forums makes research on the application of general deterrence in sentencing decisions particularly difficult. The only way a researcher could access all sentencing decisions in Ontario over a year, would be by applying to individual courts for access to the cases and paying associated photocopying fees.¹¹⁸ The access costs would likely be prohibitive to any researcher seeking to engage in a comprehensive study of general deterrence application in sentencing over a period of several years. Even if a researcher is able to access all of these sentencing decisions, it would be very difficult to measure the potential disproportionate application of general deterrence to racialized offenders. Although sentencing judges may reference an offender’s race when making the sentencing decision, there is no universally applied method to report this information during a sentencing decision. While pre-sentence reports¹¹⁹ or Gladue reports¹²⁰ are likely to reference an offender’s race, a researcher would also have to apply for and pay fees to access them. Thus, the current sentencing decision reporting structure and access fees make it very difficult for researchers to definitively evaluate whether general deterrence is being applied at higher rates to racialized offenders.

However, it is well established that the application of general deterrence is associated with the increased likelihood of incarceration and lengthier sentences of incarceration. At the same time, the overincarceration of racialized offenders is well-documented in Canada, particularly for Indigenous and Black offenders.

As recognized by the SCC in Sharma, the overincarceration of Indigenous offenders has been documented in a series of reports since the 1980’s.¹²¹ Despite the passing of a special Criminal Code provision emphasizing non-incarceration options for Indigenous offenders¹²² and the establishment of Gladue reporting,¹²³ the rates of Indigenous overincarceration have only continued to rise.¹²⁴ In 2018-2019, Indigenous peoples represented only 4.5% of the total Canadian population but comprised 31% of the admissions to provincial/territorial custody and 29% of admissions to federal custody.¹²⁵ The rates of overincarceration are even more stark for Indigenous women who represent only 4% of the Canadian female population but comprise 42% of incarcerated women in federal penitentiaries.¹²⁶

Black Canadians also experience disproportionate rates of incarceration. As documented in the export report on anti-black racism submitted in R v Morris, Black peoples in Toronto experience disproportionate rates of incarceration compared to their non-Black peers. For example, in 2013 Black peoples represented only 2.9% of the total Canadian population but made up 9.3% of the federal prison population.¹²⁷

The overincarceration of Indigenous and Black peoples in Canada may point to indirect links between the application of general deterrence and the overincarceration of racialized peoples. General deterrence as a sentencing objective is primarily associated with higher rates of incarceration. Although the causes of overincarceration of Indigenous and Black peoples are multiple and vary, there is a risk that general deterrence is being disproportionately applied to these populations – further exacerbating their overincarceration.

There are also direct links between general deterrence and the overincarceration of racialized offenders, namely (1) the automatic application of general deterrence to certain offences and (2) racial disparities in offenders who are sentenced to death in the United States (U.S.). First, an examination of the automatic application of general deterrence to certain offences reveals its disproportionate racial impacts. As already discussed, the Criminal Code mandates that general deterrence weighs more heavily for drug trafficking offences.¹²⁸ In my systematic review of Ontario sentencing decisions in 2023, drug-trafficking offences were the most cited category of offence that general deterrence was automatically attached to. In Canada, there is growing data demonstrating the disproportionate application of drug-related charges on racialized peoples. For example, in a 2020 Interim Report, the Ontario Human Rights Commission determined that Black people comprise 28.5% of individuals charged with drug-related offences in Toronto, despite only making up 8.8% of the city’s population.¹²⁹ Further, the Commission found that white persons accused of drug-related offences were more likely to not be charged and released compared to Black persons.¹³⁰ Similar findings were shown for Indigenous peoples, whereby in Vancouver Indigenous peoples make up only 2.2% of the city’s population, while representing 18% of the drug-related charges made.¹³¹ This data suggests that even the seemingly neutral automatic application of general deterrence to all drug-trafficking offences can have a disproportionate impact on racialized offenders and contribute to their overincarceration.

Second, an analysis of the application of the death penalty in the U.S. reveals the ways general deterrence can be imposed disproportionately on racialized offenders. For proponents of deterrence theory, the death penalty is often seen as the ultimate general deterrence tool. It is the most severe punishment that can be imposed and is typically reserved for the most heinous crimes. Although, its effectiveness at deterring crime has been questioned,¹³² it remains an enduring symbol of general deterrence in sentencing. At the same time, researchers have identified a correlation between race and capital punishments in the U.S. For example, Black offenders make up 41% of people on death row and 34% of those executed, but only make up 13% of the country’s population.¹³³ Further, the race of the victim is also particularly influential in a court or jury’s decision to impose the death penalty. Approximately 75% of executions for murder were for cases involving white victims even though over half of all homicide victims are Black peoples.¹³⁴ Taken together, this evidence suggests a link between the race of the offender and/or the victim and the imposition of the death penalty. Even though the death penalty has been repealed in Canada, this data has important implications for the application of general deterrence in sentencing. It uncovers a relationship between the imposition of more severe punishments and race, with racialized offenders disproportionately receiving harsher punishments justified, in part, on the basis of promoting general deterrence.

Undoubtedly, the links between general deterrence as a sentencing objective and the overincarceration of racialized peoples in Canada requires further research. Unfortunately, the current decision reporting structure, the costs associated with accessing sentencing decisions, and the limited availability of race-based data in sentencing makes research in this area particularly challenging. I argue that there is both indirect and direct evidence to support my argument that there is a risk that general deterrence is being disproportionately applied to BIPOC offenders in a manner that contributes to their overincarceration. Thus, in addition to its established ineffectiveness, I argue that Canada should abandon general deterrence as a sentencing objective because of its risk of disproportionate application on the basis of race.

V. Conclusion

In sum, general deterrence is currently listed as a sentencing objective under section 718(b) of the Criminal Code. Though this paper, I argued that Parliament should amend this provision to remove any reference to general deterrence, while leaving specific deterrence as a sentencing objective available to judges. After reviewing the jurisprudence on general deterrence and conducting a systematic review on its current application in Ontario sentencing decisions, I argued that general deterrence should be abandoned as a sentencing objective because it is ineffective at achieving its goal of reduced crime and there is a risk that it is being disproportionately applied to racialized offenders in a way that is contributing to their overincarceration.

VI. Appendix

Endnotes