Abstract
The fundamental principle behind sentencing in most (or many) jurisdictions is the idea of proportionality. Although the concept of proportionality is found in the Criminal Code, it existed as touchstone for judges well before it was formally placed in the Code in 1996 as part of a comprehensive set of sentencing principles in Bill C-41.
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Notes
- 1.
R v. Ipeelee (Supreme Court of Canada) (http://canlii.ca/t/fqq00).
- 2.
Ipeelee at para. 37.
- 3.
However, if a firearm is used in the commission of the offence then there is a 4 year mandatory minimum – Criminal Code section 236(a).
- 4.
- 5.
YCJA s. 3(b), see also R v D.B. (Supreme Court of Canada) (http://canlii.ca/t/1wxc8) at para. 41, 45.
- 6.
Recommendation 17 from the Consensus Statement on Legal Issues of Fetal Alcohol Spectrum Disorder (FASD) states: “The Supreme Court of Canada has recognized that the overrepresentation of Aboriginal persons among the inmate population constitutes a crisis in the criminal justice system. In the jury’s view, the over-representation of people with FASD in correctional facilities and in care of child protection agencies is of overlapping and equal concern” (Binnie et al. 2013, at p. 13).
- 7.
R v. Harper (Yukon Territorial Court) (http://canlii.ca/t/22pqx).
- 8.
Harper at para 34, 38.
- 9.
R v. Soosay (Alberta Provincial Court) (http://canlii.ca/t/fs6vd).
- 10.
Soosay at para 26.
- 11.
Soosay at para 38.
- 12.
Soosay at para 29.
- 13.
Soosay at para 47.
- 14.
Soosay at para 48.
- 15.
A comprehensive list of cases dealing with the sentencing of FASD affected offenders and be found in the case law section of the FASD and the Justice System website: http://fasdjustice.ca/cases.html
- 16.
R v. Gladue (Supreme Court of Canada) (http://canlii.ca/t/1fqp2).
- 17.
R v. Proulx (Supreme Court of Canada) (http://canlii.ca/t/527b).
- 18.
Although there was an opportunity for those convicted of first degree murder to apply for earlier parole after 15 years through the use of what is referred to as the faint hope clause. Access to the faint hope clause has been reduced over the years.
- 19.
There will more discussion of the election between summary and indictable offences later in this article.
- 20.
Criminal Code of Canada 150.1 (2) and (2.1).
- 21.
If the issue in the case is whether or not the offender took reasonable steps to determine the age of the victim, then expert evidence on the impact of FASD on the decision-making capabilities of the accused person can be provided to a jury – see R v. Sinclair (2013, Alberta Queen’s Bench) (http://canlii.ca/t/g2jtl).
- 22.
And now a judge on the Manitoba Court of Queens Bench.
- 23.
- 24.
See R. v. Smith 1987 (Supreme Court of Canada) (http://canlii.ca/t/1ftmr).
- 25.
Smith at para 56.
- 26.
A Private Member’s Bill C–583 – An Act to Amend the Criminal Code (Fetal Alcohol Spectrum Disorder) would allow for court ordered assessments for FASD. http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6497442
References
Binnie, I., M. Trussler, and E. Jonsson. 2013. Legal issues of FASD. Fetal alcohol spectrum disorder. In Proceedings from a consensus development conference. ISBN 978-1-897443-36-1. www.ihe.ca
Healy, P. 2013. Sentencing from there to here and from then to now. Canadian Criminal Law Review 17 (3): 291–304.
Roach, K. 2001. Searching for smith: The constitutionality of mandatory sentences. Osgoode Hall Law Journal 39: 367–412.
Roberts, J., and H. Bebbington. 2013. Sentencing reform in Canada: Promoting a return to principles and evidence-based policy. Canadian Criminal Law Review 17 (3): 327–347.
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Rudin, J. (2018). Legislative Impediments to Judicial Consideration of Moral Blameworthiness in Sentencing FASD Affected Offenders – A Canadian Perspective. In: Jonsson, E., Clarren, S., Binnie, I. (eds) Ethical and Legal Perspectives in Fetal Alcohol Spectrum Disorders (FASD). International Library of Ethics, Law, and the New Medicine, vol 75. Springer, Cham. https://doi.org/10.1007/978-3-319-71755-5_14
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