The Questionable Use of Deterrence in Sentencing

When deciding on a sentence following a conviction, the judge must consider s.718 of the Criminal Code. The section starts by noting that the fundamental purpose of sentencing is to “protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society.”

It then lists six key factors that judges keep in mind, the second being “to deter the offender and other persons from committing offences.”

Is this objective ever really met? After all, do we expect individuals who are contemplating a crime to read a sentencing decision and say, “I see this person went to jail for four years, so maybe I shouldn't commit the offence I was thinking about.”

I recently had a client who was convicted of living off the proceeds of crime, as she knew her boyfriend was dealing drugs. My client was convicted only of simple possession of drugs for her personal use and having $2,000 from the proceeds from the sale of the drugs.

It was alleged she was in possession of drugs in excess of those for her personal use and that she had much more money derived from criminal activity, so the Crown was seeking a five-year jail term.

I was able to get her sentence reduced to a period of probation but unable to get a discharge. Instead, the judge put her on probation. In her decision, she said that part of the reason was to deter others from acting in the same manner. As she noted, the sale of hard drugs hurts numerous people and causes societal issues. But does putting my client on probation send a message to other people who may be in the same situation? Do we honestly expect them to think, “Now I know this may happen, I'm not going to accept money from a friend who deals drugs.”

On an individual level, deterrence does work. Once a person is penalized, they will hopefully avoid committing the same offence in the future. But general deterrence is more complicated and it may not be of as much use as we would like to believe, though the Ontario Court of Appeal might disagree.

In a recent case, the Court considered the sentence of a young Black woman caught at Pearson International Airport on her return from St. Maarten. She was carrying 3.2 kilograms of cocaine, worth about $300,000. The woman, who was self-represented at the sentencing hearing, submitted that a sentence of between eight and nine months would be appropriate, relying on the sentencing decision in R. v. Sharma.

In that case, the Supreme Court of Canada ruled that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

While this offender was not Aboriginal, court document notes that she faced many challenges in her life before the arrest, including growing up in foster care, becoming a single mother as a teenager and then having the Children’s Aid Society apprehend her children. She “may well have been vulnerable to suggestion to import cocaine,” the judgment reads.

The trial judge, however, did not accept that there was compulsion short of duress, finding that the appellant voluntarily imported the cocaine, before imposing a six-year-and-three-month sentence.
The appellate court upheld that sentence, noting that the trial judge gave consideration to the anti-Black racism and tough personal circumstances the woman faced before her arrest.

While the term “deterrence” is not used in the appeal court decision, it can be assumed that it was one of the reasons for upholding her sentence. It is a line of thinking that is used each day at all levels of the court.

We need to examine the idea of general deterrence in sentencing and decide its true value. Will people be less inclined to commit  crimes because of the harsh sentences given to others by the courts?

As the Canadian Civil Liberties Association notes, “Lengthy prison sentences do not prevent crime and are not the means to achieve community safety … increasing reliance on the criminal legal system and prisons to respond to the crises of inter-generational trauma, homelessness, substance use and the drug toxicity crisis, and the failure of our mental health system will only exacerbate the underlying problems.”

Call me for advice

As an experienced Ottawa criminal lawyer I  work with the Crown and the judge to ensure that my clients are given a fair sentence if they are found guilty of an offence. If you are facing charges, call me for a free consultation, in French or English.