The Principle of Proportionality in Sentencing: A Dynamic Evolution and Multiplication of Conceptions
Proportionality; Sentencing; Just Deserts; Retribution; Consequentialist; Punishment
This article examines the theoretical foundations and developments of the concept of proportionality in common law sentencing. It traces its evolution within its two main underlying frameworks, desert-based and consequentialist theories of punishment. It specifically examines the Canadian context and illustrates the ways that this concept was mainly rooted in a desert-based framework but has increasingly been infused with consequentialist rationales. This multiplication of underpinnings has led to a conceptual muddling of proportionality, risking voiding the concept of its meaning and usefulness to decision-makers at sentencing. In light of this, this article proposes a nuanced framework, similar to the one in England and Wales, rooted in a dynamic understanding of just deserts that allows for the incorporation of relevant consequentialist aims in a principled fashion.
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"The Principle of Proportionality in Sentencing: A Dynamic Evolution and Multiplication of Conceptions."
Osgoode Hall Law Journal