The Principle of Proportionality in Sentencing: A Dynamic Evolution and Multiplication of Conceptions

Authors

Marie Manikis, Faculty of Law, McGill University

Document Type

Article

Abstract

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 demonstrates that this concept was primarily rooted in a desert-based framework but has increasingly been infused with consequentialist rationales. It is argued that 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. The article therefore 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.

Creative Commons License

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Citation Information

Manikis, Marie. "The Principle of Proportionality in Sentencing: A Dynamic Evolution and Multiplication of Conceptions." Osgoode Hall Law Journal 59.3 (2022) : 587-628.
DOI: https://doi.org/10.60082/2817-5069.3812
https://digitalcommons.osgoode.yorku.ca/ohlj/vol59/iss3/2

References

1. Richard Frase et al, "Proportionality of Punishment in Common Law jurisdictions and in Germany" in Kai Ambos et al, eds, Core Issues in Criminal Law and Criminal Justice (Cambridge University Press, 2020) 213 at 213 https://doi.org/10.1017/9781108649742.007; Julian V Roberts & Lyndon Harris, "Sentencing Guidelines Outside the United States" in Cassia Spohn & Pauline K Brennan, eds, Handbook on Sentencing Policies and Practices in the 21st Century (Routledge, 2019) 68 at 68-86. https://doi.org/10.4324/9780429027765-4

2. In Canada, the principle is explicit under s 718.1 of the Criminal Code. In England and Wales, although the statute is less explicit, proportionality can be inferred from key provisions that relate to the use of sanction and the definition of crime seriousness. See Criminal Code, RSC 1985, c C-46, s 718(1); Criminal Justice Act 2003 (UK), c 44, s 143(1). See also Andrew Ashworth, "Re-Evaluating the Justifications for Aggravation and Mitigation at Sentencing" in Julian V Roberts, ed, Mitigation and Aggravation at Sentencing (Cambridge University Press, 2011) 21 [Ashworth, "Aggravation and Mitigation"]. https://doi.org/10.1017/CBO9780511979170.003

3. In 1215, the Magna Carta conceived a form of proportionality: "For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of this livelihood." See John R Vile, Founding Documents of America: Documents Decoded (ABC-CLIO, 2015) at 5.

4. Sentencing and Criminal Justice, 2nd ed (Butterworths, 1995) at 147.

5. Marie-Eve Sylvestre, "The (Re)Discovery of the Proportionality Principle in Sentencing in Ipeelee: Constitutionalization and the Emergence of Collective Responsibility" (2013) 63 SCLR 461. https://doi.org/10.60082/2563-8505.1278

6. Allan Manson, The Law of Sentencing (Irwin Law, 2001) at 32.

7. Mike C Materni, "Criminal Punishment and the Pursuit of Justice" (2013) 2 Br J Am Leg Studies 263 at 274.

8. Morris J Fish, "An Eye for an Eye: Proportionality as a Moral Principle of Punishment" (2008) 28 Oxford J Leg Stud 57 at 63. https://doi.org/10.1093/ojls/gqm027

9. Immanuel Kant, The Philosophy of Law. An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right, translated by W Hastie (T&T Clark, 1887); Manson, supra note 6 at 32-40.

10. Jeremy Bentham, An Introduction to the Principles of Moral and Legislation, ed by JH Burns & HLA Hart (Clarendon Press, 1996) at 11-13; John Stuart Mill, On Liberty (Penguin Books, 1985). https://doi.org/10.1093/actrade/9780198205166.book.1

11. Andrew von Hirsch, "Proportionality in the Philosophy of Punishment" (1992) 16 Crime & Justice 55 at 57-58; Manson, supra note 6 at 32, 43-46. https://doi.org/10.1086/449204

12. Fish, supra note 8 at 63, 64.

13. For instance, achieving rehabilitation and deterrence through punishment is problematic as punishment does not change behaviour, especially when the actions are rooted in marginalization, discrimination and poverty. See Maria Dugas, "Committing to Justice: The Case for Impact of Race and Culture Assessments in Sentencing African Canadian Offenders" (2020) 43 Dal LJ 103.

14. Bernard E Harcourt, "Risk as a Proxy for Race: The Dangers of Risk Assessment" (2015) 27 Fed Sentencing Rep 237. Further, research into Gladue reports that outline Indigenous background has shown that when tied to consequentialist grounds, including the reduction of crime rates by imposing sentences that effectively deter criminality and rehabilitate offenders, these aims have not been met https://doi.org/10.1525/fsr.2015.27.4.237; these reports have often been used by the court to assess the risk of the offender reoffending, which has undermined efforts to reduce over incarceration. This has had unintended discriminatory consequences by drawing decision-makers' attention to race and risk factors. See Kelly Hannah-Moffatt & Paula Maurutto, "Re-Contextualizing Pre-Sentence Reports: Risk and Race" (2010) 12 Punishment & Society 262 https://doi.org/10.1177/1462474510369442; Debra Parkes & David Milward, "Gladue: Beyond Myth and Towards Implementation in Manitoba" (2012) 35 Man LJ 84. It is worth highlighting that additional factors have contributed to this reality, notably a colonial culture and systemic racism that have permeated the application of criminal justice in Canada, giving rise to the over-incarceration of Indigenous and racialized people. https://doi.org/10.29173/mlj794

15. Of Crimes and Punishments, translated by Jane Grigson (Marsilio, 1996) at 49.

16. Kant, supra note 9.

17. von Hirsch, supra note 11 at 56.

18. Ibid. See e.g. Adrian Hoel, "The Sentencing Provisions of the International Criminal Court: Common Law, Civil Law, or Both?" (2007) 33 Monash UL Rev 264 at 288 ("Given that the sentencing provisions of the ICC have endorsed proportionality, it would seem to be uncontentious that retribution will be endorsed as the primary sentencing purpose"); Michael Tonry, "Selective Incapacitation: The Debate Over its Ethics" in Andrew von Hirsch & Andrew Ashworth, eds, Principled Sentencing (Northeastern University Press, 1992) 166 (implying that the concept of proportionality is entirely retributive and stating that proportionality is relatively unimportant to utilitarians).

19. Just deserts theorists, such as von Hirsch, refer to "defining" retributivism, meaning that principles of just deserts should define the degree of punishment severity as precisely as possible, no more and no less. They recognize that departures from proportionality can at times be justifiable but stand in need of defence. Andrew von Hirsch, Doing Justice: The Choice of Punishments (Hill and Wang, 1976); von Hirsch, supra note 11 at 56. This is different from Norval Morris's notion of "limiting retributivism," which suggests that desert remains partly relevant to proportionality but functions only as an upper and lower limit on just punishment. This theory allows all traditional punishment purposes to play a role but places retributive outer limits both on who may be punished (only those who are blameworthy), and how hard they may be punished (within a range of penalties that would widely be viewed as neither unfairly severe nor unduly lenient). See Norval Morris, "Punishment, Desert and Rehabilitation" in Hyman Gross & Andrew von Hirsch, eds, Sentencing (Oxford University Press, 1981) 257. More recently, Richard Frase suggests that proportionality should largely be a matter of retributive considerations, with utilitarian concerns applicable only within a narrow range of deserved sentences. See Richard S Frase, "Limiting Retributivism" in Michael Tonry, ed, The Future of Imprisonment (Oxford University Press, 2003) 83 [Frase, "Limiting Retributivism"]. For desert theorists, however, limiting retributivism is mainly imposed on the basis of consequences, with a very loose outer limit-highlighting that desert and retributive dimensions are not the underlying aspects of this theory. See Malcolm Thorburn & Allan Manson, "The Sentencing Theory Debate: Convergence in Outcomes, Divergence in Reasoning" (2007) 10 New Crim L Rev 278 at 279, 286-87.

20. Ashworth, "Aggravation and Mitigation," supra note 2 at 28; Andrew von Hirsch & Andrew Ashworth, Proportionate Sentencing: Exploring the Principles (Oxford University Press, 2005).

21. von Hirsch, supra note 11 at 55-56.

22. Ibid.

23. Norval Morris, Madness and the Criminal Law (University of Chicago Press, 1982).

24. See Thorburn & Manson, supra note 19.

25. Ashworth, "Aggravation and Mitigation," supra note 2 at 254; von Hirsch & Ashworth, supra note 20. Censure rooted within a just deserts framework with an individualized and experiential conception of blame, discussed below, would be much more conducive to limiting the over-incarceration of marginalized groups than consequentialist accounts which have in great part contributed to the production of inequalities in sentencing as a product of risk-based analyses.

26. "The Expressive Function of Punishment" in Doing and Deserving: Essays in the Theory of Responsibility (Princeton University Press, 1970) 95 at 98.

27. von Hirsch & Ashworth, supra note 20 at 17-18 [emphasis in original].

28. Ibid [emphasis in original].

29. RA Duff, Trials and Punishments (Cambridge University Press, 1986) [Duff, Trials and Punishments]; Antony Duff, Punishment, Communication and Community (Oxford University Press, 2001) [Duff, Punishment, Communication, and Community]. https://doi.org/10.1093/oso/9780195104295.001.0001

30. Julian V Roberts & Netanel Dagan, "The Evolution of Retributive Punishment: From Static Desert to Responsive Penal Censure" in Antje du Bois-Pedain & Anthony E Bottoms, eds, Penal Censure: Engagements Within and Beyond Desert Theory (Hart, 2019) 141 at 143. https://doi.org/10.5040/9781509919819.ch-008

31. Ibid.

32. Hannah Maslen, Remorse, Penal Theory and Sentencing (Hart, 2015).

33. Roberts & Dagan, supra note 30 at 155. Examples of responsive offence-related factors include the way the person addresses the harm inflicted by compensating the victim's loss: showing sincere empathy and remorse; apologizing; taking responsibility for the harm. Responsive factors unrelated to harm and culpability should be excluded from this account, since they may rely on utilitarian aims such as diminishing reoffending.

34. Kathleen Daly, "Restorative Justice: The Real Story" (2002) 4 Punishment & Society 55 at 60; Duff, Punishment, Communication, and Community, supra note 29. https://doi.org/10.1177/14624740222228464

35. Adam J Kolber, "The Subjective Experience of Punishment" (2009) 109 Colum L Rev 182.

36. Pierre Tremblay, "On Penal Metrics" (1988) 4 J Quantitative Criminology 225 at 235 https://doi.org/10.1007/BF01072451; Robert E Harlow, John M Darely & Paul H Robinson, "The Severity of Intermediate Penal Sanctions: A Psychophysical Scaling Approach for Obtaining Community Perceptions" (1995) 11 J Quantitative Criminology, 71 https://doi.org/10.1007/BF02221301

Mara F Schiff, "Gauging the Intensity of Criminal Sanctions: Developing the Criminal Punishment Severity Scale (CPSS)" (1997) 22 Crim Justice Rev 175. https://doi.org/10.1177/073401689702200204

37. For instance, banishment, imprisonment, fines, restoration, and other types of sanctions may be experienced differently.

38. Andrew von Hirsch & Nils Jareborg, "Gauging Criminal Harm: A Living-Standard Analysis" (1991) 11 Oxford J Leg Stud 1 at 2-3. https://doi.org/10.1093/ojls/11.1.1

39. Andrew Ashworth, Sentencing and Criminal Justice, 6th ed (Cambridge University Press, 2015) at 158 [Ashworth, Sentencing and Criminal Justice]. https://doi.org/10.1017/CBO9781107415270

40. For instance, mental disability is recognized as a factor that can diminish culpability on the basis that a person's capacity to comply with the law is impaired. See von Hirsch & Ashworth, supra note 20 at 63.

41. As von Hirsch and Harnrahan highlight "judgments about seriousness are judgments about past events…By waiting longer one learns nothing new." See Andrew von Hirsch & Kathleen J Hanrahan, The Question of Parole: Retention, Reform, or Abolition? (Ballinger, 1979) at 29.

42. Julian V Roberts & Hannah Maslen, "After the Crime: Retributivism, Post-Offence Conduct and Penal Censure" in AP Simester, Antje du Bois-Pedain & Ulfrid Neumann, eds, Liberal Criminal Theory: Essays for Andreas von Hirsch (Hart, 2014) 88 at 89.

43. Ashworth, "Aggravation and Mitigation," supra note 2.

44. Ibid at 27.

45. von Hirsch, supra note 11 at 56.

46. von Hirsch & Ashworth, Proportionate Sentencing, supra note 20 at 63; Ashworth, Sentencing and Criminal Justice, supra note 39 at 159; Michael S Moore, "The Moral Worth of Retribution" in Ferdinand Schoeman, ed, Responsibility, Character, and the Emotions (Cambridge University Press, 1988) 179; Sanford H Kadish, Blame and Punishment: Essays in the Criminal Law (Macmillan, 1987).

47. Barbara A Hudson, "Punishing the Poor: A Critique of the Dominance of Legal Reasoning in Penal Policy and Practice" in Antony Duff et al, eds, Penal Theory and Practice: Tradition and Innovation in Criminal Justice (Manchester University Press, 1994) at 302. This analysis was referred to by just deserts theorists von Hirsch and Ashworth in Proportionate Sentencing (supra note 20 at 72).

48. Anthony Bottoms, "Five Puzzles in von Hirsch's Theory" in Andrew Ashworth & Martin Wasik, eds, Fundamentals of Sentencing Theory: Essays in Honour of Andrew von Hirsch (Clarendon Press, 1998) 53 at 81-82. https://doi.org/10.1093/oso/9780198262565.003.0004

49. Ashworth, Sentencing and Criminal Justice, supra note 39 at 159.

50. Dugas, supra note 13; R v Anderson, 2021 NSCA 62; R v Morris, 2021 ONCA 680.

51. Julian V Roberts, "The Recidivist Premium: For and Against" in Andrew von Hirsch, Andrew Ashworth & Julian Roberts, ed, Principled Sentencing: Readings on Theory and Policy, 3rd ed (Hart, 2009) at 155.

52. Ibid. Within this perspective, offenders' remorse speaks to their relation to the act for which they are being punished. Remorseful offenders are concerned with achieving some rectification for their wrongdoing-taking a step away from their offending and therefore reducing the extent to which they are considered blameworthy.

53. See Julian V Roberts, "Punishing Persistence: Explaining the Enduring Appeal of the Recidivist Sentencing Premium" (2008) 48 Brit J Crim 468 (arguing that within just-desert, reoffending is a mark of increased blameworthiness for reasons similar to premeditation, namely the presence of a more culpable state of mind). Having already been convicted and sentenced, an offender should take steps to address the causes of non-compliance. Also, having already been convicted gives, or should give, the actor increased awareness of the wrongfulness of his behaviour when he contemplates doing this again. See also Darcy L MacPherson, "The Relevance of Prior Record in the Criminal Law: A Response to the Theory of Professor von Hirsch" (2002) 28 Queen's LJ 177; Youngjae Lee, "Recidivism as Omission: A Relational Account" (2009) 87 Texas L Rev 571; Julian V Roberts, Punishing Persistent Offenders: Exploring Community and Offender Perspectives (Oxford University Press, 2008).

54. Retributivists are divided on this topic. For some, prior convictions should never be relevant elements at sentencing since they do not relate to the specific offence under consideration. See e.g. George P Fletcher, Rethinking Criminal Law (Little, Brown & Company, 1978); Mirko Bagaric, Punishment and Sentencing: A Rational Approach (Cavendish, 2001). Traditional desert-theory has assigned a very limited role to previous convictions under the progressive loss of mitigation doctrine, which argues that first offenders should receive a discounted sentence, as well as those who have had up to a certain number of previous convictions. According to this perspective, it is only after several repetitions that offenders should be dealt with by the imposition of the full measure of penalty at the level of the ceiling for the offence. See e.g. Martin Wasik & Andrew von Hirsch, "Section 29 Revised: Previous Convictions in Sentencing" (1994) 24 Crim L Rev 409; von Hirsch &Ashworth, supra note 20.

55. Hadar Dancig-Rosenberg & Netanel Dagan, "Retributarianism: A New Individualization of Punishment" (2019) 13 Crim L & Philosophy 129. https://doi.org/10.1007/s11572-018-9460-2

56. von Hirsch & Jareborg, supra note 38 at 2.

57. Ibid. See also Ashworth, Sentencing and Criminal Justice, supra note 39.

58. These interests are divided into four generic categories: physical integrity; material support and amenity; freedom from humiliation or degrading treatment; and privacy and autonomy.

59. Effects are categorized into four levels: subsistence; minimal well-being; adequate well-being; and significant enhancement.

60. Anthony Bottoms, "The 'Duty to Understand': What Consequences for Victim Participation?" in Anthony Bottoms & Julian V Roberts, eds, Hearing the Victim: Adversarial Justice, Crime Victims, and the State (Willan Publishing, 2010) 17; Edna Erez, "Who's Afraid of the Big Bad Victim?: Victim Impact Statements as Victim Empowerment and Enhancement of Justice" (1999) Crim L Rev 545; Paul G Cassell, "In Defense of Victim Impact Statements" (2009) 6 Ohio St J Crim L 611; Marie Manikis & Julian V Roberts, "Victim Impact Statements at Sentencing: The Relevance of Ancillary Harm" (2010) 15 Can Crim L Rev 1; Marie Manikis, "Victim Impact Statements at Sentencing: Towards a Clearer Understanding of their Aims" (2015) 65 UTLJ 85. This contribution and conception of proportionality is also supported by Paul G Cassell & Edna Erez, "Victim Impact Statements and Ancillary Harm: The American Perspective" (2011) 15 Can Crim Law Rev 149. https://doi.org/10.2139/ssrn.2869383

61. Julian V Roberts & Marie Manikis, Victim Personal Statements: A Review of Empirical Research (Office of the Commissioner for Victims of Crime and Witnesses of England and Wales, 2011) at 9.

62. See e.g. Julian V Roberts & Allen Edgar, Victim Impact Statements at Sentencing: Judicial Experiences and Perceptions (Department of Justice Canada, 2006) at 15 (in which judges noted that statements were particularly useful for crimes of violence, property offences where the extent of loss was unclear, or cases in which the harm to the victim was unusual, exceptional or "not clearly manifest to an objective observer"); Erez, supra note 60.

63. Richard S Frase, "Theories of Proportionality and Desert" in Joan Petersilia and Kevin R Reitz, eds, The Oxford Handbook of Sentencing and Corrections (Oxford University Press, 2012) 131.

64. Richard S Frase, "Limiting Excessive Prison Sentences Under Federal and State Constitutions" (2008) 11 J Constitutional L 39 at 43.

65. von Hirsch & Ashworth, supra note 20 at 5.

66. Manson & Thorburn, supra note 19.

67. Norval Morris, The Future of Imprisonment (Chicago University Press, 1974); Manson & Thorburn, supra note 19.

68. "Limiting Retributivism," supra note 19.

69. von Hirch & Ashworth, supra note 20 at 140. The three sub-requirements proposed by desert theorists include parity, rank-ordering, and spacing of penalties. For a desert-based understanding of proportionality, the requirements of ordinal proportionality are not mere limits, and they are infringed (considered disproportionate) when persons that are similarly blameworthy for a similar conduct receive unequal sanctions on ulterior (e.g., crime prevention) grounds.

70. Manson & Thorburn, supra note 19 at 279.

71. Ibid at 295.

72. Sylvestre, supra note 5.

73. R v Martineau, [1990] 2 SCR 633 at 645 (proportionality between punishment and blameworthiness was recognized as a principle of fundamental justice). Earlier, the Court of Appeal of Ontario also alluded to the importance of "just proportion" between the crime and the sentence by highlighting that the nature and gravity of the crime need to be taken into account when determining a sentence. See R v Wilmott, [1966] 2 OR 654 (CA).

74. See supra note 2, s 718.1.

75. Sentencing Reform: A Canadian Approach (Ottawa: CSC, February 1987).

76. Ibid at 58.

77. Manson, supra note 6 at 62.

78. Canadian Sentencing Commission, supra note 75 at 154.

79. Manson, supra note 6 at 62, 76.

80. Von Hirsch's work is cited by the Canadian Sentencing Commission, highlighting that "[h] ad punishment no preventive value, the suffering it inflicts would be unwarranted" (supra note 75 at 131). This vision, however, sees censure as predominantly a tool to communicate with moral agents.

81. Canadian Sentencing Commission, supra note 75 at 151, citing Hyman Gross, A Theory of Criminal Justice (Oxford University Press, 1979) at 400-01.

82. von Hirsch & Ashworth, supra note 20 at 20.

83. Canadian Sentencing Commission, supra note 75 at 153.

84. Supra note 2, s 718.

85. [1996] 1 SCR 500 at para 78.

86. Ibid at para 80.

87. Ibid at para 40.

88. [1985] 2 SCR 486 at 533 [BC Motor Vehicle Act].

89. R v Priest (1996), 10 CCC (3d) 289 at 297-98 (Ont CA).

90. R v Lacasse, 2015 SCC 64 at para 128 [Lacasse]. This case relates to an offence of impaired driving causing death and discusses whether it was open to the trial judge to consider the frequency of impaired driving in a region where the offence was committed as a relevant factor. As part of this analysis, it examines proportionality (ibid at para 13).

91. R v Nasogaluak, 2010 SCC 6 at para 42 [Nasogaluak]

Lacasse, supra note 90 at paras 12, 123, 154, Gascon J, dissenting. See also R v Friesen, 2020 SCC 9 at para 75 [Friesen], citing Nasogaluak, supra note 91 at para 42 (confirming that proportionality serves its function of "ensur[ing] that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused").

92. Nasogaluak, supra note 91 at para 42, citing Julian V Roberts & David P Cole, "Introduction to Sentencing and Parole" in Julian V Roberts & David P Cole, eds, Making Sense of Sentencing (University of Toronto Press, 1999) 3 at 10.

93. Nasogaluak, supra note 91 at para 42.

94. 2012 SCC 13 [Ipeelee]. In this case, two Indigenous offenders with long-term supervision orders (LTSO) for committing offences while intoxicated were sentenced to imprisonment for breaching conditions in the LTSO. They had addictions to drugs and alcohol and a history of committing sexual assaults when intoxicated. The Court had to decide how to determine a ft sentence for a breach of an LTSO in the case of an Indigenous offender.

95. Ipeelee, supra note 94 at para 37.

96. Marie Manikis, "A New Model of the Criminal Justice Process: Victims' Rights as Advancing Penal Parsimony and Moderation" (2019) 30 Crim LF 201. https://doi.org/10.1007/s10609-018-09362-6

97. R v Pham, 2013 SCC 15 at para 9 [Pham]; R v Safarzadeh-Markhali, 2016 SCC 14 at para 68; Lacasse, supra note 90 at para 53.

98. Friesen, supra note 91.

99. Ibid at para 32.

100. Lacasse, supra note 90 para 53.

101. R v Proulx, 2000 SCC 5 at para 83 [Proulx].

102. Ipeelee, supra note 94 at para 36; Lacasse, supra note 90 at para 53.

103. Supra note 101. 104. 2005 SCC 32 [Fice]. https://doi.org/10.1016/j.oceaneng.2004.06.008

105. Fice, supra note 104 at para 21, citing R v Wust, 2000 SCC 18 at para 41.

106. Fice, supra note 104 at para 22.

107. Ashworth, "Aggravation and Mitigation," supra note 2 at 25.

108. See supra note 97.

109. Ibid at para 11.

110. Ibid. See also R v Suter, 2018 SCC 34 at para 48 [Suter].

111. [1999] 1 SCR 688 [Gladue]. In Gladue, an Indigenous woman pled guilty to manslaughter for killing her partner who was having an extramarital affair with her sister. This was a seminal decision that interpreted section 718.2(e) of the Canadian Criminal Code, which requires sentencers to pay particular attention to the circumstances of Indigenous offenders and to consider all available sanctions other than imprisonment, including restorative and Indigenous approaches to sentencing. Ipeelee is a complementary decision that provides further guidance.

112. Ipeelee, supra note 94 at para 72.

113. Ibid at para 73; R v Wells, 2000 SCC 10 at para 38 [Wells]. The Court refers to desert-based proportionality such that the sentence must be proportionate to the gravity of the offence as well as the degree of responsibility of the offender.

114. Ipeelee, supra note 94 at para 73.

115. Ibid at para 81.

116. This case involves sexual assault against a young person and whether an error of law or a demonstrably unfit sentence was rendered when relying on the starting point for sexual offences towards youth. Friesen, supra note 91 at paras 2-3.

117. Supra note 111 at para 79; Wells, supra note 113 at paras 42-44.

118. As highlighted by Justice Iacobucci, the sentencing judge must also look to the circumstances of the Indigenous offender, which include factors that relate to moral blameworthiness. See Wells, supra note 113 at para 38.

119. In recent years, Gladue reports have been helpful in offering additional context that allow for a greater understanding of blameworthiness. However, when tied to consequentialist aims, such as reducing crime rates by imposing sentences that effectively deter criminality and rehabilitate offenders, these aims have not been met. Instead, they have been used as risk assessment tools that illustrate the risk of reoffending and have undermined efforts to reduce the over-incarceration of Indigenous people, contributing to discriminatory practices and decisions. See Constance MacIntosh & Gillian Angrove, "Developments in Aboriginal Law: The 2011-2012 Term - Charter Rights, Constitutional Rights, Taxation and Sentencing" (2012) 59 SCLR 1.

120. Ipeelee, supra note 94 at para 86.

121. For instance, the Criminal Code as well as the Youth Criminal Justice Act define serious offences in relation to the sentence. See Criminal Code, supra note 2, ss 2, 467.1(1); Youth Criminal Justice Act, SC 2002 c 1, s 2. This is also the case between summary and indictable offences.

122. See e.g. BC Motor Vehicle Act, supra note 88 at 533; Friesen, supra note 91 at para 79; R v Grant, 2009 SCC 32 at para 62; Suter, supra note 110 at para 81.

123. Friesen, supra note 91 at para 79.

124. Ibid at paras 76-86.

125. Ipeelee, supra note 94 at para 37; Lacasse, supra note 90 at para 154.

126. Ipeelee, supra note 94 at para 51.

127. Nasogaluak, supra note 91 at paras 6-7, 14.

128. Ibid at para 42.

129. Nasogaluak, supra note 91 at para 40-42, citing Roberts & Cole, supra note 92 at 10.

130. Duff, Punishment, Communication, and Community, supra note 29 at 184.

131. Victor Tadros, "Poverty and Criminal Responsibility" (2009) 43 J Value Inquiry 391. https://doi.org/10.1007/s10790-009-9180-x

132. Nasogaluak, supra note 91 at para 63.

133. Benjamin L Berger, "Sentencing and the Salience of Pain and Hope" in Dwight Newman & Malcolm Thorburn, eds, The Dignity of Law: The Legacy of Justice Louis LeBel (LexisNexis, 2015) 337 at 344. This highlights that "police misconduct in the course of making an arrest does not bear on the gravity of the offence (…) nor does it alter his degree of responsibility for the impaired driving or fight from the police, both of which occurred before the police misconduct" (ibid).

134. Pham, supra note 97 at paras 1-2.

135. Ibid at paras 20, 18.

136. Ibid at para 14.

137. Ibid at para 18, 20. See also ibid para 14 (highlighting a similar contradiction, namely that "a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender").

138. Although the Court seems to equate sentencing ranges in Canada to desert-based proportionality, this issue is not directly explored in this article and will be left for another day.

139. Suter, supra note 110.

140. Ibid at para 56.

141. Ibid at para 46 [emphasis in original].

142. Supra note 20 at 139.

143. This can be the case for the objective of deterrence, which many studies have shown does not meet its purported objectives. See e.g. Anthony N Doob & Cheryl Marie Webster, "Sentence Severity and Crime: Accepting the Null Hypothesis" (2003) 10 Crime & Just 143. https://doi.org/10.1086/652230

144. Manson & Thorburn, supra note 19; Ashworth, Sentencing and Criminal Justice, supra note 39.

145. Ashworth, "Aggravation and Mitigation," supra note 2 at 25.

146. Supra note 88 at 533.

147. Supra note 90 at para 12.

148. Supra note 91 at para 55.

149. Ipeelee, supra note 94 at para 37, citing BC Motor Vehicle Act, supra note 88 at 533.

150. Ipeelee, supra note 94 at para 87.

151. See e.g. Sentencing Council, "Robbery: Definitive Guideline" (1 April 2016), online (pdf): www.sentencingcouncil.org.uk/wp-content/uploads/Robbery-defnitive-guideline-Web.pdf [perma.cc/2G6B-P6KA] [Robbery Guideline].

152. Sentencing Council, "About Us" (n.d.), online: www.sentencingcouncil.org.uk/sentencing-and-the-council/about-the-sentencing-council [perma.cc/4YYZ-J88W]. The Council was set up in 2010 to promote greater transparency and consistency in sentencing, while maintaining judicial independence. Guidelines in England and Wales reflect in great part desert-based proportionality by scaling punishments within a community conception of levels of severity and expert approaches to experiential understanding of punishment. This differs from starting points or sentencing ranges that exist in certain countries, including Canada, where conceptions of punishment are articulated by judges.

153. Robbery Guideline, supra note 151 at 4.

154. Ibid at 5. Factors such as serious medical conditions and sole or primary carer for dependent relatives are arguably rooted within consequentialist rationales. Under the proposed framework, these factors would best be placed in a separate subsequent section that relates to factors that are rooted in consequentialist rationales to allow for a provisional desert-rooted censure.

155. This dimension is beyond the scope of this article and is defined in Marie Manikis, "Recognising State Blame in Sentencing: A Communicative and Relational Framework" (2022) Cambridge LJ [forthcoming]. For its underlying rationale, found notably within relational theories of responsibility, see Tadros, supra note 131.

156. Robbery Guideline, supra note 151.

157. This respects desert theory's cardinal understanding of proportionality and would require some changes in Canada since the current system is still in large part tied to incarceration for certain offences.

158. Supra note 94.

159. Section 718.2(e) is seen as a remedial measure of the over-represented people in prisons. See Criminal Code, supra note 2, s 718.2(e). The Court highlights that sentencing judges can endeavour to reduce crime rates in Indigenous communities by imposing sentences that deter criminality and rehabilitate offenders. See Ipeelee, supra note 94 at para 66.

160. Interventions outside the criminal process can include mechanisms of diversion, prevention, and restorative processes.

161. Marie-Eve Sylvestre & Marie-Andrée Denis-Boileau, "Ipeelee and the Duty to Resist" (2018) 51 UBC Law Rev 548.

162. Supra note 91

163. This may be found in the external factors (C) within the framework discussed in Figure 1, above. The determination of which forum or stage can be seen as the appropriate space is beyond the scope of this article and best left for another day.