Sentencing: Anglo-American and German Insights. Kai Ambos, ed. (Göttingen: Göttingen University Press, 2020), 249-278.
“Who are courts sentencing if not the offender standing in front of them?”
The epigraph to this paper points to the ethical heart of a distinctive and important development in Canadian sentencing law. It is drawn from a case in which the Supreme Court of Canada grappled with the signal societal trauma wrought by the operation of the criminal justice system – the travesty of Indigenous over-representation in Canadian prisons. This development involves an approach that has already disrupted certain elements of contemporary sentencing practice in Canada, and it is one that, depending on how sentencing judges embrace it, may open up new futures in Canadian sentencing. This development is the emergence of individualized proportionality as the fundamental principle of sentencing in Canada. One object of this paper is to explain and explore the rise, shape, and implications of this deep commitment to individualization as the defining feature of contemporary Canadian sentencing law.
Berger, Benjamin, "Judicial Discretion and the Rise of Individualization: The Canadian Sentencing Approach" (2020). Articles & Book Chapters. 2978.
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