Sunday, January 4, 2009

Crime and punishment in Canada

I am not a criminal law lawyer. My estimable, Gary Cooper-like associate James Rose is, in a big way, and he's very good at it. But I am a student of Shakespeare and have written about crime and punishment in Hamlet. I wagered Rose dinner that retribution partially informs Canadian sentencing law. I didn't know if it did, but I reckoned it had to; and I knew it did in American law.

I won, though Rose kept kicking and sceaming right up to paying the handsome tab.


And note this from the Ontario Court of Appeal in that case:

"...Although the appellant abandoned the other grounds of appeal, we think it appropriate to comment on one of them. In arriving at the sentence under review, the trial judge stated that the circumstances called “for a sentence which reflects retribution; the ability of the court to seek cold and calculated vengeance upon the accused for the benefit of society and the benefit of the victim”.

[8] With respect, it would appear that the trial judge confused the notion of retribution - a term used by Lamer C.J. in R. v. M.(C.A.) 1996 CanLII 230 (S.C.C.), (1996), 105 C.C.C. (3d) 327 S.C.C. to reflect that criminal punishment should be imposed to sanction the moral culpability of the offender - and vengeance. Vengence, of course, has no place in sentencing.

[9] Nonetheless, the trial judge’s error occasioned no prejudice to the appellant. Specifically, it did not render the total sentence unfit. Rather, as already indicated, in our view, if anything, the total sentence was lenient.

[10] Accordingly, we would grant leave to appeal but dismiss the appeal from sentence..."


My comment:

I don't think the court wants to face up to the implications of its own reasoning. The difference between cold and calculated vengeance on the convicted to benefit society and the victim and sanctioning the moral culpability of the convicted is to substitute one bit of rhetoric for a more palatable bit, which is fair enough. But the underlying point, regardless of formulation, is that under retribution the court seeks to punish to express disapprobation--which is a kind of collective or societal vengeance; which is to say, the law spanks. It in part punishes when it sentences (and it must.) If anyone doubts this he must ask himself why courts sentence more for committing a crime than attempting to. The danger to society is equal, more or less. The stiffer sentence reflects the greater gravity of the former. That requires greater sanctioning/punishing.

Itzik Basman


  1. Not being a criminal lawyer -- I mean criminal *law* lawyer -- either, I'll just jump right in and say that I thought the Appeal Court above made more than rhetorical sense. Vengeance is an extra-legal act that, in its disregard for social/political legitimacy (in the more serious cases), threatens the rule of law. But it originates from a very fundamental sense of justice that underpins all human societies -- that serious crimes must have serious consequences or else everything just becomes a matter of what you can get away with. Hence "retribution" enters the picture as a *legal* replacement for vengeance, and as such -- and here I agree with you -- a necessary component of criminal sentencing, over and above considerations re: deterrence, rehabilitation, etc.

    Cool blog by the way!

  2. Larry, I appreciate your comment and utltimately I don't think we disagree. I think there is a distinction between revenge and vengeance. It's evident in this from the King James Bible: "Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord." I have my doubts about the Court of Appeal's intent: I believe, in its above dicta, it was either in the piety business or did not want to face up to, or perhaps did not understand that vengeance is, I'd argue, as opposed to revenge, precisely the law taking into itself "dearly beloveds'" wrath and transmuting that wrath into moral disapprobration by way of punishment as an essential component of criminal sentencing.

    Tnaks btw, for nice word on this blog.

    Itzik Basman

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