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.

See: http://www.canlii.org/eliisa/highlight.do?text=retribution&language=en&searchTitle=Ontario+-+Court+of+Appeal+for+Ontario&path=/en/on/onca/doc/2004/2004canlii11097/2004canlii11097.html

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