LAW WITHOUT ORDER: LOWER COURT SENTENCING, THE APPLICATION OF GLADUE PRINCIPLES, AND JOINT SENTENCING PRACTICES IN CANADA
Bibliographic record
Abstract
The rule of law is one foundational to democratic governance. An effective and accountable criminal justice system plays a vital role in the maintenance of effective governance and the rule of law. Justice in sentencing, the most visible output of the criminal justice process, requires a principled and consistent application of sentencing policies in all sentencing decisions. Understanding how judges and lawyers apply general sentencing principles is important since it is a prerequisite to evaluating fairness in sentencing practice. More than 90% of criminal cases are resolved by guilty plea and therefore, sentencing after a guilty plea is more a part of the Canadian justice system than are formal trials. Yet, how judges, Crown prosecutors, and defence lawyers navigate the task of crafting a fit sentence in terms of a methodology or system of decision-making is poorly understood. The goal of this research is to understand how judges and lawyers apply sentencing principles in lower courts in their day-to-day practice. To do so, three separate research studies were developed to investigate the different aspects of sentencing. The subject of the first study is trial judges, who handle most criminal offences, processing hundreds of cases month after month under tight constraints. Using court observation of docket court sentencing decisions, the paper examines whether trial judges are making decisions that meet the demands of individualization, consistency, and equal application of all relevant sentencing principles. Most of the observed sentencing decisions demonstrated that trial judges are not explicitly or consistently applying the sentencing principles articulated in the Criminal Code and case law. The second paper focuses on Section 718.2 (e) of the Criminal Code, which is aimed at reducing imprisonment of Indigenous offenders, and the application of the Supreme Court of Canada’s decision in R. v. Gladue. Using court observation of docket court sentencing, this study demonstrates that the restrictive context of the lower court sentencing environment, along with the complexity of the sentencing task, influences and reduces the number and kinds of Gladue sentencing factors considered and restricts a judge’s ability to appropriately weigh the factors that ought to play a meaningful role in Indigenous sentencing. The findings suggest that, faced with these circumstances, judges may develop a type of ‘perceptual shorthand’ and make situational imputations about defendants’ character and likely future behaviour, thereby allowing stereotypes relating to offenders’ race to permeate their sentencing decisions. The third paper examines the joint sentencing submission practices of lawyers through oral narratives obtained through thirty in-depth semi-structured interviews with Crown prosecutors and defence lawyers. The findings indicate that joint sentencing submission practices do not consistently apply the purposes, objectives, and principles of sentencing as articulated in the Criminal Code and case law. In the aggregate, the sentencing decisions of our judges and lawyers have important implications for legal virtues of transparency, predictability, and accountability, which underpin the legitimacy of our democratic institutions and are powerful and concrete expressions of Canadian values. Overall, the findings from this research suggest that sentencing is not being used in a principled way; instead, sentencing is driven by resource and time constraints, expediency, and efficiency. These findings are used to generate insight for policy choices and evidence-based decision-making in this area.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.003 | 0.022 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.000 |
| Bibliometrics | 0.004 | 0.008 |
| Science and technology studies | 0.021 | 0.005 |
| Scholarly communication | 0.008 | 0.002 |
| Open science | 0.003 | 0.003 |
| Research integrity | 0.002 | 0.003 |
| Insufficient payload (model declined to judge) | 0.008 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".