I have a range of sentencing I can impose for your crimes.… But, I must centre the fact that you are a gang member and that your crimes were designed to further your gang’s activities.… I think it necessary to consider the need to impose a sentence that falls at the more severe end of the sentencing scale.… Your sentence hopefully will serve to deter others, including your gang, and yourself from ever committing such crimes in the future.
The Issue
Can deterrence be a factor in sentencing?
Points to Consider
John was deemed a youth within the meaning of the Youth Criminal Justice Act (YCJA).
However, he was tried before a judge alone. He could have elected for trial by jury.
Nothing in the YCJA refers to deterrence as a consideration in sentencing, though the provisions for sentencing are substantial.
The Crown argued that (1) the judge had an inherent right to consider deterrence in sentencing and, (2) in any event, deterrence should be implied as a consideration in sentencing.
Throughout his trial, and at sentencing, John did not indicate any remorse for the crimes he committed.
Discussion
The youth court judge was wrong. In a unanimous decision, the Supreme Court of Canada ruled that deterrence cannot be considered as an element in sentencing under the Youth Criminal Justice Act (YCJA). The decision, written by Justice Louise Charron, was based exclusively on an interpretation of the YCJA.
That is, the Court attempted to determine the meaning of the YCJA as applied to the question of deterrence. The Court did not try to determine whether deterrence was a worthwhile goal in youth sentencing. It made this determination both in terms of general deterrence and specific (or individual) deterrence. It did not matter whether the youth court sought to use deterrence as applied to the community, or deterrence as it might relate to the accused — preventing him from committing crime again.
Justice Charron stated, in part, that:
Deterrence, as a principle of sentencing, refers to the imposition of a sanction for the purpose of discouraging the offender and others from engaging in criminal conduct. When deterrence is aimed at the offender before the court, it is called “specific deterrence,” when directed at others, “general deterrence.” The focus of these appeals is on the latter.
General deterrence is intended to work in this way: potential criminals will not engage in criminal activity because of the example provided by the punishment imposed on the offender. When general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity.
While general deterrence as a goal of sentencing is generally well understood, there is much controversy on whether it works or not. Those who advocate its abolition as a sentencing principle, particularly in respect of youth, emphatically state that there is no evidence that it actually works in preventing crime. Those who advocate its retention are equally firm in their position and, in support, point to society’s reliance on some form of general deterrence to guide young people in making responsible choices on various matters, for example, about smoking, using alcohol and drugs and driving a motor vehicle.
The question whether general deterrence works or not is not the issue before this Court. Whether the principles for youth sentencing should include deterrence was a matter of considerable debate in the passing of this new legislation. Ultimately, the repeal or retention of deterrence as a principle of sentencing for young persons is a policy choice for Parliament to make. This Court’s role on these appeals is to interpret the relevant provisions of the YCJA so as to determine what choice Parliament in fact made.
The YCJA introduced a new sentencing regime. As I will explain, it sets out a detailed and complete code for sentencing young persons under which terms it is not open to the youth sentencing judge to impose a punishment for the purpose of warning, not the young person, but others against engaging in criminal conduct. Hence, general deterrence is not a principle of youth sentencing under the present regime.
Specific Deterrence
Justice Charron continued, addressing the matter of specific, or individual, deterrence:
The YCJA also does not speak of specific deterrence. Rather, Parliament has sought to promote the long-term protection of the public by addressing the circumstances underlying the offending behaviour, by rehabilitating and reintegrating young persons into society and by holding young persons accountable through the imposition of meaningful sanctions related to the harm done.
Undoubtedly, the sentence may have the effect of deterring the young person and others from committing crimes. But, by policy choice, I conclude that Parliament has not included deterrence as a basis for imposing a sanction under the YCJA.
Justice Charron seemed to draw a line between the YCJA goal of rehabilitation of the young offender and specific deterrence. It is rehabilitation that the YCJA is directed toward, not specific deterrence.
Cyberbullying: Wounding from Afar
A high school sophomore had a crush on a boy who showed no interest in her. Angrily, she turned to the Internet and sent an email to her friend. It contained a racist comment about the boy. The friend forwarded the message to the boy, who forwarded it to his friends.
The sophomore felt she had done no more than confide in a friend. But her email was instantly conveyed to much of the student body, and its contents became a subject for talk, gossip, and ridicule. She and her parents felt they were under pressure, and she left the school.
A parent, who was also a lawyer, said, “If she had said those offensive things to her friend on the phone, I have a feeling the friend wouldn’t have called [the boy] and repeated what she said, and even if she had, I doubt it would have had the same effect” (Harmon 2004).
Spewing Hate
At an elite boys’ private school, a grade 10 student set up a chat board, open only to his classmates and grade 10 students at two other private schools, one of them a girls’ private school.
However, it was not long before the chat board was hijacked by other students who started their own cyber rooms on the site with names such as “The Reichstag” and “Gas Chamber.” Photos were posted of Nazi rallies and of Nazis torturing Jews. The Holocaust was glorified. (Yet, it should be noted that the site sent other messages that had no hate content.)
A student from the girls’ private school became aware of the website. She and three of her classmates looked at it and posted a note to the server asking that the hate-filled content be removed. The response: The girl who initiated the complaint was called a “hook-nosed parasite” who “should be thrown into an oven with the rest of them” (Teotonio, 2004).
Investigation suggested that students running the hate site were not actually animated by anti-Semitism. (Indeed, one of the hate site managers was Jewish.) Rather, it might have been, as another student suggested, that the hate dispensers thought it was “funny to outdo one another by making grossly politically incorrect statements” (Alphonso and Friesen, 2005).
Bullying Outside School: Action and Reaction
The messages described were not sent from school computers. The boys were students, but the questioned computer activity was done at home. Still, the schools, their student bodies, and the faculties got involved. (Indeed, the popular media reported the story.) The boys’ school principal said, “I think in this particular case, given the severity of what we were dealing with, rather than hide behind the attitude of ‘well, we’re going to leave this to parents and it’s their issue’ … we just felt that there was a moral and an ethical reason to get involved in this.”
The female students went to their parents, and to their principal who praised them — and did so in front of an assembly of students.