Punishment for crimes committed, of course, goes back millennia. The biblical phrase “an eye for an eye” readily comes to mind. In Canada, the criminal law, including the law of sentencing, derives almost entirely from the Criminal Code which was first enacted in 1892. The Code owed a great deal to English law and, prior to 1892, the criminal law of England, including its law of sentencing, applied to Canada.
Sentencing is the modern process for determining an appropriate sanction for a crime committed. Sentencing comes in various forms and in various degrees because the fundamental principle under the Criminal Code is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Punishment has been the most common sanction throughout history because people viewed it as a retribution or revenge for the crime. It has a deterrent value as well. It is meant to deliver a message to the individual offender to deter him or her from future crime. It is also meant to be a general deterrence to others who may be contemplating crimes and know that punishment is the end result when caught.
Incarceration, the strictest form of sentencing, removes the criminal risk from society for the period of the sentence. Obvious examples are imprisonment for murderers and sex offenders. But, sentencing may include the positive element of post-offence rehabilitation, not just the negative element of deterrence. Rehabilitation will depend on the nature of the offence committed. Thus, a drunk driving conviction may require the offender to attend programmes on alcohol addiction and abuse. A “John” who is convicted for picking up a police officer posing as a prostitute invariably leads, in Toronto, to a “classroom” programme with other Johns conducted by a former prostitute who explains the world she came from.
As in most areas of the justice system, there is an element of discretion in sentencing which rests heavily on the shoulders of the judge. A judge must consider the many aggravating and mitigating factors in the decided cases when sentencing an offender. Aggravating factors include the brutality of the offence, the use of weapons, and multiple victims or incidents. Mitigating factors include a guilty plea, evidence of remorse, and prior good character.