Sentencing scholarship and sentencing reform in Canada.

A. Manson, The Law of Sentencing. Toronto: Irwin Law, 2001. Pp. 412. [Softcover $39.95 (Cdn.)].

A. Manson, P. Healy & G. Trotter, Sentencing and Penal Policy in Canada: Cases, Materials, and Commentary. Toronto: Emond Montgomery, 2000. Pp. 801. [Hardcover $120.00 (Cdn.)].

Introduction

The appearance (within months of each other) of these two volumes, a new text and a casebook on sentencing, is cause for celebration, and justifies some reflection on the state of sentencing scholarship and training in this country. The volumes share a common author--Professor Allan Manson, for many years Canada's leading sentencing scholar--and a common goal: to offer students of law and other interested parties an up-to-date and succinct summary of the law of sentencing, and sentencing materials, published in a casebook for the first time. His co-authors on the casebook are Professor Patrick Healy from the Faculty of Law, McGill University, and Professor Gary Trotter from the Queen's University Faculty of Law. Together these works provide law professors with all that is necessary to teach a course on the subject. They also fill a long-standing void, by providing a text and companion casebook that incorporate not just a summary of the law of sentencing, but also related topics in the area of penology.

A decade ago there was little point and less need to write a review essay on the moribund state of sentencing scholarship; there was simply too little happening. By 1990 the reports of the Canadian Sentencing Commission (1) and the House of Commons Standing Committee on Justice and Solicitor General (2)--both landmark documents in different ways--were languishing on library shelves. The criminal justice system was awaiting the federal government's response to these two reports. Legal scholars had little to write about, while sentencing scholars in the sociological tradition were hampered by the total absence, believe it or not, of even the most basic sentencing statistics. (3) Articles on sentencing in legal periodicals were conspicuous by their absence, and few, if any, law schools offered sentencing courses.

I. Recent Developments in Sentencing

All this has changed with the inception of statutory sentencing reforms in 1995 and 1996. In 1995 Parliament approved Bill C-68, (4) which created a series of mandatory minimum sentences of imprisonment for a number of offences. For ten offences (including robbery, which alone accounts for a significant number of cases (5)) the mandatory minimum punishment is at least four years in prison if the offence was committed with a firearm.

The mandatory minimum sentences of imprisonment sit uneasily within the statutory framework of sentencing created by Bill C-41, (6) which was proclaimed on 3 September 1996. Sections 718 to 718.2 of the Criminal Code (7) now specify the purpose and principles of sentencing. The principle of proportionality in sentencing has been designated as "fundamental" by Parliament. In addition, Bill C-41 recognizes the importance of a restorative element in sentencing by two provisions. First, the statement of purpose includes restorative considerations in the codified objectives of sentencing. (8) Second, the bill created a new sanction, the conditional sentence of imprisonment, a term of custody …