Deterrent Sentencing: What Role Does it Play in Politically-Charged Cases?

The practical reality of politically charged, media-heavy cases is that sentences will cause members of the public to do a “double take.” These sentences can easily be in excess of what we might ordinarily see for similar crimes but which fly under the radar of the media. But why is that the case?

The sentencing in the Coutts border blockade case in Lethbridge was a reminder of just how serious courts take offences that take place in the public eye. Incidents that are politically charged and involve large-scale protests invariably attract media attention, particularly when charges are laid. It is worth taking a look at why the sentences handed out for two men charged with blocking the border and possessing large quantities of weapons were as lengthy as they were.

Jeremy Newton recently gave his thoughts on the matter to the CBC.

Section 718 of the Criminal Code sets out that sentences have two purposes; they must serve to both denounce unlawful conduct and deter the offender and others from committing offences. These principles of “denunciation and deterrence” are paramount in all Canadian sentencing decisions, but they come to the forefront in cases that attract media attention.

The concept of deterrence is both specific and general – that is, the sentence is meant to tell the offender that their conduct is unacceptable, but it is also meant to warn the public at large that if they choose to engage in certain behaviour, they risk a significant jail sentence. The practical effect of general deterrence is that sentences for a given case may be elevated from what we would ordinarily expect.

Numerous studies have found that general deterrence often does not have the desired effect. (Footnote 1). For many offences such as drug trafficking, where courts are directed by Parliament that the primary objective of sentencing is denunciation and deterrence, this makes sense – people engaged in certain risky behaviour often accept the possibility of jail as the cost of doing business, and for other offences, such as crime-of-passion type assaults, there is rarely time for a person to consider the penal consequences of their actions before committing the offence. As a result, high jail sentences for these offences may well be appropriate, but they may not have the desired effect of influencing the behaviour of members of the public.

However, when the crimes being sentenced are those that are more commonly committed by what would otherwise be law-abiding citizens, general deterrence may well have a role to play. Our Supreme Court has noted that:

“While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinarily law‑abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences. Impaired driving offences are an obvious example of this type of offence”. See R v Lacasse, 2015 SCC 64 at para. 73,

It is also understood that when a case is likely to attract media attention, the concept of general deterrence plays an elevated role. (Footnote 2) Indeed, the Justice in the Coutts blockade decision was clearly aware of the national significance and precedent-setting nature of the case.

Like the lengthy sentences that have been flooding in over the past few months in light of the riots at the US Capitol building on January 6, 2021, it is too early to say if the sentences imposed in Lethbridge yesterday will have the desired effect of deterring the public in general.

Footnote 1 – Donald Ritchie’s paper “Does Imprisonment Deter? A Review of the Evidence” finds that “The evidence from empirical studies of deterrence suggests that the threat of imprisonment generates a small general deterrent effect. However, the research also indicates that increases in the severity of penalties, such as increasing the length of terms of imprisonment, do not produce a corresponding increase in deterrence.” (page 2)

Footnote 2 – R v Latimer, 2001 SCC 1 at para. 86